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Article

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords gender, crimes against humanity, international criminal law, Rome Statute
Authors Indira Rosenthal and Valerie Oosterveld
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.


Indira Rosenthal
Indira Rosenthal, Independent Consultant, Gender, Law and Justice; PhD Candidate, Faculty of Law, University of Tasmania (Australia).

Valerie Oosterveld
Valerie Oosterveld, University of Western Ontario Faculty of Law (Canada).

    Een rechtsstaat is gebaseerd op zelfbinding van de overheid aan het recht. Deze zelfbinding moet verankerd zijn in regels die onder meer de onafhankelijkheid van de rechterlijke macht vastleggen. De ontwikkelingen in Polen en elders tonen echter aan dat juridische regels van zelfbinding geen blokkades maar verkeersdrempels zijn op de weg naar despotisch bestuur. Een rechtsstaat vereist vooral een cultuur van zelfbinding. De conceptualisering van deze rechtsstaatcultuur staat nog in de kinderschoenen.


Ronald Janse
Ronald Janse is hoogleraar Encyclopedie van de rechtswetenschap aan de Open Universiteit.
Article

Access_open Restraint as a Source of Judicial ‘Apoliticality’

A Functional Reconstruction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Urgenda, Miller v. Secretary of State, Norm of judicial apoliticality, Ronald Dworkin, Judicial restraint
Authors Maurits Helmich
AbstractAuthor's information

    Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).


Maurits Helmich
Maurits Helmich is promovendus aan de afdeling Sociologie, Theorie en Methodologie van het Recht aan de Erasmus Universiteit Rotterdam.
Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
Annual lecture

Access_open The indecent demands of accountability: trauma, marginalisation, and moral agency in youth restorative conferencing

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, youth offenders, trauma, marginalisation, offender accountability
Authors William R. Wood
AbstractAuthor's information

    In this article I explore the concept of accountability for young people in youth restorative conferencing. Definitions of accountability in research and programme literature demonstrate significant variation between expectations of young people to admit harms, make amends, address the causes of their offending, and desist from future offending. Such variation is problematic in terms of aligning conferencing goals with accountability expectations. I first draw from research that suggests appeals to normative frameworks such as accountability may not be useful for some young people with significant histories of victimisation, abuse, neglect, and trauma. I then examine problems in accountability for young people that are highly marginalised or ‘redundant’ in terms of systemic exclusion from economic and social forms of capital. These two issues – trauma on the micro level and social marginalisation on the macro level – suggest problems of getting to accountability for some young people. I also argue trauma and social marginalisation present specific problems for thinking about young offenders as ‘moral subjects’ and conferencing as an effective mechanism of moralising social control. I conclude by suggesting a clear distinction between accountability and responsibility is necessary to disentangle the conflation of misdeeds from the acute social, psychological, and developmental needs of some young offenders.


William R. Wood
William R. Wood is a Senior Lecturer, School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia. The manuscript is a revision of the author’s presentation of the Annual Lecture for the International Journal of Restorative Justice, Australian and New Zealand Society of Criminology Conference (ANZSOC), Perth, Australia, 14 December 2019. Contact author: w.wood@griffith.edu.au.

Mary Jo Hebling
Mary Jo Hebling is a Faculty Lecturer at the International Institute for Restorative Practices, Bethlehem, USA. Contact author: maryjohebling@iirp.edu.
Research Note

Caretaker Cabinets in Belgium: A New Measurement and Typology

Journal Politics of the Low Countries, Issue Online First 2020
Keywords caretaker government, Belgium, cabinets, political crisis
Authors Régis Dandoy and Lorenzo Terrière
AbstractAuthor's information

    Belgium is probably the world’s best known case of where caretaker governments reside. Yet a clear scholarly definition and measurement of this concept is missing. Based on a detailed analysis of the Belgian federal cabinets, this research note explores the main characteristics and measures the length of the various caretaker periods. We find that Belgium was governed for no less than 1,485 days by a caretaker government between 2007 and 2020, which equals more than four full calendar years. This research note also presents a novel typology of caretaker periods based on the institutional and political practice within the Belgian legislative and executive branches. This typology can be used to assess caretaker periods at other levels of government as well as in other countries in order to improve our understanding of the many ‘faces’ that a caretaker government can take on.


Régis Dandoy
Université Libre de Bruxelles

Lorenzo Terrière
Universiteit Gent
Article

Social Impact Assessment and Mediation

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Social impact, Business to Community mediation
Authors Eelco De Groot
AbstractAuthor's information

    A Social Impact Assessment is often a formal requirement to determine and prevent social risks at greenfield development of complex infrastructural projects. This article discusses the background and building blocks with the different tiers of Business to Community mediation; a neutral, facilitated, dialogue and information sharing, negotiation, joint fact-finding and formal mediation.


Eelco De Groot
Eelco de Groot is an advisor at Social License and senior lecturer Social Risk Management at the TU Delft.
Article

Le nouveau code de procédure pénale en Côte d’ivoire

entre avancées et innovations

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords Code de procédure pénale, Côte d’ivoire, droits de l’homme, justice, Criminal procedure code, human rights
Authors Judicaël Elisée Tiehi
AbstractAuthor's information

    Longtemps critiqué pour son système pénal jugé suranné, l’Etat de Côte d’ivoire a fait le choix de se doter d’un nouveau de procédure pénale dans le sillage de sa politique de réforme juridique et institutionnel et de modernisation de son système judiciaire. Adopté par la loi n° 2018-975 du 27 décembre 2018 en vue de le conformer aux standards juridiques nationaux (la Constitution de 2016) et internationaux, ce nouveau code à l’architecture profondément restructurée consacre des avancées majeures en matière de protection des droits de l’homme dont l’une des plus emblématique reste la codification inédite de principes directeurs irradiant les différentes phases de la procédure pénale. Ces innovations, matérialisées par la consécration de mécanismes procéduraux révolutionnaires ainsi que par la création des institutions pénales nouvelles, constituent un tremplin vers la consolidation de l’Etat de droit dans le cadre duquel les attributs d’indépendance, d’impartialité et d’équité procédurale occuperont une place de choix.

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    Long criticized for his outdated criminal system, State of Côte d’ivoire has established a new criminal procedure code in the wake of its legal and institutional policy reform and modernization of its judicial system. Adopted by law n° 2018-975 on 27 December 2018 in order to comply it with national (constitutional provisions of 2016) and international legal standards, this new code with its profoundly restructured architecture enshrines major advances in relation to human rights protection, one of the most emblematic of which is the codification of guiding principles covering of various stages of criminal procedure. These innovations, embodied in setting of revolutionary procedural mechanisms and creation of new penal institutions are springboards towards the development Rule of law in which attributes of independence, impartiality and procedural equity will occupy a prominent place.


Judicaël Elisée Tiehi
L’auteur est Doctorant-chercheur en droit international public au Centre Jean Bodin de l’Université d’Angers. Sous la co-direction de Caroline DUPARC (Maître de Conférences en droit privé et sciences criminelles à l’université d’Angers - France) et Annalisa CIAMPI (Professeure de droit international public à l’université de Vérone – Italie), ses travaux de recherches portent sur « Les droits procéduraux devant la Cour pénale internationale: essai critique sur le régime de participation des victimes ». Il tient à remercier sincèrement Mauriac GNOKA pour son assistance documentaire, Hermann Rodrigue ABY et Prudence Claire-Josiane TIEHI pour leurs précieuses relectures.
Article

Access_open The Potential of Positive Obligations Against Romaphobic Attitudes and in the Development of ‘Roma Pride’

Journal Erasmus Law Review, Issue 3 2020
Keywords Roma, Travellers, positive obligations, segregation, culturally adequate accommodation
Authors Lilla Farkas and Theodoros Alexandridis
AbstractAuthor's information

    The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life.


Lilla Farkas
Lilla Farkas is a practising lawyer in Hungary and recently earned a PhD from the European University Institute entitled ‘Mobilising for racial equality in Europe: Roma rights and transnational justice’. She is the race ground coordinator of the European Union’s Network of Legal Experts in Gender Equality and Non-discrimination.

Theodoros Alexandridis
Theodoros Alexandridis is a practicing lawyer in Greece.
Article

Access_open The Relationship between Empirical Legal Studies and Doctrinal Legal Research

Journal Erasmus Law Review, Issue 2 2020
Keywords empirical legal studies, legal research methods, doctrinal legal research, new legal realism, critical legal studies, law and policy
Authors Gareth Davies
AbstractAuthor's information

    This article considers how empirical legal studies (ELS) and doctrinal legal research (DLR) interact. Rather than seeing them as competitors that are methodologically independent and static, it suggests that they are interdependent activities, which may each be changed by interaction with the other, and that this change brings both opportunities and threats. For ELS, the article argues that DLR should properly be understood as part of its theoretical framework, yet in practice little attention is given to doctrine in empirical work. Paying more attention to DLR and legal frames generally would help ELS meet the common criticism that it is under-theorised and excessively policy oriented. On the other hand, an embrace of legal thinking, particularly of critical legal thinking, might lead to loss of status for ELS in policy circles and mainstream social science. For DLR, ELS offers a chance for it to escape the threat of insular sterility and irrelevance and to participate in a founded commentary on the world. The risk, however, is that in tailoring legal analysis to what can be empirically researched legal scholars become less analytically ambitious and more safe, and their traditionally important role as a source of socially relevant critique is weakened. Inevitably, in offering different ways of moving to normative conclusions about the law, ELS and DLR pose challenges to each other, and meeting those challenges will require sometimes uncomfortable self-reflection.


Gareth Davies
Gareth Davies is Professor of European Law at the Faculty of Law of the Vrije Universiteit Amsterdam.
Article

An Actor Approach to Mediatization

Linking Politicians’ Media Perceptions, Communication Behaviour and Appearances in the News

Journal Politics of the Low Countries, Issue Online First 2020
Keywords mediatization, politicians, news media, media perceptions, news management
Authors Pauline Ketelaars and Peter Van Aelst
AbstractAuthor's information

    In the light of the broader debate on the mediatization of politics, this study wants to better understand how the media perceptions and media behaviour of politicians are related to their appearances in the news. We opt for an innovative actor-centred approach to actually measure the views and actions of individual politicians. We combine surveys conducted with 142 Belgian representatives with data on politicians’ external communication behaviour and on their appearances in television news, newspapers and news websites. The results show that media behaviour is not so much related to beliefs of media importance. We do find a significant positive relationship between strategic media behaviour and media attention suggesting that politicians who put in more effort appear more often in various news media. However, this positive relationship depends on the specific form of strategic communication and the political position of the legislator. Our study adds to the mediatization literature by showing how and when politicians are successful in obtaining media attention.


Pauline Ketelaars
Pauline Ketelaars, University of Antwerp, Antwerpen, Belgium.

Peter Van Aelst
Peter Van Aelst, University of Antwerp, Antwerpen, Belgium. Corresponding Author.
Article

Access_open Recht en politiek in de klimaatzaken

Een sleutelrol voor het internationaal recht in de argumentatie van de nationale rechter

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Vincent Dupont
AbstractAuthor's information

    Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.


Vincent Dupont
Vincent Dupont studeerde in 2017 af als Master of Laws aan de KU Leuven en volgt momenteel een opleiding sociologie aan de Université libre de Bruxelles, Unicamp in São Paulo en de École des hautes études en sciences sociales in Parijs.
Article

Deliberation Out of the Laboratory into Democracy

Quasi-Experimental Research on Deliberative Opinions in Antwerp’s Participatory Budgeting

Journal Politics of the Low Countries, Issue 1 2020
Keywords Deliberative democracy, mini-publics, participatory budget, social learning, deliberative opinions
Authors Thibaut Renson
AbstractAuthor's information

    The theoretical assumptions of deliberative democracy are increasingly embraced by policymakers investing in local practices, while the empirical verifications are often not on an equal footing. One such assertion concerns the stimulus of social learning among participants of civic democratic deliberation. Through the use of pre-test/post-test panel data, it is tested whether participation in mini-publics stimulates the cognitive and attitudinal indicators of social learning. The main contribution of this work lies in the choice of matching this quasi-experimental set-up with a natural design. This study explores social learning across deliberation through which local policymakers invite their citizens to participate in actual policymaking. This analysis on the District of Antwerp’s participatory budgeting demonstrates stronger social learning in real-world policymaking. These results inform a richer theory on the impacts of deliberation, as well as better use of limited resources for local (participatory) policymaking.


Thibaut Renson
Thibaut Renson is, inspired by the 2008 Obama campaign, educated as a Political Scientist (Ma EU Studies, Ghent University) and Political Philosopher (Ma Global Ethics and Human Values, King’s College London). Landed back at the Ghentian Centre for Local Politics to do empirical research. Driven by the moral importance of social learning (vs. political consumerism) in democracy, exploring the empirical instrumentality of deliberation.

Susan L. Brooks
Susan Brooks is an Associate Dean and Professor of Law, Drexel University Kline School of Law, Philadelphia, USA.
Article

Assessing the Essentials of Litigant Experience in Court ODR Systems

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords courts, ODR, assessment, effectiveness, access to justice
Authors Jennifer Shack
AbstractAuthor's information

    As ODR rolls out in courts across the United States, we need to learn more about how litigants experience it. This is particularly true about their experience of access to justice, which is a primary motivator for courts to adopt ODR. This article discusses plans for an evaluation Resolution Systems Institute and the University of California, Davis, will be conducting of ODR programmes in Hawaii and Texas for small claims cases.


Jennifer Shack
Director of Research, Resolution Systems Institute.
Article

“Land of Confusion”

Social (Fundamental) Rights and the Provisions of the Fundamental Law in Light of the Practice of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, social rights as fundamental rights, right to social security, state goals, social security system of Hungary
Authors István Hoffman
AbstractAuthor's information

    Modern welfare democracies developed different approaches to social rights. This paper briefly reviews the different models for the institutionalization of social rights as fundamental rights in modern democracies. In Hungary, the approach to social security has been significantly transformed by the Fundamental Law. For this reason, the paper reviews the approach of the Hungarian constitutional system to the right to social security between 1989 and 2011 and introduces the current position of social rights in the Hungarian legal system. This is done through and assessment of the provisions of the Fundamental Law and the current case-law of the Constitutional Court of Hungary.


István Hoffman
Professor of law, ELTE Law School, Budapest.
Article

Reconciliation potential of Rwandans convicted of genocide

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Rwanda, genocide, perpetrators, posttraumatic stress, reconciliation
Authors Kevin Barnes-Ceeney, Laurie Leitch and Lior Gideon
AbstractAuthor's information

    This study examines the reconciliation potential of Rwandans incarcerated for the crime of genocide. Utilising survey data from 302 male and female prisoners incarcerated in the Rwandan Correctional System, this study explores genocide perpetrators’ depression, anxiety, anger-hostility and somatic symptoms, levels of posttraumatic stress, degree of social support and attitudes towards unity and reconciliation. The data demonstrate that engaging in killing can have deep psychological impacts for genocide perpetrators. The data indicate that although more than two decades have passed since the genocide, perpetrators are experiencing high levels of genocide-related posttraumatic suffering. Perpetrators are persistently re-experiencing genocide, purposefully avoiding thoughts and memories of the genocide, and experiencing physical and emotional arousal and reactivity. The sample had a strong desire for all Rwandans to live in peace and unity. There is, however, an urgent need for physical and mental health interventions, as well as services that facilitate the rebuilding of family relationships well in advance of release. Improving the physical and mental well-being of both perpetrators of the genocide and victims can only be a positive development as Rwanda continues to build a unified, reconciled and resilient future.


Kevin Barnes-Ceeney
Kevin Barnes-Ceeney is Assistant Professor at the Henry C. Lee College of Criminal Justice and Forensic Sciences, University of New Haven, West Haven, USA.

Laurie Leitch
Laurie Leitch is Director, Threshold GlobalWorks, New York, USA.

Lior Gideon
Lior Gideon is Professor of Criminal Justice at the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, New York, USA.
Article

How framing past political violence affects reconciliation in the Basque Country

The role of responsibility attributions and in-group victimhood

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Political violence, apologies, in-group victimhood, responsibility attributions, Basque Country
Authors Magdalena Bobowik, Darío Páez, Nekane Basabe e.a.
AbstractAuthor's information

    The present study examines the impact of reminders of political violence with and without an apology on the desire for intergroup revenge in the context of political violence in the Basque Country. We expected attributions of responsibility and perceived in-group victimhood to explain these effects. A total of 257 Basque adults were assigned to three conditions: no reminder, reminders of political violence without an apology and reminders of political violence with an apology. Results showed that, as compared to no reminder condition, reminders of political violence without an apology led to assigning more responsibility to police forces and the Spanish state and less responsibility to Euskadi Ta Askatasuna (ETA) and Basque nationalism, as well as increased perceptions of in-group victimhood and the desire for intergroup revenge. Reminders of political violence accompanied by an apology activated less assignment of responsibility to police forces and the Spanish state, but more responsibility attributions to ETA and Basque nationalism, as well as activated perceptions of in-group victimhood. As expected, there was a sequential indirect effect of reminders without an apology (but not with an apology) on revenge through responsibility attributions and then perceptions of in-group victimhood. We discuss implications of these findings for intergroup relations in post-conflict contexts.


Magdalena Bobowik
Magdalena Bobowik is Post-doctoral Research Fellow at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Darío Páez
Darío Páez is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain and at the Facultad de Educación y Ciencias Sociales, Universidad Andres Bello, Santiago de Chile, Chile.

Nekane Basabe
Nekane Basabe is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Patrycja Slawuta
Patrycja Slawuta is a PhD Candidate at the New School for Social Research, New York, USA.
Article

Mobile Online Dispute Resolution Tools’ Potential Applications for Government Offices

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords mobile online dispute resolution, MODR, ODR, computer mediated communication, dispute prevention, workplace conflict
Authors Stephanie Gustin and Norman Dolan
AbstractAuthor's information

    Online communication practices have become intrinsic to government work environments. Understanding the impact of these practices, whether they be general computer mediated communication (CMC) or specifically online dispute resolution (ODR) processes, is an essential step in supporting respectful and healthy work environments. ODR literature focuses almost exclusively on e-commerce, leaving large gaps in the body of knowledge as ODR applications diversify. Available ODR tools, which simply transpose traditional alternative dispute resolution (ADR) processes online through the use of office videoconferencing systems, are not mobile and do not utilize the full capabilities of the existing technology. This article explores the potential impacts mobile ODR (MODR) tools could have on the dispute interventions and prevention initiatives in government office settings. The study used an exploratory model to establish an understanding of the experiences and needs of Canadian and Australian government employees. Findings demonstrate an interest in the introduction of education-oriented MODR tools as supplementary support with the purposes of knowledge retention and further skill development following dispute prevention training. Findings suggest that workplace attitudes towards online communication and ODR have a significant impact on the extent to which individuals successfully develop and maintain relationships either fully or partially through the use of CMC.


Stephanie Gustin
Stephanie Gustin holds an MA in Dispute Resolution from the University of Victoria, Canada.

Norman Dolan
Norman Dolan holds a PhD in Public Administration and is an Adjunct Assistant Professor in the School of Public Administration at the University of Victoria, Canada.
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