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    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.
Article

The shame of injustice: the ethics of victimology and what it means for restorative justice

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Victimology, restorative justice, shame, Bernard Williams, Susan Brison
Authors Antony Pemberton
AbstractAuthor's information

    The role of shame in restorative justice has a long pedigree. Most often shame has been conceptualised in terms of the act of the offender. The focus of this paper is instead on the shame of the person experiencing wrongdoing: a victim who is neither guilty nor responsible for the experience. This has the advantage of making more clear that shame fundamentally concerns an experience of ‘who I am’ rather than ‘what I have done’, while the reaction to the experience of shame in victimization should involve attention to the identity-related questions that are posed by this experience. This way of viewing shame is connected to the distinction between countering injustice and doing justice, and offers a number of fresh insights into victimological phenomena in restorative justice and restorative justice more generally.


Antony Pemberton
Professor of Restorative Justice, Leuven Institute of Criminology, KU Leuven, Leuven, Belgium; Professor of Victimology, Tilburg Law School, Tilburg University, Tilburg, the Netherlands.
Article

Economic Inequality, Capitalism and Law

Imperfect Realization of Juridical Equality, the Right to Property and Freedom of Contract

Journal European Journal of Law Reform, Issue 4 2019
Keywords capitalism, inequality, juridical, law, property
Authors Shabir Korotana
AbstractAuthor's information

    There is a general unease among the public across all jurisdictions about the progressive economic inequality that seems to define the new normal, and this phenomenon has been succinctly documented in numerous prominent studies. This trend of capitalism has been supported by the existing structures of the common law, albeit contrary to the aim and purpose of its original principles. The studies show that the modern capitalist societies display a persistent trend of increasing inequality, and this is summed up by the observation that modern capitalism generates progressive and intense economic inequality.
    Capitalism as a socio-economic system is structured and sustained by the law and by socio-economic systems of institutions. Capitalism is not only a social ordering; essentially, it is a legal ordering. At the heart of this legal ordering are private laws, and tort law, but the most important is contract law: freedom of contract. It is common law, similar to the private law in other jurisdictions, that is responsible for the extreme inequality because it allows the institutions of capitalism to function freely and without much control. The open-ended capitalism that allows accumulation of wealth without ceiling causes progressive inequality in society and consequently works against the very freedom and individualism that are supposed to be the ideals of common law and capitalism. Because of the existing institutions of capitalism and the legal construct, freedom, fairness and the intended progress of the individual were not properly realized; the understanding of the ideas and principles of freedom, individualism, juridical equality, the right to property and freedom of contract have been imperfectly realized. With rising inequality, it is this imperfect realization, particularly of juridical equality that is in question.


Shabir Korotana
Shabir Korotana is Senior Lecturer in Commercial Law at Brunel Law School, Brunel University London.
Article

Control in International Law

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood
Authors Joseph Rikhof and Silviana Cocan
AbstractAuthor's information

    The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions.


Joseph Rikhof
Joseph Rikhof is an adjunct professor at the Common Law Faculty of the University of Ottawa.

Silviana Cocan
Silviana Cocan holds a double doctoral degree in international law from the Faculty of Law of Laval University and from the Faculty of Law and Political Science of the University of Bordeaux.
Article

Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law

A Jurisprudential History

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer
Authors Ken Roberts and James G. Stewart
AbstractAuthor's information

    The forced displacement of civilian populations is an issue of significant global concern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of ‘unlawful deportation or transfer’. International courts and tribunals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not without controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law.
    In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful template for those seeking to understand how these crimes may have a role to play in future international jurisprudence.


Ken Roberts
Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria).

James G. Stewart
James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia.
Article

The Smuggling of Migrants across the Mediterranean Sea

A Human Rights Perspective

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords smuggling, refugees, migration, readmission, interceptions
Authors J. Shadi Elserafy LL.M.,
AbstractAuthor's information

    Irregular migration by sea is one of the most apparent contemporary political issues, and one that entails many legal challenges. Human smuggling by sea is only one aspect of irregular migration that represents a particular challenge for States, as sovereignty and security interests clash with the principles and obligations of human rights and refugee law. In dealing with the problem of migrant smuggling by sea, States have conflicting roles, including the protection of national borders, suppressing the smuggling of migrants, rescuing migrants and guarding human rights.
    The legal framework governing the issue of migrant smuggling at sea stems not only from the rules of the law of the sea and the Smuggling Protocol but also from rules of general international law, in particular human rights law and refugee law. The contemporary practice of States intercepting vessels engaged in migrant smuggling indicates that States have, on several occasions, attempted to fragment the applicable legal framework by relying on laws that allow for enhancing border controls and implementing measures that undermine obligations of human rights and refugee law. This article seeks to discuss the human rights dimension of maritime interception missions and clarify as much as possible the obligations imposed by international law on States towards smuggled migrants and whether or not these obligations limit the capacity of States to act.


J. Shadi Elserafy LL.M.,
LL.M., Judge/Counselor at The Egyptian Council of State (The Higher Administrative Court of Justice).
Human Rights Practice Reviews

The Russian Federation

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Igor Bartsits, Oleg Zaytsev and Kira Sazonova PhD
Author's information

Igor Bartsits
Igor Bartsits is the Director of IPACS RANEPA, Doctor of Law, Professor, Honoured Lawyer of the Russian Federation.

Oleg Zaytsev
Oleg Zaytsev is the Dean of the School of Law, Doctor of Law, IPACS RANEPA.

Kira Sazonova PhD
Kira Sazonova is the Assistant Professor, Ph.D. in International Law, Ph.D. in Politics, IPACS RANEPA.
Human Rights Practice Reviews

Albania

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Anisia Mandro LLM
Author's information

Anisia Mandro LLM
Anisia Mandro (European Union Law - LLM), Legal Researcher and Legal Adviser in the area of competition law, data protection, and human rights; Consultant in approximation of national legislation with EU acquis Communautaire.
Article

Primus Inter Pares? In Search of ‘Fundamental’ Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords hierarchy, jus cogens, International Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights
Authors Julia Kapelańska-Pręgowska
AbstractAuthor's information

    International human rights law is one of the most developed and codified regimes (branches) of public international law. Since 1948 and the adoption of the Universal Declaration of Human Rights, the number and scope of human rights standards evolved considerably. Prima facie this tendency reflects a generally positive phenomenon and is driven by the human rights approach in international law, but at the same time it may raise questions of the system’s efficiency, internal coherence, hierarchy of rights and mechanisms of protection and monitoring. Against the richness of human rights standards, designations such as ‘fundamental’, ‘essential’, ‘basic’, ‘crucial’ or ‘core’ are being used and ascribed to diverse concepts (inter alia, customary international human rights, erga omnes obligations, non-derogable rights, jus cogens or absolute rights). The article explores the provisions of general human rights instruments – the UDHR, the two Covenants and regional treaties, as well as relevant case-law of the ICJ, ECtHR and IACtHR in search of a definition and catalogue of fundamental human rights.


Julia Kapelańska-Pręgowska
Chair of Human Rights, Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland.
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
Article

Access_open Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial courts, international business courts, third parties, third party joinder, recognition and enforcement
Authors Drossos Stamboulakis and Blake Crook
AbstractAuthor's information

    In this article we explore the approach of the Singapore International Commercial Court (the ‘SICC’) to jurisdiction and joinder of non-consenting parties, and way that any resulting judgments are likely to be treated by foreign enforcing courts. This novel juncture arises as international commercial courts, such as the SICC, rely predominantly upon party autonomy to enliven their jurisdiction over disputants. This does not require any territorial link of the parties or the dispute to the host jurisdiction (Singapore). At the same time, however, the SICC is granted a mandate under Singaporean law to join non-consenting parties, again with no necessary territorial link. Where such joinder occurs, any resulting judgment is likely to face significant difficulties if recognition and enforcement is sought outside of Singapore. To support this argument, we first set out the ways in which non-consenting disputants may be joined to proceedings before the SICC, and offer some initial thoughts on how these powers are likely to be exercised. Second, we argue that any such exercise of jurisdiction – that lacks either territorial or consent-based jurisdiction grounds – is unlikely to gain support internationally, by reference to transnational recognition and enforcement approaches, and the SICC’s most likely recognition and enforcement destinations. Finally, we offer some concluding remarks about the utility of international commercial court proceedings against non-consenting parties, including the possibility they may impact on domestic recognition and enforcement approaches in foreign States.


Drossos Stamboulakis
B.Com, LLB (Hons) (Monash); LLM (EMLE); Law Lecturer, USC School of Law (University of the Sunshine Coast, Australia)

Blake Crook
PhD Candidate, Faculty of Law (University of Melbourne, Australia), B.Com (Acc), LLB (Hons) (Sunshine Coast).
Article

Access_open The Court of the Astana International Financial Center in the Wake of Its Predecessors

Journal Erasmus Law Review, Issue 1 2019
Keywords international financial centers, offshore courts, international business courts, Kazakhstan
Authors Nicolás Zambrana-Tévar
AbstractAuthor's information

    The Court of the Astana International Financial Center is a new dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centers in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. The paper concludes that their success, especially in the case of the younger courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.


Nicolás Zambrana-Tévar
LLM (LSE), PhD (Navarra), KIMEP University.
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.

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

    The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment.


Sean Illing
Sean Illing is an Associate Solicitor at Lewis Silkin LLP.
Article

The Pull of Unbiased AI Mediators

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords automation, artificial intelligence, algorithm development, mediation, pull style communication
Authors Chris Draper
AbstractAuthor's information

    There is significant concern in the access to justice community that expanding current count-based online dispute resolution (ODR) efforts will further exacerbate the systemic inequities present in the American justice system. This well-founded fear stems from the fact that current ODR tools typically calibrate artificial intelligence (AI) algorithms with past outcomes so that any future cases are consistently analysed and filtered in a manner that produces similar results. As courts consider ODR tools for more complicated cases that often require mediation, there is significant disagreement on whether it is possible to create an AI mediator and how that could be achieved. This article argues that an effective AI mediator could be created if its design focuses not on the outcomes achieved by the mediation but on the manner of the communication prompts used by the AI mediator.


Chris Draper
Chris Draper, PhD, PE, is the Managing Director of Trokt, responsible for guiding the development, adoption and growth of the Trokt Online Dispute Resolution platform. Dr. Draper is a trained engineer with a focus on human-technology interface risks, a certified mediator with a focus on special needs education conflicts, and an expert on the evaluation of highly complex systems that assist in the human management of legally sensitive data. Dr. Draper received his Bachelor of Science from the University of California at Berkeley and his Doctor of Philosophy from the University of Glasgow.
Article

Access_open World Justice Forum VI

Insights and Takeaways

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords World Justice Forum, World Justice Project, World Justice Report, online dispute resolution, technology, access to justice, Justice Layer of the Internet
Authors Jeffrey Aresty and Larry Bridgesmith
AbstractAuthor's information

    In May 2019, the World Justice Project (WJP) convened its sixth annual conference to explore the state of access to justice (A2J) in the global context. World Justice Forum VI met in The Hague and published the most recent A2J report compiled after a year of analysis and based on more than a decade of public, government and citizen data. Measuring the Justice Gap revealed less than optimistic data reflecting the lack of significant progress toward fulfilling the United Nations Sustainable Development Goal 16: achieving just, peaceful and inclusive societies by 2030. The 2019 conference showcased many global initiatives seeking to narrow the justice gap. For the most part these initiatives rely on institutional action by governments, financial institutions and NGO’s. As important as these projects are, transforming the access to justice status of the world can also be achieved through actions focused on Justice at the Layer of the Internet. A consensus based governance model can build a legal framework which is not reliant on the enactment of laws, the promulgation of regulations or overcoming the inertia of institutional inaction. This article reviews the learning gleaned from the WJP and the 2019 Forum. It also seeks to augment the great work of the WJP by exploring the potential for justice as delivered by individuals joined in consensus and relying on emerging technologies.


Jeffrey Aresty
Jeff Aresty is an international business and e-commerce lawyer with 35 years of experience in international cyberlaw technology transfer. He is the Founder and President of the InternetBar.Org.

Larry Bridgesmith
Larry Bridgesmith J.D., is CEO of LegalAlignment LLC, a practicing lawyer in Nashville, Tennessee, and Professor of Law at Vanderbilt University and coordinator of its programme on law and innovation.
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.

Dascha Düring
Dascha Düring is postdoctoral research fellow, Nanyang Technological University (Singapore).
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