Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.

In May 2017, the Ogiek indigenous community of Kenya successfully challenged the denial of their land and associated rights before the African Court of Human and Peoples Rights (‘the Court’). In the first indigenous peoples’ rights case considered the Court, and by far the largest ever case it has had to consider, the Court found violations of Articles 1, 2, 8, 14, 17 (2) and (3), 21 and 22 of the African Charter on Human and Peoples’ Rights (‘the African Charter’). It therefore created a major legal precedent. In addition, the litigation itself and Ogiek’s participation in the various stages of the legal process provided a model for community engagement, through which the Ogiek were empowered to better understand and advocate for their rights. This article will first explain the history of the case and the Court’s findings, and then move on to examine in further detail methods employed to build the Ogiek’s capacity throughout, and even beyond, the litigation.

This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.

The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.

This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.

The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.

The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.

This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.

Canada has a complex system of courts that seek to serve Canadians in view of the traditional objectives of civil justice – principally accessibility, efficiency, fairness, efficacy, proportionality and equality. The Canadian court system is generally considered by its users to work well and to have legitimacy. Yet, researchers have found that ‘there is a tendency for people involved in a civil case to become disillusioned about the ability of the system to effect a fair and timely resolution to a civil justice problem’. This article will discuss the ways in which reforms of procedural law and civil justice have originated and continue to be made throughout Canada, both nationally and provincially, as well as the trends and influences in making these reforms. With hundreds of contemporary procedural reforms having been discussed, proposed and/or completed since the first days of Canadian colonisation on a national basis and in the Canadian provinces and territory, providing a detailed analysis will prove challenging. This article will nonetheless provide a review of civil justice and procedural reform issues in Canada, focusing principally, at the provincial level, on the systems of Ontario and Quebec. Importantly, I will seek to reconcile the increasing willingness to have an economically efficient civil justice and the increased power of judges in managing cases, with our court system’s invasion of ADR and its prioritisation of informal modes of adjudication.

Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.

The theory of retribution is a central tenet in Malawian sentencing jurisprudence. Courts have given expression to retribution in various ways, most conspicuously through the recognition of the principle of proportionality as the most important principle in sentencing. Retribution has permeated courts’ consideration of certain sentencing factors such as the seriousness of the offence, family obligations and public opinion. Overall, retribution rightly plays a pivotal role in Malawian sentencing jurisprudence by elevating the principle of proportionality to the most important principle in sentencing. Malawian courts have also noted that whether in pursuit of retribution or utilitarianism, the ultimate objective is to arrive at a sentence that is just and fair in relation to the crime and the offender. This also ensures that the sentence imposed does not offend the prohibition of cruel, inhuman and degrading punishment.

The international tax landscape is changing and it is changing fast. The political perception is that taxation of multinational enterprises is not aligned with the ‘economic activity’ that produces their profits (i.e. not aligned with ‘value creation’). The perception links ‘value creation’ with ‘employees and sales’.
In the BEPS Project of the OECD, the OECD attempts to combat base erosion and profit shifting and to align taxation with value creation. In this article, the authors discuss the impact they expect BEPS to have on tax advisory and tax planning. The focus goes to BEPS Actions 7, 8-10 and 13.
By maintaining the separate entity approach under BEPS for the taxation of multinationals, has the OECD been forced to ‘stretch’ existing rules beyond their limits? Will the created uncertainty lead to a shift from ‘aggressive tax planning’ by multinationals to ‘aggressive tax collection’ by tax administrations? Will the role of tax advisory change from advising on the lowest possible effective tax rate to a broader advice including risk appetite and public expectations?

The aim of this article is to examine the differences in perception of ‘fairness’ between developing and developed countries, which influence developing countries’ willingness to embrace the Base Erosion and Profit Shifting (BEPS) proposals and to recommend as to how to overcome these differences. The article provides an introduction to the background of the OECD’s BEPS initiatives (Action Plan, Low Income Countries Report, Multilateral Framework, Inclusive Framework) and the concerns of developing countries about their ability to implement BEPS (Section 1); a non-exhaustive overview of the shortcomings of the BEPS Project and its Action Plan in respect of developing countries (Section 2); arguments on why developing countries might perceive fairness in relation to corporate income taxes differently from developed countries (Section 3); and recommendations for international organisations, governments and academic researchers on where fairness in respect of developing countries should be more properly addressed (Section 4).

This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control.

This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.

After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany.

In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough.

France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.

Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.

People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.