Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

Moving beyond the law: foreign pressure and the politics of piracy in China

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

The Politics of Piracy – Intellectual Property in ContemporaryChina By Andrew C. Mertha, 2005, Cornell University Press Price:US$32.50, Hardback, ISBN: 0801443644. pp. 258   Criticism and proposed solutions surrounding China's ‘intellectualproperty problem’ in many cases have been     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Trustees beware: submit with care

The Royal Court of Jersey has recently heard an interestingapplication reported in Jersey as In the Matter of CI Law TrusteesLimited and Folio Trust Company Limited as Trustees of the FountainTrust [2005 JRC099]. The case concerned an application for directions by CI Law TrusteesLimited (the ‘Trustee’) seeking directions as tohow to respond to a judgement of the Family Division of theHigh Court of Justice in England and Wales setting aside a Jerseylaw trust (the ‘Trust’) as a sham, and orderingthe Trustee to transfer the Trust assets to the petitioner inthe English matrimonial proceedings (the ‘Wife’).     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition

A World Trade Organization (WTO) dispute panel has decided theWTO’s first antitrust case. It resolved the matter infavour of the United States’ claim that Mexico had anticompetitivelyfacilitated exploitative prices and a cartel that raised theprice of terminating cross-border telephone calls in Mexicoand thereby harmed trade and competition. The case is Mexico– Measures Affecting Telecommunications Services (April2004) (‘the Mexican telecom case’). This essay arguesthat if the WTO’s antitrust clause was in fact triggered(which is a point of contention), Mexico’s conduct violatedits obligations. Furthermore, it argues that the GATS antitrustobligation in the telecommunications sector should be acknowledgedas occupying an important place at the intersection of trade,competition and industrial policies. Antitrust law is the otherside of the coin of liberal trade law. Antitrust law opens marketsby prohibiting private and other commercial restraints, whiletrade law opens markets by prohibiting public restraints. BeforeMexican telecom, no legal discipline was regarded as copiousor flexible enough to address combined public and private restraints.In particular, nations were allowed free rein to privilege nationalchampions that harmed competition in and out of their country,imposing costs on outsiders as well as on their own people.A positive reading of the antitrust clause helps to fill thegap.     

All the best things come to those who wait

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. In 1966, Professor Benjamin Kaplan gave the Carpentier Lecturesat Columbia University. His subject was copyright law and eachof his three lectures examined a different aspect of that subject.The first looked at the ‘First Three Hundred and FiftyYears’, the second at ‘Plagiarism Reexamined’,and the final at ‘Proposals and Prospects’. Theselectures were     

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.     

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.     

WTO for Trade and Development Post-Doha

The WTO Members’ negotiations under the Doha mandate onspecial and differential treatment (‘SDT’) and developmentissues have made little progress. The gap between developedcountries and developing countries in this regard seems toowide to be bridged. This gap originates from a fundamental differencein their basic stances on cross-cutting issues. In principle,without prejudice to currently available SDT under individualWTO Agreements, developing countries should be given flexibilitiesin implementing WTO rules, which may result in the rebalancingof rights and obligations of WTO Members but only when policymeasures at issue can contribute to particular developing countries’development needs and no alternative less-trade restrictivemeasures are reasonably available. After reviewing WTO Members’discussions since the adoption of the Doha Ministerial Declaration,this article suggests a ‘measure-specific ex ante approach’for a workable solution to bridging the gap between developedcountries and developing countries on SDT and development issues.     

Thick, Thin and Thinner Patriotisms: Is This All There Is?

The ‘reinvention’ of nationhood in theory and thereform of British naturalization rules in praxis have been unableto address satisfactorily the issue of unjust exclusion andto make naturalization law and citizenship more compatible withdemocratic ideals. This has much to do with the fact that thediscourse of new patriotism and the reconfiguration of nationalcitizenship have inbuilt limits. In examining the ‘new’discourse of patriotism in its various shades, I argue thatit is inconsistent and unpersuasive. Neither the rehabilitationof civic nationalism under ‘republican patriotism’,nor ‘constitutional patriotism’, nor ‘rootedpatriotism’ succeed in transforming the nationality modelof citizenship in order to render it more compatible with contemporarydevelopments and with cultural pluralism. Similarly, the threemodels of citizenship developed by the literature, namely, postnational,transnational and multicultural citizenship remain rooted withinthe civic nationalist trajectory. Instead of arguing for theliberalization of naturalization requirements and the ensuingpluralization of citizenship, I put forward an argument as tohow the nationality model of citizenship might be transcendedby developing a model of civic registration. By contrastingthis model with the Labour Government’s reforms in thefields of naturalization and citizenship, I argue that the Nationality,Immigration and Asylum Act 2002 places too much emphasis onsocial cohesion, thereby overlooking that a sense of belongingto community develops with inclusion in society and politicsrather than as a result of citizenship ceremonies and languageproficiency tests.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

Civilized Squatting

This article seeks to trace the origins of the requirement thata squatter must have an intention to possess (animus possidendi)in order to establish title by adverse possession. The requirementhas been confirmed by the House of Lords in the recent caseof Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins canreadily be traced back to the decision of the Court of Appealin Littledale v Liverpool College [1900] 1 Ch 19, but thereis little evidence of any need for intention before that case,and no convincing authority is cited for it. Possible explanationsfor the source of this requirement are considered by the article(for instance cases on re-entry by landlords and the so-called‘found chattel’ cases), but these are ultimatelyrejected. The article goes on to suggest that the reason forthis is that the intention requirement was ‘imported’into English law from German Pandectist writers of the nineteenthcentury. It suggests that Littledale was the case in which thishappened. It seeks to support this hypothesis by reference tobiographical details of Lindley MR, who gave the leading judgmentin Littledale, and who not only trained in part in Germany butalso took an active interest in German scholarship of the time.A brief survey of the relevant German sources is undertaken,focusing primarily on the work of Savigny, but also consideringthe rival theory of Jhering. Finally, it tracks the developmentand refinement of the content of animus possidendi, first by19th century legal scholars and then by 20th century judges,to make it ‘fit’ with English property law. It seeksto address the question of whether the animus possidendi requirementis a free-standing element (the ‘strong’ will theory),or whether it is simply implied from the acts of the squatter(the ‘weak’ will theory), and suggests a solutionby reference to the German sources and later English cases.Finally, it considers how the House of Lords decision in Pyereflects the logical culmination of the acceptance of this ‘legaltransplant’ into the common law.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

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.     

Does the 'Personal Employment Contract' Provide a Basis for the Reunification of Employment Law?

This article considers Mark Freedland's idea, at the core ofThe Personal Employment Contract, that a unified body of employmentlaw for ‘employees’ and ‘workers’ isboth feasible and desirable. It discusses the origins of thedivision between employees and the self-employed, and considerswhether the rediscovery of the worker concept in the 1990s hasprovided the hoped-for solution to problems concerning the coverageof employment legislation. More generally, it seeks to takeup Freedland's challenge to reconceptualise the employment relationshipas a ‘personal employment contract’ covering bothemployees and the dependent self-employed.     

Trade mark cartoons 'FOR LIFE(R)'

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. Writing a book review has never been more entertaining. The‘book’ under review is a 12 page trilingual (English,French, and Spanish) comic book compiled and co-published byWIPO and the National Institute for