The spy who came in from the cold

Some words occur to us in pairs, often to the extent that wefind it difficult to hear the one without recalling the other.Thus ‘Romeo’ suggests ‘Juliet’; ‘Anthony’invokes ‘Cleopatra’; ‘Héloïse’follows ‘Abélard’ and so on. Many furtherexamples exist, particularly in the case of lovers. In intellectual property circles the concepts of ‘author’and ‘royalties’ are also closely linked—buttheir relationship is strained. While the author's love forroyalties is sincere and undiminished     

Law's Legitimacy and 'Democracy-Plus'

Is it the case that the law, in order to be fully legitimate,must not only be adopted in a procedurally correct way but mustalso comply with certain substantive values? In the first partof the article I prepare the ground for the discussion of legitimacyof democratic laws by considering the relationship between law’slegitimacy, its justification and the obligation to obey thelaw. If legitimacy of law is seen as based on the law beingjustified (as in Raz’s ‘service conception’),our duty to obey it does not follow automatically: it must bebased on some additional arguments. Raz’s conception oflegitimate authority does not presuppose, as many critics claim,any unduly deferential attitude towards authorities. Disconnectionof the law’s legitimacy from the absolute duty to obeyit leads to the second part of the article which consists ina critical scrutiny of the claim that the democratically adoptedlaw is legitimate only insofar as it expresses the right moralvalues. This claim is shown to be, under one interpretation(‘motivational’), nearly meaningless or, under anotherinterpretation (‘constitutional’), too strong tosurvive the pressure from moral pluralism. While we cannot hopefor a design of ‘pure procedural democracy’ (byanalogy to Rawlsian ‘pure procedural justice’),democratic procedures express the values which animate the adoptionof a democratic system in the first place.     

Towards a Comparative Theory of the Contractual Construction of Personal Work Relations in Europe

This article seeks to build upon the earlier article ‘Fromthe Contract of Employment to the Personal Work Nexus’(2006) 35 ILJ 1, and further to substantiate the theoreticalbasis for our work on the European comparative law of personalwork contracts. Two associated but distinct hypotheses are presented;the first one concerns ‘institutions’ and exploresthe ways in which the contract of employment has become andbeen a central institution of European labour or employmentlaw systems, but an institution differently constructed anddisplaying normative diversity as between those different systems.The second hypothesis postulates a contrast in juridical methodologyas between English common-law-based systems and continentalEuropean civil-law-based systems, the former being characterisedby a ‘regulated self-designed contracts’ approach,and the latter by a ‘standardised contract typology’approach. In conclusion, these two hypotheses are integratedinto a composite tentative comparative theory, which, we argue,can usefully be related to the theoretical discourse about the‘varieties of capitalism’ in Europe.     

Legal Originality

In legal academia it is highly controversial how to ‘beoriginal’ in legal research. This article will try tomaintain an attitude of tolerance in not promoting or discreditingone particular methodology. Instead, it will identify four differentways of ‘being original’. Perhaps the most commonapproach is to deal with ‘micro-legal questions’.Many legal academics also pursue research in ‘macro-legalquestions’. Less common but growing is the importanceof ‘scientific legal research’ and research in ‘non-legaltopics’.     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

The Impact of Information Technology Development on the Legal Concept A Particular Examination on the Legal concept of 'Signatures'

This paper intends to explore the impact of Information technology(IT) development on the legal concept of ‘signatures’.To what extent and in which way does it impact on the legalconcept of ‘signatures’? This paper attempts toexamine this issue from an international and comparative perspective.It was found that IT development has different levels of impacton the legal concept of ‘signatures’ in differentjurisdictions. In the Common Law system such as the UK and theUS, it does not change the legal concept of ‘signatures’.However, it does put the legal concept on such an importantposition. On the contrary, IT development changes the legalconcept of ‘signatures’ in the Civil Law systemsuch as Germany and China.     

Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis in the concept of ‘conscience’. But ‘conscience’here did not mean primarily either the modern lay idea, or the‘conscience’ of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

From the Contract of Employment to the Personal Work Nexus

This article describes the author’s plans for and designof his research project upon the Personal Work Contracts inEuropean Comparative Law; it seeks consultation with the readershipabout those plans and that design; and it develops two linkedaspects of the theoretical infrastructure for that project,namely the analysis of the ‘family of personal work contracts’and the analysis of the ‘personal work nexus’. Theanalysis in terms of the ‘family of personal work contracts’asserts the validity and utility of the wide and inclusive notionof the ‘personal work contract’ as a central organisingcategory for individual employment law and of a multi-dimensionalway of viewing and understanding this category as a family ofcontracts within which the contract of employment is of courseimportant but is not an over-dominant paradigm. The analysisin terms of the ‘personal work nexus’ argues thatthe contracts within this ‘family of personal work contracts’may be better understood if they are placed in the explanatoryframework of the ‘personal work nexus’, which isa concept of a yet looser and more comprehensive set of legallinks or connections within which personal work relations maybe cast. Ways are suggested in which these analyses may contributeto the better meeting of the regulatory needs of personal workrelations and in which those analyses might be refined and testedby means of a European comparative methodology.     

Inspiration is not infringement

Features in a coin-operated arcade game ‘Pocket Money’inspired similar features in subsequent coin-operated games‘Jackpot Pool’ and ‘Trick Shot’, butdid not amount to copyright infringement as they did not forma substantial part of the original game.     

New developments in Belize Laws and Regulations affecting Trusts and Service Providers

The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. ‘The Trust and Company Services Providers (Best Practices)Regulations 2007’ were published in the Belize Gazetteon 7 April and came into force on 16 April. ‘The Trusts (Amendment) Act 2007’ and ‘TheInternational Financial Services Commission (Amendment) Act2007’ were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, ‘The International TrustsRegulations 2007’ and ‘International Financial ServicesCommission (Licensing) Regulations 2007’ were enactedon     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

The 'final' privacy frontier? Regulating trans-border data flows

This article examines the threat to privacy posed by the transferof personal information from one jurisdiction to another. Despiteinternational trends towards greater protection of personalinformation, significant challenges to personal privacy arisein this context. These include the use of outsourcing by businesses,the encroachment of security laws and the potential ‘spill-over’of technologies developed for combating terrorism into the privatesector. Also significant are technologies enabling the ‘profiling’of individuals and ‘data mining’ across borders.Against this backdrop, the article considers existing jurisdictionalresponses towards regulating personal information flows acrossborders. It considers various actual or proposed solutions including‘safe-harbours’, contractual mechanisms and extra-territorialapplications. The article concludes that many of the existingapproaches to regulating trans-border information flows areto some extent deficient and suggests the need for a new ‘fourthgeneration’ set of data protection protocols. In formulatingthe latter, analogies are drawn from other relevant areas ofthe law in order to furnish creative solutions to the problem.     

Veni, vidi, wiki

‘Veni, vidi, vici!’ (‘I came, I saw, I conquered’),Julius Caesar's memorable soundbite from the Battle of Zelain 47 BC, has been for nearly two millennia a byword for thetriumph of the new order over the old. Substitute the homophone‘wiki’ for ‘vici’ and the symbolismremains apt. While the rise of the personal computer, the developmentof the internet and the advent of mobile telephony have eachbeen hailed as the greatest transformative feature     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

This contribution examines certain inherent shortcomings ofan ‘open-ended’ institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community – two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.

‘You gave us freedom, but not a future’.¹