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Rhona Smith

The author of this communication had her employment terminated whilst she was pregnant. The decision authorising termination made reference to her being a foreign worker. So many fora are now available for holding states to account for violations of one’s human rights that it can be confusing for the potential author of a communication. The questions of which forum to choose – regional and/or international – is brought into focus in the communication submitted by Yilmaz-Dogan against the Netherlands to the UN Committee on Elimination of all forms of Racial Discrimination in 1984. A violation was found on, essentially, procedural grounds with little consideration of the substantial issues. The rewriting considers alternative fora available today for a complaint on the same point and the impact on the committee’s opinion of having appropriately considered the sex discrimination dimension, something which was established in international human rights at the time of the complaint. A more intersectional analysis reveals multiple grounds of discrimination. Inevitably the opinion would still find an infringement of the treaty but by strengthening the reasoning and providing greater direction to the state party, it is hoped that the human rights situation in the state would be strengthened.

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The work/personal interface

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The employee’s ability to maintain an autonomous private life alongside employment has long been contested territory in employment law. The rights to paid and unpaid leave to attend to illness and emergencies, and to undertake caring responsibilities and recreation, are the fruits of earlier industrial struggles; and where these rights appear in employment contracts, it is generally as a consequence of the influence of mandatory provisions in statutes or statutory instruments. Claims that employers must also accommodate an employee’s freedom of expression have also been contentious. This chapter considers the interplay of common law and statutory influences in establishing contemporary boundaries between work and personal life. Keywords comparative employment law, contract of employment, work and personal life, freedom of employee expression

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Magnus Killander

For a new regional human rights court it is particularly important to engage with comparative authority in its judgments. This chapter explores the merits judgment of the African Court on Human and Peoples’ Rights in Zongo v Burkina Faso. It illustrates how the Court in this case failed to engage with relevant comparative material from the African Commission on Human and Peoples’ Rights, the United Nations, the Inter-American Court of Human Rights and the European Court of Human Rights. Reference to such material is important to strengthen the reasoning of the judgments of the Court and thereby enhancing their legitimacy. Fortunately the engagement with comparative material is much better in most of the other judgments so far delivered by the Court. The chapter explores how the Court’s use of comparative material in Zongo could have enhanced the reasoning in relation to the two merits issues of the judgment, namely due diligence in investigation of alleged extrajudicial executions and the chilling effect on the media arising from extrajudicial executions of journalists.

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United States Court for China: an alternative mode of extraterritoriality

Selected Papers of The Jurist (法学家), Volume 5

Li Yang

The consular court, as the initial judicial institution of extraterritoriality, which aimed to issue regulations for protecting the Americans who lived in China, was not able to demonstrate the entire practice and intention of extraterritoriality. As an amended mode, the United States Court for China, which was constructed by the Western professional judicial system and designed to reform the consular court system, formed an alternative mode of extraterritoriality and acted in an outstanding role among those Western judicial institutions. According to Congress, special acts and professional judges, adhering to the basic principles of rule by law and following the judicial philosophy of sentence, depended on law rather than bias in favor of domestic concerns, while the practice of the professional judiciary mode achieved another goal and contributed to the ideology of legal imperialism spread throughout modern China. This may be considered as a homogenization of the judicial mode that relies on the rule of law. However, it is impossible to evade the fact of colonization in law. Keywords: United States Court for China; consular court; extraterritoriality; legal imperialism

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Trade practice and unfair competition

Selected Papers of The Jurist (法学家), Volume 5

Fan Changjun

The decisive criterion for the specification of the general clause in the Law Against Unfair Competition Law is the balance of interests. Favorable trade practice can be used as the basis for evaluating the interests balance. The Robots Exclusion Protocol, although acknowledged as current trade practice, fails to coordinate the interest conflicts in the search engine industry. Thus it cannot be accepted as a favorable trade practice. In order to protect the interests of authors, the search engine industry, and the public, it is suggested that work communicators cannot prevent others from searching based on the Robots Exclusion Protocol. However, this kind of searching must be limited to a certain degree. In the lawsuits between Baidu and 360, both sides have conducted unfair competition. Keywords: Trade practice; unfair competition; general clause; the Robots Exclusion Protocol

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Jan M. Broekman and Frank Fleerackers

‘Thoughts Backing Speech’ underlines that law depends on specific speech acts. One cannot say anything at random in law and about written laws. That is not only the case in law and a lawyer’s profession, but also at peripheries of legal discourse, in a conversation on the street or other public spaces. That theme is disregarded in semiotic studies. Legal meaning-making, which does not take place within the profession, is difficult to trace. Our understanding of law as a citizen is, on the contrary, to a large extent determined by what is talked about, accepted or rejected, thought or neglected beyond the domain of valid law. Thoughts that back this type of speech confront us with major components of law’s discourse such as our evidence of thinking and judging when we discuss law in public. They also regard interactivity and interaction as constitutive in law practices. What unfolds outside the legal profession is often linked to concepts such as ‘nature’ and ‘natural’. ‘Legal consciousness’ is therefore reconsidered. The sign character of laws and their meaning reintroduce the semiotic relevance of human expressivity, of our understanding the multilingual character of reality in law, and of the basics of human rights – altogether issues that constitute every legal conversation anywhere. Keywords Street, Periphery of law, Interactivity, Interaction, Legal consciousness, Human rights, Multilingual realities

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Peter L Lindseth

This volume is fundamentally about institutional change. The volume is not merely cautious in its overall assessment, but also cautionary, particularly as the contributors seek to understand the institution of democracy in relation to two social developments – digitalization and globalization – that are certainly disruptive but also potentially revolutionary. Regardless of how the most optimistic scholars and theorists conceptualize the new forms of transnational governance that seem to be emerging (particularly in the internet domain), the broader public may be experiencing these forms not as a new kind of democracy but as democracy’s negation – a kind of digital technocracy. The elites who populate the various fora of transnational governance – who occupy positions of power by virtue of participation in business, bureaucratic and technical networks – remain effectively immune from removal by any bottom-up collective political mobilization against them. This gives rise to a kind of political-cultural resistance that may contribute to the overall ‘stickiness’ of traditional forms of representative government on the national level in the face of the seeming functional demands posed by digitalization and globalization.

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Martin Scheinin

The Human Rights Committee acting under the International Covenant on Civil and Political Rights has been one of the main fora for litigation related to the rights of indigenous peoples. The Committee has developed a four-part test to determine whether an interference in the life of an indigenous group, including in its traditional means of livelihood, constitutes a violation of article 27 of the Covenant, protecting the right of the members of a minority to enjoy their own culture. In the view of the author, however, the Committee has in practice failed to make full use of its own test and has instead often adopted a deferential standard in relation to any explanations received from the respondent state. As a consequence, the Committee’s case law has become inconsistent and unsatisfactory. In his rewriting of the case of Paadar et al. v Finland, decided by the Committee in 2014, the author demonstrates that the Committee’s own test is viable and will need to be integrated with the recognition of indigenous peoples as beneficiaries of the right of all peoples to self-determination and with the notion of ‘free, prior and informed consent’ as embodied in the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

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Table of legislation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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Table of cases

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz