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Article

Plain Language

A Promising Tool for Quality Legislation

Journal European Journal of Law Reform, Issue 4 2018
Keywords plain language, clarity, precision, accessibility, interpretation
Authors Kally K.L. Lam LLB
AbstractAuthor's information

    The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests.


Kally K.L. Lam LLB
Kally K.L. Lam, LLB (University of Hong Kong), LLM (University of London) is Solicitor (Hong Kong).
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
Article

Victims’ Right to Reparation in Light of Institutional and Financial Challenges

The International Criminal Court and the Reparation for the Victims of the Bogoro Massacre

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Bogoro massacre (DRC), International Criminal Court, Katanga case, reparation, victims
Authors Péter Kovács
AbstractAuthor's information

    The aim of the article is the presentation of the recently issued documents – the ‘Order for reparation’ issued by the Trial Chamber II of the ICC and the document called ‘Notification’, recently adopted by the Trust Fund for Victims of the ICC – which are important first and foremost in the reparation procedure of the victims of the Bogoro massacre, subsequent to the case The Prosecutor v. Germain Katanga. Second, these documents will also have a considerable impact on the reparation procedures to be carried out by the ICC in the future. The reader can also see the interactions between classic sources of public international law and those norms which are very difficult to be characterized legally but without a doubt play a very important role during the procedure.


Péter Kovács
Professor of international law at the Péter Pázmány Catholic University, Budapest, and judge of the International Criminal Court (2015-2024).
Article

Three Tiers, Exceedingly Persuasive Justifications and Undue Burdens

Searching for the Golden Mean in US Constitutional Law

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Equal protection, franchise, fundamental rights, intermediate scrutiny, rationality review, reproductive rights, right to vote, strict scrutiny, substantive due process, undue burden, US constitutional law
Authors Barry Sullivan
AbstractAuthor's information

    When government action is challenged on equal protection grounds in the US, conventional wisdom holds that the courts will analyse constitutionality under one of three standards of review: rational basis, intermediate scrutiny and strict scrutiny. In substantive due process cases, two standards are applied: rational basis and strict scrutiny. In fact, careful study shows that the levels of scrutiny are actually more plastic than conventional wisdom would suggest and have shifted over time. In addition, courts sometimes confuse matters by appearing to introduce new tests, as when Justice Ginsburg characterized the government’s burden in Virginia v. United States, 518 U.S. 515 (1996) in terms of “an exceedingly persuasive justification”. Finally, while the Court originally applied strict scrutiny review to reproductive rights in Roe v. Wade, 410 U.S. 113 (1973), the Court has subsequently applied an ‘undue burden’ test in that area. A similar trend can be seen in voting rights cases. While the Court long ago characterized the right to vote as “fundamental … because preservative of all rights”, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and the modern Court initially applied strict scrutiny to voting rights, the Court has now moved away from strict scrutiny, just as it has in the reproductive rights area. This erosion of constitutional protection for voting rights is the central concern of this article. The focus here is on the way these tests have evolved with respect to limitations on the right to vote. The article begins with a description of the three-tiered paradigm and then considers the US Supreme Court’s development of the ‘undue burden’ test as a substitute for the strict scrutiny standard in the reproductive rights jurisprudence. The article then considers the Court’s analogous move away from strict scrutiny in voting rights cases. That move is particularly troubling because overly deferential review may subvert democratic government by giving elected officials enormous power to frame electoral rules in a way that potentially games the system for their own benefit. Building on existing scholarship with respect to reproductive rights, this article suggests a possible way forward, one that may satisfy the Court’s concerns with the need for regulation of the electoral process while also providing the more robust protection needed to protect the right to participate meaningfully in the electoral process.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law. The author is grateful to Jeffrey W. Gordon, Pilar Mendez and Tara Russo for expert research assistance, to Julienne Grant, Loyola University Chicago School of Law Reference Librarian, for additional research assistance, and to Michael Kaufman, Alfred S. Konefsky, Juan Perea, H. Jefferson Powell, Henry Rose, and Winnifred Fallers Sullivan for many helpful comments on an earlier draft. The author also wishes to thank the Cooney & Conway Chair Fund and the Loyola University School of Law Faculty Research Fund. The usual dispensation applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Trinity Lutheran and Its Implications for Federalism in the United States

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords anti-Catholic bias, Baby Blaine Amendments, Blaine Amendments, federalism, free exercise, non-discrimination, religious animus
Authors Brett G. Scharffs
AbstractAuthor's information

    This article considers the ‘tire scrap’ playground case, Trinity Lutheran Church of Columbia, Inc. v. Comer, decided by the U.S. Supreme Court in the summer of 2017, and its implications for federalism in the United States. In Trinity Lutheran the U.S. Supreme Court held that the state of Missouri violated the Free Exercise Clause of the First Amendment by disqualifying a church-owned school from participating in a programme that provided state funding for updating playgrounds. The case has interesting Free Exercise Clause implications, because the Court emphasized the non-discrimination component of Free Exercise. It also has interesting implications for federalism, because Missouri’s State constitutional provision prohibiting state funding of religion was rooted in an era of anti-Catholic bias. These so-called State constitutional ‘Blaine Amendments’ exist in some form in as many as forty states. Although the Court did not explicitly address whether state Blaine Amendments violate the U.S. Constitution per se due to their history of religious animus, the Court held that this Blaine Amendment as applied here violated the Federal Constitution. This could have significant effects for the wall of separation between religion and the state, and might have especially significant implications for state funding of religion, including the ‘elephant in the room’ in this case, state educational ‘voucher’ programmes that provide state funding to parents who send their children to religiously affiliated schools.


Brett G. Scharffs
Director, International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law, J. Reuben Clark Law School, Brigham Young University. BSBA, MA, Georgetown University; BPhil (Rhodes Scholar) Oxford University; JD, Yale Law School. Thanks to Kyle Harvey, BYU Law Class of 2019 for his research assistance. Heartfelt thanks also to Professor Csongor István Nagy for the invitation to contribute to this project. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open Afterword

Journal Erasmus Law Review, Issue 1 2018
Authors Stuart Kirsch
Author's information

Stuart Kirsch
Professor of Anthropology, University of Michigan.

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.

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


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.

    In the process of adjudication and litigation, indigenous peoples are usually facing a very complex and demanding process to prove their rights to their lands and ancestral territories. Courts and tribunals usually impose a very complex and onerous burden of proof on the indigenous plaintiffs to prove their rights over their ancestral territories. To prove their rights indigenous peoples often have to develop map of their territories to prove their economic, cultural, and spiritual connections to their territories. This article reflects on the role played by the mapping of indigenous territories in supporting indigenous peoples’ land claims. It analyses the importance of mapping within the process of litigation, but also its the impact beyond the courtroom.


Jeremie Gilbert PhD
Jeremie Gilbert is professor of Human Rights Law, University of Roehampton.

Ben Begbie-Clench
Ben Begdie-Clench is a consultant working with San communities in southern Africa.

    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.
    The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.


Kayleigh Williams
Kayleigh Williams is a paralegal at Lewis Silkin LLP.

    An acquired mother tongue is – at least indirectly – connected to a person’s origin and therefore also linked to ethnic origin. Claims based on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, the ‘AGG’) must be brought in writing within two months after knowledge of a possible discrimination. Time only starts to run for claims after the employer has provided an unsuccessful job applicant with a clear and definite statement that he or she has been rejected. The limitation period under the AGG will not be triggered by lapse of time only.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.
Article

The Negotiation Element in Mediation

The Impact of Anchoring

Journal Corporate Mediation Journal, Issue 2 2017
Authors Martin Brink
Author's information

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Article

Access_open Dworkin’s Rights Conception of the Rule of Law in Criminal Law

Should Criminal Law be Extensively Interpreted in Order to Protect Victims’ Rights?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Klaas Rozemond, Ronald M. Dworkin, Legality in criminal law, Rights conception of the rule of law, Legal certainty
Authors Briain Jansen LLM.
AbstractAuthor's information

    The extensive interpretation of criminal law to the detriment of the defendant in criminal law is often problematized in doctrinal theory. Extensive interpretation is then argued to be problematic in the light of important ideals such as democracy and legal certainty in criminal law. In the Dutch discussion of this issue, Klaas Rozemond has argued that sometimes extensive interpretation is mandated by the rule of law in order to protect the rights of victims. Rozemond grounds his argument on a reading of Dworkin’s distinction between the rule-book and the rights conception of the rule of law. In this article, I argue that Dworkin’s rights conception, properly considered, does not necessarily mandate the imposition of criminal law or its extensive interpretation in court in order to protect victims’ rights.


Briain Jansen LLM.
Briain Jansen is als promovendus rechtstheorie verbonden aan de Erasmus Universiteit Rotterdam.

    The Extraordinary African Chambers (CAE) within the courts of Senegal were created by the Agreement between the Republic of Senegal and the African Union of 22 August 2012 to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990. The Chambers are governed by a Statute. For those cases not provided for in the Statute, the Chambers shall apply Senegalese law. Both laws, one of international or conventional nature and the other one national, could be applied to a trial in compliance with international standards. However, the Statute has priority over Senegalese legislation. It is indeed the Statute that is asked to settle all questions that may arise and that has made specific selective references and for any other point that it could not have foreseen.
    So, in the functioning of the CAE, both standards were able to interact. A beneficial process that, however, also has created difficulties. After the dissolution of the Chambers on 27 April 2017, Senegalese national law, that was enacted about the universal jurisdiction of international crime since 2007, should be inspired by it and adopt appropriate standards.
    Les Chambres africaines extraordinaire (CAE) au sein des juridictions sénégalaises ont été créées par l’Accord entre la République du Sénégal et l’Union africaine du 22 août 2012 pour connaitre de crimes internationaux commis au Tchad durant une période bien déterminée. De caractère international, elles sont régies par un Statut qui prévoit dans certains cas l’application du droit national sénégalais. Les deux droits, l’un d’essence internationale ou conventionnelle et l’autre nationale, ont pu être appliqués pour un procès conforme aux standards internationaux. Toutefois, le Statut prime sur le droit sénégalais. En effet, c’est le Statut appelé à régir toutes les questions qui pourrait se poser qui a opéré des renvois sélectifs expressément et pour tout autre point qu’il n’a pu prévoir. Ainsi, dans le fonctionnement des CAE, les deux normes ont pu interagir. Un procédé bénéfique qui n’a toutefois pas manqué de poser des difficultés. Après leur dissolution, le 27 avril 2017, le droit national sénégalais qui s’est lancé depuis 2007 dans la compétence universelle sur les crimes internationaux devrait s’en inspirer et adopter des normes adaptées.


Youssoupha Diallo
Substitut Général près la Cour d’appel de Dakar, Sénégal, dialloyoussoupha78@gmail.com.

Ulrich Karpen
University of Hamburg/Germany – Law School
Case Reports

2017/30 Discrimination of workers’ representatives – burden of proof (LI)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Discrimination of workers’ representatives
Authors Vida Petrylaite
AbstractAuthor's information

    The Lithuanian Supreme Court has found discrimination against an employee based on his trade union activities and ruled that there was no need for the burden of proof to shift to the employer.


Vida Petrylaite
Vida Petrylaite is a partner with CONFIDENCE Law Office, Vilnus (www.confidence.lt).

George Anthony Long
Fountain Hills, AZ United States, gal@legalparallax.com.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The English Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dangerous, sex offenders, human rights, community supervision, punishment
Authors Nicola Padfield
AbstractAuthor's information

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


Nicola Padfield
Nicola Padfield, MA, Dip Crim, DES, Reader in Criminal and Penal Justice, University of Cambridge. I thank Michiel van der Wolf for involving me in this project and for his many useful insights and comments.
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