Law

First Prize - JPAID Outstanding Publication Prize - 2015

Despite the widely accepted relationship between quality
primary education and sustainable, equitable development, two of
the world’s fastest-growing democracies—India and Brazil—
continue to trail their regional and economic peers in basic learning
outcomes. Using a supply and demand framework, this article
identifies six institutional factors that we hypothesize may have
been determinative in shaping education outcomes in both
countries: actual popular demand, availability of information about
public education quality, impact of private school alternatives,
financial allocations, incentive structures for educational
personnel, and the influence of political institutions on the
responsiveness of public leaders. Our analysis reveals the
interrelationships among these six factors and their connections to
broader economic, political, social, and historical realities in each country. We conclude by identifying central elements of public
accountability mechanisms that seem to be the most appropriate
institutional venues to create and maintain the type of sustained,
focused public pressure necessary to achieve lasting improvements
to access and quality.

This paper concerns how legal mechanisms intended to address domestic violence (DV) can be better designed to adequately consider its gendered impacts and complexity. I analyze two traditional legal approaches to DV: a focus on women-only mechanisms and a gender-neutral approach.  I then analyze two jurisdictions that have adopted such approaches to DV: Brazil and the United States, respectively. While each approach has benefits, both also have significant costs. I argue that it is possible to imagine an alternative, substantially more flexible system that is neither focused on women nor is gender-neutral. This alternative, which I call the mosaic approach (MA), aims at making DV law and policy more effective, and more just, by focusing on a mosaic of vulnerabilities, which may be more or less related to gender. The MA then proposes using an empirically-based mosaic of DV policies that match and address these vulnerabilities. At the core of the MA is an insistence upon an ongoing public scrutiny of the political choices that lurk behind resource allocation and vulnerability prioritization. Because public policy and law require some degree of generality, the risk of stereotyping in policy-design is probably unavoidable. This paper argues that the best response to this concern is to bring it to the very forefront of policy-making by actively grappling with how we categorize and prioritize people.

This article presents reasonable arguments for an extension of the 3R principles used in research to the regulation of farm animals. It aspires to expound the level of legal  protection in the field of research and analyze whether these means of protection have contributed to a perceptible amelioration of animal welfare in the respective field. In the same course, it pays attention to exploring the reasons for the emergence of the 3Rs in research. The article then identifies the existing levels of protection in the field of farming and presents the differences of legal protection for animals in research and for animals in farming. This analysis forms the basis for exploring the reasonable possibility of applying the principles in research to the animals used for farming purposes and of establishing a common underlying legal maxim. Finally, the article exemplifies specific applications of the  principle of 3R to farmed animals.

Der vorliegende Artikel ficht die Aussage an, dass der Bericht «Kosten und Potenzial der Reduktion von Treibhausgasen in der Schweiz» des Bundesamtes für Umwelt (BAFU)  eine „gesamtheitliche Betrachtung dieser Potenziale unter einheitlichen Annahmen sowie eine konsistente Beurteilung der jeweiligen Kosten“  darstellt. Der Entscheid, die Reduktionsmöglichkeit im Landwirtschaftssektor nicht als „Potenzial zur Reduktion von Treibhausgasen in der Schweiz“ mitzuberücksichtigen, hat sich erst vor dem Anspruch einer objektiven Wissenschaft zu rechtfertigen. Die bestehende Vernachlässigung verunmöglicht die Zielsetzung, eine im Vergleich zum Ausland erhöhte Reduktion zu erreichen und untergräbt die Glaubwürdigkeit des Vorhabens. In diesem Sinne sollte in der verfolgten Politik zumindest der Anreiz für eine freiwillige Reduktion der THG-Emissionen und für einen Umstieg auf Alternativen zu tierlichen Produkten gesetzt werden, dies im Einklang mit der  festgelegten Aspiration „Reduktion der Klimaverschmutzung".

The 3R principles, namely refinement, reduction and replacement, have evolved into the principal standard for the regulation of animals used in research. 3R now enjoy sweeping international recognition: they are accepted both by the public as well as by legislative authorities, and have led to remarkable successes for individual animal welfare. By contrast, regulatory achievements for farm animals are, strictly speaking, non-existent. Consequently, arguments for and against the existing discrimination are examined. The findings manifest that the manner of animal use currently determining the extent of legal regulation does not justify a legal discrimination between animals used for research and farm animals. Due to the internationally accepted imperative to avoid unnecessary suffering, whose nature is indiscriminate of the categorisation of research or farm animals, a duty to apply 3R to animals in farming emerges – a conclusion that suggests itself on grounds of consistency. Based on these findings, specific suggestions on the comprehension of 3R in farming are established. First, relating to refinement in farming, elaborate rules on the breeding, raising, keeping, and slaughtering of farm animals are required. Refinement alone, however, proves to be critically inadequate to address the ethical, environmental, health, and poverty-related problems caused by current farming practices. Thus, it is analysed whether reduction methods are capable of foreclosing major implications. However, the principle of proportionality, which has evolved into an over-arching and self-perpetuating principle in most nations’ legislations and beyond, necessitates a diligent balance of interests in qualitative terms that stringently calls for replacement. A responsibility of this kind is argued to emanate from a significant number of states’ implementation of the avoidance of unnecessary animal suffering, as well as the international policy of the humane treatment of animals that are substantiated against this background.

Why bother directing more attention to animals’ interests on a national level if the most relevant actors escape national regulation anyway? How are we to promote the development of animal issues in a constructive manner, given the cultural differences worldwide? This blogposts expounds the many avenues of academics to these questions, presented at the Animal Turn and the Law Conference, held in Basel on April 4-5, 2014.

The increasing emergence of animal matters on the international plane and their newly gained prominence in public debates create hope that animals will truly find a meaningful place in our society as sentient beings with intrinsic interests. But far beyond hope, what can be done, legally, to push the development of more cogent legal rules on the human-animal relationship beyond illusionary hope, namely to a realistic expectation? This article approaches this question from an economic and an international law perspective. It first studies why the regulation of activities impacting on the welfare of animals is needed as a first step, drawing on arguments from regulatory theories. It then examines the existing international paradigms governing the human-animal relationship, as well as the benefits of international law vs. national law in regulating animal matters pro futuro, and subsequently assesses the potential of international law for the future development of animal law.

Nonhuman primates are highly complex beings, possessing an intrinsic, essential interest in living a life of bodily and mental integrity. However, current legal provisions worldwide hardly accommodate these interests. Therefore, nonhuman primates need to be protected by fundamental rights which guarantee that their essential interests are respected. In this position paper, we first propose a scientific and moral basis for such rights and subsequently give several arguments for why such rights are needed. We conclude by suggesting a number of ways to implement fundamental rights to life and physical as well as mental integrity for nonhuman primates.