Browse

This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19th century to the modern era. The historical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition — or otherwise — of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in the renewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. The author examines the political resurgence of aboriginal peoples in the last quarter of the 20th century. A period of ‘rights-recognition’ was transformed into a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism.

Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

The criminal courts have a power to stop a prosecution from proceeding altogether where it would be inappropriate for it to continue. This power to stay proceedings which constitute an abuse of the process of the court has assumed great practical significance and is potentially applicable in many situations. There is at least one consideration of the abuse of process doctrine in virtually every major criminal trial today. This fully updated second edition of Abuse of Process and Judicial Stays of Criminal Proceedings blends doctrinal discussion with a thorough consideration of the underlying theory to provide a searching analysis of the theory and practice of abuse of process in England and Wales, with comparative examinations of many other jurisdictions including the USA, Canada, Australia, and New Zealand. This edition focuses in particular upon the profound impact of the European Convention on Human Rights on the judicial discretion to stay criminal proceedings. It explores substantial amounts of important recent case law, taking into account ECHR jurisprudence and discussions in English courts of the interplay between Article 6 ECHR and abuse of process.

The right of access to justice, at national and international levels, is a fundamental cornerstone of the protection of human rights. It conforms a true right to the Law. Such right, lato sensu, amounts to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right to an effective domestic remedy is a basic pillar of the rule of law in a democratic society. In its turn, the right of international individual petition, and the safeguard of the integrity of international jurisdiction, are the basic foundations of the emancipation of the individual vis-à-vis his own State.This is a domain that has undergone a remarkable development in recent years. The very notion of “victim” has been the subject of a considerable international case-law. The direct access of victims to international justice has been taking place in the most diverse circumstances, including situations of great adversity, or even defencelessness, of the complainants (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres). It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of international ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens.

India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such a right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non-reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints, put by security threats such as terrorism, on the full protection of freedom and human rights. This collection of chapters offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

The issue of how patents impact medicine has increased in significance within the last decade. The conclusion of a landmark international agreement (TRIPS) has increased attention on how patents impact access to medicine, but this new focus has not always led to productive results. Discussions concerning the impact of access to medicine often degenerate into finger-pointing. Patent owning companies are often vilified as greedy corporations that place profits above people while those who advocate greater access to drugs are accused of stealing private property. These accusations seem to be based on deeply held views about the role of patents. On the one hand, patents are seen as a tool to promote innovation, and as such, they can (and should) be modified. On the other hand, patents are viewed as an important property right that should seldom be subject to exceptions, especially considering its limited term. This book explains how these competing views have led to confusion and obfuscation of the law. This book aims to clarify widely prevalent misconceptions as reflected both in reports from the popular press and by some academics in the field of intellectual property. The book has two goals: to provide an explanation of the current international infrastructure that requires most nations to provide patent and related rights regarding drugs, and to explain how competing patent perspectives play a thus far unacknowledged role in promoting distortion and confusion.

Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope, and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. This book explores theoretical, normative, and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures. The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation, and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.

This monograph examines the interface between extraterritorial border surveillance, migration management, and asylum seeking under EU law. The final goal is to determine the compatibility of pre-entry controls, carried out in the form of Schengen visas, carrier sanctions (with or without assistance from ILOs), and maritime interdiction, with the fundamental rights acquis of the EU, in particular the right to protection against refoulement, the right to asylum, and the rights to good administration and effective judicial protection enshrined in the Charter of Fundamental Rights. The conflictual assertion contained in Tampere and successor programmes that the Union shall remain ‘open’ to those seeking access to it in search of protection, but, at the same time, ‘counteract illegal immigration and cross-border crime’ provides the background to this research. The result has been an ambiguous regulation of access to EU territory for asylum purposes. Two sets of rules have developed simultaneously, which are difficult to reconcile: one set assimilates protection seekers to the generic category of ‘third-country nationals’ subject to Schengen admission criteria, with another set containing references to ‘special provisions’ applicable to exiles, leading to a situation where up to 90% of refugee arrivals occur through irregular (unsafe) channels, as smuggled or trafficked migrants. In these circumstances, elucidating the exact reach of EU international protection obligations and the articulation between EU border/pre-border norms and EU fundamental rights becomes essential. The monograph thus strives to determine the content of the specific responsibilities of the Member States in this context and establish their implications for the ‘integrated border management’ system the Union is committed to realise.

Many government bodies relate to each other through contracts: government departments and agencies; government departments and the Treasury; National Health Service (NHS) purchasers and NHS Trusts. These ‘internal contracts’ are not, in general, regulated or enforced by the law. This book explores the practical problems encountered by the parties to internal contracts, drawing on evidence from an empirical case study of NHS contracts. It uncovers difficulties in defining the parties' roles; in maintaining good working relationships; and in securing compliance with contractual terms. It then examines the possibility of solving these problems through law. Some commentators, particularly public lawyers, have condemned the law's failure to keep pace with the rise of ‘government by contract’, but few have made specific proposals for reform. The book develops an original public law analysis of internal contracts, interpreting them as mechanisms of accountability from service providers to purchasers. It proposes norms which would help the parties to use their contracts as fair and effective mechanisms of accountability. It also suggests reforms to the institutional framework for internal contracts.

This book offers the first comprehensive legal analysis and empirical study of accountability concerning the EU’s peacebuilding endeavours—also referred to as civilian crisis management. Since 2003, the EU has launched more than twenty civilian missions under the CSDP in conflict-torn regions in Eastern Europe, the Western Balkan, sub-Saharan Africa, the Middle East, and South East Asia with the aim of restoring stability and security. Mission mandates cover a broad range of multidimensional tasks, such as border monitoring, rule of law support, police training, law enforcement capacity building, and security sector reform. In light of these numbers and tasks and given (recent) alarming insights from practice, it begs the question who is accountable (to whom) for the EU’s manifold extraterritorial peacebuilding activities. With a view to answering this question, this book combines tools of legal scholarship with insights from political science research, both in analytical and conceptual terms. The thorough analysis of the law and practice of political, legal, and administrative accountability in civilian CSDP leads to the following conclusion: when scrutinizing the institutional and procedural framework set out by law, the accountability assessment is sobering, but when approaching it from a practice angle, the verdict is promising—in particular as regards accountability at the EU level.

Accountability is regarded as a central feature of modern constitutionalism. At a general level, this prominence is perhaps unsurprising, given the long history of the idea. However, in many constitutional democracies, including the UK and the USA, it has acquired a particular resonance in contemporary circumstances with the declining power of social deference, the expanding reach of populist accountability mechanisms, and the increasing willingness of citizens to find mechanisms for challenging official decision-making. These chapters seek to explore how ideas of and mechanisms associated with accountability play a part in the contemporary constitution. While the majority of chapters concentrate on the United Kingdom, others provide comparative discussion with particular reference to the United States and aspects of European Union law. The main focus of the volume is the contemporary UK constitution. Chapters are included which analyse the historical context (including the role of Dicey), common law constitutionalism, the constitutional role of Parliament, the constitutional role of the courts, judicial accountability, human rights protection under the constitution and the contribution of non-judicial accountability mechanisms. Further chapters explore the public service principle, the impact of new public management on public service delivery, and the relationship between accountability and regulation. Finally accountability is discussed in the light of constitutional reform including the challenges posed by the ‘multi-layered’ government at the supra national level of EU membership and sub-national national levels of devolution and local government.

This book looks at accountability in the field of Economic and Monetary Union, including the Banking Union. It looks at the emergence of a new constitutional and governance architecture in the Eurozone, following the measures that were adopted in response to the crisis. It shows how the rules and institutions that were put in place in response to the financial and public debt crisis affect not only the economies of the Member States but also the lives of European citizens. It makes the case for instilling more democratic legitimacy into the Economic and Monetary Union and examines the impact of the new EU economic governance framework on the horizontal and vertical distribution of power in the EU and the Member States. The key question is: what is the appropriate level, type, and degree of accountability and transparency that should be involved in the development of the EU’s governance structures in the areas of fiscal/economic governance and the Banking Union? The book evaluates the powers conferred on the European and national parliaments in the fields of economic governance, monetary policy, and banking supervision/resolution, as well as the European Parliament’s input into the crisis-induced measures. It further looks at access to EU courts, the available remedies, and the role of the EU and national courts in reviewing economic and monetary policy measures. Finally, it sets out the author’s own proposals regarding the reforms needed to strengthen the Eurozone, as well as transparency, accountability, and—more broadly—legitimacy in the Economic and Monetary Union.

This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations Special Rapporteurs holding armed groups to account under this body of law are relatively commonplace. Motivated by this contradiction, this study aims to clarify when and how armed groups are bound by human rights law. It brings several key issues of clarification to the legal framework. The first part of the book presents a new perspective on the role that human rights law plays in the legal framework that applies to non-international armed conflict. In particular, the study investigates the normative added value that human rights law can bring vis-à-vis international humanitarian law. The second part of the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. Combining historical and comparative research with theoretical analysis on international legal personality, the research demonstrates what the legal frameworks of belligerency, insurgency, and international humanitarian law can tell us about when and how such groups may be bound by human rights law. The third part of the book tests and investigates the four most utilized theories of how armed groups are bound by human rights law, examining (i) treaty law, (ii) control of territory, (iii) international criminal law, and (iv) customary international law. The book’s conclusions are drawn together thematically and contain important practical recommendations for practitioners in this field.

In the last thirty years, as a result of a neoliberal ideology that extolled so-called free markets and demonized government, America has lost its grasp on its core principle – democracy. Democracy, the ability of all Americans to participate freely and equally in the political and economic affairs of the country, suffered demonstrable losses. Economically, over the period, the vast majority of Americans have been made worse off as a result of the largest redistribution of wealth from the bottom to the top in American history. Politically, partisan gridlock and sound-bite politics have hampered efforts to seek fairer taxes, responsive and effective regulation, reliable health care, and better education, among other needs. This book explores this last generation of neoliberal government and concludes that those democratic losses can be regained. We know from experience that philosophical pragmatism and political progressivism express the country's creedal democratic values. More simply, our country's political commitment to expanding liberty, equality, and distributive fairness – bedrock values of modern democracy – is historically embedded and has yielded measurable gains. Democracy, American-style, outlawed legally sanctioned racism and sexism, fashioned the American Dream, and created the middle class, among other gains, while at the same time the United States became a global leader in economic and military power. More particularly, those gains were realized through an active, robust, and participatory government. As in the past, a sound regulatory state, while not perfect and in need of reform, is the vehicle to achieve the Constitution's goal of “a more perfect union.”

Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda (ICTR), accused of inciting genocide with his songs. Bikindi’s trial was unprecedented. Never before had an international court or tribunal been called upon to determine a musician’s culpability for acts of genocide. This book explores how the ICTR went about that difficult task. In doing so, however, it takes a particular interest in questions of sound and listening, which it is argued have been seriously neglected in contemporary legal scholarship. One half of the book is addressed to the Tribunal’s ‘sonic imagination’. How did the Tribunal conceive of Bikindi’s songs for the purposes of judgment? How did it understand the role of radio and other media in their transmission? Why? And with what consequences for Bikindi? The other half of the book is addressed to how such concerns manifested themselves acoustically in court. Bikindi’s was a ‘musical trial’, as one judge observed. Recordings of his songs were played regularly throughout. Witnesses including Bikindi himself frequently sang. Indeed, at his appeals hearing Bikindi even sang his final statement. And all the while, judges, barristers, and witnesses alike spoke into microphones and listened on through headphones. As a result, the Bikindi case offers an ideal opportunity to explore what this book calls the ‘judicial soundscape’. Though addressed to a single case, the book’s most important innovation is to open up the field of sound to jurisprudential inquiry. Ultimately, it is an argument for a specifically acoustic jurisprudence.

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.

Criminal law has been described as a species of political and moral philosophy; whether that can be said to be true is not at all certain, but criminal law can be the subject of philosophical study. The aim of this book is to explore some of the philosophical foundations of criminal law. English and North American contributors have produced chapters for this volume.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.