Laws | December 2019 - Browse Articles

18 pages, 255 KiB

Open AccessArticle

Feminist Interventions in Law Reform: Criminalising Image-Based Sexual Abuse in New South Wales

by Kcasey McLoughlin and Alex O’Brien

Laws 2019, 8(4), 35; https://doi.org/10.3390/laws8040035 - 09 Dec 2019

Cited by 2 | Viewed by 6248

Feminist legal theorists have had something of an uneasy relationship with law reform. Although feminist academics and lawyers have contributed much to law reform efforts that have sought to improve women’s lives, feminists have nonetheless taken divergent positions regarding the extent to which [...] Read more.

Feminist legal theorists have had something of an uneasy relationship with law reform. Although feminist academics and lawyers have contributed much to law reform efforts that have sought to improve women’s lives, feminists have nonetheless taken divergent positions regarding the extent to which these efforts can truly dismantle the masculinist character of law through law reform projects. This article revisits these tensions and, in so doing, seeks to better understand the extent to which feminists can meaningfully contribute to law reform projects. The criminalisation of image-based sexual abuse in New South Wales (Australia) serves as a case study to examine and re-examine these tensions. In September 2016, the New South Wales government announced that it was proposing to criminalise the distribution of certain images without consent. Following a public consultation process, the government legislated for a new offense directed at the distribution of these images. Although there is certainly not one all-encompassing feminist understanding of image-based sexual abuse, the importance of understanding this practice as abuse and as existing within a culture that normalises and sustains nonconsensual activity nonetheless has been a key feminist concern in agitating for law reform in this area. This article examines the extent to which the legislative response took seriously the harms engendered by image-based sexual abuse. Full article

(This article belongs to the Special Issue Feminist Legal Theory in the 21st Century)

14 pages, 234 KiB

Open AccessArticle

Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders

by Karen O’Connell

Laws 2019, 8(4), 34; https://doi.org/10.3390/laws8040034 - 05 Dec 2019

Cited by 5 | Viewed by 5426

Abstract

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law [...] Read more.

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the “intersectionality” section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered “disordered” and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work. Full article

(This article belongs to the Special Issue Feminist Legal Theory in the 21st Century)

16 pages, 276 KiB

Open AccessArticle

‘Endlessly Valuable’ Discursive Work—Intimate Partner Femicide, an English Case Study

by Adrian Howe

Laws 2019, 8(4), 33; https://doi.org/10.3390/laws8040033 - 28 Nov 2019

Cited by 4 | Viewed by 3474

Abstract

Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work [...] Read more.

Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work has been rewarded with the implementation of reforms in several anglophone jurisdictions that have abolished or curtailed that defence. This article focuses on the revolutionary impact of the reform implemented in England and Wales. It argues for the continuing purchase for feminist legal scholars of a methodology championed by Carol Smart in her seminal 1989 text, Feminism and the Power of Law. She counselled feminist law scholars to read law as a site for contesting law’s truth about gendered relationships. This methodology has not only been critical in exposing the misogyny and injustice embedded in traditional provocation by infidelity defences; it also enables researchers to chart shifts in law’s discursive constitution of truth in the post-reform era. Full article

(This article belongs to the Special Issue Feminist Legal Theory in the 21st Century)

17 pages, 904 KiB

Open AccessArticle

Comparison of Water Resources Policies between Brazil and Italy

by Antônio Pasqualetto, Diego Lo Presti, Massimo Rovai and Aldo Muro

Laws 2019, 8(4), 32; https://doi.org/10.3390/laws8040032 - 27 Nov 2019

Cited by 2 | Viewed by 4417

Abstract

The growing need for water has pressured society and governments to focus more on preservation, planning and management of this natural resource, which is fundamental to ecosystems, especially to humans. Therefore, the goal of this study was to analyze the national policies of [...] Read more.

The growing need for water has pressured society and governments to focus more on preservation, planning and management of this natural resource, which is fundamental to ecosystems, especially to humans. Therefore, the goal of this study was to analyze the national policies of water resources in Brazil and Italy, searching for aspects that could promote improvement, aiming at the preservation of water sources, guaranteeing satisfactory quantity and quality. In 2019, studies were carried out by environmental agencies of both countries, listing the main disciplinary regulations. Results show that although both countries have different realities, they have similarities in managerial aspects of water resources, with legislation addressing qualitative and quantitative aspects of water, with guiding principles, instruments and actions aimed at the defense of this natural resource. Full article

(This article belongs to the Section Environmental Law Issues)

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23 pages, 296 KiB

Open AccessArticle

Human Rights of Children in the Context of Migration Processes. Innovative Efforts for Integrating Regional Human Rights Standards in the Americas

by Alejandro Fuentes and Marina Vannelli

Laws 2019, 8(4), 31; https://doi.org/10.3390/laws8040031 - 22 Nov 2019

Cited by 4 | Viewed by 4202

Abstract

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide [...] Read more.

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide an effective protection to unaccompanied children that enter irregularly into the territory of a given country, when the safeguards guaranteed at the national level are elusive or inefficient? By focusing on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in recent years, this paper intends to unveil how a systemic integration of children’s rights, under the light of the current international law developments, could provide an effective protection for the rights of children in the context of migration processes. In fact, as a result of an evolutive, dynamic and effective interpretation, the regional tribunal has expanded the scope of protection of the American Convention on Human Rights, by taking into consideration and making known, references to instruments and provisions enshrined within the corpus juris of international human rights law, such as the UN Convention of the Rights of the Child, and—consequently—improving the level of protection of millions of children in the Americas. Full article

(This article belongs to the Special Issue Migrants and Human Rights Protections)

18 pages, 313 KiB

Open AccessArticle

International Law and European Migration Policy: Where Is the Terrorism Risk?

by Didier Bigo and Elspeth Guild

Laws 2019, 8(4), 30; https://doi.org/10.3390/laws8040030 - 18 Nov 2019

Cited by 3 | Viewed by 5821

Abstract

This article examines how international law in form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this [...] Read more.

This article examines how international law in form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this to national law. Instead, the intersection of national security—most commonly in the form of concerns about terrorism and migration—takes place in political discourse, which acts as a passerelle for various types of state violence against people classified or suspected of being migrants. We examine this mechanism that we call an insecurity continuum driven by the politics of fear in a European context. This is a politics that takes place outside of international law but has the effect of limiting access by individuals to international law protections, particularly in the case of people who claim international protection against persecution or torture. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

10 pages, 224 KiB

Open AccessArticle

The Protection of Fashion Shows: An Uncharted Stage

by Elena Varese and Valentina Mazza

Laws 2019, 8(4), 29; https://doi.org/10.3390/laws8040029 - 17 Nov 2019

Viewed by 7413

Abstract

The history of fashion shows goes back more than a century, and over the years, catwalks have gone from being private sales channels for a few wealthy customers to pure entertainment shows promoted globally. In this article, we analyze both national and international [...] Read more.

The history of fashion shows goes back more than a century, and over the years, catwalks have gone from being private sales channels for a few wealthy customers to pure entertainment shows promoted globally. In this article, we analyze both national and international laws dealing with the protection of fashion shows in order to establish how fashion shows could be protected under intellectual property laws in Italy, with specific regard to copyright. The possibility for fashion shows to access copyright protection opens up a list of interesting questions: Who is the author of the work? Are models to be considered as performers? This scenario gets even more complicated if we consider how fashion shows have been changing in the last few years, turning to new technologies such as holograms, augmented reality, and drones. Further, copyright protection could be accompanied by further tools, such as registered or unregistered designs for the single elements of a scene and choreography or unfair competition if the general look and feel of a former fashion show has been slavishly imitated. A final section of this article is dedicated to the use of cultural heritage and historical museums, which are increasingly chosen by fashion houses for the settings of their shows. Full article

(This article belongs to the Special Issue The New Frontiers of Fashion Law)

4 pages, 178 KiB

Open AccessEditorial

Cultural Expertise: An Emergent Concept and Evolving Practices

by Livia Holden

Laws 2019, 8(4), 28; https://doi.org/10.3390/laws8040028 - 08 Nov 2019

Cited by 3 | Viewed by 3257

Abstract

This introduction provides a snapshot on cultural expertise as an emergent concept in the socio-legal studies and evolving practices in the formulation of rights and the resolution of conflicts in and out of court. It starts with the definition of cultural expertise and [...] Read more.

This introduction provides a snapshot on cultural expertise as an emergent concept in the socio-legal studies and evolving practices in the formulation of rights and the resolution of conflicts in and out of court. It starts with the definition of cultural expertise and the need for an integrated and broad conceptualization that includes all the arrays of socio-legal instruments that use knowledge from the social sciences to assist decision-making authorities in the settlement of conflicts. It then mentions the wide span of fields of cultural expertise going from the recognition of the rights of autochthone minorities and the First Nations to the politics of cultural expertise in modern reformulations of customs, vis-à-vis gender rights, including the revisitation of socio-legal instruments such as the cultural test and the scrutiny of psychiatric evaluation in criminal trials. It concludes by offering short descriptions of the papers included in the Special Issue, which include judicial practices involving cultural experts and surveys of the most frequent fields of expert witnessing that are related to the culture. In addition, it interrogates who the experts are; how cultural expert witnessing has been received; how cultural expertise has developed across the sister disciplines; and finally, it asks whether academic truth and legal truth are commensurable. Full article

(This article belongs to the Special Issue Cultural Expertise: An Emergent Concept and Evolving Practices)

13 pages, 239 KiB

Open AccessArticle

Circular Economy and Waste in the Fashion Industry

by Valentina Jacometti

Laws 2019, 8(4), 27; https://doi.org/10.3390/laws8040027 - 31 Oct 2019

Cited by 41 | Viewed by 38697

Abstract

The fashion industry has to play an important role in the path towards sustainability and the circular economy. Indeed, the fashion industry is a sector with a high environmental impact; it involves a very long and complicated supply chain, which is associated with [...] Read more.

The fashion industry has to play an important role in the path towards sustainability and the circular economy. Indeed, the fashion industry is a sector with a high environmental impact; it involves a very long and complicated supply chain, which is associated with large consumption of water and energy, use of chemical substances, water and air pollution, waste production and finally microplastic generation. In particular, textiles and clothing waste has become a huge global concern. Against this background, this paper aims at analysing the existing EU measures that have an impact on the development of sustainable practices and the transition to a circular economy in the fashion industry, with a particular focus on the EU revised legislative framework on waste adopted within the Circular Economy Action Plan of 2015. Full article

(This article belongs to the Special Issue The New Frontiers of Fashion Law)

10 pages, 250 KiB

Open AccessArticle

Ronald Reagan, the Modern Right, and…the Rise of the Fem-Crits

by Paul Baumgardner

Laws 2019, 8(4), 26; https://doi.org/10.3390/laws8040026 - 26 Oct 2019

Cited by 2 | Viewed by 4315

Abstract

Activists and academics are returning to the 1980s for clues and context concerning the modern Right in the United States, oftentimes with the hope of deriving insights that can be wielded against the legal agenda of the Trump administration. This is a worthwhile [...] Read more.

Activists and academics are returning to the 1980s for clues and context concerning the modern Right in the United States, oftentimes with the hope of deriving insights that can be wielded against the legal agenda of the Trump administration. This is a worthwhile historical endeavor, which must not ignore the essential position of feminist legal theorists. This article reveals the foundational role of feminist critical legal scholars, or “Fem-Crits”, to the progressive resistance against conservative legal thought during the 1980s. By highlighting the work of Fem-Crits in the academy and within the critical legal studies movement, this article identifies the Fem-Crits as a valuable source of movement inspiration and theoretical influence for leftist law professors, lawyers, and activists in the twenty-first century. Full article

(This article belongs to the Special Issue Feminist Legal Theory in the 21st Century)

47 pages, 632 KiB

Open AccessArticle

Protected Groups in Refugee Law and International Law

by Joseph Rikhof and Ashley Geerts

Laws 2019, 8(4), 25; https://doi.org/10.3390/laws8040025 - 22 Oct 2019

Cited by 3 | Viewed by 6535

Abstract

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly [...] Read more.

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

9 pages, 219 KiB

Open AccessArticle

Slow Fashion in a Fast Fashion World: Promoting Sustainability and Responsibility

by Mark K. Brewer

Laws 2019, 8(4), 24; https://doi.org/10.3390/laws8040024 - 09 Oct 2019

Cited by 31 | Viewed by 106339

Abstract

Through its rapid production methods that supply the latest catwalk styles almost instantaneously to the high street, the fast fashion model has revolutionized the fashion industry, while generating a significant carbon footprint and a host of social concerns. Yet, the law is either [...] Read more.

Through its rapid production methods that supply the latest catwalk styles almost instantaneously to the high street, the fast fashion model has revolutionized the fashion industry, while generating a significant carbon footprint and a host of social concerns. Yet, the law is either slow or ineffective in promoting sustainability in a world obsessed with image and social connectivity, while outdated notions of companies continue to dominate the legal academy. This chapter initially examines the fashion industry’s environmental footprint. Then, it examines the rise of the fast fashion model and law’s inadequacy to prevent the model from undermining intellectual property rights or effectively address the model’s detrimental impact on environmental and social sustainability. The chapter then challenges traditional notions of corporate personality, calling for more responsible corporate behavior and greater legal scrutiny. Finally, the chapter considers various issues to enhance ethical behavior in companies, arguing that the slow fashion movement provides an alternative paradigm to the fast fashion model, since the slow fashion movement connects suppliers and producers more closely with consumers, thereby enhancing sustainability and corporate responsibility. Full article

(This article belongs to the Special Issue The New Frontiers of Fashion Law)

19 pages, 287 KiB

Open AccessArticle

The Ethical Consumer and Codes of Ethics in the Fashion Industry

by Rossella Esther Cerchia and Katherine Piccolo

Laws 2019, 8(4), 23; https://doi.org/10.3390/laws8040023 - 24 Sep 2019

Cited by 23 | Viewed by 26506

Abstract

Sustainability is a central challenge of the fashion industry. In an era where Internet and social networks allow information to spread quickly, more consumers are familiar with the call for “ethical fashion” as disasters such as Rana Plaza resound worldwide. However, consumers interested [...] Read more.

Sustainability is a central challenge of the fashion industry. In an era where Internet and social networks allow information to spread quickly, more consumers are familiar with the call for “ethical fashion” as disasters such as Rana Plaza resound worldwide. However, consumers interested in buying “ethical” clothing could have a hard time orienting themselves amongst the abundance of brands claiming to be ethical on the market. Consumers might make purchasing decisions based on their knowledge of a brand. In this context, it is imaginable that corporate social responsibility (CSR) communications, including codes of ethics, could constitute one way a consumer can learn more about a company’s values. These codes may serve a variety of purposes—they are undoubtedly one of the ways a brand communicates its commitment to ethical principles. Indeed, by analyzing the codes of ethics of some of the industry’s well-known brands, it is evident that they primarily focus on employment and workers’ rights (including equality and discrimination issues), labor safety standards, bribery and anti-corruption, counterfeiting and unfair business practices, as well as respect for (and sometimes improvement of) the environment. A company’s code of ethics is also a powerful tool for improving brand image by adopting a code that responds to the issues that consumers care about. It is therefore necessary to distinguish between companies that are truly ethical and those that merely appear so. In order to protect consumer confidence in such documents, a fil rouge across legal systems may be found (although the specific characteristics may vary greatly) in the laws that protect consumers from misleading advertising. Full article

(This article belongs to the Special Issue The New Frontiers of Fashion Law)

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