Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Trafficking in Migrants: Illegal Migration and Organized Crime in Australia and the Asia Pacific Region

The subject of this article is the phenomenon commonly known as trafficking in migrants or people smuggling—the criminal offence of transporting migrants across international borders. This article explores the phenomenon of migrant trafficking and analyses migrant trafficking in the light of recent developments at domestic, regional and international levels. This article examines national legislation dealing with migrant trafficking in criminal law and immigration law in Australia and fifteen countries of the Asia Pacific region: Brunei, Cambodia, People's Republic of China and its Special Administrative Regions Hong Kong and Macau, Fiji, Indonesia, Lao People's Democratic Republic, Malaysia, Myanmar, Papua New Guinea, Singapore, Solomon Islands, Taiwan, Thailand, Vanuatu and Vietnam. Moreover, international and regional efforts to combat illegal migration and organized crime are outlined and analysed.     

Art,Artists' Associations,and the State in Norway

Conservation of indigenous heritage is closely associated with the political and social position of the indigenous people in society. In order to understand the ongoing debate and changing perspectives on indigenous heritage, study of the growth of American Indian communities and their relationships with the U.S. government is crucial. Therefore, this article examines the federal policies and programs and the political dynamics presented in conserving indigenous heritage by reviewing Indian policy developments within the past two decades. American Indians did not possess ownership of their own cultural heritage and could not participate in the administration and formation of legal protection for heritage conservation. Policy changes have been influenced by the evolving roles of American Indian communities; this article explains how tribes finally became a partner in heritage conservation efforts.     

The Influence of the Global Order on the Prospects for Genuine Democracy in the Developing Countries

There is much rhetorical and even some tangible support by the developed states for democratisation processes in the poorer countries. Most people there nevertheless enjoy little genuine democratic participation or even government responsiveness to their needs. This fact is commonly explained by indigenous factors, often related to the history and culture of particular societies. My essay outlines a competing explanation by reference to global institutional factors, involving fixed features of our global economic system. It also explores possible global institutional reforms that, insofar as the offered explanation is correct, should greatly improve the prospects for democracy and responsive government in the developing world.     

The Spectre of Addis in Contracts of Employment in Canada and the UK

This article examines the legacy of the 1909 House of Lordsdecision in Addis in both Canada and the UK by closely analysinga key case from each jurisdiction: Wallace v United Grain Growersand Johnson v Unisys. It underlines the continuing strong tendencyto treat wrongful dismissal solely as breach of the notice termand considers the remedial consequences of that stance.     

Impact of Climate Change on Indigenous People and Adaptive Capacity of Bajo Tribe,Indonesia

Abstract

With a long history and deep connection to the Earth’s resources, indigenous peoples have an intimate understanding and ability to observe the impacts linked to climate change. Traditional ecological knowledge and tribal experience play a key role in developing future scientific solutions for adaptation to the impacts. This review explores climate-related issues for indigenous communities in the world, including loss of traditional knowledge, forests and ecosystems, food security and traditional foods, as well as water, Arctic sea ice loss, permafrost thaw and relocation. Until the 21st century, indigenous peoples were viewed as victims of the effects of climate change, rather than as agents of environmental conservation. Representatives of indigenous peoples have in fact since 2008 been actively seeking a role in contributing to combating climate change through their participation in international environmental conferences, as well as by means of activism and political engagement at local and national levels. Using examples from the Amazonian region in the east of Ecuador, home to indigenous communities such as the Huaorani, Sápara and Sarayaku Kichwa origin peoples, this article argues that indigenous peoples, particularly forest dwellers, have a dual role in combating climate change. Over the years Bajo tribe have made adaptive mechanisms to cope with climate change. In the last 10?years indigenous peoples representatives have been collectively engaged in lobbying for inclusion in intergovernmental climate change negotiations and to have decision-making power at the United Nations. This article is an attempt to review the role of indigenous people in climate change and their adaptive mechanisms.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

This article undertakes a critical reading of the argumentsused at the bench and the bar in the 2004 ICJ Wall advisoryopinion. The Wall case included an unprecedented number of Stateand non-State participants and it is therefore a valuable sitein which to explore the parameters and limits of legal speech.What argumentative strategies were employed at the Peace Palace?How did different participants present the relationship betweenlaw and politics? In particular, because the example of Palestinecan be seen as a challenge to the post-colonial order, how didThird World States employ the language of international lawin support of Palestinian self-determination? It is shown thatalthough international legal speech is highly restrictive, manyThird World States are willing to challenge its boundaries througha deep-set faith in the dividends of legal argumentation.     

International Promises and Domestic Pragmatism: To What Extent will the Employment Relations Act 1999 Implement International Labour Standards Relating to Freedom of Association

This paper explores the rhetoric and reality surrounding implementation of international labour standards in the Employment Relations Act 1999. It focuses on UK commitments relating to freedom of association and considers whether the new legislation goes any significant way towards their fulfilment. The paper begins by outlining obligations which arise from a state's membership of the International Labour Organisation (ILO) and ratification of ILO Conventions. It then goes on to examine indications that, since the change of government in 1997, there has been a significant shift in UK policy relating to such international obligations. The remainder of the paper examines reforms made by the Employment Relations Act to trade union recognition, protection of strikers from dismissal and prevention of anti-union discrimination. It emerges that the Third Way proposed by the present Labour Government entails a complicated detour from the path of full compliance with ILO standards.     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

Caste Discrimination: A Twenty‐First Century Challenge for UK Discrimination Law?1

Discrimination based on caste affects at least 270 million people worldwide, mostly in South Asia. Caste as a system of social organisation has been exported from its regions of origin to diaspora communities such as the UK, yet despite the prohibition of caste‐based discrimination in international human rights law caste is not recognised as a ground of discrimination in English law. The overhaul of its equality framework and the proposed new single equality act present the UK with an opportunity to align national legislation with international law obligations. The Government's decision not to include protection against caste discrimination in the new legislation leaves race and religion as the only possible legal ‘homes’ for caste. This article considers the argument for legal recognition of caste discrimination in the UK, the capacity of race and religion to subsume caste as a ground of discrimination, and the role and limitations of law in addressing ‘new’ forms of discrimination such as casteism.     

Patent construction after Amgen: are patent claims construed more widely or narrowly than previously?

Legal context. This article considers the UK Courts' approachto patent construction since the House of Lords' decision inKirin-Amgen Inc v Hoechst Marion Roussel Limited, which washanded down in October 2004, and seeks to examine whether theUK Courts' construction of patents is wider or narrower thanpreviously. Key points. The available data appear to suggest that thereis little difference in outcome, whether the old Improver testis applied or the new Kirin-Amgen test; of more significanceremains the nature of the wording of the patent claims themselvesand the correct identification by the trial judge of the inventionunderlying the patent. Practical significance. By eschewing a literal approach andrefining the test used in order to ensure both compliance withthe EPC and consistency with courts in other European countries,the UK Courts continue to provide an attractive forum for resolutionof patent disputes.     

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

Neither Here Nor There: Temporary Admission to the UK

This article considers the lacunae in international and Europeanlaw for the protection of those who do not, or do not yet, havetheir refugee status recognised, or whose claim for asylum hasbeen refused. It examines the position of such people in theUK, where they are ‘temporarily admitted’ underprovisions of the general immigration legislation. This meansthat although their physical presence is recognised and notunlawful, they are legally considered not to have entered thecountry. Whilst historically this was a favourable positionthat might itself often lead to naturalisation, the legal positionof those on temporary admission has changed rapidly and drasticallyover the past decade as rights to work and to social securityhave been withdrawn and a programme of mass detention instigated.These developments have in turn led to attempts by those ontemporary admission to use international and European law toattain or reinstate rights and to resist removal. This articleexamines the changes to UK law and policy since the first primarylegislation dealing with asylum in 1993, in the light of internationaland European law, and suggests that they will lead a new categoryof undocumented sans-papiers in the UK.     

Tourism and sentencing: Establishing informal status privileges

This article follows a recent international case where tourism has influenced a criminal trial and its outcome. In order to assess the real impact of this development it draws upon the conceptual frameworks that have informed sentencing to establish best fit with existing theories. Furthermore, it compares this informal development in sentencing with recent legislation in the UK (and more established provision in the United States) designed to outlaw hate crimes. From this it is possible to see that certain countries reliant on tourism are offering tourists what might be termed ‘status privileges’ (a concept borrowed and adapted from the hate crime literature), which serves to distort justice and lays the foundations for a two-tier system that can only lead to inferior protection for indigenous people.     

Damaska and the Faces of International Criminal Justice

Mirjan Damaka 's scholarly publications provide important insightsfor the analysis of systems of criminal justice at the internationallevel. This is particularly true for his major book: The Facesof Justice and State Authority – A Comparative Approachto the Legal Process. The book develops ideal types, or models,of the structure and the function of government. As far as thestructure of government, the ideal types of hierarchical andcoordinate officialdom are contrasted with one another. Withregard to the function of government in society, two other mutuallyexclusive ideal types are developed: the ideal type of the purelyreactive state and that of the purely activist state. In thepurely reactive state all state activities are essentially aform of dispute resolution between individual citizens. Consequently,all proceedings take the shape of a contest between two parties.In the reactive state, on the other hand, all law is an expressionof state policies. This entails that all proceedings are essentiallyan official inquiry enabling the state to implement its policies.The four ideal types call for several observations, one of thembeing that, at the international level, there is no authoritythat can be compared to a state. Setting up international criminal courts requires choices withregard to the structure and function of authority. Internationalhuman rights instruments provide no guidance as to the natureof the choices to be made. In particular, they do not indicatewhether the legal process should be structured as a contestbetween two parties or as an official inquiry. The same is truefor empirical evidence. An analysis of the structures of authority in internationalcriminal courts reveal that they represent hybrids of the hierarchicaland the coordinate ideal types of officialdom. The fact thatthese courts are unitary courts has a profound effect on evidentiaryarrangements. The most important issue raised by the exposition of ideal typesof The Faces of Justice concerns the relationship between thegoals of international criminal justice and the appropriatelegal process to serve their realization. Goals of a conflict-solvingnature are best served by a legal process structured as a contestbetween two parties and goals related to the implementationof policies by a legal process structured as an official inquiry.It is therefore essential to determine what goals are beingpursed by international criminal courts. One may distinguishhere between goals that international systems of justice mayor may not have in common with national systems of criminaljustice. The pursuit of the traditional goals of criminal justicecommon to international and national systems of justice doesnot provide compelling reasons to prefer either a contest modelor an inquest model of the legal process. This is different,however, for the idiosyncratic goals of international criminaljustice that set apart international systems of criminal justicefrom national systems. The pursuit of these goals makes it desirablethat historical facts are established as accurately as is possiblein the given circumstances. They are, therefore, best servedby a legal process that takes the shape of an official inquiry.In the hybrid type of procedure adopted by the ICTY there isinsufficient clarity about the procedural status of the peculiargoals of international criminal justice as well as about theuse of procedural means to pursue them. This entails that itis not really possible to determine whether this hybrid representsa success. Hybrid types of procedure cannot truly exist withoutadopting a view with regard to the impartiality of judges thatis inspired by standards enshrined in international human rightsinstrument rather than those that are characteristic for thelegal process shaped as a contest between two parties.     

Indigenous self-determination in an age of genetic patenting: recognizing an emerging human rights norm

This Note explores how the law can help indigenous people obtain meaningful control of their genetic material. Part I will briefly discuss the background of genetics, life patents, and indigenous groups. Part II sets out the domestic common law and international human rights law and demonstrates that neither currently provide adequate protection for indigenous peoples. Part III considers the human right of self-determination in the context of indigenous research and patenting, and illustrates that an emerging international norm recognizes an indigenous people's right to control their genetic material. Part IV argues that Congress should pass legislation to adequately meet the human rights needs of indigenous peoples generated by the rapid advancement of biotechnology. This Note concludes that congressional action to protect indigenous peoples is consistent with domestic and international law, and is a natural advancement of human rights and responsible state action.     

Experimental use and patent infringement in Europe

Bird & Bird's Trevor Cook has produced another thoroughand insightful analysis, this time on the important area ofdefences to patent infringement for research activities in Europeand, in particular, the UK. The work, published both as a Report of the Intellectual PropertyInstitute and, in abbreviated form, in the Intellectual PropertyQuarterly, assesses historical and international perspectiveson defences for experimental or private uses and regulatoryreview. It analyses, in turn, the consequences for failing     

Claim construction and the extent of patent protection: A comparative analysis of the Phillips en banc Federal Circuit decision

Legal context. The United Kingdom's House of Loads in Kirin-Amgenand the United States Court of Appeals for the Federal Circuitin Phillips addressed similar issues with respect to the methodologyof claim interpretation and the fundamental rules and policiesfor determining the extent of patent protection. This articlewill review Phillips and Kirin-Amgen from the comparative lawperspective. It will compare the UK and US rules and patentpolicies with their German and Japanese counterparts, discussingthe bases for these differences and examining them from theperspective of patent policies, specifically with respect tofair protection and legal certainty. Key points. Despite the use of the same rule and methodology,legal commentators and patent professionals emphasize the differencesin the extent of patent protection in different jurisdictions.Such differences result from the availability of the doctrineof equivalents. For jurisdictions such as the UK, the US andJapan, where courts seldom apply the doctrine of equivalents,the differences result from the way in which the courts conductclaim construction. These courts use the perspective of a hypotheticalperson to support a broad or narrow claim construction, reflectingthe weight given to the competing patent policies. Practical significance. This article cites key cases for claimconstruction and the doctrine of equivalents in four major patentjurisdictions: the UK, the US, Germany and Japan. Knowledgeof the case law trends in these jurisdictions is essential fordrafting patents documents and enforcing patents.