Search result: 30 articles

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Jee Aei (Jamie) Lee
Jee Aei Lee is Crime Prevention and Criminal Justice Officer, Justice Section, United Nations Office on Drugs and Crime, Vienna, Austria.

Yvon Dandurand
Yvon Dandurand is Professor Emeritus in Criminology, University of the Fraser Valley, and Fellow and Senior Associate at the International Centre for Criminal Law Reform, Vancouver, Canada. Contact authors: jeeaei.lee@un.org; Yvon.Dandurand@ufv.ca.

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.

    Géza Herczegh was a Hungarian academic, justice of the Hungarian Constitutional Court and judge of the International Court of Justice (ICJ). In this paper, which commemorates the 90th anniversary of Géza Herczegh’s birth, his successor at the ICJ, Judge Peter Tomka, offers his reflections on Herczegh’s time at the Court. While they had only limited interaction, Judge Tomka recalls his encounters with Herczegh, both before and after Herczegh’s election to the ICJ. Additionally, Judge Tomka reviews Herczegh’s legacy at the ICJ, considering both the occasions when Herczegh wrote separately from the Court and his reputation amongst people familiar with the ICJ as a dedicated and open-minded judge interested in finding areas of consensus.


Peter Tomka
Member of the ICJ since 6 February 2003 (re-elected as from 6 February 2012), Vice-President of the ICJ from 6 February 2009 until 5 February 2012; President of the ICJ from 6 February 2012 until 5 February 2015.
Article

Digital Identity for Refugees and Disenfranchised Populations

The ‘Invisibles’ and Standards for Sovereign Identity

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords digital identity, sovereign identity, standards, online dispute resolution, refugees, access to justice
Authors Daniel Rainey, Scott Cooper, Donald Rawlins e.a.
AbstractAuthor's information

    This white paper reviews the history of identity problems for refugees and disenfranchised persons, assesses the current state of digital identity programmes based in nation-states, offers examples of non-state digital ID programmes that can be models to create strong standards for digital ID programmes, and presents a call to action for organizations like International Organization for Standardization (ISO) and the United Nations High Commissioner for Refugees (UNHCR).


Daniel Rainey
Daniel Rainey is a Board Member, InternetBar.Org (IBO), and Board Member, International Council for Online Dispute Resolution (ICODR)

Scott Cooper
Scott Cooper is a Vice President, American National Standards Institute (retired).

Donald Rawlins
Donald Rawlins is a Candidate (May 2019), Master of Arts in Dispute Resolution, Southern Methodist University.

Kristina Yasuda
Kristina Yasuda is a Director of Digital Identities for the InternetBar.org and a consultant with Accenture Strategy advising large Japanese corporations on their digital identity and blockchain strategy.

Tey Al-Rjula
Tey Al-Rjula is CEO and Founder of Tykn.tech.

Manreet Nijjar
Manreet Nijjar is CEO and Co-founder of truu.id, Member of the Royal College Of Physicians (UK), IEEE Blockchain Healthcare Subcommittee on Digital Identity, UK All Party Parliamentary Group on Blockchain and Sovrin Guardianship task force committee.
Article

Access_open Broken rules, ruined lives

Een verkenning van de normativiteit van de onrechtservaring

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords onrecht, Slachtofferrechten, Benjamin, Shklar
Authors Nanda Oudejans and Antony Pemberton
AbstractAuthor's information

    Hoewel de rechtspositie van slachtoffers de afgelopen decennia verstevigd lijkt, blijft de relatie tussen slachtoffer en strafrecht ongemakkelijk. Rechtswetenschappers tonen zich bezorgd dat de toenemende aandacht voor de belangen van slachtoffers uitmondt in ‘geïnstitutionaliseerde wreedheid.’ Deze zorg wordt echter gevoed door een verkeerd begrip van slachtofferschap en heeft slecht begrepen wat het slachtoffer nu eigenlijk van het recht verlangt. Deze bijdrage probeert de vraag van het slachtoffer aan het recht tot begrip te brengen. Wij zullen de onrechtservaring van het slachtoffer conceptualiseren als een ontologisch alleen en verlaten zijn van het slachtoffer. Het aanknopingspunt om de relatie tussen slachtoffer en recht opnieuw te denken zoeken wij in deze verlatenheid. De kern van het betoog is dat het slachtoffer (mede) in het recht beschutting zoekt tegen deze verlatenheid, maar ook altijd onvermijdelijk tegen de grenzen van het recht aanloopt. Van een rechtssysteem dat zich volledig uitlevert aan de noden van slachtoffers kan dan ook geen sprake zijn. Integendeel, het recht moet zijn belang voor slachtoffers deels zien in de onderkenning van zijn eigen beperkingen om onrecht te keren, in plaats van de onrechtservaring van het slachtoffer weg te moffelen, te koloniseren of ridiculiseren.


Nanda Oudejans
Nanda Oudejans is universitair docent rechtsfilosofie aan de Universiteit Utrecht.

Antony Pemberton
Antony Pemberton is hoogleraar victimologie aan Tilburg University.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
Article

Access_open ‘God’s Friend, the Whole World’s Enemy’

Reconsidering the role of piracy in the development of universal jurisdiction.

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords Cicero, Augustine, Bartolus, piracy, universal jurisdiction
Authors Louis Sicking
AbstractAuthor's information

    Piracy holds a special place within the field of international law because of the universal jurisdiction that applies. This article reconsiders the role of piracy in the development of universal jurisdiction. While usually a connection is established between Cicero’s ‘enemy of all’ and modern conceptions of pirates, it is argued that ‘enemy of the human species’ or ‘enemy of humanity’ is a medieval creation, used by Bartolus, which must be understood in the wake of the Renaissance of the twelfth century and the increased interest for the study of Roman Law. The criminalization of the pirate in the late Middle Ages must be understood not only as a consequence of royal power claiming a monopoly of violence at sea. Both the Italian city-states and the Hanse may have preceded royal power in criminalizing pirates. All the while, political motives in doing so were never absent.


Louis Sicking
Louis Sicking is Aemilius Papinianus Professor of History of Public International Law at Vrije Universiteit Amsterdam and lecturer in medieval and early modern history at Universiteit Leiden.
Article

Access_open Armed On-board Protection of German Ships (and by German Companies)

Journal Erasmus Law Review, Issue 4 2018
Keywords German maritime security, private armed security, privately contracted armed security personnel, anti-piracy-measures, state oversight
Authors Tim R. Salomon
AbstractAuthor's information

    Germany reacted to the rise of piracy around the Horn of Africa not only by deploying its armed forces to the region, but also by overhauling the legal regime concerning private security providers. It introduced a dedicated licensing scheme mandatory for German maritime security providers and maritime security providers wishing to offer their services on German-flagged vessels. This legal reform resulted in a licensing system with detailed standards for the internal organisation of a security company and the execution of maritime security services. Content wise, the German law borrows broadly from internationally accepted standards. Despite deficits in state oversight and compliance control, the licensing scheme sets a high standard e.g. by mandating that a security team must consist of a minimum of four security guards. The lacking success of the scheme suggested by the low number of companies still holding a license may be due to the fact that ship-owners have traditionally been reluctant to travel high-risk areas under the German flag. Nevertheless, the German law is an example of a national regulation that has had some impact on the industry at large.


Tim R. Salomon
The author is a legal adviser to the German Federal Armed Forces (Bundeswehr) and currently seconded to the German Federal Constitutional Court.
Article

Access_open On-board Protection of Merchant Vessels from the Perspective of International Law

Journal Erasmus Law Review, Issue 4 2018
Keywords piracy, international law, law of the sea, on-board protection of merchant vessels, use of force
Authors Birgit Feldtmann
AbstractAuthor's information

    The power to regulate on-board protection of merchant vessels lies with the flag state. However, the national models of regulation are not developed in a unilateral vacuum. In fact, the whole concept of flag state jurisdiction and legislative power has to be understood and exercised on the national level in close relation with the general regime of the international law of the sea. The aim of the article is therefore two-fold: first, it aims to provide a background for the country reports in this special issue by giving a brief insight into the problem of piracy in the twenty-first century and the international approaches towards this problem. Here the article also provides an insight into the legal background by presenting the concept of piracy in the law of the sea and connected law enforcement powers. Thus, this part of the article provides the overall context in which the discussions concerning on-board protection and the development of national regulations have occurred. Second, the article analyses the issue of on-board protection from the perspective of the legal framework in international law, as well as relevant international soft-law instruments, influencing the development on the national level. On-board protection of vessels as such is not regulated in the international law; however, international law provides a form of general legal setting, in which flags states navigate. Thus, this article aims to draw a picture of the international context in which flags states develop their specific legal approach.


Birgit Feldtmann
Birgit Feldtmann is professor (mso) at the Department of Law, Aalborg University.
Article

Access_open Armed On-board Protection of Italian Ships: From an Apparent Hybrid Model to a Regulated Rise of Private Contractors

Journal Erasmus Law Review, Issue 4 2018
Keywords maritime security services, Italian hybrid system, military and private personnel, use of force, relation with the shipmaster
Authors Giorgia Bevilacqua
AbstractAuthor's information

    The sharp increase of piracy attacks in the last two decades was followed by a parallel increase of demand in the maritime security sector. A plenty of flag States around the world have started to authorize the deployment of armed security guards, either military or private, aboard commercial ships. In 2011, Italy also introduced the possibility of embarking armed security services to protect Italian flagged ships sailing in dangerous international waters. Like the other flag States’ legal systems, the newly adopted Italian legislation aims to preserve the domestic shipping industry which was particularly disrupted by modern-day pirates. On the other hand, the doubling of approaches of the Italian legal and regulatory framework, initially privileging military personnel and then opting for the private solution, took the author to investigate the main relevant features of the Italian model of regulation and to analyze the recent developments of the domestic legal practice on counterpiracy armed security services, focusing on the role that customary and treaty obligations of international law played for the realization at national level of on-board armed protection of Italian ships. The use of lethal force at sea and the relationship between the shipmaster and the security guards will receive specific attention in this article.


Giorgia Bevilacqua
Researcher at the Università degli Studi della Campania Luigi Vanvitelli.

Birgit Feldtmann
Birgit Feldtmann is professor (mso) at the Department of Law, Aalborg University.

Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.

Paul Mevis
Paul Mevis is professor of criminal law and criminal procedure at Erasmus University Rotterdam.
ECJ Court Watch

ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international law

Sandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company

Journal European Employment Law Cases, Issue 4 2017
Keywords Private international law
Abstract

    When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator.

Article

Beyond Financialisation?

Transformative Strategies for More Sustainable Financial Markets in the European Union

Journal European Journal of Law Reform, Issue 4 2014
Keywords financialisation, financial market integration, financial reform, financial innovation, financial crisis
Authors Dieter Pesendorfer
AbstractAuthor's information

    The global financial crisis has led many regulators and lawmakers to a rethinking about current versus optimum financial market structures and activities that include a variety and even radical ideas about deleveraging and downsizing finance. This paper focuses on the flaws and shortcomings of regulatory reforms of finance and on the necessity of and scope for more radical transformative strategies. With ‘crisis economics’ back, the most developed countries, including the EU member states, are still on the edge of disaster and confronted with systemic risk. Changes in financial regulation adopted in the aftermath of the financial meltdown have not been radical enough to transform the overall system of finance-driven capitalism towards a more sustainable system with a more embedded finance. The paper discusses financialisation in order to understand the development trends in finance over the past decades and examines various theories to describe the typical trends and patterns in financial regulation. By focusing on a limited number of regulatory reforms in the European Union, the limitations of current reforms and the need for additional transformative strategies necessary to overcome the finance-driven accumulation regime are explored. Finally, the regulatory space for such transformative strategies and for taming finance in times of crisis, austerity, and increased public protest potential is analysed.


Dieter Pesendorfer
Queen’s University Belfast, School of Law, d.pesendorfer@qub.ac.uk.
Article

Living in the Past

The Critics of Plain Language

Journal European Journal of Law Reform, Issue 3 2014
Keywords plain language, legal drafting, legislation, professional responsibility, legalese
Authors Derwent Coshott
AbstractAuthor's information

    This article addresses three core complaints that are frequently levelled by critics of plain legal language: (1) It will reduce reliance on lawyers; (2) It is uncertain and will lead to greater litigation; and (3) Legal writing is, and should only be, for a legally trained audience. The article develops a definition of plain language that reflects a more contemporary understanding. It demonstrates that the three core criticisms misrepresent this understanding and are unsustainable with regard to lawyers’ duty to clients, the role of legislation as public documents, and modern commercial realities.


Derwent Coshott
BA (Dist) (UNSW) JD (Syd) GradDipLegalPrac (ColLaw) LLM (Syd). PhD Candidate and Casual Lecturer at the University of Sydney.

    Under the Kafala system, which applies in all Arab countries, migrant workers must attain a work entry visa and residential permit, which is possible only if they are working for a domestic institution or corporation or a citizen of the respective country. Each and every employer is required, based on the Kafala system, to adopt all legal and economic responsibilities for all of the employer's workers during their contractual period. By giving wide-ranging powers and responsibilities unilaterally to employers, the Kafala system subjects workers to abysmal and exploitative working conditions, violence, and human rights abuses. Some of these problems have recently made headlines in the United States and in Europe in connection with the campus being built by New York University in Abu Dhabi. While NYU imposed a code of labor standards on its direct contractual partners, it claimed to have no means of controlling subcontractors. Nor did NYU try very hard, it seems, to verify compliance even by its direct contractual partners.
    Migrant workers make up at least 30 percent of the population of Saudi Arabia and 49 percent of Saudi Arabia's entire workforce. Employers control Saudi Arabia's Kafala system, in which migrant workers are the weakest link. Studies and international organizations report that foreigners employed in Saudi Arabia have returned home with many complaints. In 2006, Saudi Arabia re-examined all laws including its labor law. This re-examination resulted in abolishing some terms used in labor law, such as the kafala system, but the system remains as is. The new labor law includes many positive changes, but not enough according to the assessment of local and international scholars and observers. In this paper, I will reveal laws, practices and patterns that essentially cause the vulnerability of migrant workers, and I will suggest effective alternative strategies. This paper should contribute to our growing understanding of issues of concern for migrant workers in Saudi Arabia and other Arab countries and help to develop specific and necessary legal and institutional responses.


Majed M. Alzahrani
LL.M, Indiana University, Robert H. McKinney School of Law. The author would like to thank Professor Frank Emmert for advice and guidance in the production of this article.

Sylvia Ospina
S. Ospina & Associates-Consultants, Florida.
Article

Negligent Prosecution

Why Pirates Are Wreaking Havoc on International Trade and How to Stop It

Journal European Journal of Law Reform, Issue 1 2014
Keywords piracy, shipping, maritime law, universal jurisdiction, Somalia
Authors Justin Boren
AbstractAuthor's information

    The standard of living throughout the world has been on the rise thanks in large part to perhaps the greatest advance in the last hundred years: international trade performed by maritime traffic. Despite modern advances in shipping practice, the centuries-old problem of piracy has once again threatened advancement of international trade. Although piracy is not limited to a geographical area, the Horn of Africa has received much attention of late owing to a resurgence of pirate attacks. Using the failed state of Somalia as a base, pirates off the Horn of Africa have found piracy to be an extremely lucrative business in a part of the world ravished by famine, poverty and ongoing wars. This article calls for nations the world over to invoke universal jurisdiction and grant to the International Tribunal for the Law of the Sea in Hamburg, Germany, exclusive jurisdiction over claims of piracy. In doing so, the international community will no longer turn a blind eye to a crime that affects all nations equally.


Justin Boren
J.D. Candidate May 2014, Robert H. McKinney School of Law, Indianapolis, IN.
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.
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