Thursday, December 18, 2008

ESSAY COMPETITION



Call for Papers

The Legal Research Society is organizing an Essay Competition and invites all postgraduate law students from the University of Aberdeen to participate.

– Engage in Research! – Submit an excellent Essay! – Win a valuable Prize (worth of £100)! –

We welcome essays in the areas of EU Law, Private and Commercial Law and Public International Law. The essays should be of approximately 3,500 words and they should be sent to k.bashir@abdn.ac.uk by February 14th, 2009.

All taught and research postgraduate law students are eligible to participate provided that they have not graduated by the time of the deadline of submission.

Essays will be assessed on the basis of excellence and depth of analysis, of critical thought, of evidence of extensive reading and of superior understanding of the issue.

The winners in each subject area will be chosen and proclaimed in the beginning of March 2009 and a celebratory event will be held shortly afterwards.

The prizes to be won are book vouchers of up to £100.

Participants are free to define their own specific topics within the given areas. However, we encourage you to include a dimension of critical consideration, e.g. of the role that law does and should play in your chosen subject or the effectiveness of the legal norms to grasp and solve particular problems.

For instance (by way of example):-

EU Law
• Democratic control (e.g. Given the large-scale effect of EU Law on domestic law and thus on European citizens is there sufficient democratic participation within the EU regime?)
• Institutions (e.g. What is the role of the ECJ in promoting and enforcing the four fundamental freedoms?)
• Legal regime (e.g. Is there a need for a European constitution and what should it look like?)

Private and Commercial Law
• Contract law
• Tort law
• E.g. the concept of pure economic loss: Discuss the issue with respect to a particular area of law, such as insurance law, company law, oil/gas law.

Public International Law
• Human rights (e.g. universalism, effective implementation)
• Use of force (e.g. UN Charter law and customary law)
• International criminal law

In the spirit of a community of young researchers we are looking forward to your essays!

The LRS organizing committee


Wednesday, December 17, 2008

Conference: 6th CASS postgraduate conference

Moving Forward

The 6th College of Arts & Social Sciences

Postgraduate Conference

University of Aberdeen, Scotland, UK

21 – 22 July 2009


Drawing on the success of the past five events, the Moving Forward organising committee are delighted to announce that the 6th CASS postgraduate conference will take place at the University of Aberdeen on Tuesday 21 and Wednesday 22 July 2009.

Its aim
is to bring together postgraduate research students from different universities across the UK, and further a field, to debate common issues and problems and to establish lasting contacts. In previous years there has been a truly international flavour: the conference has attracted quite brilliant delegates from prestigious universities across the world.

The conference is designed to provide an opportunity to present work in a supportive and relaxed atmosphere and to discuss various findings and theories amongst fellow peers in the disciplines of, Business, Divinity, History and Philosophy, Education, Language and Literature, Law and Social Sciences.


A “Call for Papers” along with all the relevant registration and contact details will be forthcoming in January 2009. For all those who are unfamiliar with the CASS conference, please feel free to consult the website listed below where you can read about the proceedings of the 2008 conference: http://www.abdn.ac.uk/cass/pgradconf/. These pages will be updated with 2009 Conference details in due course.

Sunday, December 14, 2008

RT: 'Human Rights: Universalism vs. Relativism' (for the 60th anniversary of UDHR)


December 10, marked the 60th anniversary of the adoption of the United Nations’ Universal Declaration of Human Rights. Most people assume this day that the guarantee of human rights is an essential feature of all civilized societies.

In order to celebrate the 60th anniversary of the adoption of the United Nations’ Universal Declaration of Human Rights, the LRS will host a roundtable discussion on ‘Human Rights: Universalism vs. Relativism’.

Time: Monday, 15th December, from 4 pm until 6 pm
Location: MacRobert Building 252

The UDHR enshrines universal rights that apply to all humans equally. 60 years ago, while the fledgling U.N. General Assembly ultimately passed the UDHR by 48-0 vote, a huge diplomatic effort was required to get disparate nations to agree on exactly what "human rights" are or should be. Communist countries proffered one view, while capitalist and Islamic countries had their own perspectives. Proponents of cultural relativism argue for acceptance of different cultures.

In this RT, Dr. Matyas Bodig will give us a brief introduction of International Human Rights: from European perspective to universalism. And Dr. Robert Dunbar has agreed to attend this discussion. Khaled Bashir will present human rights from the Islamic standpoint.

This discussion will be moderated by Nasser Algheitta (PhD student in Criminal Justice and Human Rights).

Let us jointly celebrate this memorable day for all countries! All welcome!

Friday, December 12, 2008

Movie: Le Dîner de cons



To round off the year with a light and entertaining last movie night, on Wednesday 17th of December from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) the LRS will screen “Le Dîner de cons” (The Dinner of Idiots), a French comedy of the year 1998.

Imagine your friend takes you to a nice dinner of a bunch of people, but the thing you don't know is that your freakiness and originality are supposed to make for a big laugh for the people around you.

If you thought the French are not good at making comedies Le Dîner de cons will make you think again.

The film won three awards (best actor, best supporting actor, best producer) at the national film award of France César Award in 1999.

You are very welcome to come along and enjoy the movie and the refreshments.

Monday, December 08, 2008

Movie & Discussion: Workingman's Death


On Wednesday 10th of December from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) The LRS will screen a movie titled “Workingman's Death”.

After the film we will have the opportunity to talk about the film and the issues it raises.

Is heavy manual labour disappearing or is it just becoming invisible? Where can we still find it in the 21st century? Workingman's Death follows the trail of the HEROES in the illegal mines of the Ukraine, sniffs out GHOST among the sulphur workers in Indonesia, finds itself face to face with LIONS at a slaughterhouse in Nigeria, mingles with BROTHERS as they cut a huge oil tanker into pieces in Pakistan, and joins Chinese steel workers in hoping for a glorious FUTURE.

Even though it's the twenty-first century, the director wants us to know that a lot of workers across the world have not benefited from the advancement in technology
.

You are very welcome to come along and enjoy the movie and the refreshments.

Monday, December 01, 2008

Movie: Lion of the Desert


On Wednesday 3rd of December from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) The LRS will screen a movie titled “Lion of the Desert”

Lion of the Desert is a 1981 historical film starring Anthony Quinn as Libyan tribal leader Omar Mukhtar who led the Libyan resistance against the Italian oppressors from 1911-1931.

In 1982 the Italian authorities banned and censored the movie because, it was "damaging to the Italian Army's honour".

The Movie will be preceded by a Historical and legal overview (the concept of ‘jihad’, International Law of War) delivered by Khaled Bashir and Ahmed Hassanein, also there will be a discussion after the movie.

You are very welcome to come along and enjoy the movie and the refreshments.

Monday, November 24, 2008

Movie: No Country For Old Men


On Wednesday 26th of November from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) The LRS will screen a movie titled “No Country for Old Men”

No Country for Old Men tells the story of a botched drug deal and the ensuing cat-and-mouse drama, as three men crisscross each other's paths in the desert landscape of 1980 West Texas. The film examines the themes of fate and circumstance the Coen brothers have previously explored in Blood Simple and Fargo.

No Country for Old Men has been highly praised by critics. Roger Ebert of the Chicago Sun-Times called it "as good a film as the Coen brothers...have ever made." Guardian journalist John Patterson said the film proved "that the Coens' technical abilities, and their feel for a landscape-based Western classicism reminiscent of Anthony Mann and Sam Peckinpah, are matched by few living directors."

The film was honoured with numerous awards, garnering three British Academy of Film awards, two Golden Globes, and four Oscars Academy Awards.

You are very welcome to come along and enjoy the movie and the refreshments

Tuesday, November 18, 2008

Presentation: Human Rights in Africa



On Friday 21 November 5-7pm, Taylor A17 the LRS will host a presentation delivered by Nasser Alghitta, under the title:-


"Africa: from the human rights commission to the court – really a step forward or just a make-up?"


Abstract


The presentation theme is to examine the African system of the protection of human rights to establish what the weaknesses of the system are. It also assesses the system against the more advanced regional system which is the European system of the protection of human rights. Originally the African system entrusted a commission to oversee the implementation of the African charter of human and people's rights. However after years of operation it has become clearer that the commission is not ideally suited for the job. A proposal to establish a court had been put forward. On June 9, 1998, in Ouagadougou, Burkina Faso, the Assembly of Heads of State and Government of the Organization of African Unity (OAU) adopted a Protocol to the African Charter on Human and Peoples' Rights. The Protocol, signed by thirty of the fifty-two Member States of the OAU on the same day, establishes an African Court on Human and Peoples' Rights to supplement the existing protections afforded by the African Commission on Human and Peoples' Rights. The court is in its early stages and has not had the chance to examine any cases yet. The talk will look into the difficulties and challengers facing the new court.


You are very welcome to come along and enjoy the refreshments!

Monday, November 10, 2008

Movie: The Constant Gardener


On Thursday 13th November from 6pm until 8pm in TAYLOR C11 (opposite the Taylor library entry) The LRS will screen a movie titled “The Constant Gardener”.

Gripping and intelligent entertainment, this is a dramatic thriller of sex, lies and dirty politics in modern Africa. Based on a book by espionage novelist John le Carré and directed by Fernando Mereilles (City of God) the film blends high tension with social conscience, giving a human face to the West's exploitation of the Third World.

For more information about the movie click here.

The screening will be followed by a brief discussion which will be moderated by Paula Herm and Ahmed Hassanein.

You are very welcome to come along and enjoy the movie and the refreshments (free of charge)!

Tuesday, November 04, 2008

Movie: Why we fight

On Thursday 6th November at 6pm TAYLOR C11 (opposite the Taylor library entry) The LRS will screen a movie titled “Why we fight”

The film was directed by Eugene Jarecki and has won the Grand Jury Prize at the 2005 Sundance Film Festival. It is an unflinching look at the anatomy of the American war machine, weaving unforgettable personal stories with commentary by a “who’s who” of military and beltway insiders. The film moves beyond the headlines of various American military operations to the deeper questions of why – why does American fight? What are the forces – political, economic, and ideological – that drive “us” to fight against an ever-changing enemy?


The movie will be followed by a brief discussion which will be moderated by Paula and Khaled.


You are very welcome to come along and enjoy the movie and the refreshments (free of charge)!


Thursday, October 30, 2008

Roundtable Discussion: A Legal Perspective on the Financial Crisis


On Thursday 30 October at 4pm in Taylor C24 the LRS will host its first roundtable discussion of this academic year. The topic will be the current financial crisis looked at from a legal point of view. The event will be of interest to anyone interested in the interrelation between law and economics, the role of government regulation and thus the intersection of private and public law in the field of banking and global finance.


Su Jieche will give an introduction to the topic explaining the background of the credit crunch, the rescue plans and the role of the state in bank insolvency. His talk will be followed by a discussion moderated by Bo Yin.


This is a chance to discuss this burning issue, join the society and enjoy the refreshments.

All welcome!

Friday, October 10, 2008

Non-state actors and International Law

To the surprise of many today, Aljazeera reported that the US defence secretary, Robert Gates, has said that “his country would `ultimately’ be prepared to reconcile with the Taliban group to end the conflict in Afghanistan”. Since the beginning of the so called 'war on terror' the question of how effective non-governmental groups are in shaping International Law has been repeatedly raised. Dr Aspremont, from Leiden University, further argues “In research circles, there is an impression that over the last twenty years international law has been shaped much less by nations and much more by non-state actors”. The reoccurrence of Pre-emptive wars, the breach of International Humanitarian Law and many more issues reflect the need to re-tackle the question without delay.




to read more about the topic visit: www.news.leiden.edu/who-shapes-international-law.jsp

Tuesday, September 23, 2008

So long, and thanks...

Since I'll be taking up a lectureship at a university in a neighbouring city next week, this will be my last post on this blog. I'd like to take this opportunity to thank everyone who was involved in setting up the LRS and keeping it going for the past two years, as well as all those who supported the Society. It's been a truly enriching experience to see the Society become a fixture in the School of Law. I wish you all the best of luck in keeping the Society going.

Thursday, August 28, 2008

Presentation: The Prosecution of Crimes Against Humanity committed in Slovenia after the Second World War

On Tuesday 02 September the Legal Research Society will host what is sure to be a fascinating paper by another of our co-founders, Jernej Letnar Cernic:


Tuesday 02 September, 3pm, Taylor C16
Jernej Letnar Cernic, 'The Prosecution of Crimes Against Humanity committed in Slovenia after the Second World War - The Prosecutor v. Mitja Ribičič case before the Slovenian Courts'


Abstract :

This presentation examines the recent decision by the Slovenian Courts in the case of Prosecutor v. Mitja Ribičič concerning alleged commission of crimes against humanity in the Slovenian territory in the months following the end of the Second World War. As many as one hundred thirty thousands person are estimated to have been extra-judicially killed in the months following the end of the Second World War by Secret Police controlled by Yugoslav Communist Party. Mass grave sites numbering between four and five hundred have been so far found on the Slovenian territory. In August 2006, the Slovenian courts refused to open an investigation and start criminal proceedings against Mitja Ribičič on charges of crimes against humanity. This presentation presents the decision of the Slovenian courts and attempts to analyse its reasoning. A commentary of Prosecutor v. Ribičič constitutes the centrepiece of this article.

Based on these findings this presentation argues that there are strong legal and moral grounds for prosecuting crimes against humanity committed in Slovenia after the Second World War. The presentation analyses these issues with reference to the decision in Ribičič v. Prosecutor. It argues that there are several obstacles against domestic prosecution in Slovenia relating to factors beyond formal and substantive dimension of concept of law. In other words, the presentation argues that the problem in Slovenia is not that it does not have constitutionally (formally) independent judiciary and normative safe-guards protecting right to a fair trail. The real and far deeper, structural problem is that it does not have people and individuals who could avail themselves normative safeguards rights and ideals mainly due continuing influence of invisible forces of former totalitarian regime.


The presentation is in preparation for Jernej's paper at the Biennial Conference of the European Society of International Law, which will be held in Heidelberg. The Conference programme can be found here.

Wednesday, August 27, 2008

Seinfeld and the Law


I have a lot of respect for the Maryland Court of Appeals and its recent decision in Thomas L. Clancy, Jr. v. W and T. King. The case has to do with whether the author Tom Clancy violated his fiduciary duties by withdrawing from a book series. That, however, is not the reason for why the Maryland Court deserves respect. In the case, the judges cite, as an example of bad faith in contract, Jerry Seinfeld and his conduct in the episode the Wig Master. The judges refer to the dispute Jerry has with a store clerk when he tries to return an expensive jacket because of “spite” and refer to Jerry’s reason as an example of breach of the duty to act in good faith toward the other party to a contract. This is a brilliant example of sound legal reasoning made available to non-lawyers.

The Wall Street Journal’s Law blog has the story and you can read the decision here.

Tuesday, August 19, 2008

Presentation Announcement

Although term start is still a few weeks away, the Legal Research Society kick starts this academic year with a presentation by founding member Justin Borg Barthet titled How Corporate Europe was Built in Kirchberg: An overview of AG Maduro's Opinion in Cartesio". The presentation will take place on Monday August 25 (sorry for the short notice) at 14.00 in Taylor Building room C16.

Here is the abstract:

This presentation addresses the opinion of Advocate General Maduro (ECJ) in Case C‑210/06 Cartesio Oktató és Szolgáltató bt. The case concerns the refusal of the Hungarian courts to allow a Hungarian limited partnership to transfer its operational headquarters to Italy while remaining incorporated under Hungarian law. In keeping with the flow of liberalisation that began with the ECJ's judgment in Centros, AG Maduro finds that the Hungarian law at issue constitutes an unjustified restriction on freedom of establishment as provided in Articles 43 and 48 of the EC Treaty.

It will be argued that the AG's opinion is commendable to the extent that it signals the way for a more coherent body of law. However, in the final analysis the opinion is open to criticism on the grounds that the AG's findings are symptomatic of an activist court that disregards positive law and the residual socio-economic sovereignty of the Member States.

For a brief introduction to the AG's opinion please click here.

All are welcome.

Thursday, July 31, 2008

Congratulations!

It is with enormous pleasure that I take this opportunity to congratulate our colleague and LRS member Ian Taggart on having his publication cited in a House of Lords decision (Doherty (Fc) and Others V Birmingham City Council, [2008] UKHL 57, at para. 31).
The decision concerns Gypsies/ Travellers and their rights under Article 8 European Convention on Human Rights.
Ian's Article 'One Scotland Many Cultures?' was published in the SCOLAG Legal Journal, March 2008, pp. 66/ 67. It is part of his extensive research into Travellers' rights in Scotland. His previous survey 'Moving on - again?', compiled in summer 2007 as part of his thesis, is available on the Aberdeenshire Council website. Ian's research related to the Council's community planning processes.

Very well done, Ian!

PS: Subsequent to our blog entry, the Scottish Legal News also reported the citation of Ian's SCOLAG article. For their news item, please click here.

Tuesday, July 29, 2008

Feminism and Murder

Today's edition of The Times leads with an interesting piece about criminal defences in murder trials. It is being proposed that the partial defence of provocation should be reframed by repealing the defence of sudden passion and introducing a partial defence for defendants who have been victimised.

In a 2004 report the Law Commission framed the issue as follows:

We think that the defence as it presently operates is in some respects too broad and in other respects too narrow. We think that it is too broad in that it can apply to conduct by the victim which is blameless or trivial. It is too narrow in that it provides no defence to a person who is subjected to serious actual or threatened violence, who acts in genuine fear for his or her safety (but not under sudden and immediate loss of self-control) and who is not entitled to the full defence of selfdefence (either because the danger is insufficiently imminent or their response is judged to have been excessive). We are satisfied from consultees’ responses that this is a real and not merely an academic problem, particularly in cases of defendants who have been victims of long-term abuse.

Harriet Harman, Labour Deputy Leader and the Minister for Women, frames the issue rather more starkly in terms of feminist discourse. She observes that the traditional defences allow men to be partially excused for all manner of domestic gripes:
We want to abolish the culture of excuses that allows a man who has killed his wife to say, ‘I killed her but it’s not my fault because she was having an affair or she provoked me in some way, by nagging or whatever’.
In contrast, women who are subjected to domestic abuse and commit homicide after a 'slow burn' cannot presently avail themselves of the partial defence of provocation.

Judging from some of the comments on The Times' piece, it seems like some men believe that the law will go a step too far and reverse the situation in favour of women. One reader asks 'So, a man using physical violence is a defense, but a woman using physcological abuse no longer is?' Quite frankly, I think that he misses the point - the proposed reform will distinguish between situations where one's life and limb are constantly under threat, and situations where one merely feels morally wronged. Nevertheless, it seems like Ms Harman has her work cut out if she is to convince some people with feminist arguments.

Friday, July 18, 2008

Smoking in the Internal Market


This blog has gone through a rather lengthy hiatus, for which we apologise to the dedicated handful that check back regularly. Unfortunately our contributors’ busy schedules have not allowed regular blogging. That being said, a slightly contradictory statement from the EU’s Tax Commissioner inspired a quick break from my work.

The Commission has proposed an increase in excise duty on cigarettes in order to reflect inflation and combat consumption (more on the story at the EUObserver), as commendable an initiative as any. The Commissioner stated that "Substantial differences in tax and price levels of tobacco products lead to considerable cross-border shopping and intra-community smuggling...These differences undermined the budgetary and health objectives of the Member States and resulted in a distortion of the functioning of the Internal Market".

The contradiction, small as it is, lies in the Commissioner’s reference to the ‘functioning of the internal market’. Certainly tax competition does distort a level playing field; the spectacle of German, French and Belgian smokers pouring into Luxembourg to stock up is notorious. However, it seems that the goal of equivalent taxation is not the establishment of an internal market in which competition is not distorted, but the attainment of equivalence that will discourage cross-border shopping for tobacco products. With the proposed duty of at least 63%, it seems that there would be little room for significant cross-border retail competition, thus making the internal market largely irrelevant. As such, the Commission’s proposal seems to have little to do with efficient competition and everything to do with fiscal and health policies.

Sunday, June 22, 2008

A Constitutional Right to Female Sexual Pleasure?

Although a right to “sexual pleasure” usually does not fare among traditional rights enshrined in constitutions, such a right was nevertheless proposed by a female member of the Ecuadorian parliament when debating a forthcoming new constitution. Reuters report that the idea behind the proposal was to facilitate gender equality and to avoid sexual violence. Ultimately, however, and in spite of this noble cause, the proposal failed.

Saturday, June 21, 2008

Is the Human Rights Movement Part of the Problem?

Yesterday’s quarrel, conducted in the open through the media, between Shami Chakrabarti, Director of the UK based human rights group Liberty, and Culture Secretary Andy Burnham over the decision by Tory MP David Davies to stand down and call an election over his parliamentary seat in light of the government’s successful attempt to increase the number of days that terror suspects can be held before being charged to 42, brings to mind Harvard Professor David Kennedy’s excellent 2002 essay The International Human Rights Movement: Part of the Problem. Although the paper relates to international issues, there might be a few pointers relevant for the UK human rights movement and its choice of methods of advocacy. In light of popular opposition to the Human Rights Act in the UK and pledges by the Tories that they will consider scrapping it once in office, it could be questioned whether the UK human rights movement has itself to partly thank for this situation. For instance, high profile cases supported by groups like Liberty, such as the case where it was ruled that the UK government could not expel nine Afghani hijackers because they would face torture once back in their home country (a ruling, however, clearly in line with case law from the European Court of Human Rights), have hardly spurred popular support for the Human Rights Act. Similarly, appearance by Ms Chakrabarti at conferences for both the Tories and the Liberal Democrats combined with this week’s threats of a lawsuit against Mr Burnham could give support to people who argue that groups like Liberty are running publicity campaigns rather than fighting the civil liberty cause. On the other hand, it could be argued that the purpose of human rights advocacy is not to improve public support for human rights but instead to protect even the most unpopular individuals. Additionally, a closer look at Ms Chakrabarti’s and Liberty’s advocacy reveals a mixed history owing little to political allegiances and ideology. However, in light of increasing conflict between civil liberties and policies aimed at securing public safety, it ought to be evident that the cause of civil liberties and human rights deserves all the support it can get. Debate as to how to best achieve this is likely to increase and as part of this, the various human rights groups will face scrutiny - something which is to be very welcomed.

Thursday, June 19, 2008

Too Complex?

Professor Charles Wyplosz has a very interesting and succinct piece in yesterday’s Financial Times on the rejection of the Lisbon treaty by the Irish voters. Interestingly, Wyplosz argues, when discussing whether certain EU issues and questions are unsuited for national referendums due to complexity, that European voters are merely cynical as rejection of grand EU policies, be it the failed constitution or treaties, is the only way in which citizens of Europe get to have a say in the Union’s policy. This is a point regularly overlooked in the frantic discussions that often follow popular refusal to vote Yes to the various EU policies.

Tuesday, June 17, 2008

Can Asia-Pacific Countries form a 'European Union'?

‘A day will come when all the nations of this continent, without losing their distinct qualities or their glorious individuality, will fuse together in a higher unity and form the European brotherhood. A day will come when the only battlefield will be the market-place for competing ideas. A day will come when bullets and bombs will be replaced by votes.’Now Victor Hugo’s predictions in 1849 come true. The 21st century offers brighter prospects to European Union. According to Victor Hugo’s words, it seems that the territorial proximity within the same continent is an important element of establishing a Union. Moving to the Asia-Pacific, do you think it is possible to establish a Union, which is similar to European Union, among China, Japan and etc.? Discuss.

Friday, June 13, 2008

It Looks as if they will.....

Early indications from Ireland point towards a rejection of the Lisbon Treaty by the Irish people. The BBC has the latest.



UPDATE:

While it is likely that Ireland will face significant criticism in EU circles for turning down the Lisbon Treaty, and arguments in Brussels are likely to go along the lines of “after all we have done fore Ireland” and “with all the money they have received”, polls indicate that many voters have voted no simply because they claim that they did not understand the Treaty. In this light, it is evident that the Irish Yes campaign and its supporters from across Europe has failed in pointing out the benefits of the Treaty to the Irish voters.

Friday, June 06, 2008

Will the Irish Scrap the Lisbon Treaty?

A poll published today in the Irish Times indicates that this is not as far fledged a scenario as most Eurocrats would have thought likely. The Irish will vote on the Lisbon Treaty, as the only country, next week. Currently, the number of people intending to vote No has almost risen to 35 per cent whereas the Yes side stands at 30 per cent. Although undecided voters still amount to a massive 28 per cent, the surge in support for the No side is striking. If indeed the Irish decide to turn down the Treaty, this is likely to be a significant chock to Brussels and will undoubtedly deliver a big blow to the EU, given that it is not yet clear what will happen should the Lisbon Treaty fail to be incorporated in all 27 countries; European Commission President Jose Manuel Barroso is today by Reuters quoted as saying “there is no plan B”.

New ECHR Blog

A new ECHR blog has been launched by Antoine Buyse of the Netherlands Institute of Human Rights. It looks as a really good place for updates and commentary on recent ECtHR decisions and adds a much needed ECHR space to the blogosphere. Worth a look.

Thursday, May 29, 2008

College of Arts and Social Sciences Postgraduate Conference



The Programme and Abstracts for the 5th CASS Postgraduate Conference are now available at the Conference website. The Conference will be held at the University of Aberdeen on June 11-12.

Jernej Letnar Cernic, the Law Section Coordinator, explains that this year's Law Section is the largest yet. The Law Section features participants from four continents, and will address a wide range of topics including Human Rights, International Law, International Criminal Law, European Law, Criminal Law, Constitutional Law and Arbitration Law.

Many thanks and congratulations to the Organising Committee, particularly the Law Section organisers: Jernej Letnar Cernic, Gerd Koehler and Alessia Vacca.

Thursday, May 22, 2008

AG's Opinion in Case C‑210/06 Cartesio Oktató és Szolgáltató bt

Advocate General Maduro (ECJ) today delivered his opinion in Case C‑210/06 Cartesio Oktató és Szolgáltató bt, a reference for a preliminary ruling from a Hungarian Court of Appeal. The case concerns the compatibility of the real seat theory with Articles 43 and 48 EC. The relevant question referred is the following:

‘(4(a)) If a company, constituted in Hungary under Hungarian company law and entered in the Hungarian commercial register, wishes to transfer its seat to another Member State of the European Union, is the regulation of this field within the scope of Community law or, in the absence of the harmonisation of laws, is national law exclusively applicable?
(b) May a Hungarian company request transfer of its seat to another Member State of the European Union relying directly on community law (Articles 43 [EC] and 48 [EC])? If the answer is affirmative, may the transfer of the seat be made subject to any kind of condition or authorisation by the Member State of origin or the host Member State?
(c) May Articles 43 [EC] and 48 [EC] be interpreted as meaning that national rules or national practices which differentiate between commercial companies with respect to the exercise of their rights, according to the Member State in which their seat is situated, is incompatible with Community law?
May Articles 43 [EC] and 48 [EC] be interpreted as meaning that, in accordance with those articles, national rules or practices which prevent a Hungarian company from transferring its seat to another Member State of the European Union, are incompatible with Community law?’

Hungarian law provides that a company must have its operational headquarters in its State of incorporation. The litigation in the main proceedings concerns the refusal of the Hungarian courts to allow a Hungarian company to transfer its seat to Italy while remaining incorporated under Hungarian law.

There are conflicting precedents that could apply to this matter. On the one hand, if the precedent in Daily Mail is followed, it would appear that the fact that the litigation concerns the relationship between a company and its State of incorporation would render inapplicable Articles 43 and 48. However, if one follows the reasoning of the later judgments in Centros and subsequent cases, the better view would be that the conflict of corporate laws is not outwith the scope of the freedom of establishment. Accordingly, the refusal to allow the company to emigrate without being dissolved would constitute a restriction of the freedom of establishment.

AG Maduro takes note of the conflicting judgments, and of the Court’s efforts to consolidate the precedents. However, he emphasises that ‘these efforts were never entirely convincing’, and that the law has moved on since Daily Mail. The Advocate General thus frees himself of the constraints that the Court has imposed upon itself in refusing to explicitly override the judgment in Daily Mail. In keeping with the later case-law, Maduro finds that the refusal to allow a Hungarian company to transfer its operational headquarters to another Member State is incompatible with the Treaty.

This opinion thus constitutes a clean break from the convoluted precedents and is welcome to the extent that it signals the way for a more coherent body of law. It remains to be seen if the Court of Justice will follow the Advocate General’s reasoning, or if it will persist in the illogical approach of consolidating manifestly incompatible precedents.

Thursday, May 15, 2008

Upcoming Presentation: 'Fundamental Human Rights Obligations of Corporations'

Thursday 22 May, 5pm, Taylor A19
Jernej Letnar Cernic, 'Fundamental Human Rights Obligations of Corporations'

Abstract: This paper argues that fundamental human right obligations of corporations derive primarily from national legal orders and only secondarily from international level, whereas both draw their foundations from international value system. The tenets of every normative system are principles and rules that create rights and obligations of the subjects/participants of that system. Validity of any positive norm derives its legal authority from the membership in a legal order, which gives it a binding force. Legal authority means a source of law where a positive law norm is derived from. Legal scholarship has so far predominantly focused on international legal obligations of corporations. In contrast, the present paper argues that fundamental human rights obligations of corporations derive its legal authority from national normative orders and only secondary from international level. This argument is backed by an empirical study of fifty national legal orders in relation to corporate fundamental human rights obligations. Finally, this paper argues that FHRs obligations of corporations have arguably acquired the status of customary international law.

Wednesday, May 14, 2008

Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf

An article by our very own and founding member of LRS Justin Borg Barthet has been accepted for publication by International and Comparative Law Quarterly and is now available through their website and the library. The article, titled Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf, deals with the quagmire that legal regulation of online gambling has turned into in light of the recent judgement GIE Pari Mutuel Urbain (PMU) v Zeturf Ltd by the Cour de Cassation in Paris.

Abstract:

Online gambling constitutes a service for the purposes of the freedom to provide services in the EC Treaty. However, Member States may limit that freedom in order to protect societal norms. This regulatory latitude causes significant uncertainty. This paper analyses recent litigation in which the highest courts of two Member States considered the limits to the freedom to provide services, jurisdiction and recognition and enforcement of judgments, and the interface between their public policies. It is argued that the present regulatory environment is fraught with loopholes and offers no clarity as to which Member State may exercise prescriptive and adjudicatory jurisdiction.

Justin hosted a brief talk on the same topic back in February as part of the LRS discussion series.

Full citation of the article is J. Borg Barthet, 'Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf' (2008) International and Comparative Law Quarterly 417-426.

Saturday, May 10, 2008

Access to Justice in Environmental Matters

Yesterday I had the pleasure of attending the launch of the report Ensuring Access to Environmental Justice in England and Wales at a seminar at King’s College hosted by the UK Environmental Law Association (UKELA). The Report is the result of deliberations of a Working Group chaired by the Hon Mr Justice Sullivan examining whether the current regime of judicial review in England and Wales fulfils the UK Government’s obligations under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Report deals with the ‘third pillar’ of the Aarhus Convention on access to justice, more specifically Article 9(4), which states that the procedures which the contracting parties rely on “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair equitable, timely and not prohibitively expensive.”. The Report concludes that the current law on costs, including the potential exposure to costs where an applicant for judicial review is unsuccessful, is not in compliance with the Aarhus Convention. Reaching this conclusion, the Working Group argues that the requirement of costs not being “prohibitively expensive” is not merely a reference to court fees but includes the total exposure to costs, i.e. the risk of being ordered to pay costs for other parties and requirements of cost undertakings for interim injunctive relief. In line with these conclusions, the report makes a number of recommendations in relation to the awarding of costs and access to legal aid for claimants in general.


Although the Report deals specifically with access to justice in environmental cases before the English and Welsh courts, the conclusions and recommendations ought to spur interest for lawyers dealing with other areas of law as well as other jurisdictions. For instance, bringing environmental cases before Scottish courts equally remains an undertaking that few individuals, NGOs and grassroots organisations can afford. Similarly, the need for a shakeup in the rules governing legal aid and affordability of court cases in general is an issue that goes beyond mere environmental cases.

Burma, Foreign Aid and Crimes against Humanity?

In light of the tragic events taking place in Burma, or Myanmar as the ruling military junta renamed it in 1989, a few interesting questions of international law spring to mind. Notwithstanding the fact that urgent need for relief and assistance to the Burmese people takes precedence over legal debates, the very refusal to accept foreign aid workers on its soil by the Burmese junta raises legal questions (the Times has a story on the situation). For instance, is it possible that this denial of foreign assistance could constitute crimes against humanity as defined by the Rome Statute of the International Criminal Court (ICC)? Article 7 of the Rome Statute defines crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. For the purpose of this discussion the “acts” referred to in subsection 1 of Article 7 would be “[O]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, as defined in Article 7(1)(k). In subsection 2 of Article 7, it is clarified that the “attack” refers to a conduct against any civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack”. In this light, it could be argued that the deliberate denial of foreign aid by the Burmese junta, which clearly causes “great suffering, or serious injury to body or mental or physical health” is part of a conscious policy by the junta placing it within the ambit of a “widespread and systematic attack”. Unfortunately, the Burmese junta is not, perhaps not surprising, a party to the Rome Statute rendering the ICC’s jurisdiction illusory. Furthermore, cynics would assert that the Burmese junta is simply exercising its sovereign rights under international law in deciding who and what nationalities get to enter Burma. However, the Rome Statute was specifically set up to hinder impunity from hideous crimes committed under the guise of sovereignty.

Friday, May 09, 2008

On Europe Day



‘World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.

The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries...’

(Full text of the Schuman Declaration available here)

Of Detention and Geese


In the south of Europe the warmer weather brings with it a heated debate about illegal immigration as the calmer seas allow boat loads of migrants to cross the Mediterranean in search of a better life. Despite the good weather, their journey is often unsafe and many perish at sea.

Those who survive the crossing find that their ordeal is not over. Most European States have detention policies whereby illegal immigrants rescued at sea or intercepted on the shore are held in camps pending conferment of refugee status or repatriation. The detention periods vary from one Member State to another, with France capping the period at 30 days, and the United Kingdom having no upper limit.

A draft European directive would have capped the period of detention at six months, with a possible extension of a further twelve months under special circumstances (See the EU Observer’s report here). In other words, the directive would have allowed Member States to detain immigrants for eighteen months without being charged with the commission of any crime, their only proven illegal act being the irregularity of their entry into Europe. Despite the latitude afforded to Member States, the directive risks being blocked because of opposition to the proposed cap on the period of detention. By way of example, the new Interior Minister of Malta, Europe’s southernmost Member State, said that his jurisdiction should be exempt from the capping rule because of the tiny State’s particular circumstances.

I must concede that illegal immigration poses a major challenge. There is often no way of readily ascertaining the origins of immigrants and whether or not they have a genuine claim to refugee status; nor is there any way of weeding out criminals who abscond to Europe; worse still, the spectre of terrorism weighs heavily on the minds of governments at the historical border between Christianity and Islam.

Yet it is in trying times that the mettle of liberal societies is tested. Much like the challenge posed by terrorism, illegal immigration is viewed by governments, and their consenting electorates, as a special case that allows them to flaunt human rights. Immigrants are held without charge, often in deplorable conditions. Some years ago I visited a detention centre in Malta. I was sickened to find hundreds of men housed in large tents, fenced into a small area with one football as their only means to pass the time (save for airplane spotting at the international airport that is ironically in full view of the detained migrants). All this is occurring at a time when Europe and its ideological allies strive to export liberal values. Clearly what is good for the goose is not necessarily good for the gander.

Friday, May 02, 2008

The LRS Hosts the Hon FDJ Brand at the University of Aberdeen






Earlier today the Hon FDJ Brand presented his paper regarding 'South African Contract Law and the Constitution' at the University of Aberdeen's Old Senate Room. The discussion that followed was chaired by Prof David Carey Miller.


Thanks to Prof Carey Miller, Ms Carol Lawie and the School of Law for their invaluable help in organising Judge Brand's visit.

Wednesday, April 30, 2008

Cartoon Crisis a la Putin

We have previously blogged about how depicting the Prophet Muhammad can get you into trouble, but today’s Independent has a story on how Russian cartoonists producing satirical drawings of president Putin are not at all liked by the Russian authorities. According to the Independent, papers and publishers attempting to print satirical portrayals of Putin risk facing inspections by the “fire inspectors” or the “tax police” laying bureaucratic hindrances in their way or a call from their paper supplier kindly informing them that the price of paper has risen tenfold overnight. In the meantime, drawings depicting Putin in a favourable light are much welcomed. The one to the right is produced by KAL for the Economist.

Tuesday, April 29, 2008

Programme Update

Denise Naicker’s presentation that was previously scheduled to take place tomorrow has been postponed to Monday 5th May at 4pm. The LRS programme is now as follows:


Friday 02 May, 3pm, Old Senate Room
Hon FDJ Brand, 'South African Contract Law and the Constitution'

Judge Brand of the Supreme Court of Appeal of South Africa will visit the University of Aberdeen on Friday 02 May. Judge Brand holds a BA, an LL.B and an LL.M. from the University of Stellenbosch, and a Drs Juris from Leiden University. He was a practising advocate for fourteen years, before being appointed a Judge in 1992 and a Judge of appeal in 2001. We are thankful to Prof David Carey Miller who made this event possible.


Monday 05 May, 4pm, Taylor C28
Denise Naicker, 'The Attempts of the UN General Assembly’s Non-Proliferation Treaty to construct a rational Nuclear Order'

Abstract: The United Nations General Assembly (the “GA”) may consider general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments. In response to this mandate, the GA produced the Nuclear Non-Proliferation Treaty (the “NPT”) which sought to construct a rational nuclear order in the post-World War II era.

There are conflicting views as to what extent the NPT should be regarded as authoritative by the states to which it is addressed. The current nuclear order centred on the NPT has inherent limitations, including its discriminatory character, lack of agreement on appropriate sanctions for violations and in its foundations in the hypocrisy which prevailed almost without exception among nuclear powers.

There is very little disagreement that the non-proliferation regime is in crisis. The failure of the NPT review conference in 2005 is a clear indication of this along with the perennial debate on North Korea’s nuclear ambitions and the ongoing controversy over Iran’s nuclear programme.

This discussion will consider the NPT’s negotiating history, the bargain that was struck, the considerable structural flaws therein, and the implications of this (and subsequently the role of the GA) in what is termed the “third nuclear age”.



Thursday 22 May, 5pm, Taylor A19
Jernej Letnar Cernic, 'Fundamental Human Rights Obligations of Corporations'

Abstract: This paper argues that fundamental human right obligations of corporations derive primarily from national legal orders and only secondarily from international level, whereas both draw their foundations from international value system. The tenets of every normative system are principles and rules that create rights and obligations of the subjects/participants of that system. Validity of any positive norm derives its legal authority from the membership in a legal order, which gives it a binding force. Legal authority means a source of law where a positive law norm is derived from. Legal scholarship has so far predominantly focused on international legal obligations of corporations. In contrast, the present paper argues that fundamental human rights obligations of corporations derive its legal authority from national normative orders and only secondary from international level. This argument is backed by an empirical study of fifty national legal orders in relation to corporate fundamental human rights obligations. Finally, this paper argues that FHRs obligations of corporations have arguably acquired the status of customary international law.

Friday, April 25, 2008

Highland Crofters Seek Recognition as ‘Indigenous' People

Crofters – people living the traditional rural life in the Scottish Highland and Islands – are now exploring the possibility of being recognised as an ‘indigenous’ group in an attempt to protect and preserve their traditional way of life according to the Independent. Traditionally, crofters reside on a small plot of tenured land on which they farm and although crofting was once widespread, it is today found mainly in the Highlands and Western Isles of Scotland where it remains a vital part of rural communities. The entire system of crofting and tenureship of land in these areas is a topic attracting great passion and emotions as images of the Highland clearances are frequently invoked in discussions on rights to land.

In a recent report the Scottish Crofting Foundation (SCF) argues in favour of applying the label ‘indigenous’ to the crofting communities asserting that it will improve their legal status and recognition. The Report highlights the success that the Sami people of Norway have had in being recognised as ‘indigenous’ by the Norwegian Government. In addition, the SCF argues that the Scottish Government should devolve power and decision-making to a special Assembly of Crofters. Although a vast body of international instruments are in place in relation to minority populations (for instance, ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, UN Draft Declaration on the Rights of Indigenous Peoples, European Charter for Regional or Minority Languages and Framework Convention for the Protection of National Minorities), it is doubtful whether the SCF will succeed in their quest as the UK Government has thus far argued that no indigenous groups exist in the UK. This has logically led to the above mentioned international instruments not being implemented in the UK. In addition, there is no clear definition under international law as to what ‘indigenous' means. Finally, a Scottish Government eager to seek independence from the Union might not be all that willing to give away any recently acquired powers.

Thursday, April 24, 2008

water for he who is not thirsty


The following is a very loose translation of a blog post by Maltese author, poet and playwright Immanuel Mifsud. Apologies in advance – the translation does not do justice to the poetry of Immanuel’s words.

Immanuel draws his readers’ attention to a video produced by Amnesty International which depicts a re-enactment of water boarding. He describes the video as shocking and encourages readers to join Amnesty’s campaign against human rights abuse in the war on terror:

‘The shock multiplies when you remember that not only does this torture take place in an era of liberty and human rights, but that it is occurring with the blessing of a man who, in the privacy of his office, prayed with the Pope for the needs of the family.

Water, in the past, was a symbol of life. It was used by various religions, various poets, various artists. The lack of it gave rise to conflicts and great battles; it awakened consciences too. Whichever angle you choose to look at it from, we have always looked upon water with gratitude, respect and reverence. But, the technocrats of terror and torture, are traitors to tradition. Drops of water represent anguish to those who find themselves strewn on a hard table, with their hands and legs tied, their mouths gaping, their necks pressed, their eyes wide open and their breath short.’