The Caribbean Court of Justice: a learning experience for the International Criminal Court?

This article starts by examining the role of Small States in the development of the International Criminal Court (ICC). It then surveys the functioning and administration of the ICC before proceeding to draw on key lessons for this Court, including on the election of judges and financing, from the Caribbean Court of Justice.     

Enforceability of foreign copyright in Nigeria: a review of the Court of Appeal’s decision in Microsoft v Franike

With globalization and the rise of information and communications technology (ICT), the protection of intellectual protection in software and indeed foreign copyright has never been more paramount. The absence of statutory provisions in Nigeria’s main copyright legislation specifically protecting the intellectual protection in software has not helped. This article examines the Court of Appeal’s recent decision dealing with the protection of copyright in Microsoft’s software. The author is of the considered view that the approach adopted by the courts in the case is not in the overall interest of encouraging foreign ICT companies and the protection of foreign copyrights in Nigeria.     

The Irish Court of Appeal in Chancery, 1857–77

The Irish Court of Appeal in Chancery was established in 1856 and began work in 1857. From then until the end of 1877 when the Courts of Common Law and Equity were replaced by the new Supreme Court established under the Judicature (Ir) Act of that year the Court sat to hear appeals against decrees made by the Lord Chancellor, Master of the Rolls or Vice-Chancellor in the Court of Chancery, against decisions of the Incumbered Estates Court or its successor the Landed Estates Court, and against decisions of the Courts of Probate, Bankruptcy and Insolvency, Admiralty, and Matrimonial Causes and Matters. The ourt was the counterpart of the Court of Appeal in Chancery established a few years earlier in England, but the chain of events by which the Irish Court came into existence, along with the membership of the Court and its consequences, make the history of the Irish Court unique. The purpose of this article is to explore those issues.     

The Medical Exception to the Prohibition of Killing: A Matter of the Right Intention?

It has long been thought that by using morphine to alleviate the pain of a dying patient, a doctor runs the risk of causing his death. In all countries this kind of killing is explicitly or silently permitted by the law. That permission is usually explained by appealing to the doctrine of double effect: If the use of morphine shortens life, that is only an unintended side effect. The paper evaluates this view, finding it flawed beyond repair and proposing an alternative explanation. It is not the intention of the doctor that counts, but the availability of an “objective” palliative justification.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?

The "compulsory jurisdiction" of the International Court ofJustice is not truly compulsory. The Court's jurisdiction isbased on the consent of the parties. States have the optionto accept or not to accept the Court's jurisdiction and cando so under terms and conditions they determine themselves.However, once a State has granted its consent, and when a disputethat falls within the scope of that consent is submitted tothe Court, the State must subject itself to the Court's jurisdiction.It is that legal obligation that is at the root of the term"compulsory".     

Criminal liability of physicians: an encroachment on the abortion right?

The Supreme Court in 1973 in Roe v. Wade established that decision of first trimester abortion is left to the physician, exercising his best medical judgment, in consultation with the patient. During this period the state may not regulate abortion determination since there is no compelling state interest; therefore a physician performing abortion will be precluded from civil or criminal liability. In second trimester abortion the state has a compelling interest in the health of the mother and may regulate the procedure to protect maternal health; although a previable fetus may be able to survive the abortion, Roe v. Danforth definitively places the woman's right to an abortion above the life of the fetus during the previable stage; therefore the state cannot seek to safeguard the life or health of the fetus during the abortion. Third trimester abortion implies a viable fetus; thus, a compelling state interest in the potential life arises and the state may regulate and proscribe abortion except when necessary for the life and health of the mother. The determination of when viability has been achieved is a matter of judgment resting with the physician who has the choice of techniques and operating procedures which may or may not be fatal to the unborn. It is a question of either termination of pregnancy or destruction of the fetus. In this last case the legal responsibility placed upon the physician is very serious, and involving a risk of civil and criminal liability. Uncertainties as to the boundaries of legal abortion and the threat of criminal liability can only result in a reluctance among physicians to perform second and third trimester abortions, which is against the fundamental right to abortion guaranteed by the Constitution. The Supreme Court will have to elaborate upon the scope of the abortion right, whether it encompasses fetal destruction or only termination of pregnancy, because it directly affects the extent and quality of maternal and fetal care that must be rendered by a physician. If only termination of pregnancy is included the Court must resolve whether the woman's health interests predominate, or whether the physician can be required to enhance fetal survival. Physicians have a right to know the full extent of legal ramifications and implications of legally induced abortion.     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?

Do legal elites—lawyers admitted to federal appellate bars—perceive the Supreme Court as a “political” institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near‐universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in “global delegitimization” of the institution itself.     

‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’per se.     

The Creation of Investigating Chambers at the International Criminal Court: An Option Worth Pursuing?

At a time when the position of investigating judge has beenabolished in a number of civil law countries, and is being questionedin those in which it remains, it might seem curious to callfor such a position to be created at the International CriminalCourt (ICC). However, experience at the ad hoc internationalcriminal tribunals (‘ad hoc tribunals’), and especiallyat the International Criminal Tribunal for the former Yugoslaviashows that the essentially adversarial procedure used in internationalcriminal proceedings is not wholly suitable for trying complexand highly political international cases. Having investigatingjudges participate in the investigations of such cases coulddecisively enhance the effectiveness, legitimacy and fairnessof international proceedings. This would be particularly appropriatein the ICC's complex legal system, which allows victims to participatein the proceedings and claim reparations. However, this newprocedure must clearly come with a number of safeguards in orderto avoid the failures attendant on the use of the investigatingjudge in domestic systems, which could be fatal to an embryonicand fragile international court.