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Article

Access_open The Casuistry of International Criminal Law: Exploring A New Field of Research

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords international criminal law, judicial reasoning, casuistry, genocide
Authors Marjolein Cupido
AbstractAuthor's information

    International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.


Marjolein Cupido
Marjolein Cupido is Assistant Professor at the Department of Criminal Law at VU University Amsterdam and fellow of the Center for International Criminal Justice.

    Zowel in België als in Nederland komt draagmoederschap voor. Deze bijdrage heeft tot doel om de houding van de twee buurlanden ten aanzien van dit controversiële fenomeen te onderzoeken en te vergelijken.
    De wensouders en draagmoeders ervaren meerdere juridische obstakels. Zo blijkt in beide landen de draagmoederschapsovereenkomst niet geldig en evenmin afdwingbaar te zijn. Hoewel in Nederland de mogelijkheid bestaat om het ouderlijk gezag over te dragen van draagmoeder naar wensouders, is het ook daar, net zoals in België, allesbehalve evident om de band tussen kind en wensouders juridisch te verwezenlijken. Noch de oorspronkelijke, noch de adoptieve afstamming is aan het fenomeen aangepast. Vooral voor Nederland is dit vreemd aangezien de Nederlandse wetgeving uitdrukkelijk bepaalt onder welke voorwaarden medisch begeleid draagmoederschap toegelaten is. De wet schept met andere woorden een gezondheidsrechtelijk kader, maar regelt niet de gevolgen van het draagmoederschap. In België is er daarentegen geen enkele wetgeving betreffende draagmoederschap. Dit betekent dat de onaangepaste wetgeving betreffende medisch begeleide voortplanting van toepassing is op draagmoederschap. Over deze toepassing en de gevolgen ervan bestaat evenwel onduidelijkheid. Commercialisering van draagmoederschap leidt ook tot problemen. In Nederland is professionele bemiddeling en het openbaar maken van vraag en aanbod met betrekking tot draagmoederschap strafbaar gesteld. Daarnaast kunnen de omstandigheden van een zaak waarin het kind als het ware verkocht wordt aan de wensouders zowel in België als in Nederland leiden tot andere misdrijven. Gelet op dit alles begeven sommige wensouders zich naar het buitenland om daar beroep te doen op draagmoederschap. Wensen zij terug te keren met het kind naar het land van herkomst, dan leidt dit in beide buurlanden tot internationaalprivaatrechtelijke problemen.
    Door het gebrek aan een algemeen wettelijk kader, is het draagmoederschapsproces in beide landen vaak een calvarietocht. Dit leidt tot rechtsonzekerheid. Oproepen tot een wettelijk ingrijpen bleven tot nu toe echter onbeantwoord.
    Surrogacy is practiced in Belgium and the Netherlands. The aim of this contribution is to compare the many legal aspects of the phenomenon. In both countries legal problems surround surrogacy: the surrogacy contract is unenforceable; it is difficult for the intended parents to become the legal parents; commercial surrogacy can result in criminal sanctions and cross-border surrogacy leads to limping legal relations. The main differences between the two legal systems are that in Belgium there is no regulation at all, while in the Netherlands, professional mediation and advertising in surrogacy are explicitly forbidden and Dutch law provides a limited health law regulation. In both countries scholars have pressed the need for legal change.


Dr. Liesbet Pluym Ph.D.
Article

Exploring Barriers to Constructing Locally Based Peacebuilding Theory

The Case of Northern Ireland

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords peacebuilding, phronesis, civil society, practice–theory, Northern Ireland
Authors Emily Stanton PhD and Grainne Kelly
AbstractAuthor's information

    This article seeks to explore why, after significant financial investment and a history of nearly 50 years of civil society activity, there is a paucity of explicitly codified and consolidated indigenous theory that has emerged from peacebuilding practice in Northern Ireland. Methodologically, this apparent contradiction is explored, utilizing both empirical research (interviews with key peacebuilders) and the wide practitioner experience of the authors. It is argued that two complex dynamics have contributed to the subordination of local practice-based knowledge, namely, the professionalization of peace and the dominance of research over practice within academia. These two dynamics have played a mutually exacerbatory and significant role in creating barriers to constructing local peacebuilding theory. Phronesis, an Aristotelian term for practical knowledge, is explored to discover what insights it may contribute to both research, theory and practice in the field of peacebuilding, followed by examples of institutions demonstrating its value for practice–theory reflexivity. The article concludes with a call for peace research that validates and values practical knowledge. By doing so, the authors argue, new avenues for collaborative partnership between practitioners and academics can open up, which may play a constructive role in bridging practice–theory divides and, most importantly, contribute to building more effective and sustainable peacebuilding processes in Northern Ireland and in other conflict contexts.


Emily Stanton PhD
Emily Stanton is PhD candidate in the School of Politics, Faculty of Social Science, Ulster University, Northern Ireland. Email: Stanton-E@email.ulster.ac.uk.

Grainne Kelly
Grainne Kelly is Lecturer of Peace and Conflict Studies at the International Conflict Research Institute (INCORE), Ulster University, Northern Ireland. Email: g.kelly@ulster.ac.uk.
Article

Reframing War to Make Peace in Northern Ireland

IRA Internal Consensus-Building for Peace and Disarmament

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords Northern Ireland, intra-group negotiations, disarmament, political transition, IRA
Authors Dr. Benedetta Berti and Ariel Heifetz Knobel
AbstractAuthor's information

    In exploring alternatives to armed struggle, how do non-state armed groups embark on such complex internal discussions, and how do they reframe their worldview and strategy to persuade their militants to support such transition?
    The article tackles this question by examining the internal processes of consensus-building that brought the most prominent militant organization in Northern Ireland – the Provisional Irish Republican Army (IRA) – from violent struggle for independence to non-violent political participation in the political system it had previously fought to expel.
    The study relies on fieldwork and applied research through interviews, conducted in Northern Ireland and Ireland with key stakeholders, ranging from ex-prisoner leaders and former militants to politicians, official negotiators and civil society practitioners who work with various conflict parties on the ground. Historical literature and primary sources are also used, including Sinn Féin and IRA official documents. All primary sources are integrated with the theoretical literature on intra-group consensus-building and discursive reframing.
    The analysis underscores the importance of discursive practices to ensure frame-shift in both the understanding of the conflict (consensus mobilization) and the means chosen to wage it (action mobilization). The case of the IRA further reveals the importance of preserving continuity with an organization’s core ideological pillars as a key mechanism to minimize chances of internal strife, along with enlisting credible supporters from the ‘militant constituency’ – such as former prisoners and/or militants with deep and personal involvement in the group’s armed struggle.


Dr. Benedetta Berti
Dr. Benedetta Berti is a Kreitman postdoctoral fellow at Ben Gurion University, a research fellow at the Institute for National Security Studies (INSS), a lecturer at Tel Aviv University and the author of Armed Political Organizations. From Conflict to Integration. <https://jhupbooks.press.jhu.edu/content/armed-political-organizations>.

Ariel Heifetz Knobel
Ariel Heifetz Knobel is a conflict transformation practitioner, facilitating Track 2 and Track 1.5 initiatives in Israel and the Palestinian Territories, and working with Northern Irish peacemakers to bring best practices to the region. She has served as Public Diplomacy Director for five states at the Israeli Consulate to New England, and as a mediator in Boston’s district courts.
Article

Non-Violent Struggle

The 1992 Kenyan Case Study of the Protective Power and the Curse of Female Nakedness

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords non-violent struggle, dynamics of non-violent struggle, strategic planning in non-violent struggle, protective power of the vulva, curse of female nakedness
Authors Dr. Peter Karari
AbstractAuthor's information

    Non-violent struggle is a technique by which the population can restrict and sever the sources of power of their oppressors while mobilizing their own potentials into effective power. Female nakedness is one type of non-violent action that can be mobilized to facilitate women’s emancipation from gendered-cum-patriarchal oppression, violence and marginalization. A literature review indicates that female nakedness has been used for many centuries around the world to stop wars, ward off enemies, agitate for rights, prevent pests and increase harvests. Studies show that the effectiveness of non-violent struggle requires strategic planning and understanding of the dynamics involved. This article analyses the 1992 women’s nude protest in Kenya aimed at pushing for the release of political prisoners. This study investigates three questions: (1) In what ways was the 1992 women’s nude protest in Kenya a success? (2) What were the struggle’s flaws? (3) What strategic plans and/or dynamics of non-violent struggle could have been employed to make this protest more effective? The findings of this research indicate that: (1) The nude protest was partially a success because it secured the release of all political prisoners and nurtured democratization; (2) the struggle failed to embrace some strategic planning and/or the dynamics of non-violent struggle in addition to hunger strike and female nakedness; and (3) the protest could have been more successful if it embraced particular strategic plans and/or dynamics of non-violent struggle such as negotiation, power relations, prioritization of tactics and methods of non-violent struggle, access to critical material resources and clear monitoring and evaluation strategies.


Dr. Peter Karari
Dr. Peter Karari will be joining Karatina University, Kenya in September 2015 as a faculty member in the school of education and social sciences where he plans to start a department in Peace and Conflict Studies. He is a PhD graduate in peace and conflict studies from the Arthur Mauro Centre for Peace and Justice, University of Manitoba. He also has a Bachelor in Social-Work from the University of Nairobi in Kenya and a Masters in Peace and Conflicts Research from Otto-von Guericke University in Magdeburg Germany. His areas of focus includes; ethnopolitical violence, transitional justice, peacebuilding, conflict-management, conflict-resolution, conflict-transformation, and human rights. His doctoral research was on ethno-political violence, transitional justice, and peacebuilding in Kenya. He has diverse field and work experience with Non-governmental and community based organizations. He was the Country Program Manager of Drug Abuse Education Program Kenya, Project Coordinator Compassion International Kenya, and Chief Executive Officer Kibera Slum Education Program, an Oxfam GB assisted project in Kenya. Peter has served in various capacities as a student leader, community leader, and as a member of the University of Manitoba senate. He has a great passion for the marginalized and the vulnerable people in the society and has greatly been recognized for his community leadership and human rights activism. He is the winner of the 2010 Nahlah Ayed Prize for Student Leadership and Global Citizenship, University of Manitoba; 2010 Paul Fortier Award in Student Activism, University of Manitoba Faculty Association; 2011 University of Manitoba Alumni Award; 2012 University of Manitoba Dean of Graduate Studies Student Achievement Award; and 2014 University of Manitoba Emerging Leaders Award. Apart from mentoring his students to explore new perspectives and ideas that address their inquisitiveness as human beings, Dr. Karari envisions to actively participate in peacebuilding initiatives to make the world a better place for all to live in. He envisions Perpetual Peace in the World!
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.
Article

Transformation of Dispute Resolution in Africa

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords Lagos Court of Arbitration, Mauritius International Arbitration Court, ODR in Africa, Commonwealth States, UNCITRAL Working Group on ODR
Authors Ijeoma Ononogbu
AbstractAuthor's information

    Online Dispute Resolution ODR) is the new frontier in dispute resolution process. There has been an overwhelming positive expectation on the way ODR will work globally and Africa is likely to join the evolving dispute resolution concept.
    In recent years, technology has taken over virtually all aspects of our lives. This is from online shopping, online banking, online education, to online games, the list goes on and on.
    Online dispute resolution has been used in e-mediation and turned out a great success for e-commerce. The emergence of ODR and its successes are notable in eBay, which boasts of resolving over 35 million disputes using its ODR services. Africa as a continent is a goldmine of technological exploration. The success of M-Pesa in East Africa, which uses technology in mobile money transfer is a testament to the advantages and great advancements the continent has made in its use of the vast population of youngsters. With a recommendation, for African legal practitioners to join the global movement.


Ijeoma Ononogbu
Barrister & Solicitor, Nigeria, and Solicitor in International Dispute Resolution, England & Wales.
Article

Members Only?

Online Dispute Resolution in the Kibbutz Society

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords community ODR, Kibbutz, online mediation, online arbitration, dispute system design
Authors Rachel Ran
AbstractAuthor's information

    The rise and fall of the kibbutz society in Israel provides an unique opportunity to examine the application of technology to dispute resolution in a non-traditional setting. The internal dynamics of a small, closed community in an ideological crisis reflect technology’s role not only in undermining existing social order, but also in developing new norms, building consensus and resolving disputes.
    The article describes the nature of disputes in kibbutz communities, which is influenced greatly by the ongoing relationships between the parties, as the lines between co-workers, neighbors, friends and authority figures are blurred. It examines the existing dispute resolutions mechanisms, their formation, their advantages in relation to existing the social norms and their shortcomings, and introduces the concept of online dispute resolution (ODR) in this context.
    Finally, this article applies the advantages of ODR in the traditional, closed-community setting, and suggests additional opportunities for meeting the unique challenges of disputes in the kibbutz society. This merger plays a double role, as it challenges common perception of community disputes, while introducing new and unexpected avenues for the development of ODR.


Rachel Ran
University of Haifa Faculty of Law.
Article

Using Online Arbitration in E-Commerce Disputes

A Study on B2B, B2C and C2C Disputes

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords online arbitration, e-commerce disputes, electronic market exchange
Authors Farzaneh Badiei
AbstractAuthor's information

    This article provides a thorough analysis of the use of online arbitration in online disputes. It first defines online arbitration and provides a categorization of its different kinds. It then establishes which category of online arbitration is more suitable for e-commerce disputes considering the nature of the disputes, the relation between the parties and the parties’ access to technology. It concludes that using binding or non-binding online arbitration depends on the existence of trust between the parties. It then goes on to analyse the extent to which online arbitration can be held on the Internet without using offline mechanisms, and concludes that this is dependent on the nature of the transaction, the parties’ access to technology and the enforcement mechanisms.


Farzaneh Badiei
Farzaneh Badiei is a PhD candidate at the Institute of Law and Economics, Hamburg University. The program is funded by the German Science Foundation. She holds an LLM from Kingston University, UK and was a visiting scholar at Syracuse University School of Information Studies, USA.
Article

Hervormen en herverdelen

Is de links-rechtslijn de enige conflictlijn op het sociaaleconomisch terrein?

Journal Res Publica, Issue 2 2015
Keywords policy positions, economic issues, left-right politics, political space, the Netherlands, scaling
Authors Simon Otjes
AbstractAuthor's information

    This article shows that the economic left/right dimension does not always suffice to understand the social-economic policy positions of political parties. It focuses on social-economic decision-making in the Netherlands in 2012. The increase of the government pension age, which was championed by parties of the left and the right and opposed by parties of the left and the right, is taken as a prime example of an issue where decision-making did not follow the left-right line of conflict. The article continues to show that party policy positions on a number of more important welfare state reforms do not follow the left/right line of conflict, but rather a reform line of conflict that divides parties from the left and the right into pro-European reformers and Eurosceptic defenders of the existing welfare state.


Simon Otjes
Simon Otjes is onderzoeker bij het Documentatiecentrum Nederlandse Politieke Partijen in Groningen. Zijn onderzoek richt zich op politieke partijen, partijsystemen en politieke ruimte in Nederland en in Europa.
Article

The Rule of Law Reform and Judicial Education in Pakistan

Search for a Model

Journal European Journal of Law Reform, Issue 1 2015
Keywords judicial education, rule of law reform, Khyber Pakhtunkhwa, militancy, Pakistan
Authors Khurshid Iqbal
AbstractAuthor's information

    The article investigates the intrinsic and instrumental roles of judicial education in broader contours of the rule of law theory and reform practice in a developing country. It focuses on: firstly, the relationship between judicial education and the rule of law theory and reform practice; secondly, whether and how judicial education can promote the rule of law; and third, the challenges to a successful judicial education in strengthening the rule of law. Examining Pakistan as a case study, the article explores challenges to judicial education in Pakistan and critically assesses Pakistan’s rule of law reform efforts to overcome those challenges. Evidence shows that key challenges to judicial education in Pakistan are lack of a national judicial educational vision and a well thought out policy, coordinated efforts to training needs assessment, curriculum and faculty, research and learning best practices, as means of development and innovation. Of special concern is the role of judicial education in promoting the rule of law to address security issues embedded in (bad) governance. The article finds that in view of its initial limited success, the judicial academy of Pakistan’s terrorism-hit Khyber Pakhtunkhwa (KP) province may play a role model to improve judicial services and thereby help promote the rule of law in a post-conflict society.


Khurshid Iqbal
PhD (Ulster, UK), LLM (Hull, UK), MA Political Science & LLB (Peshawar, Pakistan); Dean of Faculty, the Khyber Pakhtunkhwa Judicial Academy (KPJA); District & Sessions Judge; Adjunct Faculty Member Department of Law, the International Islamic University, Islamabad.
Article

The Penal Law of the Foe Revisited

Politically Overcoming Liberalism or Trivially Regressing to State’s Glorification?

Journal European Journal of Law Reform, Issue 1 2015
Keywords penal law of the foe, normativity, person, imputation, liberalism
Authors Charis Papacharalambous
AbstractAuthor's information

    The ‘Penal Law of the Foe’ has already a long history behind it. The present article examines its basic genealogical sources and deals with the quintessence of the critique exerted against it; it is submitted that the wholesale rejection of the concept betrays that a liberal premise as to political constitution of the commons as well as of the nature of criminal system is falsely taken for granted. Crucial instead seem to be the ambiguity of the spiritual heritage of Enlightenment concerning what personhood can imply for the law discourse as well as the normativity inherent in criminal objective imputation within our post-modern condition. It is argued that the very benefit of the concept lies in its implicit political character. This could possibly make it appropriate for a criminal law policy inspired from a democratic republican spirit and aiming at the protection of the most vulnerable, thus tending to strive against the neo-liberal and anti-social erosion of modern societies. This presupposes however that the authoritarian and politically static elements of the concept be clearly displayed as theoretical shortcomings.


Charis Papacharalambous
Asst. Prof. in Criminal Law, Law Dept., University of Cyprus; PhD in Penal Law and Law Theory (Goethe University, Frankfurt am Main).

Steven Freeland
Western Sydney University, Australia

Ram S. Jakhu
Institute of Air and Space Law, McGill University, Canada
Article

Humanitarian Law Implemented

Space Communication in the Service of International Humanitarian Law

Journal International Institute of Space Law, Issue 2 2015
Authors Mahulena Hofmann and Loren François Florey
Author's information

Mahulena Hofmann
University of Luxembourg, Luxembourg

Loren François Florey
University of Luxembourg, Luxembourg

Michael Potter
International Institute of Space Commerce, USA

    The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.


Matyas Bodig
Dr Matyas Bodig is Senior lecturer at the University of Aberdeen School of Law, Aberdeen, UK.
Article

Access_open Expounding the Place of Legal Doctrinal Methods in Legal-Interdisciplinary Research

Experiences with Studying the Practice of Independent Accountability Mechanisms at Multilateral Development Banks

Journal Erasmus Law Review, Issue 3 2015
Authors Andria Naudé Fourie
AbstractAuthor's information

    There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories.


Andria Naudé Fourie
Research Associate, Erasmus University Rotterdam, School of Law.
Article

Disintegration of the State Monopoly on Dispute Resolution

How Should We Perceive State Sovereignty in the ODR Era?

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, sovereignty, justification
Authors Riikka Koulu LLM
AbstractAuthor's information

    The interests of state sovereignty are preserved in conflict management through adoption of a state monopoly for dispute resolution as the descriptive and constitutive concept of the resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts on its own soil, in other words, in the state’s territorial jurisdiction. This also forms the basis of international procedural law. This conceptual fiction is derived from the social contract theories of Hobbes and Locke, and it preserves the state’s agenda. However, such a monopoly is disintegrating in the Internet era because it fails to provide an effective resolution method for Internet disputes in cross-border cases, and, consequently, online dispute resolution has gained ground in the dispute resolution market. It raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether we should open a wider discussion on possible justificatory constructions of dispute resolution, i.e. sovereignty, contract and quality standards, as a whole, re-evaluating the underlying structure of procedural law.


Riikka Koulu LLM
Riikka Koulu, LLM, trained on the bench, is currently a doctoral candidate in procedural law at the University of Helsinki, Finland.
Article

@ Face Value?

Non-Verbal Communication and Trust Development in Online Video-Based Mediation

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords trust, mediation, non-verbal communication, rapport, technology
Authors Noam Ebner and Jeff Thompson
AbstractAuthor's information

    Mediation is a process wherein a third party, or mediator, attempts to assist two conflicting parties in dealing with their dispute. Research has identified party trust in the mediator as a key element required for mediator effectiveness. In online video-based mediation, the addition of technology to the mix poses both challenges and opportunities to the capacity of the mediator to build trust with the parties through non-verbal communication. While authors researching the field of online dispute resolution have often focused on trust, their work has typically targeted text-based processes. As online dispute resolution embraces video-based processes, non-verbal communication becomes more salient. Non-verbal communication research has identified examples of specific actions that can contribute to trust. This article combines that research with current scholarship on trust in mediation and on non-verbal communication in mediation to map out the landscape mediators face while seeking to build trust through non-verbal communication in online video-based mediation. Suggestions for future research and implications for practice are noted, holding relevance to researchers and practitioners in any field in which trust, non-verbal communication and technology converge.


Noam Ebner
Noam Ebner is Associate Professor and Online Program Chair at the Werner Institute, Creighton University School of Law: 2500 California Pl., Omaha, NE 68178, NoamEbner@creighton.edu

Jeff Thompson
Jeff Thompson is PhD candidate at the Griffith University Law School: 170 Kessels Road, Brisbane, Queensland, Australia 4111, Jeff.Thompson@griffithuni.edu.au.
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
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