The Legal Research Society

2010-05-19T12:11:00.005+01:00

wlcome to:

Celebrating success and gaining from the experience

Wednesday 19th May

L.R.S. has just organised a luch time event to celebrate the success of our colleagues who have passed their vivas this year. Unfortunately some of them won’t be around but we will still cherish their achievements.

In this gathering Research students and all those interested were given the opportunity to learn from our two successful members: Sarah Vigers and Elizabeth Shaw who have happily shared their experience with us.

With our best Regards,
[L.R.S. Team]

Legal Research Society School of Law
University of Aberdeen Taylor Building Aberdeen AB24 3UB Scotland

Head of State: Legal Debat About The UK's Election. Legal Research Society. 22 April 2010

2010-04-22T18:05:00.025+01:00

Head of State: Legal Discussion About The UK Election. Legal Research Society. 22 April 2010

There is a general feeling that the recent debate in Britain between the main party leaders was rather staid compared to the more theatrical style of the U.S Presidential debate on which it was modelled. Perhaps the British electorate would prefer the plain-spoken, tell-it-like-it-is politics of Chris Rock's prescient spoof of the U.S Presidential election. "Head of State" starts Chris Rock as an unlikely democratic for the presidency of the United State, who goes on to win over the electorate by shunning the political point-scoring and spin employed by other candidates and speaking forthrightly about issues that really concern people. Could such a tactic work for the political underdog in Britain.

The screening of this sassy political satire was followed by a discussion of the recent and the forthcoming political debate in Britain, as well as the General Election that will follow them. in particular we intended to discuss the implications of this on the British Constitutional Law and the increased impetus for reforming our electoral system. Does the increasing influence of the Liberal Democrats herald the end of our first-pass-the-post voting system? We have the debates, would we go so far as to import a written constitution as the Liberal Democrats would like?

After watching this film an open debate began amongst the audience. Questions were raised and answered in a friendly manner. Among the most interesting questions were:

UK has borrowed the presidential debate style from US could Britain borrow more? for example, could UK accept a non-white person as a prime-minster?

An economic student from Ghana commented: if we can't see black people on top of any council in UK, how can we see a prime-minster here. He questioned whether there was any top official who is not white in UK?

Another question was: Can an independent person (not belonging to any of the main parties in UK) become a candidate for the position of prime-minster?

Ahmad, an Iranian Lawyer and a PhD student at the Law school in Aberdeen, pointed out that the last election debate we had in Iran was even more open. A student from China asked:is Iran a democratic country? Ahmad, answered, yes, but in its own way. We do not have the American system. He proceeded, corruption in Iran may be found like in many other countries but we must not exaggerate the situation.

A question followed on the same theme: how can it be democratic in the USA when you have only two candidates from the whole US running for election?

Is UK a democratic country when only the elite can be candidates in election? can we have a non-white candidate in UK?

These questions among many others were discussed in this illuminating session. Please feel free to add a comment.

Best Regards,

L.R.S. Team

Welcome to L.R.S.

2010-04-13T12:30:00.000+01:00

Justice Greanwood the International Court

of Justice judge is third from the left

The Legal Research Society is active at home and abroad. Six of its members travelled to The Hague last summer to visit some of the top international judicial bodies. The study trip included visits to the Peace Palace which houses the Permanent Court of Arbitration and the International Court of Justice (ICJ), to the Organisation of the Prevention of Chemical Weapons as well as to The Hague Conference on Private International Law and to the International Criminal Court (ICC). The group met Justice Greenwood, judge on the ICJ, as well as Xavier-Jean Mohamed Keïta, head of the Office of Public Counsel for the Defence at the International Criminal Court. They also had a stopover at Leiden University to speak to peer researchers there. After returning to Aberdeen, they reported back to their colleagues in a feedback meeting at the Law School. The LRS thanks all who helped make this event possible.
In 2008/09 the Society has furthermore been organising various activities ranging from relaxed tea sessions to an Essay Competition, round table discussions and movie screenings. This year too LRS promises more and even better events building on what its team has achieved and learned last year. You can find out more about LRS by emailing legalresearchsociety@abdn.ac.uk .

Murder isn't always a crime? [Double Jeopardy]

2010-02-22T11:58:00.007Z

L.R.S has organised

A Movie Night (Double Jeopardy)

Followed by Legal Discussion on

Wednesday 17th February 2010

“Double Jeopardy”, starring Tommy Lee Jones (The Fugitive and No Country for Old Men) and Ashley Judd (Where the Heart is and High Crimes) is a tense and slick American thriller. The plot centres around a fundamental legal doctrine within the American legal system, namely the constitutional protection against double jeopardy (being tried for the same crime twice) afforded by the fifth amendment. It is highly doubtful, however, that the drafters of the American Constitution had in mind the creative use of double jeopardy employed by the film’s protagonist to exploit the fact that she had previously been acquitted of the murder of her husband to do just that without the prospect of going to prison.

Although the film is set in America, double jeopardy exists in other legal systems influenced by the common law, including Scotland where there was a recent review of the legal doctrine carried out by the Scottish Law Commission following a reference by the Scottish Government after the World’s End murder trial. Therefore, the film was followed by a discussion of the somewhat equivocal and rather criticised Scottish Law Commission report which was published in December last year.

Discussion Followed the Movie Screening

The movie has indeed sparked so many ideas and triggered the opinion of the audience who have argued for different (some time contradicting) perspectives.

First of all, the majority thought that it is very difficult to accept that such a hypothetical case, as in the movie, could happen in reality. This is because, they argued, the difference in time of when the first crime and the last happened is a sufficient factor to open a new trial for the considered new case.

There was some discussion of the Scottish Law Commission’s Report, which recommended a partial reform of the law of Double Jeopardy following the World’s End case.

Afterwards some argued that we should reopen a trial if more evidence became available regardless of the double jeopardy principle. Whereas, some stood up for the principle and argued that regardless of the reason, a trial should not be reopened and the tried person should never live in that pain of being reminded of being accused of the crime in spite of technology advances that could provide us with new evidence e.g. DNA evidence.

I argued that the question we should ask is: what do we intend by having a criminal law applied. Is our intention to try to punish every criminal or is it the personal and general deterrence that we are after?

Loraine, from Germany, answered that in the past ten years the attitude have been quite punitive and not rehabilitative in Germany. In fact it has been quite clear that we are dealing with criminals on the bases of them and us.

A participant from the sociology school argued that this attitude is real not only in Germany but even in the United States where she was residing before. Especially when minorities and different races are concerned, she said, you see the ‘system’ dealing with the accused as the ‘other’ who should be remanded in custody regardless of what motivations there were from the criminal act if it was ever committed by the same person.

George, an International Relations student have argued that insecurity is what behind all this miss. If we feel confident we will never commit crime and we will never hurt the accused rather we will be trying to help criminals to get over it.

This was only a brief summary for the discussion and if you require any further assistance with the topic please feel free to contact us and we shall try our best to help.

Khaled Bashir

2010-01-29T16:22:00.004Z

L.R.S organised a Movie night (Shooting Dogs) followed by a Legal iscussion on Thursday 28th January.

According to Wikipedia: Shooting Dogs, released in the United States as Beyond the Gates, is a 2005 film, directed by Michael Caton-Jones and starring John Hurt, Hugh Dancy and Claire-Hope Ashitey. It is based on the experiences of BBC news producer David Belton, who worked in Rwanda during the Rwandan Genocide. Belton is the film's co-writer and one of its producers.
The setting of the film is the Ecole Technique Officielle (ETO) in Kigali, Rwanda in 1994, during the Rwandan Genocide. Hurt plays a Catholic priest (loosely based on Vjekoslav Ćurić [1]) and Dancy an English teacher, both Westerners, who are caught up in the events of the genocide.
Unlike Hotel Rwanda, which was filmed in South Africa using South African actors, the film was shot in the original location of the scenes it portrays. Also, many survivors of the massacre were employed as part of the production crew and minor acting roles.
The film's title refers to the actions of UN soldiers in shooting at the stray dogs that scavenged the bodies of dead. Since the UN soldiers were not allowed to shoot at the Hutu extremists that had caused the deaths in the first place, the shooting of dogs is symbolic of the madness of the situation that the film attempts to capture.

The main points discussed in this session were how can humanity avoid fallen into tragedies like the Rwandan one in 1994? How can we make sure that states will only use force in a humanitarian intervention without being motivated by other unclean hidden agenda?

Furthermore, some argued that it is most worrying to stand still while tragedies like this happen in different parts of the world. In the same time we do not want to provide greedy powerful nations the legal tool to utilise in their new colonisation plans or to serve their own interests while intervening in other states’ domestic affairs, a member of the audience pointed.

For more information about the concept of humanitarian intervention you can contact us by email or just add your request as a comment below.

Movie: HOT FUZZ

2009-10-07T04:10:00.002+01:00

On Wed, 7^th October at 7pm in Taylor A19 the Legal Research Society will present its first movie night of this academic year with a screening of the film HOT FUZZ, a British action comedy with a huge portion of irony and black humour about the bigotry, hypocrisy and intrigues set in an (superficially) idyllic small town in Britain…

Synopsis

Sgt Nicholas Angel (Simon Pegg) is a fiercely motivated and successful London copper who finds himself transferred to the sleepy town of Sandford . Almost everyone in this manicured little community seems to know and love each other. But if Sandford is a sleepy market town, it is home to some very real nightmares. Not that local coppers like loveable oaf Danny Butterman (Nick Frost) see anything suspicious about Sandford's absurd number of 'accidents'. Angel is no ordinary constable and launches an investigation, much to the amusement of his bumbling boss and his colleagues.

Critics

“Refreshingly British comedy… a movie you'll still want to see again, if only to get all the mini-jokes.” (BBC)

“Plenty of irrepressible fun, an interestingly sophisticated sense of the fictional differences between British and American crime - and big, regular laughs…Hot Fuzz is on of these British films [that] satirically and pessimistically show evil eroding the valiant forces of good.” (The Guardian)

“A British film that is both blisteringly funny and genuinely action-packed…Fear not, laughs are on the way…Hot Fuzz is a film that's as easy to appreciate as it is to enjoy.” (Channel 4)

“Hilarious from start to finish, thanks to a terrific cast, inventive direction and a brilliantly written script.” (The ViewLondon)

Free of charge.

ALL WELCOME!

LRS

Presentation: Gypsies/Travellers - The last 'respectable' form of racism

2009-06-03T11:15:00.011+01:00

The Legal Research Society is pleased to announce that our member Ian Taggart who recently obtained his PhD will give a talk on racial discrimination of travellers in the UK .

Date: 3^rd June

Time: 4:00-5:00 pm

Venue: Taylor A17

Gypsies/Travellers in the United Kingdom remain the most socially excluded and discriminated sections of society that are subjected to racism on a daily basis.

This presentation will examine the situation faced by Gypsies/Travellers based on primary research undertaken to inform the presenters’ doctoral thesis on Gypsies/Travellers titled Moving On – Again?

This research was undertaken primarily to measure the impact of the Human Rights Act 1998 and Race Relations Act 1976 as amended on prejudice and racism suffered by Gypsies/Travellers in Scotland, replicating previous research undertaken in 2000 by the Scottish Executive on Gypsies/Travellers lifestyles. The original research provides baseline data regarding prejudice and racism, that is particularly relevant as it coincided with the enactment of the Human Rights Act 1998 and Race Relations Act 1976 as amended. By replicating this research it was considered it should be possible to measure an anticipated positive impact on prejudice and racism by this legislation, in the intervening period. Sadly it was apparent there had been a 17% increase in prejudice with 79% of respondents reporting they had been victims in the previous 12 months, the majority of incidents being racially motivated.

During the presentation an overview of Gypsies/Travellers lifestyles will be provided and the reasons for the increase in racism and ineffectiveness of the legislation explored.

A copy of the Moving On – Again? report can be sourced at the following link: http://www.aberdeenshire.gov.uk/privatehousing/Movingonagain.pdf

The presentation will take around 20 minutes and will be followed by a discussion.

Tea&coffee refreshments will be available.

All welcome!

LRS Invitation to Guest Lecture on Law&Literature

2009-04-24T17:06:00.003+01:00

Maria Aristodemou, Senior Lecturer in Law, Birkbeck University of London

DOES THE LETTER OF THE LAW ALWAYS ARRIVE

AT ITS DESTINATION?

Thursday 30 April, 1-3 p.m.

(1.00 sandwich lunch, 1.30 talk)

MacRobert 302

Abstract

This lecture uses Balzac's short story "A Study in Feminine Psychology" as a springboard from which to explore what position the letter of the law occupies in a subject's psychic space. Through this tale of a mis-addressed declaration of love, the paper examines how the law and the signifier arrest the subject, and what freedom, if any, the subject has to manoeuvre around this position. Are subjects condemned, as Balzac seems to suggest in this tragi-comic tale, to never fully find, let alone assume, their own satisfying place "before the law"? Or that they can never do so without some embarrassment and/or pain? Further, if the letter of the law always arrives at its destination, if the subject is always arrested by the signifier, what hope is there for protest or critique?

Note

Preferable is a reading of one or even two short stories before the talk, in particular Balzac's A Study in Feminine Psychology which will be focused on. The other story is Edgar Allan Poe's The Purloined Letter, which is in the background of the talk. The speaker will try to go through them briefly.

Speaker

Maria Aristodemou, LLB (Bristol) LLM (Cambridge), is a Senior Lecturer at Birkbeck. Her research is interested in the interrelation of law and culture and, more specifically, how literary and other cultural narratives reflect and shape ideas about justice, norms and rules within society. It employs continental critical theory, in particular feminist, psychoanalytic and postcolonial approaches, to address texts ranging from Greek myths to contemporary writing, film and popular music.

She has published her book Law & Literature: Journeys from Her to Eternity with Oxford University Press in 2000.

All welcome!

Farewell Party: Professor Anthony Carty

2009-03-26T15:23:00.003Z

The Legal Research Society
invites you
to the Farewell Party of Professor Anthony Carty

Movie & Discussion: The Butterfly’s Tongue

2009-03-23T16:11:00.004Z

Time: 7pm

Date: Wednesday 25, March, 2009

Venue: Taylor C11

Mr Felipe Gomez, Professor of Public International Law at Deusto University of the Basque Country, will present a film titled “The Butterfly’s Tongue”. The film is set against the background of Spanish Civil War (1936-1939). The film show will be followed with a discussion, to be moderated by Professor Anthony Carty, of how contemporary Spain is handling through the courts and in public opinion the consequences of its very divisive Civil War.

The film received some critical acclaim. It was nominated for the 2000 Goya Award for "Best Picture" and it won the Goya Award for "Best Adapted Screenplay."

All Welcome....

Presentation: The problem of economic, social and especially cultural self-determination of Mexico in the face of the United States

2009-03-20T18:53:00.000Z

The Legal Research society

Invites you

‘The problem of economic, social and especially cultural self-determination of Mexico in the face of the United States.’

Presented by

Marcela Garnica

Date: Monday 23rd

Venue: Macrobert 252

Time: 6:15 – 8:00 pm

Marcela is a doctoral student from Mexico at the Autonomous University of Madrid Postgraduate International Law Programme. Marcela would like to tackle the question: Is Mexico becoming another failed state? Looking for ways to restore and maintain the economic and social self-determination of developing countries in a time of global crisis and crisis in the United States.

All welcome,

Trip to The Hague

2009-03-18T13:04:00.003Z

Trip to The Hague

24^th – 28^th May

One Day& 1 night in Amsterdam

3 Days in The Hague

Price after subsidy only: £300

In this trip, you will have the chance to see many international and European legal bodies including The Hague Conference on Private International Law , International Court of Justice, the Peace Palace, the Organisation for the Prohibition of Chemical Weapons (OPCW) and the International Criminal Court (ICC). We are also working on an open meeting with PhD Students at Leiden University.

Tickets: £120 deposit tickets sold on the bases of first come first serve; the deadline is 23^rd March. You can either pay by Cash or by Cheque made payable to the Legal Research Society. You can also pay by bank transfer to the LRS account: 06001537 sort code: 801215.

The payment of the rest of value must be made no later than 24^th April.

This price includes a return flight ticket from Aberdeen to Amsterdam and includes all accommodation + breakfast expenses in both Amsterdam and the Hague.

Notes: LRS is still waiting for more sponsors to reply and if more subsidies become available, you will benefit from a price reduction.

Visa: If you require a visa to enter the Netherlands, we will be happy to offer you advice and a letter to the embassy in support of your visa application.

The State Israel ’s in: Follow Up

2009-03-18T00:38:00.005Z

Legal Research Society organised

The State Israel ’s in

Thursday 12th @ 5pm

a talk by

Hilda Meers

I speak to you as a Jewish person who campaigns for peace, for Palestinians' rights to justice, freedom to live at peace in the land historically known as Palestine, which they will share with their Jewish neighbours and friends once the folly of Zionism has led, either to a much-needed radical policy change or to its collapse. For, far from being deeply rooted in Jewish history or ideas, Zionism was formally put forward at a Zionist Congress in 1897. The notion of a Jewish state long ago promised to their ancestors in Biblical times is a myth, nor was Palestine the first destination proposed by advocates of Jewish separatism and exclusiveness, (Madagascar was first suggested) nor was the notion of a Jewish state widely supported by Jews worldwide, most of whom were either well-rooted in countries they lived in, or, if subject to persecution, particularly in Eastern Europe and Tsarist Russia, chose to emigrate In Russia and Lithuania, attacks on Jewish villages winked at by fascistic governments, forced many Jews to leave. Societies known as 'Lovers of Zion,' forerunners of the Zionist movement, convinced some of them to go to Palestine to rebuild the ancient Jewish 'Kingdom of David and Solomon'. Though most fled to the USA, to Britain, to South Africa, a few chose Palestine By 1900, almost a million Jews had settled in the United States. My own parents got to England from Lithuania as children, at about that time. And until that time, according to Don Peretz, in his book "The Arab-Israeli Dispute, ""most Jews in Palestine belonged to old Yishuv, or community, that had settled more for religious than for political reasons. There was little if any conflict between them and the Arab population. Tensions began after the first Zionist settlers arrived in the 1880's...when [they] purchased land from absentee Arab owners, leading to dispossession of the peasants who had cultivated it."
Zionism's programme, which gained more credence after the Nazi holocaust, was to establish for the Jewish people a legally assured home by settling Jewish agriculturists, artisans, and tradesmen in Palestine, organizing action groups in various countries, building Jewish consciousness and a national identity and beginning a process of gaining worldwide acceptance for a Jewish homeland, in Palestine, where Arabs comprised over 90% of the population. Most early immigrants, including those who entered illegally during and after the 2nd World War, had been city dwellers or had farmed in very different circumstances from those existing in Palestine. As the numbers of Jews increased so did the proportion of land they occupied, and quantity of water resources they used; not only did they cling to the myth that the holocaust gave them the right to the whole of the land , the myth that it was an empty land led them to the belief that the Arabs and Beduin residents were non-people, inferior, violent and unworthy. Zionist policy was to dispossess them, shifting them to other Arab countries, and create a new Jewish identity in Palestine.. The World Zionist Organization (WZO) had founded the Jewish Colonial Trust in 1899 to buy land, the Anglo-Palestine (commercial) Bank and Investments Institute soon following with the Jewish Colonial Trust and the Jewish National Fund buying land; also in 1909, the Israel Land Development Company with the Eretz Yisrael Bureau assisted until 1921, when the Zionist Executive replaced it.

Britain's support was achieved with the 1917 Balfour Declaration of "the establishment in Palestine of a national home for the Jewish people....". It also guaranteed a state to Arabs, as stipulated in the October 1915 McHahon - Hussein Agreement to return Ottoman Turk land to Arab nationals post-WW I, in return for their help in the war. Britain betrayed them. So did America's Woodrow Wilson. Supreme Court Justice Louis Brandeis had convinced him and Secretary of State Robert Lansing to support Zionism and British-French interests under the 1916 Sykes - Picot Agreement that carved up the region after the 1st World War. At the 1919 Paris Peace Conference, the World Zionist Organization (WZO) presented its plan for a Jewish state, to include all Palestine, and South Lebanon up to Sidon and the Litani River, Syria's Golan Heights, Hauran Plain and Deraa; and control of the Hijaz Railway from Deraa to Amman to Maan, as well as the Gulf of Aqaba. (These latter, once part of historic Palestine, are now known as Jordan.) Other Zionists wanted land from the Nile in the West to the Euphrates in the East comprising Palestine, Lebanon, Western Syria and Southern Turkey. Then in 1920, WW I allies met in Italy and decided to control Ottoman lands with a "mandatory" system. The British Mandate began with a Jewish High Commissioner, Herbert Samuel, who promised a liberal Jewish immigration policy, immediate provisional citizenship for Jews, easy Jewish land acquisition, employment for Jewish immigrants, favourable customs policies for Jewish commerce, and in general favouring Jews at the expense of indigenous Arabs. The United Israel Appeal was founded to raise funds to finance welfare, health, education, and continued settlement projects. In 1929, the Jewish Agency was established to represent the WZO in dealings with the British government in administering Palestine, Chaim Weizmann as its first president. By 1942, the WZO's official aim was for a "Jewish Community" in Palestine - as the Biltmore Program stated: "Eretz Yisrael will be based as a Jewish community, to be integrated into a new democratic world."

Herzl, Chaim Weizmann - Israel's first president, and Moshe Sharett, prime minister after Ben-Gurion - at first considered reconciliation with the Arab world. Others preferred Jabotinsky. Back in 1923, he'd published an article, "On the Iron Wall" arguing that Arab nationalists opposed a Jewish state in Palestine and wouldn't accept one. He claimed peaceful coexistence was unattainable, and Jews must build "an iron wall of Jewish military force."
Arab resistance grew as Jewish encroachment increased; in 1936, Arabs called a strike. Zionists countered with "compulsory transfer", Jewish sovereignty over all Palestine their priority. Postwar, Palestinians saw their country being lost, after the 2nd World War had bankrupted Britain and Zionist terrorist campaigns of violence caused so many casualties that the British Government ended its Mandate over Palestine; in 1948, The State of Israel was established, America the first country to recognise it. Truman signed the following: "This Government has been informed that a Jewish state has been proclaimed in Palestine, and recognition has been requested by the provisional government thereof. The United States recognizes the provisional government as the de facto authority of the new State of Israel.". Palestinians were still nearly 70% of the population, Jews around 30% and owned 6% of the land. Yet the November 1947 General Assembly Partition Plan (Resolution 181) gave Jews 56% of the land, Palestinians 42%. 2% under internationalized trusteeship included Jerusalem. Jews were allocated the best agricultural areas and water resources. Palestinians had no air access or harbor and port facilities, except for isolated Jaffa. Dissatisfied, Ben-Gurion wanted an 80% share. Israel's 1948 War of Independence got 78%. Israel did agree to UN Resolution 194 (in December 1948) providing for free access to Jerusalem and other holy places as well as granting Palestinian refugees the right of return. In May 1949, UN Resolution 273 gave Israel UN membership conditional on it accepting these resolutions and "unreservedly (agreeing to honor) the obligations of the United Nations Charter." However, in June 1948, the Israeli cabinet (with no formal vote) had barred Palestinian refugees from returning and directed the IDF to stop those trying with live fire. Despite the UN resolutions, the policy remains today, with "Israelification" and "De-Arabization" policies to preserve a "Jewish character", Palestinians still being dispossessed of their land, their homes demolished, their freedom restricted, their futures denied. Treat them like "dogs," said Moshe Dayan, so they'll leave. Use "terror, assassination, intimidation, land confiscation," became David Ben-Gurion's formula. Yet The U.N. had convened a peace conference in Lausanne, in the spring of 1949, after the U.N. General Assembly adopted a resolution that in effect replaced the November 1947 partition resolution. This new resolution, Resolution 194 of December 11, 1948, accepted U.N. Mediator Bernadotte's triangular basis for a comprehensive peace: an unconditional return of all the refugees to their homes, the internationalization of Jerusalem, and the partitioning of Palestine into two states. Several Arab states and representatives of the Palestinians accepted this as a basis for negotiations, as did the United States. Prime Minister Ben Gurion strongly opposed, but allowed Israel to participate in the conference. This chance of peace was not taken - due to Israeli, not Arab, resistance, Israel preferring a settlement in which Israel could dictate terms based on the idea of Jewish superiority and exceptionalism; the new state would grant citizenship exclusively to Jews.

Three warmongering prime ministers, Menachem Begin (1977 - 83), Yitzhak Shamir (1983 - 84 and 1986 - 92), and Ariel Sharon (2001 - 06) gained power by acts of terrorism and brutality , Ben-Gurion now siding with Jabotinsky's military option, with winning the War of Independence as vindication, so Israel stayed hard-line politically and militarily. Violence, military threats and intimidation became its policy, generals its leaders, schools and Universities its means of indoctrinating its citizens to its founding myths, portraying their history as a unique victimisation that they were now determined to resist. With Washington, the West, and most Arab states concurring, military aggression is called self-defence - hence the Israel Defence Forces. International humanitarian and other laws are disregarded. United Nations resolutions are consistently ignored, International Law flouted. Tensions grew as the "returning natives" began the planned displacement of Arabs, most notoriously in the Nakba, where after the wiping out of the village of Deir Yassein, hundreds of thousands fled, never to be allowed to return.
Following the 1967 war, Israel gained an increased share of US foreign and military budgets, becoming 'the western pillar' of the US strategic alliance against a Soviet incursion into the Middle East, (which of course never happened) especially after the revolution in Iran took the country out of the US orbit. It is during this period that AIPAC and other pro-Israel organizations started shaping US foreign policy. Israel also became the only Middle East country possessing nuclear weapons - a secret revealed by Mordecai Vanunu, a citizen imprisoned for 18 years for revealing it, and still not allowed to leave Israel. Politically, Israel remained on the right - after Sharon's stroke, Olmert took over, with Livni coming to the fore, and the Labour party a spent force.

U.S. military aid to Israel is now doled out in annual increments of billions of dollars. It remains virtually unchallenged while other fiscal outlays are drastically cut. The United States and Israel signed a Memorandum of Understanding in August 2007 committing the U.S. to give Israel $30 billion in military aid over the next decade. This is grant aid, given in cash at the start of each fiscal year. The only stipulation imposed on Israel’s use of this cash gift is that 74 per cent is used to buy U.S. military goods and services. The first grant under this agreement was made in October 2008, for 2009, in the amount of $2.55 billion. To bring the total 10-year amount to $30 billion, amounts in future years will gradually increase until an annual level of $3.1 billion is reached in 2013. This will continue through 018. Israel is by far the largest recipient of U.S. foreign aid, although it is a tiny country in comparison with the rest of the Middle East. Since 1949, the United States has provided Israel with $101 billion in total aid, of which $53 billion has been military aid. For the last 20-plus years, Israel has received an average of $3 billion annually in grant aid;, until now the grant has been a mix of economic and military aid. Israel receives its aid under vastly more favourable terms than any other recipient. When Israel attacks Palestinians, as during the recent assault on Gaza, its instruments of destruction are U.S. fighter jets and attack helicopters, U.S. missiles, U.S.-made white phosphorus, flechettes, experimental weapons such as Dime, U.S.-made Caterpillar bulldozers, although the U.S. Foreign Assistance Act stipulates that no aid may be provided to a country that engages in a consistent pattern of violations of international human rights laws. Israel has been charged by human rights organizations such as Amnesty International and Human Rights Watch with precisely such violations during the Gaza assault and in past attacks. Israel also violates the Arms Export Control Act, which stipulates that U.S. weapons must be used only for “internal security. This seriously undermines U.S. peace mediators such as former Senator George Mitchell, recently appointed by President Obama as envoy to the Middle East. As long as Israel can rest assured that it is guaranteed an annual arms package in the billions, it will have no incentive whatsoever to heed Mitchell’s mediation efforts, to make the territorial concessions necessary to reach a peace agreement, to stop building settlements and other infrastructure in the occupied Palestinian territories, or to stop its attacks on Palestinians.

Pressure from around the world is needed. Demonstrations, international groups and individuals getting into Palestine with aid and messages of support, our energy put to useful ends. For instance, there has been a gradual growth in the BDS (boycott, divestment and sanctions) movement, calling to put economic pressure on Israel until it recognizes the rights of the occupied Palestinian people and puts an end the occupation of the West Bank and Gaza Strip. The Israeli attack on the Gaza Strip, starting on 27 December 2008, which lasted for nearly a month, has given this movement a powerful reason to redouble its efforts. Dozens of BDS campaigns have gained momentum and publicity; dozens of new ones were launched during or immediately after Israel's attack. These campaigns range from calls to boycott goods from the illegal Israeli settlements in the West Bank, to calls to stop all economic contacts with Israel. They include protests at supermarkets, sporting events, countries cutting diplomatic ties with Israel and demonstrations around the world, including here at Universities in Scotland. The growing protest against the atrocities committed by the Israeli military in the Gaza Strip have begun to change something in the Israeli political discourse, and the first indication of this can already be seen; although the Israeli economic media doesn't concern itself with the moral dimension of the attacks on Gaza, the economic dimension of recent events have created a rising level of concern.

Arab and Beduin inhabitants have few rights, although Israeli Arabs, who stayed on when so many fled, form 20% of Israel's population. They may vote, and even, at least until recently, sit in their Parliament, the Knesset, but government rulings aren't legitimate" without a "Jewish majority." Electoral law in Israel is complicated by its proportional voting system, resulting in no one party being able to form a government. Coalitions are necessary. In May 1996, Right-winger Benjamin Netanyahu became Israel’s prime minister, defeating Shimon Peres. Netanyahu had been a favourite of Christian Zionists during his years as Israel’s representative to the UN, and was a frequent speaker at important Christian Zionist functions. A powerful lobbying group in the US, Christian Zionists hold extreme religious beliefs, including the 2nd coming of Christ after the Holy Land is entirely Jewish and a cataclysm occurs.

As we have seen, the concept of democracy in Israel is in itself questionable. The Law of Return is for Jews only, even if they have no previous connection with Israel. Even if they are secular; even though Jews do not originate from a clearly definable ethnic group. On land laws, housing, education, discrimination against Arabs is inbuilt. The Citizenship and Entry into Israel Law prohibits Israeli Arab spouses from the West Bank, Gaza or any Arab country from entering Israel and getting residency rights or citizenship. Deported Arabs may not return. This is meant to counter a "demographic problem" or the threat that a faster-growing Palestinian population would soon outnumber Jews, changing the character of a "Jewish state." And about 10,000 Palestinians are held in detention, without charge or trial, on the say-so of israelis. Why are they held? Perhaps they have not been subservient enough.

Skipping over past election details, none of their manoevres geared to a genuine peace process despite Camp David's claims, I come to the current elections, (March 2009). 'The Palestine Chronicle' reports on post-election deals and decisions, as follows: the recently formed Kadima, Livni's party and Likud's main rival, got a majority of votes, Lieberman's Yisrael Beiteinu party was given all the portfolios it demanded: Foreign Affairs, Public Security, Tourism, National Infrastructures and Justice; the ultra-Orthodox Shas party given the Interior, Housing and Construction, and Religious Services ministries. The remaining portfolios are to be distributed among Likud, the United Torah Judaism and Habayit Hayehudi parties. The coalition government of five right-wing parties have a narrow majority in the 120-seat Knesset. Likud's main rival, Kadima, which won 28 seats in the snap elections, refused to join a government under Netanyahu, who does not support Israeli-Palestinian peace talks. (During the election campaign, Netanyahu vowed there would be no Palestinian state if his party was elected.) Netanyahu also agreed to many conditions set by ultra right-wing Lieberman, including bills that draw a clear line between religion and the state, a law to deny National Insurance Institute payments to the families of Israeli Arabs who carry out attacks on Israeli targets, a legal team considering means to deny exiled former Arab MK Azmi Bishara the parliamentary pension. But, "Everyone is angry about the portfolios," a Likud MK told the Post, while Likud MK Silvan Shalom, a former foreign minister, will host a rally of Likud supporters to protest that deal with Yisrael Beiteinu.

This is the ragbag of Israel today, Many Jews aren't staying, and growing numbers won't move there, despite tempting economic incentives. Most Jews there are now secular, nor do they originate from one identifiable ethnic group; several extreme religious groupings are allowed exemption from Army service. Nominally it's a democracy, as many Jewish refugees who had fled there had hoped. A minority of courageous Israeli citizens do oppose Government policies, speaking out for Palestinian freedom, taking part in joint Arab-Israeli actions against the separation wall and its shut crossing points, rebuilding demolished houses, protecting farmers while they harvest crops, even refusing to take part in obligatory military service. as, for instance, a group of girl school-leavers is defiantly doing. And it has its handful of truth-speaking journalists. But Israel's political parties each have policies which end any hope for a viable Palestinian state by increasing outposts and illegal settlements. Outposts comprise small settlements ranging from a few caravans, which are sometimes connected to water and electricity, to slightly larger settlements. They are referred to as outposts by the media as they are generally not recognised by the Israeli government. The settlements, legal under Israeli law, vary in number from several hundred to small towns with thousands of inhabitants and associated infrastructure. Nearly 300,000 Israeli settlers live in the West Bank and nearly 200,000 in East Jerusalem, according to the Israeli information centre for human rights B'Tselem. Under international law, these settlements are built illegally on Palestinian land. And Jewish-only roads carve up the land. Gaza is under siege, tortured and ravaged by war, blockaded because its people voted democratically for a party the US doesn't like. The West Bank is dogged by land seizures, walls, checkpoints, home demolitions, a nightmarish bureaucracy, closures, agricultural and movement restrictions, crop destruction, curfews, permits, economic strangulation, random killings, arrests, imprisonment, and overall terror against its population. Israel has total control, aided by the complicit Fatah party under Abbas- once it was Yassah Arafat and the Palestine Liberation movement that was demonised, now it is Hamas, that kept to its resent cease-fire agreement but demands the opening of the blocked border crossings into Gaza.

For over a half century, the Knesset, the parliament in Tel Aviv has ignored hundreds of UN resolutions condemning its actions against Palestinians and other Arabs, deploring it for committing them, or demanding, calling on, or urging Israel to end them. Consider UN Resolution 242 (November 1967) calling for: "Withdrawal of Israeli armed forces from territories occupied in the recent conflict." Or, Article 49 of the Fourth Geneva Convention, which prohibits: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory...." Neither shall "The Occupying Power...deport or transfer parts of its own civilian population into the territory it occupies. "Israeli settlements have "no legal validity" said Security Council Resolutions 446 (March 1979), 452 (July 1979), 465 (March 1980), 471 (June 1980), and 476 (June 1980). In addition, Resolutions 267 (July 1969) and 497 (December 1981) say the annexations of East Jerusalem (267) and Syria's Golan Heights (497) should be rescinded as illegal. Israel continues settlement expansions and maintains control over Palestine, despite international law and Israel's own legal expert's opinion.

Immense courage and love of their land sustains Palestinians; it has shown in their organisation of civilian protests in the first and second Intifadas, plus the ingenuity of their survival tactics in the Gaza Strip. And the global BDS Movement for boycott, divestment and sanctions, calls for criminal prosecutions for Israeli war criminals and expulsion of Israel from the UN System until it fully complies with international law are growing worldwide. In November 2004, law professor Michael Mandel wrote: "Israel's West Bank and Gaza settlements are war crimes in Canada. Under the Canadian Crimes Against Humanity and War Crimes Act 2000, Israel's settlements in territories taken in the June 1967 war constitute war crimes punishable in Canada." In Section 8, paragraph 2 of the Rome Statute of the International Criminal Court (ICC) adopted by 120 states in July 1998. Item viii prohibits: "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory." Did you know, after initially voting against this Rome Statute, the Clinton administration signed it in December 2000. Then in May 2001, the Bush administration revoked the signature and began a worldwide campaign against the Court. Israel isn't a party to the Rome Statute, but that's irrelevant under Canadian law. Grave breaches of the Geneva Convention constitute war crimes. Israel (like America) is criminally liable. Mandel states that although "Israel denies it, there is no question that Israel is an Occupying Power for the purposes of the Geneva Convention, the Rome Statute, and the Canadian Crimes Against Humanity and War Crimes Act." Holding it accountable is essential. It's high time world jurists demanded it.

Facts for this talk were from the following main sources:
Stephen Lendman (Mathaba Daily News), Information Clearing House, Electric Intifada, Medialens, The Palestine Chronicle, Jewish Peace News. Compiled by Hilda Meers, member of CND, Stop the War Coalition, Scottish Jews for a Just Peace, Palestine Solidarity Campaign.
She can be reached at hildameers@talktalk.net

-----------------------------------------------------------------------------------

After this talk was first given, I was asked for my opinion on the future of Israel/Palestine, a difficult question. In view of Israeli settlements making a 2-state system unviable yet at the same time being deeply opposed to a 1-state-for-all idea. As a contribution to further discussion of this issue, I append the following article:
Fearing a One-State Solution, Israel’s President Serves
Pabulum to Washington By Franklin Lamb

' You take my water. Burn my Olive Trees. Destroy my house. Take my job. Steal my Land. Imprison my Mother. Bomb my country. Starve us all. Humiliate us all. But I am to blame:
I shot a rocket back.'
– Sign carried near Hyde Park Corner during a demonstration in London on 2/15/09 by a Member of the British Parliament February 20, 2009 "Dissident Voice" -- Ain el Helwe
Palestinian Refugee Camp, Sidon, Lebanon — Israeli President Shimon Peres has participated in shaping the policies of Israel for most of its existence. His Washington Post op-ed last week billed as “a peacepartners prod” to the Obama administration, evide ces a major disconnect within the
government of Israel concerning what is urgently required for that country’s increasingly unlikely long-term survival. According to a CIA Study currently being shown to selected
staff members on the US Senate Intelligence Committee and the House Permanent Select Committee on Intelligence, Israel’s survival in its present form beyond the next 20 years is
doubtful.
The Report predicts “an inexorable movement away from a two-state to a one-state solution, as the most viable model based on democratic principles of full equality that sheds the
looming specter of colonial Apartheid while allowing for the return of the 1947/1948 and 1967 refugees. The latter being the precondition for sustainable peace in the region.”
To President Peres’ chagrin, the Executive Summary states that “during the next fifteen years more than two million Israelis, including some 500,000 Israeli citizens who currently hold US
green cards or passports, will move to the United States. Most Israelis not in possession of these documents will receive ‘expedited waivers.’ The Report claims that, “Alongside a
decline in Jewish births and a rise in Palestinian fertility, approximately 1.6 million Israelis are likely to return to their forefather’s lands in Russia and Eastern and Western
Europe with scores of thousands electing to stay, depending on the nature of the transition.”
In his Washington Post piece President Peres desperately attempts to salvage a two-state solution from a one, a three- or even a four-state arrangement. He appears to realize that a
two-state solution is seriously jeopardized unless Israel dramatically and quickly changes course. With the tacking to the right in Israel and the likely make up of the next
government once Peres selects Livni or Netanyahu in the next few days, and given the swelling mood among the occupied in favor of another Intifada, Peres plaintively asserts to the
Obama administration that “two states is the only realistic solution.”
Peres instructed the American people and their government three times in his op-ed brief for a two-state solution, and that Israel is “the land of my forefathers.” He laments that
the CIA-predicted one-state solution would, “Undermine Israel’s legitimacy and the internationally recognized right to exist as a sovereign Jewish state in the land of my
forefathers.” Peres knows that his forefathers had no connection whatsoever
to Palestine, as is the case with more than 95% of the Zionists who swept into the area over the past century and demolished close to 600 villages while expelling a majority of
the native population. Historians have established that most arriving Jews were in fact Slavic converts to Judaism without any historical or genealogical nexus to Palestine or Hebrew
tribes in the area. Against the historical backdrop of the past century of nearly
global rejection of colonialism, his claim of settled international acceptance of “Israel’s legitimacy” is a major stretch. “Legitimacy” is what the conflict continues to be
about — whether a 19th Century colonial enterprise can violently uproot and massacre an indigenous population taking over a land declaring God promised it to them, as they
terrorize and expel the local inhabitants. Contrary to Peres’ claim of Israel as a “legitimate State,” there is no internationally recognized right for Israel to exist on stolen
land without the consent of the dispossessed. Peres assures his American benefactors that Israel’s legitimacy is based “in international law or morality.” In point of fact, both
International law and morality require the right of return of those whose lands were taken and lifting the brutal occupation. Surely Peres is aware, as the CIA Report asserts,
that a majority of the 192 countries which make up the membership of the United Nations would vote this evening to establish one State of Palestine if given the chance.
The Report concludes that what went wrong will be debated for many years. In essence the problem was the premise that a “chosen people” with no link or rights to a land could impose
a state by force. Many Middle East observers believe that the two-state solution is essentially over, but for the packing, finger-pointing and assuredly more violence.
Increasingly repelled by Israeli crimes, the international community is moving toward the majority position of Palestinians, and is coming to believe that the realistic
solution to the Middle East conflict is one state — secular, multicultural, democratic, and based on one person one vote. Peres is loath to accept one state and claims, in promoting a
two-state solution, that he has “personally witnessed the remarkable progress we have made with the Palestinian Authority in recent years.”
Does he have in mind the increasing bantustanization (what Noam Chomsky calls “unviable fragments”), the ever-snaking apartheid wall and other barriers, the illegal outposts which
increased yet again last year? The blockade of and depraved slaughter in Gaza?
Or does President Peres have in mind this week’s announcement by outgoing Prime Minister Olmert that Israel has the right to keep building in large West Bank settlement blocs, including
Efrat, by adding 423 acres so that 21,000 more residents can join the current 9,000, according to Efrat mayor Oded Revivi? Olmert claims its part of the annexation that will be
considered in a future final peace deal with the Palestinians. President Peres has passed nearly a lifetime devoted to undermining prospects for a viable Palestinian state and
offering a wink and nod to the building of more than 430 colonies while offering lip service to the “peace process.” His “Message to the American People” fails to communicate what
the Israeli and Palestinian public knows well about the real nature of the two-state option he has in mind and which he considers to be “the best resolution to this age-old
conflict.” Both populations know that the two-state option that long time politician Peres has consistently run on, is the Yigal Allon Plan.
The Allon scheme to expel the Arab population from Palestine has been Peres’ electoral platform during his campaigns in 1974, 1977, 1981, 1984, and 1987 and it shaped Israel’s
settlement policies from 1967-1977. Peres worked to make the Allon Plan part of the 1978 Camp David agreement and 1993 Oslo Accords.
As the American public begins to stir from its long slumber on the Question of Palestine and hopefully dramatically changes American Middle East policy, it should consider that the Peres
favored “moderate” Allon Plan continues to be Israeli policy. As formulated by its author and adhered to by successive Israel governments, it contains the following “moderate”
elements: * Seeking “maximum land with minimum Arabs”
* Annexes approximately 40% of the West Bank and Gaza, taking the choicest parts
* Dispossess Palestinians from land Israel wants for Jews After Israel’s attack in 1967, Yigal Allon presented to the cabinet a solution to the Arab problem. The Allon Plan called
for annexing the following areas: “a strip of land ten to fifteen kilometers wide along the Jordan River; most of the Judean desert along the Dead Sea; and a substantial area
around Greater Jerusalem, including the Latrun salient.” The plan was crafted to include as few Arabs as possible in the area claimed for Israel and included building permanent
colonies and army bases in these areas. The two-state solution that Peres is trying to sell the
American public and administration is a Palestinian “state” in 76.6% of the West Bank, carved up into sealed enclaves, with the largest of the 430 plus settlements/colonies remaining in
place under Israeli sovereignty. Israel would take another 13.3% outright and continue to occupy the remaining 10.1% for a period of up to thirty years. During this period Israel
would continue building new and expanding current settlement/colonies. The above percentages do not include the subtracted East Jerusalem and the territorial waters of the
Dead Sea. In point of fact the 76% offer is based not on 100% of the occupied territories, but merely those parts that Israel was willing to discuss. Consequently, the “just and
moral solution” President Peres favors would amount to slightly less than 16% of historic Palestine being given to those driven from their homes and land.
Peres claims Israel has worked tirelessly for peace. Yet the record is clear that Israel has only worked tirelessly for expansion at the expense of the indigenous Arab population
while obstructing more than two-dozen “peace initiatives” over six decades, while targeting the Palestinian people, culture, and economy.
Peres claims in his op-ed that Libyan leader Muammar Qadaffi agrees that Israel deserves Palestine and that “this is salient in his fundamental and central premise that the Jewish
people want and deserve their homeland.” Peres takes Qadaffi’s words out of context and misrepresents his thesis, which in fact calls for one state shared by both peoples. Qadaffi
insists that the Middle East welcomes Judaism but not racist Zionism. It is the latter which underpins the founding of Israel and which has led to history’s condemnation.
As the President of Israel seeks yet more indulgence and largesse from the American taxpayers and the Obama administration, there is something he can do to shore up
waning trust and waxing disillusionment with the two-state option. He can announce immediately that he fully accepts UN Security Council Resolution 242 and advocates the removal of all settlements and the total withdrawal of the Israeli
military from the West Bank and Gaza.
Israel’s President urges the American people and government to, “commit our most concerted effort to allow two states to flourish.” Unless he and his fellow leaders of Israel are
prepared, without further delay, to commit to a complete withdrawal to the June 4, 1967 armistice line, in a serious effort at peace, Israel will continue to lose American and
international support and one state is the likely future for Palestine.
Israeli President Peres can avert his eyes from reality, but he Obama administration and the American people cannot afford this fatal delusion.
Franklin Lamb is author of the recently released book, The Price We Pay: A Quarter Century of Israel's Use of American
Weapons in Lebanon. His volume Hezbollah: A Brief Guide for
Beginners is due out soon. He can be reached at fplamb@gmail.com. Read other articles by Franklin.

Presentation: The State Israel's In

2009-03-10T14:46:00.006Z

As we have promised you after the successful Workshop and Roundtable Discussion on the Legal Implications of the War on Gaza :

we are delighted to announce our first follow up event focussing on the Jewish/Israeli perspective:

The State Israel ’s in

Date: Thursday 12^th @ 5pm

Venue: NK 14

Speaker: Hilda Meers

Hilda Meers, is an eye witness of the history of the conflict between Israelis and Palestinians. A Jewish peace campaigner for more than thirty years, her talk out of experience is not to be missed.

Topics covered:The founding of the state of Israel and its core values and policies, post World War II developments and the effects of these on the indigenous Arab populations of Palestine , a divided Israel . Moreover, US support for Israel 's economy and wars, election procedure, with these various strands pulled together as a coherent whole.

Movie: “The Last Emperor”

2009-03-09T14:22:00.004Z

The Legal Research Society would like to kindly invite you to:

Film Night, 11 March, 7pm, Taylor C11

An Academy Awards film screen-written and directed by an Italian director

“The Last Emperor”

The Last Emperor is a biopic about the life of Puyi, the last Emperor of China, whose autobiography was the basis for the screenplay written by Mark Peploe and Bernardo Bertolucci. It was directed by Bertolucci and released in 1987 by Columbia Pictures. Puyi's life is depicted from his ascension to the throne as a small boy to his imprisonment and political rehabilitation by the Chinese Communist authorities. It was the first feature film for which the producers were authorized by the Chinese government to film in the Forbidden City (the historical royal palace) in Beijing. In 1987, the film won nine Academy Awards, including Best Picture and Best Director.

The film bears much on Chinese history in the first half of the 20th century and is also related to some international historic events such as the Second World War as well as some legal problems which might be of interest to some audience. Considering that, a brief presentation, partly descriptive but mostly analytical, will be held by PhD students on some of the following topics:

1. An Outline of Significant Events in Chinese Modern History from 1840 till 2000

2. A Glimpse of Development of Constitutionalism and Democracy in East-Asia

3. International Law and Politics Regarding the State of Manchuria and League of Nations

4. Emperor as War Criminal? The Difference between China and Japan

All welcome!

Refreshments will be available.

Workshop & Roundtable Discussion : The Legal Implications of the Recent War against Gaza

2009-02-09T17:18:00.014Z

The Legal Research Society

Organised a Workshop and Roundtable Discussion on:

“The Legal Implications of the Recent War against Gaza”

Date: Friday, 13^thFebruary 2009

Time: 4 to 6 pm

Venue: New King’s 14

Can one legally speak of a holocaust or genocide committed by Israel? – What human rights violations are the Palestinians subjected to? – Are the Israeli attacks covered by the right to self-defense? – In legal terms, can Hamas be described as terrorists or as freedom fighters? – What does jihad mean under Islamic International Law? – Could Israel as a state or Israeli officials be held liable and be prosecuted for war crimes?

These and many other questions werediscussed by four panel speakers:

Mohamed Almagsoudi – PhD student in Human Rights Law

Nabahan Al-Ma’awali – PhD student in International Criminal law

Khaled Ramadan Bashir – PhD student in Islamic Contribution and International Law

Ahmed Samir Hassanein – PhD student in International Criminal law

Moreover, Prof. Tony Carty, who has extensively published in the area of International Law on the Use of Force and the anthropological and philosophical assumptions underlying it, participated by adding some valuable comments.

The workshop and discussion was moderated by Paula Herm, PhD student in International Law on the Use of Force.

We would be glad if as many as possible of you join us in this event which promises to be most enlightening and stimulating.

Movie: Occupation 101

2009-02-04T15:07:00.004Z

On Wednesday 11th of February from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) The Legal Research Society & The Egyptian Society will screen a movie titled “Occupation 101”

Did the conflict between Palestinian’s and Israeli’s start last December when Hamas fired its rockets on

Israel

or yet it has a deep rooted history?
The answer to this question and others are in 'Occupation 101'. Furthermore a roundtable discussion will take place on Friday 13^th of February from 4:00 pm until 6:00 pm to tackle the legal aspects which the last conflict between Israel and Hamas has provoked, the place TBA.

A thought-provoking and powerful documentary film on the current and historical root causes of the Israeli-Palestinian conflict. Unlike any other film ever produced on the conflict -- 'Occupation 101' presents a comprehensive analysis of the facts and hidden truths surrounding the never ending controversy and dispels many of its long-perceived myths and misconceptions.

The film also details life under Israeli military rule, the role of the United States in the conflict, and the major obstacles that stand in the way of a lasting and viable peace. The roots of the conflict are explained through first-hand on-the-ground experiences from leading Middle East scholars, peace activists, journalists, religious leaders and humanitarian workers whose voices have too often been suppressed in American media outlets.

The film covers a wide range of topics -- which include -- the first wave of Jewish immigration from Europe in the 1880's, the 1920 tensions, the 1948 war, the 1967 war, the first Intifada of 1987, the Oslo Peace Process, Settlement expansion, the role of the United States Government, the second Intifada of 2000, the separation barrier and the Israeli withdrawal from Gaza, as well as many heart wrenching testimonials from victims of this tragedy.

You are very welcome to come along.

Is the Israeli aggression on Gaza illegal?

2009-01-19T18:01:00.002Z

‘Israel’s bombardment of Gaza is not self-defense – it’s a war crime’ is an article published by the Sunday Times on 11th January 2009 to shed the light on the legality of the Israeli aggression on Gaza in the Christmas time of 2008 which continued until the 17th January 2009. the article reads:

{ISRAEL has sought to justify its military attacks on Gaza by stating that it amounts to an act of “self-defence” as recognised by Article 51, United Nations Charter. We categorically reject this contention.
The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence. Under international law self-defence is an act of last resort and is subject to the customary rules of proportionality and necessity.
The killing of almost 800 Palestinians, mostly civilians, and more than 3,000 injuries, accompanied by the destruction of schools, mosques, houses, UN compounds and government buildings, which Israel has a responsibility to protect under the Fourth Geneva Convention, is not commensurate to the deaths caused by Hamas rocket fire.
For 18 months Israel had imposed an unlawful blockade on the coastal strip that brought Gazan society to the brink of collapse. In the three years after Israel’s redeployment from Gaza, 11 Israelis were killed by rocket fire. And yet in 2005-8, according to the UN, the Israeli army killed about 1,250 Palestinians in Gaza, including 222 children. Throughout this time the Gaza Strip remained occupied territory under international law because Israel maintained effective control over it.
Israel’s actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary. Israel could have agreed to renew the truce with Hamas. Instead it killed 225 Palestinians on the first day of its attack. As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5m inhabitants contrary to international humanitarian and human rights law. In addition, the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes.
We condemn the firing of rockets by Hamas into Israel and suicide bombings which are also contrary to international humanitarian law and are war crimes. Israel has a right to take reasonable and proportionate means to protect its civilian population from such attacks. However, the manner and scale of its operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas.}

This article is signed by a number of prominent International Lawyers as follow:

Ian Brownlie QC, Blackstone Chambers
Mark Muller QC, Bar Human Rights Committee of England and Wales
Michael Mansfield QC and Joel Bennathan QC, Tooks Chambers
Sir Geoffrey Bindman, University College, London
Professor Richard Falk, Princeton University
Professor M Cherif Bassiouni, DePaul University, Chicago
Professor Christine Chinkin, LSE
Professor John B Quigley, Ohio State University
Professor Iain Scobbie and Victor Kattan, School of Oriental and African Studies
Professor Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Geneva
Professor Said Mahmoudi, Stockholm University
Professor Max du Plessis, University of KwaZulu-Natal, Durban
Professor Bill Bowring, Birkbeck College
Professor Joshua Castellino, Middlesex University
Professor Thomas Skouteris and Professor Michael Kagan, American University of Cairo
Professor Javaid Rehman, Brunel University
Daniel Machover, Chairman, Lawyers for Palestinian Human Rights
Dr Phoebe Okawa, Queen Mary University
John Strawson, University of East London
Dr Nisrine Abiad, British Institute of International and Comparative Law
Dr Michael Kearney, University of York
Dr Shane Darcy, National University of Ireland, Galway
Dr Michelle Burgis, University of St Andrews
Dr Niaz Shah, University of Hull
Liz Davies, Chair, Haldane Society of Socialist Lawyer
Prof Michael Lynk, The University of Western Ontario
Steve Kamlish QC and Michael Topolski QC, Tooks Chambers

finally, I add my voice as well in support of this legal view, do you? If not, then why?

The article is available on line at:

http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece?Submitted=true

Movie & Discussion: The Lives of Ohters

2009-01-16T18:56:00.012Z

On Wednesday 28th of January from 7:00 pm until 9:00 pm in TAYLOR C11 (opposite to Taylor library entry) The LRS will screen a movie titled “The Lives of Others”.

After the film we will have the opportunity to talk about the film and the issues it raises. Our honourable member Gerd Koehler from the former GDR ("Ossi") will share his first-hand insights into East German society and provide us with contemporary East German perspectives on the vanished country and its regime. Our "Wessi" German LRS president Paula Herm will moderate the discussion.

"The Lives of Others" is at once a political thriller and a human drama. In the early 1980s, a successful dramatist and his long-time companion, a popular actress, are big intellectual stars in the socialist state, although they secretly don't always think loyal to the party line. One day, the Minister of Culture becomes interested in the woman, so a secret service agent is instructed to observe and sound out the couple, but their life fascinates him more and more...

The New York Times stated that in the “The Lives of Others” the suspense comes not only from the structure and pacing of the scenes, but also, more deeply, from the sense that even in an oppressive society, individuals are burdened with free will. You never know, from one moment to the next, what course any of the characters will choose.

The Lives of Others won the 2007 Academy Award for Best Foreign Language Film. The film had earlier won seven German Film awards – including best film, best director, best screenplay, best actor, and best supporting actor– after having set a new record with 11 nominations.

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

ESSAY COMPETITION

2008-12-18T18:10:00.010Z

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

Conference: 6th CASS postgraduate conference

2008-12-17T16:59:00.010Z

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.

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

2008-12-14T20:00:00.005Z

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!

Movie: Le Dîner de cons

2008-12-12T18:15:00.016Z

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.

Movie & Discussion: Workingman's Death

2008-12-08T17:19:00.007Z

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.

Movie: Lion of the Desert

2008-12-01T19:41:00.006Z

On Wednesday 3^rd 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.

Movie: No Country For Old Men

2008-11-24T20:05:00.004Z

On Wednesday 26^th 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

Presentation: Human Rights in Africa

2008-11-18T14:27:00.021Z

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!

Movie: The Constant Gardener

2008-11-10T11:48:00.011Z

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)!

Movie: Why we fight

2008-11-04T13:40:00.010Z

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)!

Roundtable Discussion: A Legal Perspective on the Financial Crisis

2008-10-30T01:53:00.003Z

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!

Non-state actors and International Law

2008-10-10T18:44:00.003+01:00

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

So long, and thanks...

2008-09-23T18:55:00.002+01:00

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.

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

2008-08-28T14:44:00.006+01:00

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.

Seinfeld and the Law

2008-08-27T17:25:00.006+01:00

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.

Presentation Announcement

2008-08-19T19:59:00.000+01:00

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.

Congratulations!

2008-07-31T15:28:00.010+01:00

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.

Feminism and Murder

2008-07-29T10:06:00.012+01:00

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.

Smoking in the Internal Market

2008-07-18T11:43:00.005+01:00

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.

A Constitutional Right to Female Sexual Pleasure?

2008-06-22T14:38:00.001+01:00

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.

Is the Human Rights Movement Part of the Problem?

2008-06-21T14:18:00.002+01:00

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.

Too Complex?

2008-06-19T16:13:00.000+01:00

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.

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

2008-06-17T12:09:00.004+01:00

‘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.

It Looks as if they will.....

2008-06-13T13:24:00.003+01:00

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.

Will the Irish Scrap the Lisbon Treaty?

2008-06-06T13:53:00.001+01:00

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

2008-06-06T09:02:00.004+01:00

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.

College of Arts and Social Sciences Postgraduate Conference

2008-05-29T09:57:00.010+01:00

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.

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

2008-05-22T12:14:00.007+01:00

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.

Upcoming Presentation: 'Fundamental Human Rights Obligations of Corporations'

2008-05-15T10:18:00.002+01:00

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.

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

2008-05-14T08:36:00.004+01:00

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.

Access to Justice in Environmental Matters

2008-05-10T13:09:00.003+01:00

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?

2008-05-10T13:05:00.003+01:00

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.

On Europe Day

2008-05-09T14:10:00.007+01:00

‘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

2008-05-09T11:19:00.007+01:00

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.

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

2008-05-02T17:54:00.011+01:00

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.

Cartoon Crisis a la Putin

2008-04-30T17:52:00.003+01:00

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.

Programme Update

2008-04-29T11:06:00.006+01:00

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.

Highland Crofters Seek Recognition as ‘Indigenous' People

2008-04-25T09:56:00.001+01:00

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.

water for he who is not thirsty

2008-04-24T17:55:00.004+01:00

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.’

Known and Unknown Unknowns - the Best of Donald Rumsfeld

2008-04-21T13:05:00.002+01:00

On BBC’s website there is a rather enjoyable link to a compilation containing some of Donald Rumfeld’s best and/or worst gaffes from his time as Secretary of Defence. Judge for yourself whether they are words of wisdom or closer to the last words of a desperate man. It is well worth the three minutes it takes.

European Environmental Human Rights and Environmental Rights: A Long Time Coming?

2008-04-21T08:35:00.006+01:00

A forthcoming article by Ole W. Pedersen, our blog administrator, is now available on SSRN (Ole W. Pedersen, 'European Environmental Human Rights and Environmental Rights: A Long Time Coming?' (2008) Georgetown International Environmental Law Review, Forthcoming). In his paper Ole argues that the development of procedural and substantive environmental rights in Europe may signal the elevation of these rights at an international human rights law level.

Abstract: This paper deals with the area of rights and environmental law focusing on procedural environmental rights and substantive human rights to the environment in a European context. The paper asserts that while international developments in this area have generally ceased, two strong trends are emerging in Europe. First, a strong focus on procedural environmental rights (a right to access to environmental information, a right to public participation and a right to access to justice) is in place in Europe. This part of the paper is based on an analysis of a number of European legal instruments and regimes, including the European Convention on Human Rights and the case law from the European Court of Human Rights, the 1998 UNECE Aarhus Convention as well as environmental law and policy from the European Community. It is argued that the strong focus on these procedural rights in Europe have led to such norms reaching a level regional customary law with the potential to influence international legal developments. In relation to a substantive human right to the environment, which the paper argues is currently lacking on the international level, it is argued that recent tentative approaches on a European regional level to a substantive right may further add to the precarious status of a substantive right under international law. Here, European developments have the potential to add to other regional instruments in, for instance, Africa and Latin and Southern America. In addition, recent constitutional changes in domestic European law has led to a wide range of national constitutions containing provisions on a right to the environment, which again have the potential to add further weight to the development of an international right.

Chinese Military Presence in Zimbabwe?

2008-04-20T15:33:00.001+01:00

In a time when most countries, bar the likes of South Africa, join PM Gordon Brown in criticism of President Mugabe and the political quandary that Zimbabwe has turned into, it appears that China is instead stepping up its engagement in what is rapidly turning into a failed state. Today’s Independent has the story on Chinese weapon shipments to Zimbabwe and eyewitness sightings of Chinese soldiers in Mutare.

The Beautiful Game

2008-04-18T11:34:00.007+01:00

The EU Observer reports that FIFA President Sepp Blatter is set to push through an agreement that will cap the number of foreign nationals that are allowed to play for football clubs. Blatter’s initiative flies in the face of the ECJ’s Bosman ruling in which the Luxembourg Court declared that Article 39 of the EC Treaty, concerning the free movement of workers in the Community, ‘precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.’ UEFA, the European football association, has proposed an alternative approach, namely that there will be quotas for locally trained players without discrimination on the basis of nationality. Blatter’s response is that this would expose young foreign players to exploitation. So does Blatter have a leg to stand on or is his proposal doomed to failure? And, more importantly, what would the reinstatement of a cap on foreign players do for the beautiful game?

(In the picture above: Maltese striker Michael Mifsud pauses to celebrate his single-handed shaming of Manchester Utd)

LRS Programme

2008-04-17T11:29:00.006+01:00

Wednesday 30 April, 4.30pm, Taylor C16

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”.

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 (see here). We are thankful to Prof David Carey Miller who made this event possible.

Thursday 22 May, 5pm, Venue TBA

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.

Feminine Law

2008-04-15T23:44:00.000+01:00

Olsen says, it may be that “Justice” is represented by a woman, but according to the prevailing patriarchal ideology, the Law is masculine, not feminine. As some feministic scholar states, the law is conceived as rational, objective, abstract and based on principles, which is how men describe themselves; and the law cannot be irrational, subjective, contextualized, or personalized, as men say that women are. If it is true that by placing men in the cultural setting, they become the parameter that defines humankind, how to organize the current law, which helps to incorporate the gender perspective into legal text or context? How to reform the curricular setting to be more feminine? Discuss.

Should the Media Shoulder Legally Neutral Obligation?

2008-04-15T00:12:00.004+01:00

Although many people are heatedly discussing Tibetan issue, Tibetan terrorists or criminals, who infringed on the fundamental human rights of many innocent victims, should be punished according to existing law and the rule-of-law principle. Currently, many websites and newspapers maintained by volunteers exposed some lies and distortions in some western media, which always reported how Tibetan protestors were‘protecting their human rights’, but neglected and scarcely reported expression from Chinese common people. Basically, there is expressive freedom in Western countries and some lies and fabricated stories, especially in some prestigious media are not charged with any legal consequence. From the other perspective, some distorted opinions do arise nationalism within most Chinese people, who reflect totally different from the opinions as to 1989 Tian-an-men Affair. If these reports are prejudicial to China and distorting some truths, should the media freely be forum of helping certain politicians’ performance to obtain vote or shoulder legally neutral obligation to some extent? Discuss.

To know some information to balance, see http://www.anti-cnn.com/

Finding Legal Jobs Hard to Come by?

2008-04-13T14:46:00.002+01:00

Given that all contributors to and members of the Legal Research Society will at one point in the near future have to start some sort of organised search for legal jobs, and suffer the inevitable despair and frustration this brings with it, comfort may be found in the news that former Attorney General to Pres. George Bush and Harvard graduate Alberto Gonzales is finding legal jobs rather difficult to come by after being forced to resign. Today’s NY Times has the story.

To Boycott or not to Boycott

2008-04-12T12:58:00.001+01:00

Amid tense debate as to whether PM Gordon Brown ought to boycott this summer’s Olympic Games in China or not, little attention seems to be given to the question of what effects such a boycott may or may not have. Traditionally people supporting a boycott of the Games argue that China’s human rights record is so appalling that Western leaders ought to disassociate themselves from China. Such arguments have gained further strength in light of recent Chinese clampdown on Tibetan protestors. For instance, the French President Nicholas Sarkozy has openly threatened to stay away from the opening ceremony in light of the Chinese treatment of Tibetan protestors. Similarly, human rights activists assert that Chinese investment in the oil industry of Sudan ought to lead to Western leaders distancing themselves from China. However, as for the argument about boycotting the Olympic Games, it may be argued that the current level of media attention afforded China and the tour of the Olympic torch as it travels around the world creates far more awareness of the human rights situation in China. Perhaps even more than the stay-away act of a Western head of state. Likewise, the vast amount of journalists, reporters, international delegations and foreign investment that will come China’s way in the build-up to the games may have a positive effect. Although such arguments would appear awfully utilitarian it might be argued that the human rights situation and political environment in China would have been even worse had China not been chosen as hosts. Discuss.

Attempts in Hawaii to stop the “Destruction of the World”. Or Maybe Not

2008-04-12T11:40:00.002+01:00

Although this may sound more like a science fiction title of a novel where the lone superhero, in this case from Hawaii, tries to save the world from destruction, the suit recently filed in a Hawaiian District Court by Louis Sancho and Richard Wagner in an attempt to stop the process of the Large Hadron Collider (LHC) operated by CERN, the European Organization for Nuclear Research, seemingly looks a lost cause. The LHC is, in short, an enormous particle accelerator placed 100 metres underground on the border between Switzerland and France. It is a groundbreaking attempt by some of the world’s leading scientists to create an environment where they can study the tiniest particles making up the world as we know it in order to gain an understanding of the fundamental circumstances of the universe. One of the objectives of the project is to gain further knowledge about so-called black holes – areas in space with such a strong gravitational effect that not even light can escape their gravitational pull. This is where the lawsuit filed by Sancho and Wagner comes into the picture. Sancho and Wagner want the US court to halt the CERN from running the LHC (the LHC is scheduled to circulate its first beams on May 28, 2008) as they fear it will unleash tiny black holes that will suck in surrounding mass, which will eventually lead to the entire Earth being sucked in by “loose” black holes. In addition, they have asked the court to order the leading US particle-physics laboratory to cease its support for the LHC. Sancho and Wagner’s fears have been dismissed by the scientists at CERN. Critics assert that the Earth is constantly bombarded with cosmic “rays” strong enough to create the same effect as the LHC without having sucked our planet into perpetuity. Nevertheless, proponents of a strong adherence to the precautionary principle may find sympathy for Sancho and Wagner‘s arguments. On the other hand, opponents would argue, bearing in mind that the precautionary principle usually only applies where the risks of a certain activity are unknown, that the risks in this case are identified and well-understood and are nevertheless miniscule. In any way, the scientific outcomes of the LHC are bound to be fascinating and will undoubtedly generate a lot of attention.

The Economist has a story on the law suit here.

Democratic Defecit in International Law?

2008-04-08T09:26:00.008+01:00

Over on the Volokh Conspiracy George Mason Law Professor Ilya Somin has a very interesting post on the democratic deficit in international human rights law. Somin argues, in a paper co-authored with John McGinnis of Northwestern, available on SSRN, that most international human rights law is created in an undemocratic environment as a result of undemocratic procedures and undue influence of authoritarian states. As an example Somin and McGinnis refer to international law-making relating to the "crime" of hate speech.

From reading the abstract, while awaiting the full paper, it is clear that the authors have some valid points. In particular the example of the hate speech as well as the works of the UN human Rights Council, where the influence of authoritarian states is evident in the Council's attempts to undermine norms of freedom of speech, underline the authors' arguments. At the same time, notwithstanding the relative vagueness of terms like "democracy", "undemocratic" and "authoritarian", the authors deserve credit for raising the question of legitimacy in international law-making. Such debates have unfortunately always gained a bigger audience in the US than in Europe where there sometime seems to be a tendency to uphold international law as answer to numerous problems.

Dr Derek Fincham

2008-04-04T11:45:00.004+01:00

Founding member of the Legal Research Society Derek Fincham successfully defended his doctoral dissertation titled Preventing and Repairing These Losses: The Legal Response in the United States and the United Kingdom to the Illicit Trade in Cultural Property, subject to minor corrections, on Monday March 31, 2008. Although this means that Derek will no longer be a PhD candidate among the rest of us, we would like to sincerely congratulate Derek. Well done, dude! You can follow Derek's work on his own blog here.

Film screening of "Bamako" on Tue, 18th March

2008-03-18T14:20:00.004Z

On Tuesday 18^th March at 8pm (room C11) we will screen a movie that should be of interest to all of you who care for international economic law and financial institutions, human rights, globalisation and inequalities between the developed and the developing world, particularly Africa.

BAMAKO
directed by Abderrahmane Sissako
Cast: Danny Glover, Helene Diarra, William Bourdon
115 minutes, France/Mali (2006)

In the courtyard of a house in Mali’s capital Bamako a trial court has been set up. African civil society spokesmen have taken proceedings against the World Bank and the IMF whom they blame for Africa's woes... Amidst the pleas and the testimonies, life goes on in the courtyard.

Prizes won include:

- BEST PRIZE of the 1st Human Rights Film Festival of Lomé (Togo) 2007

- Council of Europe Film Award (FACE) Istanbul International Film Festival

- JURY'S PRIZE at Carthage Film Festival

“…needs to be seen, argued over and seen again.” (The New York Times)

“ 'Bamako' brilliantly rises to the challenge of presenting a serious discussion of globalization, African debt and the World Bank in a lively, entertaining feature film... (VARIETY)

“…vibrant Malian settings and cast of villagers… the movie takes on a key issue of our time—African debt and the crippling policies of the International Monetary Fund—and magically manages to be critical without feeling at all like a lecture. The issues are mostly explored in a dazzling fictional trial” (Time Out NY)

After the screening we will have some time for a discussion which will be moderated by Paula Herm.

You are welcome to come along!

South African Judge of Appeal in Aberdeen: Update

2008-03-14T16:26:00.003Z

The LRS has the pleasure to announce that Judge Brand of the Supreme Court of Appeal of South Africa will visit the University of Aberdeen on Friday 02 May. Judge Brand will deliver a talk on the subject of 'South African Contract Law and the Constitution' at 3pm in the Old Senate Room.

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 (see here).

We are thankful to Prof David Carey Miller who made this event possible.

Upcoming Presentation

2008-03-05T13:45:00.001Z

Wednesday 12th March, 5pm - Taylor C16
Brigit Toebes, 'Sex Selection Under International Human Rights Law'

Abstract:

Sex selection, or influencing whether to have a boy or a girl, embraces sex selection before and during pregnancy, as well as infanticide. In my presentation I will discuss the issue of sex selection from an international human rights perspective. I will address the question of whether human rights laws are permissive or prohibitive with regard to sex selection. In relation to this I will discuss some of the ethical views on the matter. India and the UK are used as case studies to illustrate the debate. In both countries sex selection is -roughly speaking- prohibited, but the difference is that, while in India there is widespread practice of ‘son preference’, in the UK reasons for choosing to sex select are mostly because of ‘family balancing’.The key question is whether choosing the sex of one’s child is inherent in the right of reproductive choice, an important principle under international human rights law. I will suggest that international human rights law does not recognise a right to ‘sex selection’. I will point out that international human rights law is generally geared towards prohibiting sex selection based on the assumption that it enhances discrimination of women. On this basis I will put forward the view that a right to choose the sex of one’s child is not an element of women’s ‘right of reproductive choice’, which stipulates a right to choose the number and spacing of one’s children, not the sex.Based on these findings I will argue that international human rights law provides strong legal and moral grounds for prohibiting sex selection, in particular in countries like India where there is extensive practice of sex selection. In countries like the UK, where the current main reason to sex select is for ‘family balancing’, the basis for prohibition under international human rights law is not as strong, yet several reasons can be put forward to nonetheless prohibit the practice.

Water Cure/ Water Boarding

2008-03-03T15:49:00.001Z

In last week’s New Yorker Magazine Paul Kramer has a very interesting article on how the use of torture techniques simulating drowning were used by the US military as early on as in the war against The Philippine Republic from 1899-1902. Kramer describes how the method known as “water cure” was used to obtain information from Filipinos siding with the revolutionary Emilio Aguinaldo and refers to letters written by American servicemen depicting the use of “water cure”. One such letter reads: “Lay them on their backs, a man standing on each hand and each foot, then put a round stick in the mouth and pour a pail of water in the mouth and nose, and if they don’t give up pour in another pail”. Other testimonies describe how the water that the victim has inadvertently swallowed is then forcefully squeezed out of him again by pressing a foot against his stomach. The short article is grim reading and a bleak reminder that the current use of water boarding to obtain information is not a new phenomenon. Although the stance towards the use of “water cure” by then President Theodore Roosevelt, according to the article, would appear ambiguous, it may have served as inspiration for the current Bush administration’s utilitarian approach to water boarding. Roosevelt is in the article cited as implying that “the United States was, in fact, dissolving “cruelty” in the form of Aguionaldo’s regime”. “Our armies do more than bring peace, do more than bring order [….] they bring freedom”. Does it sound familiar?

You can read the article here.

Rule of Law

2008-03-03T11:56:00.001Z

Over on his Legal Theory Blog Professor Lawrence Solum, of the University of Illinois, has a very good and interesting post on the meaning of the “Rule of Law”. Prof. Solum points out that most law students come across references to the Rule of Law at some point in their studies but that little time is actually spend on finding out what the meaning of the Rule of Law really is. Prof. Solum makes use of the theories and ideas in relation to the Rule of Law by A.V. Dicey and John Rawls while adding an extra layer to Rawls’ theory by including restrictions on Government actions. The post is worth reading as is the blog in general.

'Views from the Bridge' and discussion

2008-02-29T12:20:00.011Z

Dr Natalia Alvarez will screen “Views from the bridge” on Tuesday 4th March from 11 to 12:30 in Taylor A37. Dr Alvarez explains that the film helps one to 'understand the problems that Kosovo might face in the near future. The portrayal it gives of the situation in Kosovo is quite different from that provided by newspapers and the media':

VIEW FROM THE BRIDGE – the first documentary feature about post-war Kosovo. Confused with the earlier Balkan conflicts and overshadowed by Afghanistan and Iraq, Kosovo’s story may hold the most compelling lessons of all.

Following the film, there will be a short discussion about the new status of Kosovo and the question of minority rights.

This meeting is open to all law students, members of staff and research students interested in this topic.

Derek Fincham in The New York Times

2008-02-20T13:08:00.005Z

Our colleague Derek Fincham, a co-founder of this Society, has already captured the imagination of the British media in interviews with BBC radio and BBC television. Now his blog has been quoted in one of the foremost US newspapers, The New York Times. This piece in The New York Times' 'Ideas and Trends' section addresses what Derek describes as the "Dr. No situation" in art thefts. Hearty congratulations are of course in order.

Presidential Politics and the Equality of Nations

2008-02-20T12:26:00.004Z

It is becoming increasingly likely that the major candidates in the United States general election will be Senator Obama (D) and Senator McCain (R). The two Senators appear to view the status of nations in fundamentally different ways.

Senator McCain supports the establishment of a League of Democracies (Derek analyses the proposal here). McCain's proposal envisions a League of Democracies that will not replace the United Nations, but that could act without its approval. While the idealism of the suggestion cannot be questioned, a League of Democracies hints at the creation of first-class and second-class States, with the former class assuming authority that international law does not afford it to date.

This is in contrast with Senator Obama’s much-debated suggestion that he would meet with foreign leaders whether they are friends or foes of the United States, and whether they are friends or foes of ‘freedom’.

I may be reading too much into this, but the way I see it the two candidates have a fundamentally different views of the equality of nations; the US general elections will have a significant impact on whether international law returns to its traditional notions or departs further therefrom. In Senator McCain’s view, democracies have a superior status and are entitled to act without the approval of other States – a view that is at once pragmatic and idealistic, but that challenges basic notions of international law. I read Obama’s view as one that is not only diplomatically pragmatic, but that also indicates support for the notion that all States are equal.

LRS Presentation Tomorrow

2008-02-19T14:53:00.001Z

Wednesday 20th February, 5pm - Taylor C28 Justin Borg Barthet, 'The Challenge of Online Gambling to European Socio-Economic Governance'

Abstract:
In Schindler the ECJ held that lotteries fall within the meaning of the freedom to provide services for the purposes of the EC Treaty, provided that Member States may derogate from the Treaty in order to protect public order and the interests of consumers. The judgment leaves much room for interpretation regarding the extent to which Member States may erect barriers to online gambling within the EC. In the absence of European legislation to clarify the limits of Member States’ powers, it is submitted that a lack of clarity gives rise to ample grounds for costly litigation. In addition, the law as it stands challenges the notion of shared sovereignty in the EC. Prescriptive jurisdiction is haphazardly distributed among the Member States, rather than being pooled supranationally. Moreover, the rules governing adjudicatory jurisdiction allow ample room for forum shopping. The presentation analyses these issues with reference to the litigation in PMU v Zeturf in which the courts of two EU Member States had to contend with questions of the freedom to provide services, jurisdiction, recognition and enforcement of judgments, and the conflict between the public policies of Member States.

"Don't Tell Mama, I'm for Obama"

2008-02-17T12:16:00.002Z

This week’s Economist has an interesting leader in which it discusses the ability of the Democratic Primary frontrunner Barack Obama’s ability to deliver on his promising campaign and impressive surge in popularity. The leader, inter alia, asserts that a black president in the White House is likely to transform America’s image abroad – something that is desperately needed following the Bush tenure. Overall, the Economist notes, probably rightly so, that Obama has, thus far, not faced the same level of scrutiny as have his rivals, which has allowed him to rely on rhetoric and high expectations rather than political substance. Similarly, the economist notes that Obama’s voting record in the Senate is one of the most left leaning ones among Democrats. Although this is likely to appeal to most Europeans, as this would arguably place him firmly in the centre of the political scale over here, one should not get too carried away. It is evident that even a left leaning Democratic President is going to pursue US objectives and interests once installed in the White House. Rightly so. However, where Obama has the potential to lead with a good example is as to what constitute US interests. For example, Obama has already pledged to make diplomatic approaches to Iran and Syria should he be elected. Although this will not solve the Middle East predicament, it is certainly a welcomed change from the Bush administration. Apart from this, a point that might work in Obama’s favour in the race against Hillary Clinton is the fact that for nearly twenty years the US has been governed by either a Bush or a Clinton, which may rouse arguments of a Monarchy of The United States of America. In addition, it remains the situation that Hillary Clinton is (for various as well as obscure and self-contradicting reasons) subject to serious hatred from various quarters of both the right and left of America. This might work in favour of Obama as Democrats, who are vary of loosing out on the presidency to the revived John McCain at a time when it is practically there for the taking, will look to polls indicating that Clinton fares badly in head to head polls against McCain whereas Obama edges ahead. Either way, at least Obama has a great campaign slogan in "Don't Tell Mama, I'm for Obama" while less than a year of Bush’s presidency is left. Let the countdown begin.

An Independent Kosovo?

2008-02-16T12:24:00.002Z

Rumours are fierce on the internet that Kosovo is set to declare its independence from Serbia this weekend. Whether Kosovo will formally announce its independence this weekend or not, it is evident that the partition is forthcoming. We have previously on the blog touched upon some of the implications of Kosovo’s independence here and here. The rumours follow announcements by the Prime Minister of Kosovo, Hashim Thaci, vowing to protect Serbian minorities within Kosovo and statements from the Russian Foreign Ministry stating that any declaration of independence from Kosovo would be taken into account in regard to Russia’s relations towards the breakaway parts of Georgia aspiring to be independent themselves. Similarly, a number of European states are reluctant to recognise an independent Kosovo fearing that it will prove a rubberstamp to other regions in Europe seeking independence from nation states. However, it cannot be emphasised strongly enough that the will of the Kosovo Albanians to seek independence should not be turned into a geopolitical back and forth discussion where one state’s independence is used as a trade-off against another. Such matters are far too important to deserve such attention. Although it remains a cliché, it is paramount that such important issues of regional independence are treated on a case to case basis by the international community and not according to predestined arguments of “we did not oppose this so you should not oppose that”.

South African Supreme Court of Appeal Judge in Aberdeen

2008-02-16T11:09:00.008Z

We are thankful to Prof David Carey Miller who made this event possible.

More on the Archbishop and Islamic Law

2008-02-13T22:38:00.006Z

A few days ago I commented on the Archbishop of Canterbury’s proposal to have elements of Islamic law coexisting with the English legal system. I questioned the extent to which it would be possible for English law to recognise some facets of Islamic family law.

An article on Conflictoflaws.net sheds further light on the matter. Gilles Cuniberti explains how the Cour de Cassation in France has refused to recognise a number of Algerian and Moroccan divorces. He describes the factual background as follows:

The facts of the cases are almost invariably the same. The couple was of Algerian (or Moroccan) origin. They were sometimes born there, or even had got married there. They then emigrated to France, where they have been living ever since. They sometimes acquired French citizenship.

It seems that it is normally the wife who wants the divorce. She therefore decides to sue, in France. But the husband then travels to Algeria or Morocco and gets an islamic divorce (Talaq) there. He subsequently attempts to rely on the res judicata effect of the Moroccan judgment to stop the French proceedings. This is where the French court has to decide whether the foreign judgment can be recognised in France and thus have a res judicata effect.

The reasons why the wife chooses France, and the husband their country of origin, are quite simple. The wife seeks an allowance for her and the children. A French court would give her much more than an Algerian court. And in any case, under Islamic law, at least as a matter of principle (there are some variations among sunni schools), women may not ask for divorce. This is a right which belongs to men only.

Cuniberti highlights procedural and substantive inequalities between men and women in Islamic law and goes on to explain that French public policy dictates that the Algerian and Moroccan divorces cannot be recognised. He notes that the gender inequality is deemed to breach the European Convention of Human Rights.

Cuniberti’s explanation confirms that the recognition and enforcement in Europe of judgments rendered on the basis of Islamic family law poses insurmountable difficulties. Notwithstanding the Archbishop’s best intentions, the existing barriers to recognition and enforcement in transnational law surely confirm that the proposal that Sharia law should formally coexist with English private law is unworkable from a practical perspective.

Justice Scalia on “Self-Righteous” Europe

2008-02-12T17:57:00.000Z

In today’s Law in Action, on BBC Radio 4, US Supreme Court Justice Antonin Scalia gives a rare interview touching upon a few fascinating legal issues. Justice Scalia is one of the most controversial characters on the US Supreme Court; hailed by conservatives, and abhorred by liberals, for his approach to legal interpretation based on doctrines of originalism and (strict) textualism. This approach is in sharp contrast to the approaches seen in Europe, by for instance the ECJ, where norms of judicial activism are very much alive. Regardless of what one thinks of Justice Scalia he does have some interesting points on the issue of legislation, not just constitutions, being static instruments that do not evolve over time. Similarly, Scalia discusses the use of “smacking on the face” under the “ticking bomb scenario”, which is likely to cause offense. In addition, he has some good points on the appointment of judges in the US, which, he argues, is ultimately not any longer about the lawyerly qualities of a candidate but about politics. However, while discussing the use of the death penalty Scalia argues that the criticism from Europe, levied on its wide use in the US, is self-righteous. Scalia asserts that the death penalty was in use in Europe 30 years ago and that “if Europe had representative democracies that really worked” it would probably still be in place as he claims that opinion polls would show support for it (the death penalty is prohibited through Protocol No. 6 to the European Convention of Human Rights). I am not sure Scalia is correct here (and for the record I strongly oppose the use of the death penalty in all cases). Obviously any outcome of a possible opinion poll would depend on the exact phrasing of the question, and while many people, I think, would be likely to support the death penalty for certain crimes (such as paedophilia), I am not sure that the death penalty would be supported by the people of Europe on a general level. On this point, it is interesting that Scalia claims that the death penalty was outlawed [in Europe] by the “Supreme Court”(!). Hmmm….. Scalia notes that he travels “abroad sometimes” but maybe he ought to swing by the library’s shelves on European law in order to allow himself to be updated on the various judiciaries in place in Europe.

You can listen to the Interview with Justice Scalia here.

Resurrection of the Cartoon Crisis?

2008-02-12T16:02:00.000Z

Although one hoped that calm would have by now been restored following the publishing of the infamous Muhammad cartoons by the Danish newspaper Jyllands-Posten in September 2005, it now appears that the predicament is far from over. This morning it emerged that Danish police and intelligence services had thwarted a plot to assassin a cartoonists behind one of the cartons depicting the Prophet Muhammad (I won’t post the cartoons here but a simple Google search should provide those who are interested with a chance to see the cartoons for themselves). Danish police arrested, in the early hours of Tuesday, three persons suspected of planning an attack on the Jyllands-Posten cartoonist; one being a Danish citizen of Moroccan descent and two Tunisian citizens. The Danish citizen has since been released but face charges in relation to the Danish penal code’s provisions on terrorism while the two Tunisian citizens are to be instantly deported. Although the news is still emerging, it is laudable that violence against a journalist utilising his right to free speech has been avoided. In the same vein, any plans to meet the expression of such freedoms with violence or threats deserve utmost condemnation and denunciation.

However, this entire discussion raises some more profound questions in relation to freedom of speech and expression and the need to take due care and consideration of other peoples’ faith, feelings and sentiments. In particular in light of the news that at least one other Danish newspaper (Politiken) has announced it will publish the cartoon made by the cartoonist in tomorrow’s edition in support while another newspaper has already done so in its online editorial (Berlingske Tidende). Although the cartoons was, and still are, within the relevant Danish law and clearly do not constitute ‘hate speech’ as developed by the European Court of Human Rights, nor instigation under Danish law, it could be questioned, on a moral level, whether the cartoons were necessary. This was most succinctly pointed out by the former Danish Foreign Minister, Uffe Ellemann Jensen, who, in the aftermath of the publishing of the original cartoons, noted that just because one has a particular right to do something one does not necessarily have to do it. In my opinion, this comment was most notable by its absence in the Danish debate following the publishing, which seemed to focus on, the perhaps more straight foward, issues of rights and lack of appreciation of such rights rather than issues of morality and responsibility. Thus, it appears that the debate and controversy will continue for a considerable period.

Note.
The Legal Research Society held a roundtable discussion on the topic in October 2006 and you can find background information on the event and the crisis here. The Danish media have covered today’s story extensively (mostly in Danish) but here are references to the BBC’s coverage as well as the coverage in the NY Times.

An economic analysis of electoral laws

2008-02-10T15:23:00.000Z

Malta’s electoral laws divide the tiny State into 13 districts of more or less equal size, each electing five members of Parliament. This means that in order to be elected to Parliament, a candidate must garner a quota of 16% of votes cast in a district, through a single transferable vote system (save for the fifth candidate elected in each district who often does not reach the quota but is elected because every other candidate is eliminated). In practice this also means that a political party must enjoy almost 16% support in an electoral district in order to be represented in Parliament.Proposals to adopt a 5% national quota have been resisted by the two major parties, thus virtually guaranteeing that they will be the only two parties in Parliament in a winner takes all system. This has been the subject of much heated debate on a popular Maltese blog.

The democratic advantages of greater pluralism are intuitive to some, while the advantages of stability engendered in a two-party system are intuitive to others. I will therefore adopt a different approach here and look instead to competition theory.

The forces that drive competition include (i) the existence of a plurality of suppliers, (i) the possibility of access to the market by new actors, and (iii) consumer choice.

On the first count, the political system does not fail completely. There is a plurality of political parties, but only two have the critical mass to make it into Parliament.

The second and third aspects that I identify are inextricable one from the other: Consumers, or voters for the present purposes, are restricted in their choices because they are aware that if they opt for a third party that cannot garner 16% of the vote, they will favour their less favoured major party by omitting to vote for their second preference. In other words, if Party A and Party B are the major parties, a voter who is ambivalent about Party A, but abhors Party B, must vote for Party A, notwithstanding that s/he identifies most strongly with Party C or Party D. The limitation on the demand side obviously limits access to the market by new actors (the second factor that I list above).

Accordingly, if economic theory is applicable, it can be concluded that electoral systems that are skewered in favour of a two-party system limit competition, encourage complacency and therefore drive quality down. They are basically inefficient.

Of course, I concede that there are a number of flaws in this approach, including the fact that there might be perfect competition within the major parties. Yet, there could equally be several barriers to competition within a political party. There are also several other factors to consider that I do not have the time or space to do here; these include the identification of the market: is it the independent voters alone, or should there be a market for ideas within a political ideology? And the list goes on.

Most importantly, there remains one central question: is it pertinent to apply economic analyses to electoral laws, or is this simply academic navel gazing? Can we apply competition theory to a market for ideas?

Whither Self Determination II?

2008-02-10T10:52:00.000Z

A few days ago, Justin wrote how the governments of Cyprus and Romania would refuse to recognise an independent Kosovo should the international community go ahead and, as planned, support Kosovo’s declaration of independence from Serbia. On Friday, the newly re-elected President of Serbia, Boris Tadic, told participants at a security conference in Munich that the possible partition of Serbia would likely lead to the flaring up of old conflicts. Tadic said “Should Serbia be partitioned against its will... it could in turn result in the escalation of many existing conflicts, the reactivation of a number of frozen conflicts, and the instigation of who knows how many new conflicts”. Although Tadic is attempting to strike a balancing act between securing Serbia’s path towards the European Union, while, at the same time, trying to avoid the breaking up of Serbia, his comments are interesting for a number of reasons. For instance, it is paramount that any violence is avoided in the Balkans – a region already ravaged by war and ethnic hostilities. This needs to be kept in mind although it is evident that the international community will (rightly) support Kosovo in its strive towards independence. Therefore, the establishing of a EU mission in Kosovo, as promised by EU leaders, is much welcomed in this respect. Furthermore, it is clear that Serbia, despite seeing its influence diminish, still plays a role in the stabilisation of the region on a political level. This needs likewise to be kept in mind by the West when supporting Kosovo. Thus, it is important not to alienate Serbia further now that its people has rejected the radical Tomislav Nikolic as president and favoured the more pro-Western Tadic. Of course, more Serbian collaboration in the tracking down of suspected war criminals like Radko Mladic and Radovan Karadzic would be helpful.

Has the Archbishop Gone Bonkers?

2008-02-08T23:00:00.000Z

I take no credit, and, I hope, no blame, for the title of this post. Yesterday's lecture by the Archbishop of Canterbury titled 'Islam in English Law: Civil and Religious Law in England' has met with a deafening outcry, including newspaper headlines screaming 'Victory for Terrorism' and columnists asking 'Has the Archbishop Gone Bonkers?' The newspapers might leave one with the impression that the Archbishop wants us all to live under Muslim law, including Muslim criminal law. On reading the lecture (available here) one wonders if all the fuss stems from the demonization of Islam, as opposed to the actual content of the lecture.

The Archbishop was in fact making the case for the coexistence of secular and religious legal systems in the civil sphere. While I tend to disagree with the proposition that we should regress to a state in which religion enters the public sphere to a greater extent than by informing societal norms, I must admit that the Archbishop makes a compelling case for normative pluralism:

Societies that are in fact ethnically, culturally and religiously diverse are societies in which identity is formed, as we have noted by different modes and contexts of belonging, ‘multiple affiliation’. The danger is in acting as if the authority that managed the abstract level of equal citizenship represented a sovereign order which then allowed other levels to exist. But if the reality of society is plural – as many political theorists have pointed out – this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalised or privatised to the extent that what is produced is a ghettoised pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.

It must be emphasised that the suggestion was premised with the caveat that we must be 'prepared to think about the basic ground rules that might organise the relationship between jurisdictions, making sure that we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction.'

Of course, the proviso is vague at best. It says nothing about the finer details of the effects of choices of Islamic law and Islamic courts. How could the gender inequalities in Islamic family law be accommodated in the English legal system, particularly following the adoption of the Human Rights Act? If Sharia courts are to have jurisdiction that is recognised and enforced by the State, those courts would have to accept some limitations to the precepts of Quranic law - a blasphemous notion.

In sum, while the Archbishop's lecture should create a legitimate discussion as opposed to the predominant sensationalist reporting, I remain quite unconvinced that we should tinker with the status quo.

UPDATE: The Propaganda Box has an excellent piece about this titled 'Has Ruth Gledhill (and everyone else) gone bonkers?' To her credit, Ruth Gledhill links up to The Propaganda Box in her own blog post from which I borrowed this post's title.

Kenya and historic injustices – ongoing human rights violations and how history won’t go away

2008-02-07T21:34:00.000Z

More than 1,000 people have been killed and about 300,000 forced from their homes in the Kenyan post-election crisis. The UN Security Council has given its backing for the mediation mission led by the former UN secretary general Kofi Annan. The violence in Kenya has eased slightly but the conflict is far from being resolved.

In a recently published article the founder of the US Coalition for Peace with Truth and Justice in Kenya, John Barbieri refutes three “myths and misrepresentations” pervading the media coverage on the Kenya crisis which shall be synthesized here: Firstly, the conflict is not “ethnic” or “tribal”. It is rather a conflict between the rich and the poor and as such of political nature (with an ethnic element). Elites on both sides ruthlessly stir up violence. Labelling the conflict as “tribal” is racist, antiquated and inaccurate. Secondly, the current crisis is not a “shock”. It is often falsely presented as coming out of the blue as Kenya was supposed to be a beacon of stability, democracy and economic growth in Africa (for whom? At what price?). The developments are directly connected to the inability of the Kenyan government to come to terms with the brutal legacy and power distributions inherited from British rule. Similarly the Harvard history professor Caroline Elkins argued in a BBC interview recently that the seeds for clashes have been sown under British colonialism. In the same line today’s Guardian g2 supplement deplores a historic wrong – the eviction and dispossession of large parts of Kenyans from their fertile land – that was never put right. Those who conceive of the crisis as a shock are either blatantly ignorant, dishonest or practice mere wishful thinking to be so naïve. Finally, we must not forget that Western countries have huge military and economic interests and ties with Kenya. This refers to the so-called ‘war on terror’ (the Kibaki administration has allowed and worked closely with the U.S. on supposed ‘terrorist’ raids against Muslims in the country and was an ally in U.S.-supported invasion of Somalia by Ethiopian forces to overthrow the Union of Islamic Courts (UIC) in southern Somalia one year ago) and vested American, UK and other European business interests in Kenya as well, who likely did not care for Odinga’s ‘social democratic’ platform which was posing the threat of more taxes and redistributive wealth. To be fair, realizing that its incredulous immediate congratulations on Kibaki’s ‘victory’ after the elections results were announced were a mistake the State Department quickly moved to retract this congratulatory statement, and then issued a statement calling an end to the violence and for the situation to be resolved through ‘constitutional and legal remedies.’ However, argues Barbieri, it is quite clear that these ‘remedies’ are blatantly weighted in the incumbent’s favour and thus will merely support the status quo: Kibaki and corruption.

http://www.pambazuka.org/en/category/features/45590

http://www.concernedafricascholars.org/080110_volman.php

http://www.guardian.co.uk/g2/story/0,,2253507,00.html

__________________________

Paula Herm
School of Law
Doctoral candidate

CASS Conference 2008: Call for Papers

2008-02-06T13:40:00.001Z

The Law Section of the Organising Committee of College of Arts & Social Sciences Postgraduate Conference, at the University of Aberdeen, Scotland invites graduate students undertaking legal research to submit abstracts for consideration. The Conference will take place over two days (11-12 June) in the beautiful surroundings of King's College, University of Aberdeen, Scotland.

Please click here for further information.

The Legal Research Society

Head of State: Legal Debat About The UK's Election. Legal Research Society. 22 April 2010

Welcome to L.R.S.

Murder isn't always a crime? [Double Jeopardy]

Movie: HOT FUZZ

Presentation: Gypsies/Travellers - The last 'respectable' form of racism

LRS Invitation to Guest Lecture on Law&Literature

Farewell Party: Professor Anthony Carty

Movie & Discussion: The Butterfly’s Tongue

Presentation: The problem of economic, social and especially cultural self-determination of Mexico in the face of the United States

Trip to The Hague

The State Israel ’s in: Follow Up

Presentation: The State Israel's In

Movie: “The Last Emperor”

Workshop & Roundtable Discussion : The Legal Implications of the Recent War against Gaza

Movie: Occupation 101

Is the Israeli aggression on Gaza illegal?

Movie & Discussion: The Lives of Ohters

ESSAY COMPETITION

Conference: 6th CASS postgraduate conference

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

Movie: Le Dîner de cons

Movie & Discussion: Workingman's Death

Movie: Lion of the Desert

Movie: No Country For Old Men

Presentation: Human Rights in Africa

Movie: The Constant Gardener

Movie: Why we fight

Roundtable Discussion: A Legal Perspective on the Financial Crisis

Non-state actors and International Law

So long, and thanks...

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

Seinfeld and the Law

Presentation Announcement

Congratulations!

Feminism and Murder

Smoking in the Internal Market

A Constitutional Right to Female Sexual Pleasure?

Is the Human Rights Movement Part of the Problem?

Too Complex?

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

It Looks as if they will.....

Will the Irish Scrap the Lisbon Treaty?

New ECHR Blog

College of Arts and Social Sciences Postgraduate Conference

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

Upcoming Presentation: 'Fundamental Human Rights Obligations of Corporations'

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

Access to Justice in Environmental Matters

Burma, Foreign Aid and Crimes against Humanity?

On Europe Day

Of Detention and Geese

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

Cartoon Crisis a la Putin

Programme Update

Highland Crofters Seek Recognition as ‘Indigenous' People

water for he who is not thirsty

Known and Unknown Unknowns - the Best of Donald Rumsfeld

European Environmental Human Rights and Environmental Rights: A Long Time Coming?

Chinese Military Presence in Zimbabwe?

The Beautiful Game

LRS Programme

Feminine Law

Should the Media Shoulder Legally Neutral Obligation?

Finding Legal Jobs Hard to Come by?

Recommended Reading

To Boycott or not to Boycott

Attempts in Hawaii to stop the “Destruction of the World”. Or Maybe Not

Democratic Defecit in International Law?

Dr Derek Fincham

Film screening of "Bamako" on Tue, 18th March

South African Judge of Appeal in Aberdeen: Update

Upcoming Presentation

Water Cure/ Water Boarding

Rule of Law

'Views from the Bridge' and discussion

Derek Fincham in The New York Times

Presidential Politics and the Equality of Nations

LRS Presentation Tomorrow

"Don't Tell Mama, I'm for Obama"