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Article

Systems Thinking, Big Data, and Data Protection Law

Using Ackoff’s Interactive Planning to Respond to Emergent Policy Challenges

Journal European Journal of Law Reform, Issue 4 2016
Keywords big data, data protection, data minimization, systems thinking, interactive planning
Authors Henry Pearce
AbstractAuthor's information

    This article examines the emergence of big data and how it poses a number of significant novel challenges to the smooth operation of some of the European data protection framework’s fundamental tenets. Building on previous research in the area, the article argues that recent proposals for reform in this area, as well as proposals based on conventional approaches to policy making and regulatory design more generally, will likely be ill-equipped to deal with some of big data’s most severe emergent difficulties. Instead, it is argued that novel, and possibly unorthodox, approaches to regulation and policy design premised on systems thinking methodologies may represent attractive and alternative ways forward. As a means of testing this general hypothesis, the article considers Interactive Planning, a systems thinking methodology popularized by the organizational theorist Russel Ackoff, as a particular embryonic example of one such methodological approach, and, using the challenges posed by big data to the principle of purpose limitation as a case study, explores whether its usage may be beneficial in the development of data protection law and policy in the big data environment.


Henry Pearce
University of Hertfordshire, Lecturer in law, e-mail: h.pearce@herts.ac.uk.
Article

Space Debris Remediation, Its Regulation and the Role of Europe

Journal European Journal of Law Reform, Issue 1 2016
Keywords space debris, remediation, European Union, European Space Agency, International Code of Conduct for Outer Space Activities
Authors Jan Wouters, Philip De Man and Rik Hansen
AbstractAuthor's information

    Ever since the launch of the first space object, discarded bits and pieces ranging from disused payloads and spent upper stages to single bolts and tiny flakes of paint have been cluttering outer space, making valuable and widely used orbits and trajectories to and from earth increasingly unsafe for future use. The response of the international community to this immediate threat to the sustainable use of outer space has been slow and haphazard and remains limited to non-binding guidelines and technical recommendations for space debris mitigation. Recent events such as the 2007 Chinese ASAT test and the 2009 collision between an active American and an in-operational Russian communications satellite demonstrate that more needs to be done in order to develop a strong international regime on active debris remediation. Given the complexities of these issues and the lengthy nature of international negotiations, one should not expect a comprehensive legal regime for space debris mitigation and remediation to materialize any time soon. As it is in the own interest of its users to preserve outer space for future exploration and use, the regulation of debris mitigation by space agencies may well prove a valuable alternative as a starting point for binding remediation rules. Since new international initiatives in this respect are lacking, the present article looks at the various space actors in Europe and at the role some of them may play in developing global rules of space debris remediation.


Jan Wouters
Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations and Director of the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven.

Philip De Man
Project Manager, Leuven Centre for Global Governance Studies, University of Leuven.

Rik Hansen
Doctoral Researcher at the Leuven Centre for Global Governance Studies and the Institute for International Law of the University of Leuven.
Article

Parliamentary Diplomacy in the United Nations and Progressive Development of Space Law

Journal European Journal of Law Reform, Issue 1 2016
Keywords COPUOS, Legal Subcommittee, law making, agenda, working methods
Authors Tare Brisibe
AbstractAuthor's information

    Recent and on-going efforts by individual or groups of states aim to organize parliamentary mechanisms and substantive issues concerning space law. The article addresses organizational matters of the Legal Subcommittee (LSC) of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and particularly the debate between procedure and substance. The article enquires whether amending the parliamentary process can be expected to yield results in the absence of agreement to proceed on substantive matters. Whilst highlighting the achievements of COPUOS and its LSC in the progressive development and codification of space law, attention is paid to salient decisions concerning organizational matters, taken with respect to the COPUOS and its LSC spanning the period 1990 to 1999 and post 1999 to present. Analysis is undertaken of reasons for presumed decline, alongside current and future perspectives that shall influence COPUOS and its LSC in their respective law making functions.


Tare Brisibe
Barrister & Solicitor of the Supreme Court of Nigeria, Legal Consultant and former Chair of the UN COPUOS Legal Subcommittee for the biennium 2012-2014.
Article

The European Space Agency as a European Institution and a Space Law Maker

Journal European Journal of Law Reform, Issue 1 2016
Keywords European institution, access to space, innovation and development, space law, international cooperation
Authors Marco Ferrazzani
AbstractAuthor's information

    The European Space Agency was set-up over 40 years ago and has delivered on expectations from the scientific community’s quest for more knowledge, from the politicians wishing for more Europe and from the business community developing industrial and operational capabilities. All has been made possible thanks to hard-working scientists and space engineers who created and progressively refined a magic formula of balanced interests and respectful co-operation. The diplomats and lawyers well understood the challenges and so defined long-term policy objectives and a stable legal framework necessary to meet them, therefore providing institutional skills and appropriate financing tools which proved successful, and still today make this particular aspect of Europe. The ESA Convention, along with the activities and programmes based in its framework continue to serve as a living example of how to make Europe with a cooperative formula of a common Agency and law maker, giving access to space for all European citizens.


Marco Ferrazzani
ESA Legal Counsel, European Space Agency, 10 rue Mario Nikis, 75015 Paris. Email: marco.ferrazzani@esa.int.
Article

Criminal Issues in International Space Law

Journal European Journal of Law Reform, Issue 1 2016
Keywords space law, criminal law, international law, jurisdiction, space exploration
Authors Michael Chatzipanagiotis
AbstractAuthor's information

    This paper attempts to outline the rules and principles of international space law governing criminal activity in outer space or on board a space object. The relevant issues concern mainly the exercise of criminal jurisdiction, including extradition, and the disciplinary authority on board a space object. First, we examine the pertinent rules of general international law. Then, we analyse the applicable provisions of general space law, namely the Outer Space Treaty and the Moon Agreement, as well as the special rules on the International Space Station. Subsequently, we attempt to propose solutions to the main future challenges in international space law, which regard criminal behaviour on board aerospace vehicles, aboard private space stations, and issues regarding interplanetary missions and human settlements on celestial bodies.


Michael Chatzipanagiotis
Attorney-at-law, Athens, Greece; Adjunct Professor, European University of Cyprus, Law School, Nicosia, Cyprus.
Article

Peaceful Purposes? Governing the Military Uses of Outer Space

Journal European Journal of Law Reform, Issue 1 2016
Keywords space law, armed conflict, peaceful purposes, space warfare
Authors Steven Freeland
AbstractAuthor's information

    The development of satellite technology to enhance the exploration and use of outer space has continued at a rapid rate ever since the space age began in 1957. Satellites play a vital part of many aspects of daily life, and also with respect to the conduct of armed conflict. Most military leaders regard space-related technology as an integral element of their strategic battle platform. This reflects the changing technological nature of armed conflict, which challenges many aspects of international law, including the regulation of warfare. This is particularly the case with respect to the use of satellite technology. Moreover, the continuing development of this technology challenges the core of the ‘peaceful purposes’ doctrine that underpins the international regulation of outer space. This article discusses the application of the United Nations Space Treaties and the laws of war to the use of outer space during armed conflict and offers some reflections as to what is required to properly address the issue.


Steven Freeland
Professor of International Law, Western Sydney University; Visiting Professor, University of Vienna: Permanent Visiting Professor, iCourts Centre of Excellence for International Courts, Denmark; Member of Faculty, London Institute of Space Policy and Law; Director, International Institute of Space Law; Member of the Space Law Committee, International Law Association; Member, European Centre of Space Law.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Delegated Legislation in Nigeria: The Challenges of Control

Journal European Journal of Law Reform, Issue 3 2015
Keywords delegated legislation, parliament, control, quality, parliamentary scrutiny
Authors Jemina Benson LL.M
AbstractAuthor's information

    In considering how society generally is regulated, most times focus is always on Acts of parliament that are passed by the legislative arm of government. However, delegated legislation is another aspect of law making that is of immense importance for the regulation of any given society. This form of lawmaking being a deviation from the norm has some challenges in terms of control. This article seeks to examine some of these challenges emphasising that adequate parliamentary scrutiny will prevent the harbouring of bad-quality legislation.


Jemina Benson LL.M
Jemina Benson LL.M (University of London) is a legislative drafter for Rivers State House of Assembly in Nigeria. Email: jeminabenson@yahoo.com.

    Statutory interpretation is quickly becoming the primary function of our courts. Ambiguity, unexpected scenarios, and drafting errors in legislation compound this challenging task, obliging many judges to turn to debate transcripts and other legislative materials in search of our elected representatives’ intent.
    Legislatures are intrinsically the products of the societies that create them, however, with each possessing a diverging structure and rules of procedure. These institutional differences affect bills’ drafting, consideration, and passage, and represent the mechanical process of how legislative bargains are translated into binding statutory text.
    Through the lenses of the United Kingdom Parliament and the United States Congress, the fundamental logic behind these institutions’ legislative bargains will be explored, assessing the impact of procedure and the interests that shape the enacting process. Parliamentary tradition emphasizes the foundational role of Her Majesty’s Government in managing virtually all legislation, maintaining a unity of purpose without compromise, amendment, or purposefully ambiguous provisions. Conversely, unique procedures and the multiplicity of veto players within Congress necessitates that compromise is a de facto requirement for passage. The diverging logic behind these legislative bargains offers powerful evidence that institutional characteristics have a dispositive impact on the utility of legislative materials in statutory interpretation.


Chris Land
Juris Doctor Student, 2016, University of Minnesota Law School. LL.M., with distinction, Institute of Advanced Legal Studies, University of London; B.S., summa cum laude, Florida State University.
Article

Financial Crime Prevention and Control

The Reforms of a ‘Unique’ Jurisdiction under EU Law and International Standards

Journal European Journal of Law Reform, Issue 4 2015
Keywords Vatican financial system, money laundering, terrorist financing, 3rd AMLD, FATF Recommendations
Authors Francesco De Pascalis
AbstractAuthor's information

    Between 2011 and 2014, the Vatican City State (VCS) experienced a reform process which dramatically changed its financial system. The process is still ongoing, and its goal is to establish an anti-money laundering and counter-terrorism financing (AML/CTF) system. Importantly, this system will be based on the AML/CTF EU legislation and international standards. These facts are noteworthy. First, the reforms cast light on the main Vatican financial institutions against the background of the secrecy that has always characterized their functioning and business operations. Accordingly, there is now more transparency and information about the Vatican financial system. Second, the relevant EU law and international standards are tools through which the VCS can, for the first time, join an international network of countries, sharing and applying the same rules against money laundering (ML) and terrorist financing (TF). This is of extraordinary importance for a jurisdiction like the VCS, which has never referred to European or international principles in its rule-making. In particular, the openness to EU law and international standards stimulates investigating the reasons behind these changes and the impact that these sources of law are having on a jurisdiction regarded as ‘unique’ in the world.


Francesco De Pascalis
PhD in Law, Institute of Advanced Legal Studies University of London; Research Fellow, University of Zurich, Law Faculty. All errors and omissions remain the author’s.
Article

Corruption and Controls

Journal European Journal of Law Reform, Issue 4 2015
Keywords corruption, controls, inspections, administration, regulation
Authors Maria De Benedetto
AbstractAuthor's information

    Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour.
    Alongside criminal investigation, administrative controls and administrative investigation should be considered crucial because they intervene at early stages, when corruption has been developing, allowing real prevention.
    This article analyses some points that we should remember in order to connect controls and corruption correctly: first of all, controls have a hybrid nature: not only are they a way to combat or prevent corruption but also they are real occasions for corrupt transactions; furthermore, controls are a cost and administrative capacity of control is limited; moreover, planning controls is not a simple task; and finally, sanctions following controls must be effective in order to deter.
    The article also analyzes what is needed in matters of corruption controls, with special reference to good rules (aiming at a legal system with fewer but better rules, rules which work as incentives, rules capable of designing good institutions). There is also a need for good practices (in order to improve the understanding of corruption processes, to reduce controls, to cooperate in investigating cases of corruption).
    Finally, the article warns about the fact that corruption controls produce more bureaucracy and that early detection of corruption would mean, in this perspective, to make a diagnosis of ‘corruptibility’ starting from rules.


Maria De Benedetto
Full Professor, Roma Tre University.
Article

Commonalities in the English Tort and French Criminal Wrong of Defamation

Journal European Journal of Law Reform, Issue 4 2015
Keywords defamation, tort, crime, comparative, path dependence
Authors Mathilde Groppo
AbstractAuthor's information

    This article considers the extent to which the nature of the regulation – tortious or criminal – influences the substantive content of the rules in England and France. It argues that the English and French regulatory features are the result of path dependence. Consequently, while they have led to substantive differences, they do not prevent the emergence of a shared approach to the wrong.


Mathilde Groppo
PhD Candidate, King’s College London.
Article

The Incorporation of Intentional Parentage by Female Same-Sex Couples into National Parentage Laws

A Comparison between Danish and Dutch Law

Journal European Journal of Law Reform, Issue 2 2015
Keywords same-sex parentage, family law, comparative law
Authors professor Christina G. Jeppesen de Boer and professor Annette Kronborg
AbstractAuthor's information

    The incorporation of intentional parentage by female same-sex couples in Danish and Dutch law in 2013 has taken place on the premises of the existing parentage law. In Dutch law, the second mother may automatically become the legal parent (formal relationship – anonymous donor) or she may become the legal parent in all other situations by recognition with consent of the mother. In Danish law, the second mother’s parentage may be established in a simple registration procedure, if she has consented to the act of assisted reproduction prior to treatment. When use has been made of a known donor there is no direct presumption favouring the known donor or the second mother in either country. Danish law provides a contractual understanding to be made prior to treatment while Dutch law depends upon the initiative of the parties and to whom the mother gives consent to recognition – with subsequent discretionary power of the court to modify the result. The main difference we associate with a systemized specific legislative approach (Denmark) and discretionary powers of the court to correct the outcome (the Netherlands).


professor Christina G. Jeppesen de Boer
C.G. Jeppesen de Boer is a legal researcher and assistant professor at the University of Utrecht, Molengraaff Institute for Private Law associated with UCERF (Utrecht Centre for European Research into Family Law).

professor Annette Kronborg
A. Kronborg is a legal researcher and associate professor at the University of Copenhagen associated with the Centre for Studies in Legal Culture.
Article

Identifying the Impetus behind the Europeanization of the Private International Law Rules on Family Matters and Succession

Journal European Journal of Law Reform, Issue 2 2015
Keywords area of freedom security and justice, EU citizenship, free movement of persons, international family matters, international succession
Authors Jacqueline Gray PhD
AbstractAuthor's information

    The EU is currently in the midst of unifying the private international law rules on family matters and succession. This article seeks to explain this expansion into essentially non-economic territory. In order to do so, it presents the ideological, problem-based, and legal considerations that appear to lie at the heart of legislative action in these fields. However, as will become apparent, it is the role of the Member States that is crucial in guiding this process.


Jacqueline Gray PhD
PhD Candidate, Utrecht Centre for European Research into Family Law, Utrecht University.
Article

Consolidating Family Law in Kenya

Journal European Journal of Law Reform, Issue 2 2015
Keywords family law, matrimonial, marriage, equality, reform
Authors Dr. Lucyline Nkatha Murungi
AbstractAuthor's information

    Following the adoption of a new Constitution in 2010, Kenya embarked on an extensive process of law reform in order to give effect to the provisions of the Constitution. Accordingly, in 2014, two main statutes were adopted in the area of family law: the Matrimonial Property Act and the Marriage Act. In addition, parliamentary discussion of a Bill on domestic violence was underway as of March 2015. The main outcome of the Marriage Act is the consolidation of family laws that were previously covered in multiple statutes, customary law, and common law in one Act. The Matrimonial Property Act is the first Kenyan legislation on the subject, and is therefore a critical development in Kenya’s family law. The new family laws embrace a number of significant developments at the national and international levels in relation to matrimonial relations. However, the new laws also raise concerns in a number of areas of family law including; the equality of men and women in marriage, the capacity of persons with disabilities to consent to marriage, the rights of spouses to matrimonial property, kinds of marriage, and registration of marriages. This article discusses the approach of these laws to selected issues in marriage and matrimonial property, and highlights areas of concern in this regard.


Dr. Lucyline Nkatha Murungi
Dr. Murungi is a Kenyan national, an advocate of the High Court of Kenya, and a researcher in human rights with a keen focus on children and disability rights. She holds a Master of Laws in human rights from the University of Pretoria and a Doctorate in Law from the University of the Western Cape (UWC), South Africa. Dr. Murungi is currently the Head of the Children and the Law Programme at the African Child Policy Forum (ACPF) based in Addis Ababa – Ethiopia, and a Research Fellow of the Community Law Centre, UWC.
Article

Care in Family Relations

The Case of Surrogacy Leave

Journal European Journal of Law Reform, Issue 2 2015
Keywords EU law, case law, surrogacy, leaves, reconciliation of work
Authors Dr. Susanne Burri
AbstractAuthor's information

    The advance of reproductive technologies, like surrogacy arrangements, confronts courts with new demands and dilemmas. This contribution analyses the potential of EU law towards a better and more balanced reconciliation of work, private and family life when no national law applies. In two recent cases of the Court of Justice of the EU on leave for surrogacy mothers, the Advocates General Kokott and Wahl published diverging opinions on similar prejudicial questions of national courts. These opinions illustrate some difficulties in applying the EU concept of equality and interpreting the scope of relevant EU law on leaves. The Court followed a cautious approach, which is not surprising given the lack of consensus on surrogacy arrangements in the member states and their legal implications. Developments in society and technologies in relation to motherhood, fatherhood and parenthood give rise to new legal questions. However, the existing EU legal instruments in this field were not designed to address questions such as for example surrogacy leave for commissioning mothers and fathers. A modernisation of the EU instruments in the light of societal, technological and legal developments in the member states would provide an opportunity to remedy some gaps in the existing EU legal framework on reconciliation issues. In a society where participation in the labour market of both women and men is increasing and getting more balanced, the need to address care of children, older people and disabled people becomes more urgent.


Dr. Susanne Burri
Dr. Susanne Burri is Associate Professor at the School of Law of Utrecht University and specialist co-ordinator for gender equality law of the European network of legal experts in gender equality and non-discrimination.
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).
Article

Extra-Marital Children and Their Right to Inherit from Their Fathers in Botswana

A Critical Appraisal

Journal European Journal of Law Reform, Issue 1 2015
Keywords extra-marital children, inheritance, fathers, Botswana, human rights
Authors Obonye Jonas
AbstractAuthor's information

    Despite the fact that in recent years a number of states have extended to non-marital children many of the legal rights previously exclusively granted to legitimate children, Botswana still denies non-marital children a wide constellation of their basic rights. One such area where the rights of non-marital children are violated in Botswana is inheritance. In terms of the law of succession of Botswana, extra-marital children have no real legal rights to inherit from and through their father, both at customary law and Common Law. This article discusses and analyses the rule that excludes non-marital children from inheriting from and through their fathers under the two systems of laws. Its central claim is that this rule is antithetical to extra-marital children’s rights to equality, non-discrimination, and dignity. The article argues that the rule is devoid of social currency, has no place in a democratic society, and must be abolished.


Obonye Jonas
LL.B (UB), LL.M (Pretoria), Senior Lecturer, Law Department, University of Botswana & Practising Attorney with Jonas Attorneys. E-mail: jonas15098@yahoo.co.uk or obonye.jonas@mopipi.ub.bw.
Article

Goodwill/Intangibles Accounting Rules, Earnings Management, and Competition

Journal European Journal of Law Reform, Issue 1 2015
Keywords fraud, mergers and acquisitions, Games economic psychology, regulation, goodwill and intangibles
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    Intangible assets account for 60%-75% of the market capitalization value in most developed stock markets around the world. The US GAAP and IFRS Goodwill and Intangibles accounting regulations (ASC 805, Business Combinations; ASC 350, Goodwill and Intangible Assets; IFRS-3R, Business Combinations; and IAS 38, Accounting for Intangible Assets) are inefficient and create potentially harmful psychological biases. These regulations facilitate earnings management and money laundering, reduce competition within industries, and are likely to increase the incidence of fraud and misconduct. This article introduces a new goodwill/intangibles disclosure/accounting model that can reduce the incidence of fraud, information asymmetry, moral hazard, adverse selection, and inaccuracy. The article also introduces new economic psychological theories that can explain fraud, misconduct, and non-compliance arising from the implementation of the goodwill/intangibles accounting rules.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. Emails: mcn2225@aol.com; mcn111@juno.com. Phone: 234-909-606-8162.
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