Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

Independent Schools Council v Charity Commission for England and Wales [2011] UKUT 421 (TCC)

This note provides a critical analysis of the Upper Tribunal's decision and questions its proposed application and legal justification. The author suggests that the Upper Tribunal has introduced a third sense of public benefit and that this relies upon a circular rationale which is informed by policy rather than law.     

The Dunnes payments scandal, Charles Haugheyy and contemporary Irish political culture

This article offers interpretation and commentary regarding the Tribunal of Inquiry (Dunnes Payments) which was established to look into large sums given by Ben Dunne, a leading Irish businessman, to senior Irish politicians, most notably the former Taoiseach, Charles Haughey, and Michael Lowry who was a cabinet minister at the time. The article attempts to place this affair within the general context of contemporary Irish political culture, and the relatively unique, ‘cult of the personality’ personified by Charles Haughey. The article notes that it has been the convention to assume that Irish political culture reflects features commonly associated with the prevalence of traditional and conservative social and political values. The article argues that Irish political culture is now unmistakably in step with the trends observed throughout the European Union, while at the same time acknowledging that certain particular factors still remain distinctive. Despite Haughey's long tenure as the most powerful politician of his day, the privileges accorded by his lofty position alone cannot fully account for his political actions nor, in particular, his dubious ethics in relation to his personal finances. The article considers the contents of the McCracken Tribunal itself and concludes with a brief discussion of the Tribunal findings, the nature of corruption in Irish politics and the corresponding implications for Irish political culture. This revised version was published online in July 2006 with corrections to the Cover Date.     

Brazilian judges in-between professionalism,gender and difference

This paper analyzes how Brazilian judges experience difference, focusing on how professionalism, gender, generation and diversity intersect in identity formation among women and men who are judges in the state of São Paulo, Brazil. In attempting to avoid attaching one fixed meaning to the concept of difference, we work with Avtar Brah's typology; this in turn enables us to capture how difference is perceived and experienced by our interviewees. Our results provide a look at how the specificities of the professionalization process influence the composition of the two courts we have studied (one at state and another at federal level), and how they increase or reduce the gender stratification within these careers. Being a judge is experienced through difference, in particular as the ‘Other' to those outside the career, and wherein identification is intersected by questions of gender, sexuality and generation. Although professionalism establishes boundaries between ‘us' and ‘them', it is also diluted through the ways in which the above-mentioned social markers and attributes permeate the self and professional groups. We interviewed 18 judges (women and men) from the São Paulo State Courts (Tribunal de Justiça de São Paulo) and 10 judges from the Regional Federal Courts (Tribunal Regional Federal) from the São Paulo circuit.     

Appeals against detention in conditions of excessive security: outcomes and decision-making

The Mental Health (Care and Treatment) Scotland Act 2003 introduced the right for patients to appeal against detention in conditions of excessive security initially to those in high security. Aim: to further investigate appeal outcomes and to examine Tribunal decision-making. Results: responsible medical officer support, being on the transfer list and not having a diagnosis of learning disability increased the chances of a successful appeal. Qualitative analysis of the Tribunal’s decision-making produced 5 themes and 17 subthemes. These were used to develop a ‘checklist’ framework to improve understanding of relevant appeal factors. Conclusions: Neither appeal outcomes nor patient characteristics have changed over time. The checklist may be useful as a training tool and clinical guide. This study is timely given that the Mental Health (Scotland) Act 2015 extended the right of appeal against excessive security to patients detained within medium secure units from November 2015.     

Communicating Dissent in Judicial Opinions: A Comparative,Genre-Based Analysis

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

     

Ethics and legal education

ABSTRACT

This article explores how theatre, particularly forum theatre, may be used as a means of testing new legislation. This article documents a workshop involving a theatricalised bilingual Tribunal and uses this as a case study of how theatre may be used to explore the implications of new legislation in order to gain an understanding of its potential problems and weaknesses. The article concludes by exploring other ways in which theatre may be used to explore new legislation.     

The 2005 Revision of the Statute of the Iraqi Special Tribunal

On 9 October 2005, almost unnoticed, the Statute of the IraqiSpecial Tribunal (IST) was amended and the Tribunal was changedinto the Iraqi High Tribunal (IHT). These amendments introducedinto the legal and procedural system of the Tribunal significantchanges that directly impacted upon the functioning of the Tribunalas well as upon some of the most fundamental rights of the defendants.Although statutory amendments are not per se improper, thoseintroduced in the Statute of the Iraqi Tribunal are likely tofurther undermine the credibility of this institution.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

The Intensionality behind Legal Concepts and Their Extensional Boundaries: Between Conventionalism and Interpretivism

This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to conceive of the distinction between the semantic content of rules (their intended purpose) and their extension, by drawing a parallel with the idea of “deep conventions” (and “essential rules”) as well as with the semantic conventions in natural language. The paper thus touches on the broader problem of the relations between legal concepts and nonlegal values (law and morality).     

The Spanish Constitutional Tribunal's Decision in Guatemalan Generals: Unconditional Universality is Back

On 26 September 2005, the Spanish Constitutional Tribunal reversedthe decisions of the Audiencia Nacional and the High Court (TribunalSupremo) in the case of the Guatemalan Generals. According tothe two judicial bodies, the exercise of universal jurisdictionover international crimes required a link between the crimeor the victims or the offender and Spain, such as the presenceof the offender on Spanish territory or the Spanish nationalityof the victims. The Constitutional Tribunal held, instead, thatthese requirements are contrary to the principle pro actione,i.e. they result in an unjustified restriction of the constitutionalright to effective judicial protection. The Tribunal also clarifiedthat universal jurisdiction, whose aim is fighting impunity,does not require any link other than the universal characterof the values protected by the provisions criminalizing themost serious violations of international law. The presence ofthe accused in Spain is merely a condition for trial, not adistinct ground of jurisdiction; in other words, the accusedmust be in Spain for the trial to begin, but jurisdiction maybe exercised even in his absence, for example for the issuanceof a request for extradition. The only condition to which theexercise of universal jurisdiction is subject is that the stateof the locus commissi delicti is not already investigating andprosecuting the case effectively.     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.     

中国东海法律问题

In the most range of the East China Sea, the exploiting oil and gas have been blocked for decades by conflicting claims to the boundaries and islets by China and Japan. For the sake of addressing conflicts in a comprehensive cooperation by bilateral and multilateral agreements aiming at reducing rising tensions and harvesting resources in disputed areas, it has become a key issue worthy of research. Zhou Zhonghai is a professor of international law and director of the International Law Center in China University of Political Science and Law. He was a senior visiting scholar of the Law School, University of Virginia (1991). As a legal adviser of the Chinese delegation to the third UN conference on the law of the sea, he once attended the drafting committee conference. His main works include Comments on International Law (2001), International Law of the Sea (1987), Legal Problems on International Economic Relations (1993), Peace, Justice and Law (1996), Technologic Progress and Development of the Law of the sea (1998), Law Dictionary (1998), Business Law in China, Trade, Investment and Finance (1997), On the Case of Agusto Pinochet Ugarte (1999). In addition, he has published many essays, for instance, Zhonghai Zhou’s essays on international law (2006), Jurisdiction of the International Tribunal for the Law of the Sea (2005), International law and its functions in international relations (1997), On diplomatic protection for the overseas investments (2007).     

Can Informative Traffic Signs Also Be Obligatory? Polish Constitutional Tribunal and Supreme Court Versus Traffic Signs

This article discusses a rare instance of the highest national courts explicitly addressing traffic signs in their judgments or decisions. It critically examines the standpoint expressed by the Polish Constitutional Tribunal and the Supreme Court, according to which the basic traffic sign categories in Poland—obligatory, prohibitory, informative and warning—are not separable (not disjunctive) [e.g. prima facie non-normative signs (informative or warning) can also be normative (obligatory or prohibitory)]. These courts formulated this idea when addressing the legal question concerning the applicability of legal provision penalizing failure to comply with a traffic sign to parking a car without paying a fee in an area marked by an informative sign that indicates the need to charge a fee for parking. The article analyses and criticizes the relevant standpoint of the Polish Constitutional Tribunal and the Supreme Court. It shows how many negative consequences can result from frivolous treatment and neglect of traffic signs. It also reconstructs some possible practical recommendations concerning not only traffic signs but also visualizations of legal rules in general.     

The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon

The Special Tribunal for Lebanon (STL) represents a sui generisinternational tribunal on various levels. It is the first timea treaty-based Tribunal has been established through a resolutionof the Security Council adopted under Chapter VII. A furtherunique feature is its sole dependence on domestic substantivecrimes. The attempt to include crimes against humanity in theStatute did not succeed, despite the fact that the elementsof a crime against humanity seem to be discernable in the conductthat falls within the jurisdiction of the STL. References tointernational and regional terrorism instruments, such as theArab Convention for the Suppression of Terrorism, were alsoabandoned. The Tribunal will rely on Lebanese criminal provisionsregarding terrorism, illicit associations, crimes and offencesagainst life and personal integrity. Lebanese law provides anold but concrete definition of terrorism. This raises the questionof whether the Lebanese definition, with its strengths and weaknesses,could assist in the evolution of a well-structured definitionof international terrorism. The possibility of ‘internationalizing’the Lebanese definition will depend on two factors: the judges’approach in adopting the Tribunal's rules of evidence and procedure,and then more importantly their creativity in developing thejurisprudence of the Tribunal.     

A Review of “Setting the Standard: Certification,Governance, and the Forest Stewardship Council”

Abstract

As the United Nations Convention on the Law of the Sea (UNCLOS) establishes itself as one of the premier regimes in international law, member states are increasingly availing themselves of the significant dispute settlement provisions found in Part XV. The International Tribunal for the Law of the Sea (ITLOS) is beginning to take its place in the pantheon of major international tribunals. Although its jurisprudence thus far has largely consisted of applications for prompt release of vessels, these cases have arisen from disagreements over fishery practices and the enforcement of fishery laws by coastal states. The ITLOS is developing into a transparent, consistent and speedy forum to adjudicate marine disputes arising from UNCLOS. While the overall scope and reach of Part XV may be uncertain at the present time, especially vis‐à‐vis other dispute settlement institutions, the early activity under Part XV is promising. Those concerned with marine wildlife issues should be encouraged by the potential of Part XV, the ITLOS in particular, to serve as an effective regime in the realm of marine wildlife dispute settlement.     

Reflection on the Criticism of Numerus Clausus

The origin of numerus clausus has its historical root and practical utility in protecting transaction safety. Some opinions against this principle lack empirical support, because rights outside statutory property rights, since utterly incapable of effective notice, cannot obtain a sort of absolute supremacy; therefore, various scenarios that propose to formulate property rights in accordance with customs and conventions are virtually impossible for technical implementation. Numerus clausus might restrict some rights of actors, but not their freedom to act, and as a result is not the opposite of the autonomy of private law. Translated from Journal of Jurisprudence, 6th Issue, 2004     

Dynamic risk and sexual offending: the conundrum of assessment

ABSTRACT

The potential to reduce sexual victimisation, promote community safety, and decrease incarceration costs has resulted in considerable progress in terms of how we understand and predict sexual recidivism. And yet, the past decade has seen a degree of fragmentation emerge as research attention has shifted away from relative risk prediction (with its focus on static risk factors) to the identification of factors capable of reducing risk through intervention (i.e. dynamic risk). Although static and dynamic risk are often treated as orthogonal constructs [Beech, A. R., & Craig, L. A. (2012). The current status of static and dynamic factors in sexual offender risk assessment. Journal of Aggression, Conflict and Peace Research, 4(4), 169–185. doi:10.1108/17596591211270671], there are arguments to support a claim that the two are in fact functionally related [see Ward, T. (2015). Dynamic risk factors: Scientific kinds or predictive constructs. Psychology, Crime & Law (in 22(01–02), 2–16); Ward, T., & Beech, A. R. (2015). Dynamic risk factors: A theoretical dead-end? Psychology, Crime & Law, 21(2), 100–113. This discussion clearly affects how we assess dynamic risk. This review considered several commonly used methods of assessment and the evidence offered for their predictive accuracy. Of note were differences in the predictive accuracy of single psychometric measures versus composite scores of dynamic risk domains and the conventions used for establishing effect sizes for risk assessment tools.     

Should the Principle of Ne Bis in Idem also Be Taken into Consideration? A Response to Yarwood and Dold

This note responds to an earlier article and argues that theprinciple of ne bis in idemshould be taken into considerationin deciding whether the International Criminal Tribunal forRwanda should refer a case to a national government for prosecution.