VictorJuiz/thesis huggingface dataset:
Legal protection of human biological materials

Do you own your body? Advances in science and the development of genetic databases have given this question an aura of modern controversy. However, English law governing separated biological materials is in an unsatisfactory state. Despite the enactment of the Human Tissue Act 2004 UK, it is not clear, for example, what property rights or non-proprietary interests living persons can claim over their separated biological materials. The development of clear legal principles is necessary, however, to enable individuals to have effective control over such materials and to enable the efficient use of such materials in medical research.
Part I lays the theoretical foundation for the thesis. This opening part examines the nature of property and defines the theoretical position that the thesis adopts concerning property rights. Part I also sets out how English law protects property rights and the right to bodily integrity.
Part II traces the evolution of the law in England, Australia and the US in relation to the human body as well as parts removed from dead bodies and living persons. This includes an examination of the Human Tissue Act 2004. Analysis demonstrates that, although property rights and non-proprietary interests are recognized in certain limited circumstances, it is an open question in English law as to whether or not a living person can claim property rights to separated biological materials.
Part III of this thesis therefore develops and presents a principled basis in English law for the creation and legal recognition of property rights and non-proprietary interests in separated biological materials.
Land and maritime zones of peace in international law

During the past few decades a number of initiatives have been undertaken both inside and outside the UN to establish Zones of Peace (ZOP) in various parts of the globe. Currently, there are seven declarations and proposals for ZOP relative to the Indian Ocean, the South Atlantic, the South Pacific, the Mediterranean, Southeast Asia, Nepal and Tibet. On the basis of the areas they cover and the legal issues they raise, the first four zones are termed in this thesis 'maritime zones of peace1 and the remaining three 'land zones of peace'. The State practice relative to such zones demonstrates a significant move towards the acceptance of a variety of methods of creating different regimes with differing legal content. Yet there has been very little academic discussion on this subject from a legal point of view. Therefore, this thesis is designed to examine the legal aspects of the concept of ZOP.
This study begins by examining the State practice on maritime ZOP and looks at whether the concept of maritime ZOP is consistent with the existing principles of international law, especially the freedom of the seas, and whether the State practice on ZOP has crystallised into a rule of customary international law. In doing so, it will assess the legal status of the UN General Assembly declarations on maritime ZOP. This is followed by an examination of the proposals for land ZOP. The study then assesses the extent to which the principles underlying the traditional concepts such as neutrality or demilitarised zones, as well as similar emerging principles, could be applied to the concept of ZOP.
Another line of enquiry pursued in this thesis is into the concept of objective regimes in international law. After establishing that there exists in international law a rule on objective regimes, this thesis argues that the regimes of ZOP can be regarded as candidates for objective regimes. It is asserted that the methods applied to the creation of various ZOP are among the internationally accepted methods of creating regimes of a dispositive character and the regime of ZOP is similar to other regimes which have generally been regarded as objective regimes in international law. This thesis finds that although the ZOP is a distinct notion developed in response to the peculiar problems of a single State or a territorial entity or a geographical region, it draws upon similar traditional doctrines as well as other emerging rules of international law. On the whole, the declarations on ZOP can be viewed as innovative methods designed to consolidate the already extant and the emerging rules of international law, accord concrete meaning to certain general principles and apply them in the ZOP concerned.
Constitutional adjudication and the independence of Canada : issues of principle, convention, and law

This thesis seeks to identify the conceptual resources available to Canadian courts in the adjudication of fundamental constitutional change.
Part One offers a general analysis of the materials pertaining to the self-interpretation of the higher courts' role as a privileged forum for constitutional decision-making. Reviewing the rich development of the advisory opinion tradition, the drastic weakening of traditional bars to adjudication and the judicial pronouncements on constitutional conventions, it explains how the Canadian judiciary have come to assume in a uniquely Canadian way the role of "guardians of the constitution", well beyond traditional conceptions of the judicial function.
Part Two starts with a critical analysis of the Supreme Court's view of the distinction between convention and law and moves on to offer a more convincing account of the inevitable interface between convention and unwritten constitutional law, with a view to an appropriate treatment of constitutional change.
Part Three directly addresses the issue of fundamental constitutional change. It begins with a theoretical study of the problem of self-reference in constitutional law, moves beyond this so-called paradox to explore how the juncture between "logic" and "pragmatics" might be explained for law, and finally presents the issue as the courts faced it in the Patriation Reference.
Part Four, finally, explains how constitutional principles function in constitutional adjudication as the proper source of both constraint and justification in decisions where fundamental rules are at issue. Picking up the matter where it was left off at the end of Part Three, it concludes this thesis with a legal analysis of the transfer of ultimate and supreme constitutional authority from the United Kingdom to Canada, an analysis which puts all of the author's conclusions to work.
The role of the courts in immigration law : the United Kingdom and the United States

This thesis analyses the role of the Judiciary in cases arising under the immigration laws of the United Kingdom and the United States. Judicial review of immigration decisions is contrasted with that of other governmental decisions, and several unusual patterns characterising the courts' approaches to immigration cases are explored.
Chapter I studies by example the results, the techniques, and the rhetoric of the British immigration cases. Chapter II performs a similar function with respect to the American immigration decisions, except that cases presenting constitutional issues are reserved for separate treatment in chapter III.
Chapter IV provides a descriptive analysis of the patterns emerging from the immigration cases in both countries. Building on the material contained in chapters I, II, and III, this chapter will identify more specific differences between the immigration cases and other public law cases. It will then offer possible explanations for these differences, with principal emphasis on the courts' perceptions of their own roles. Next, the differences between judicial review in the British immigration cases and that in the American immigration cases will be noted, and again possible explanations advanced. The chapter concludes by considering how judicial review has varied, within the context of immigration law and within each of the two countries studied, from one sub-category of immigration case to another.
Chapter V serves a prescriptive function. After exploring the general arguments for and against judicial review of governmental action, it analyses possible reasons for modifying those arguments in immigration cases. It concludes that those reasons do not justify the departures, in immigration cases, from the usual principles of judicial review.
The constitution of Canada and the conflict of laws

This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority - one that is the product of an asymmetrical system of government in which the source of political authority is the Constitution Act and in which the source of judicial authority is the continuing local tradition of private law adjudication.
The distinctive Canadian approach to judicial authority provides the foundation for federal arrangements that have obviated the need for explicit mechanisms for coordinating legal systems. It has fostered a distinctive view of court jurisdiction and of the means for determining both whether a particular court has jurisdiction to decide a matter and whether the court should exercise that jurisdiction. It has provided the foundation for a unified court system within the Canadian federation - one in which there is a strong commitment to the shared responsibility of Canadian courts to promote access to justice, to prevent forum shopping, and to resolve multiplicities of proceedings so as to secure the same respect for the administration of justice between jurisdictions as exists within jurisdictions. This approach to judicial authority has also encouraged Canadian courts to draw on their inherent jurisdiction to permit the vindication of the rights of members of the Canadian public through civil litigation, notwithstanding the lack of direct application of the Charter of Rights and Freedoms and in spite of the apparent jurisdictional impediments.
Judicial response to the representative parties rule in England and Australia

Use of the representative parties rule in England and Australia has been stifled by restrictive interpretation of the circumstances in which it is available. Chapter 1 demonstrates that the predominant test in England for the 'same interest' required by the rule would, if consistently applied, defeat any claim to use the rule. The recent change of test in Australia widens the rule's potential scope but does not appear to have resulted in significantly more liberal interpretation. Chapter 2 discusses the rule's operation, including res judicata, the enforcement of judgments, and the protection of the interests of those represented and of the named parties. It concludes that the rule diverges from the traditional model of individual voluntary civil litigation, and is characterised by uncertainty. Chapter 3 argues that this uncertainty may have encouraged a defensive posture by the courts, limiting use of the rule and avoiding the need to address those issues which demand resolution. Chapter 4 notes that various features of the rule undermine a number of principles commonly associated with procedural fairness. It is argued that judicial response to these features often pays insufficient attention to two issues. The first is whether the purpose which the principle is expected to promote is in fact protected by the rule, even if the principle itself is undermined. The second is the need to balance the rule's limitation of some principles against its particular benefits. It is further argued that some successful representative claims exemplify circumstances in which the primary purpose of procedural law (accurate application of the substantive law) is served by the rule. Chapter 5 identifies other successful representative claims, particularly against representatives of the members of unincorporated associations, which, it is argued, ought to be viewed not as supporting accurate application, but rather as facilitating development, of the substantive law.
The continuity of aboriginal customs and government under British imperial constitutional law as applied in colonial Canada, 1760-1860

This thesis examines the British legal status of aboriginal customary laws and governments in colonial Canada between 1760 and 1860, with a view to contributing to the debate about their modern legal status under the Canadian constitution. By "colonial Canada" is meant the British colonies of Quebec (1763-1791), Upper and Lower Canada (1791-1841) and Canada (1841-1867).
The central argument of the thesis is that there existed in colonial Canada two distinct systems of municipal law one system for settlers and one system (or set of systems) for natives both deriving legitimacy from an over-arching British imperial constitution. The settler system was established by imperial statute, while native systems were recognized by non-statutory principles of imperial law, or "imperial common law". It is argued that the common-law principle of continuity—according to which British courts presumed that the laws of peoples subjected to British sovereignty remained in force at common law until abrogated by prerogative or Parliamentary legislation formed the doctrinal foundation of aboriginal rights to customary law and government in colonial Canada.
The objective of Part One of the thesis is to construct a theory of imperial law applicable to the unique constitutional history of colonial Canada. To this end, the principle of continuity is analysed both as it was developed in relation to England's early imperial experiences and as it was manifested in statutes and judicial opinions relating to native nations in British North American colonies of the seventeenth and eighteenth centuries.
Part Two of the thesis applies the general principles of imperial law developed in Part One to Canadian constitutional history. The various municipal legal regimes established under imperial statute for settlers are examined in light of the fact that the imperial ministry, which retained direct control over Indian policy in Canada until 1860, recognized the continuity of native customary law and government in both unceded and reserved Indian lands. It will be argued that this imperial recognition confirmed the common-law continuity of native law and government.
Barriers to movement or individual rights? : towards a (non-) economic European constitution

This thesis explores the notion of barrier to intra-Community trade and movement as developed by the European Court of Justice. Through a critical assessment of the case law, it aims at identifying the content of the rights granted by the free movement provisions and at providing a normative justification capable of accommodating the evolution of the Court's interpretation. Thus, it is argued that some of the recent case law can be better explained having regard to the notion of the fundamental right to exercise an economic activity free of unjustified and disproportionate restrictions. Further, other problematic strands of case law can be better explained having regard to the fundamental rights discourse. The thesis therefore challenges the traditional doctrinal approaches to the free movement provisions, to suggest that the broad interpretation currently adopted by the Court in this field cannot be justified having sole regard to a Ideological interpretation of the free movement provisions. Instead, it suggests that the developments in the case law should be appreciated in the context of the constitutional changes which have occurred in the past decade in the European Union. Thus, it links the extensive interpretation given to the free movement of persons provisions, to the introduction of Union citizenship, to argue that the normative justification for the Court's case law is better found in a joint reading of the free movement of persons and Union citizenship provisions. Thus, the extensive approach adopted in the field of free movement of persons signals the emergence of a new constitutional dimension whereby the individual is protected also qua citizen, rather than just qua economic actor.
The role of courts in administrative procedure : two studies contrasting Great Britain and the United States

This thesis focuses on the creative role of the judiciary in two areas of administrative procedure. More particularly, it compares the responses of British and American courts to two discrete problems. The first, the subject of Part One, is that of prescribing minimum procedures for decisions involving the planning or regulation of a scheme - called "policy" decisions in Britain and "polycentric" decisions in America. The second, treated in Part Two, which is much shorter, concerns the enforcement of procedures that have already been prescribed by the administration for itself.
The overall approach in each part is similar. Introductory chapters (Chapter 1 and Chapter 9) present each problem in general terms and analyze the values that judges must keep in mind. The ensuing chapters in each part treat the British and American experiences in turn. They examine what the courts have done, how they have approached the problem, and how they have interacted with other bodies concerned with administrative procedure. From this it is possible to project a future role for the courts.
Part One, covering the judicial creation of procedures for "policy" or "polycentric" decisions, is by far the greater in scope and length. Chapter 1 begins by explaining that a "policy" or "polycentric" decision involves the planning or regulation of a distinct scheme - for example, a network of roads, a system of land use restrictions, or a pattern of airline licences. After briefly discussing British and American perceptions of these decisions, the chapter focuses on what will be the chief concern of judges in each country - the participation to be afforded citizens. Depending on the scope of the matter and the precise issues, the proper format may be trial, oral argument, a conference, or written comments, singly or in combination. The courts ensure adequate participation by prescribing minimum procedures, through natural justice in Britain and constitutional due process in America.
[Please see thesis for the complete the abstract.]
Consultation, commissions and context : a comparative study of the Law Commission and the Australian Law Reform Commission

This thesis compares the consultation conducted by the Law Commission ('LC') and the Australian Law Reform Commission ('ALRC'). Its first goal is to describe the process in detail, which begins with the purposes of consultation. Next, the process of consultation is described with a discussion of each of the techniques employed by the Commissions. Although there is much overlap in how the LC and the ALRC consult, they do approach the exercise differently and these differences are discussed. The description of the Commissions' consultation concludes by examining its impact.
A second goal is to compare the two Commissions' approach to consultation and this comparison is aided by the development of two models: the English Commission's expert model of consultation and the Australian Commission's more inclusive model. Underpinning the comparison between the two Commissions and these different models is the intended target of the consultation exercise. It is argued that the LC's decisions are motivated by the goal of securing expertise, more than is the case at the ALRC. By contrast, the Australian Commission is influenced more than is its English counterpart by a desire to include as many consultees as possible. An important part of this comparative study is to explain why the two Commissions consult differently. The most significant reasons are the history of two Commissions, especially the role of the founding Chairmen, and the types of projects that the Commissions undertake.
A third goal, albeit only a tentative one, is to suggest ways in which the Commissions could improve their consultation. These comments are scattered throughout the thesis, but one theme that emerged was that there seems to be insufficient thought given to a number of important stages in the consultation process.
Australian estoppel and the protection of reliance

This thesis focuses upon recent Australian developments in the law of estoppel. It provides a justification and basis in principle for the doctrine of estoppel described in cases such as Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 C.L.R. 387 and Commonwealth of Australia v Verwayen (1990) 170 C.L.R. 394. This basis is found in the principle that we ought all to take reasonable steps to ensure the reliability of the assumptions that we induce in others. Ensuring the "reliability" of an induced assumption means ensuring that a party who relies upon the assumption does not thereby suffer harm: harm in the sense that he is worse off because the assumption has proved unjustified than he would have been had it never been induced. The thesis suggests a pattern for the development of the Australian law of estoppel reflecting that basis in principle. It further demonstrates the potential usefulness of the doctrine with specific reference to (i) pre-contractual negotiations and letters of intent, (ii) firm offers to contract, (iii) variations of contract unsupported by consideration, and (iv) the "battle of forms".
Seeking refuge in human rights : complementary protection in international refugee law

This thesis examines complementary protection the protection afforded by States to persons who fall outside the legal definition of a refugee in article 1A(2) of the 1951 Refugee Convention, but who nonetheless have a need for international protection. Human rights law has extended States' international protection obligations beyond the Refugee Convention, preventing States from removing individuals who would be at risk of serious harm if returned to their countries of origin. While a number of States have traditionally respected these additional human rights obligations, they have been reluctant to grant beneficiaries a formal legal status analogous to that enjoyed by Convention refugees. By examining the human rights foundations of the Convention, the architecture of the Convention, regional examples of complementary protection, and principles of non-discrimination, the thesis argues that the Convention is a lex specialis for all persons in need of international protection a specialized blueprint of legal status, irrespective of the legal source of the protection obligation.
Chapter 1 identifies pre-1951 examples of complementary protection, demonstrating how the content of the status afforded to extended categories of refugees was historically the same as that granted to 'legal' refugees. It traces unsuccessful attempts at the international and European levels to codify a system of complementary protection, prior to the EU's adoption of the Qualification Directive in 2004. The Qualification Directive, examined in Chapter 2, represents the first supranational codification of complementary protection, but is hampered by a hierarchical conceptualization of protection that grants a lesser status to beneficiaries of 'subsidiary protection' vis-à-vis Convention refugees. Chapters 3 to 5 examine the CAT, ECHR, ICCPR and CRC to identify provisions which may give rise to a claim for international protection, beyond article 3 CAT, article 3 ECHR and article 7 ICCPR. Finally, Chapter 6 illustrates why all persons protected by the principle of non-refoulement are entitled to the same legal status, demonstrating the function of the Convention as a lex specialis for all persons in need of international protection.