Oxford Eprints
(1.101 recursos)
Oxford E-prints is a cross-disciplinary digital archive for research articles written by Oxford University authors. The repository has been developed as part of the SHERPA (Securing a Hybrid Environment for Research Preservation and Access) project and is running on eprints.org open archives software.
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Jus Ad Bellum and Civil Conflicts: A Case Study of the International Community's Approach to Violence in the Conflict in Sierra Leone - Samuels, Kirsti
The response of the international community to violence in civil conflicts raises interesting possibilities regarding the emergence of norms of addressing violence in civil conflicts. Although the discussion of the role of international law with respect to violence has traditionally been dominated by international conflict and the use of force between states, it is civil conflict that is proving the most intractable and complex form of violence facing the international community.This paper investigates the principles governing the response of states, regional organizations, and the Security Council to the recent conflict in Sierra Leone. It argues that the practice challenges the...
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International economic law and the pursuit of human rights: A framework for discussion of the legality of 'selective purchasing' laws under the WTO Government procurement agreement - McCrudden, C
The tension between international economic law and the protection of human rights is considered. Important technical and policy aspects of the tension are illustrated by considering the legality under the WTO Government Procurement Agreement 1994 of requirements in government contracts that attempt to further social policy objectives. The current controversy concerning the use by state and local governments in the United States of 'selective purchasing' laws to influence the human rights policies of foreign governments, particularly the controversial Massachusetts legislation relating to Myanmar (Burma), provides the opportunity for considering how these tensions might be resolved.
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A perspective on trade and labor rights - McCrudden, C; Davies, A
Recent debates about the role of the International Labor Organization and the World Trade Organization are considered in the context of an examination of the appropriate relationship between international trade law and labor rights. After a brief history of the issue, consideration is given to how far there is a conflict between trade liberalization and labor rights, identifying different ways in which tensions may arise. Currently, four ways of dealing with these tensions exist in an uneasy relationship with each other: a unilateral model, an NGO model, a regional model, and a multilateral model (concentrating on the ILO). If dissatisfaction...
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Social Labelling and WTO Law - Lopez-Hurtado, Carlos
This paper discusses the legality of government-sponsored social labelling initiatives under the WTO agreements. It first presents the basic characteristics, potential and shortcomings of those initiatives and the drive towards government sponsorship as a way to correct the shortcomings. It then moves on to analyse these initiatives under the relevant GATT and TBT Agreement provisions. The article argues that regulatory measures that establish social labelling schemes may be analysed under Article III of GATT and also under the provisions of the TBT agreement. Although in certain circumstances those initiatives may be found inconsistent with those provisions, if such regulations rely...
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Defining, Assigning and Designing Sex - Chau, P.-L.; Herring, Jonathan
This article challenges the distinction the law draws between male and female. It focuses on the legal and medical treatment of intersexual people. Analysing the nature and rate of intersexuality it argues that there is a significant number of people who cannot be described as either male or female and instead exhibit a range of sexual characteristics. Until recently the law and medicine have insisted that intersexual people should be categorized as either male or female. Surgery was performed to ensure that they had the appearance assumed to be the 'norm' for a man or woman and the law followed...
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The impossibility of the rule of law - Endicott, TAO
No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I ask what counts as a 'deficit' in the rule of law, and I argue that none of these features...
12.
Human rights codes for transnational corporations: what can the Sullivan and MacBride principles tell us? - McCrudden, C
The development of codes of conduct for transnational corporations is considered, particularly those involving human and labour rights. The issue of compliance with such codes is examined through a detailed consideration of the development and operation of the Sullivan and MacBride Principles. The origin, evolution, and effects of these Principles is considered. Particular attention is paid to institutional and other features surrounding their enforcement, including the use of selective purchasing, shareholder activism, and linkage to government financial incentives. The paper considers what conclusions may be drawn from the operation of these Principles to inform current debates about the effectiveness of...
13.
A loss of innocence?: judicial independence and the separation of powers - Stevens, R
The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary collectively as a branch of government. This article then asks what impact current constitutional changes will have on this state of...
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Doctrine, justice, and home-sharing - Harris, JW
This article examines certain aspects of current English doctrine in the light of applied property theory. Two of the problems of home-sharing which the law must address are: When should a claim be sustainable against the party who has legal title? Should such claims be exigible against successors of the title-holder? When statue is silent, three doctrinal streams of case-law are invoked. They concern money-down resulting trust interests, proprietary estoppel claims, and common intention constructive trust interests. The 'just outcome' is prayed in aid, intermittently and interstitially, when the doctrinal solution is unclear or when doctrine itself is developed. This...
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Rights, wrongs, and remedies - Birks, P
Part 1 shows that 'remedy' destabilizes analysis. It has at least five different meanings loosely grouped around the relationship between disease and medicine. In three of those meanings it is functionally synonymous with 'right', which, for all its own instabilities, ought to be preferred. Blackstone encouraged the use of 'remedy'. He stabilized it by putting 'remedies' in a particular relationship with 'wrongs'. However, he built that relationship on an unsound foundation, namely, the proposition, in which John Austin followed him, that every cause of action was a wrong. Part 2 demonstrates the error of that position. The rights which courts...
16.
Fact, opinion, and the human rights act 1998: does English law need to modify its definition of 'statements of opinion' to ensure compliance with article 10 of the European convention on human rights? - Young, AL
The European Court of Human Rights requires a distinction to be drawn between statements of fact and value-judgments in defamation law, arguing that the former are susceptible of being proved to be true, but the latter are not. Moreover, Article 10 of the European Convention on Human Rights is breached when the only defence available to value-judgments is for the defendant to prove that the statement is true. English law draws a similar distinction between statements of fact and statements of opinion. However, this distinction differs from the distinction between statements of fact and value-judgments. Consequently, situations can arise when...
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Sovereignty re-examined: the courts, parliament, and statutes - Barber, NW
In this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: first, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems, can, and the English Constitution does, contain multiple unranked sources of law. Hart's rule of recognition and Kelsen's Grundnorm are considered and compared, and found to be insufficiently flexible...
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Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights - McCRUDDEN, CHRISTOPHER
It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring...
20.
Unjust Factors and the Restitutionary Response - CHEN-WISHART, MINDY
The common law's approach in the law of unjust enrichment is to enumerate specific «unjust factors» as permissible causes of action in claims for restitution. This approach has come under attack, inter alia, for being unnecessarily complicated. The claim is that the civilian approach, with its single ground of absence of legal cause for the transfer, is preferable since the operative unjust factor in any particular case is irrelevant to the restitutionary response. In defence of the common law's approach, this article tenders four aspects of the restitutionary response which, it is claimed, are illuminated by reference to the nature,...
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