bluuebunny/crossref_metadata_2025 huggingface dataset:
Theories of Justice, Traditions of Virtue
Authors: O’Neill Onora
Published: October 2023

Justice was once one of the virtues—a cardinal virtue. European traditions saw the concerns of justice and of (other) virtues as closely linked until at least the eighteenth century, hence both before and through the period of the Enlightenment and the writings of what are taken to be the ancestor texts for modern liberalism. Yet contemporary liberals and their critics view matters quite differently. Today justice and the virtues are more often seen not merely as distinct but as inimical, even as the central figures of incompatible orientations to life, politics, and practice. Theorists of justice now often claim to be neutral about conceptions of the good, or agnostic about the Good for Man. If they have any view about the virtues, it is that these arc concerns of a private sphere, which they value as an arena for pursuit not of virtue but of preference. The friends of the virtues now often depict virtues as specific to and emblematic of particular traditions and ways of life, and claim that abstract universal principles of justice are hostile to lives of virtue.
Liberty and Legal Obligation in Hobbes’s Leviathan
Authors: Skinner Quentin
Published: October 2023

Thomas Hobbes’s philosophy of law, especially as articulated in Leviathan, presents the reader with a seeming paradox. On the one hand, the liberty of subjects is held to depend in almost every instance on ’the silence of the Law’. But on the other hand, law and liberty are held to be compatible. One of the questions which has always preoccupied Hobbes’s commentators has in consequence been whether Hobbes’s views on liberty and legal obligation are merely confused, or whether there is some way in which his apparently contradictory statements can be reconciled.
Introduction
Authors: Fair Emma Play
Published: October 2023

In June 1987, the Israeli occupation of the West Bank and Gaza entered its third decade.1 For twenty years, more than a generation, the Occupied Territories and a Palestinian population reaching over one and a half million2 had been under the exclusive and alien rule of Israel. Neither a society nor a land can stand still for twenty years, yet how an occupier permits, prevents or forces change is all important for the fate and identity of those territories and their populations.
T
Authors: Toth A G
Published: October 2023

Taxation Of Goods (Prohibition Of Discrimination) Rules intended to prevent tax discrimination in relation to movements of goods between Member States. The taxation of goods may not be used as a means of favouring domestic products, either by protecting them against imports or by providing disguised export subsidies. Arts. 90 and 91 EC prohibit such discrimination, and reflect the second paragraph of Art. III of the General Agreement on Tariffs and Trade (GATT). Art. 92 prohibits Member States from making border tax adjustments in respect of direct taxation unless permitted to do so by the Council.
V
Authors: Toth A G
Published: October 2023

Value Added Tax (Vat) A common system of tax imposed in each Member State of the EC on the supply of goods and services. The amount of VAT is a fixed percentage, such as 17.5% in the United Kingdom or 20% in Italy, of the consideration given for the supply, which is known as the ‘taxable amount’. The supplies subject to VAT are known as ‘taxable transactions’. VAT is a tax borne by the final consumer in the supply of goods or services; and is an indirect form of taxation that is collected by certain suppliers, which is then paid to the national tax authority of a Member State. A supplier who is required to charge VAT is known as the ‘taxable person’.
W
Authors: Toth A G
Published: October 2023

Worker One of three categories of persons for whom the original EEC Treaty and Title III of Part Three of the present EC Treaty guarantee freedom of movement within the Community (the other two categories being self-employed persons and persons providing or receiving services). While Art. 39(1) EC expressly secures freedom of movement for ‘workers’, and Art. 1(1) of implementing Reg. 1612/68 (OJ Sp. Edn. 1968 (II), p. 475) refers to the right to take up an activity as an ‘employed person’, these concepts are not defined in primary or secondary Community law (except for the purposes of social security, see Art. 1(a) of Reg. 1408/71, OJ Sp. Edn. 1971 (II), p. 416, as amended; see further under Social security).
The Convention on Genocide and the Protection of Minorities
Authors: Thornberry Patrick
Published: October 2023

The Convention on the Prevention and Punishment of the Crime of Genocide, 1948 is notable as the first of the post World War II general conventions which has any bearing on minority protection. It has been discussed in this context by writers and is listed in the compilation by the United Nations Secretariat of the texts of those international instruments and similar measures of an international character which provide special protective measures for ethnic, religious, or linguistic groups. It is also significant in that it is part of international criminal law and underlines a profound concern of modern international law with at least some aspects of the welfare of minorities. This truth is not affected by the fact that minorities ‘ as such’ are not mentioned in the Convention, because they are clearly comprehended by it as the natural victims of genocidal measures.
Post-War Attitudes and Re-fl,ections on the Significance of the League System in General International Law
Authors: Thornberry Patrick
Published: October 2023

The common opinion is that the Minority Treaties under the League of Nations did not create customary law. In the light of the conclusions of the United Nations Study on the League treaties and declarations, this leads to the conclusion that the post-war world started, as it were, with a tabula rasain the matter of tolerance and encouragement of minorities. States could act as they pleased in relation to their populations if they were not inhibited by a relevant treaty. In some respects, this appears too simplistic (the constraints imposed by the Nuremberg principles must be borne in mind), but there is evidence on the limited scope of the League system of treaties in its practice and intentions.
The Omission of a ‘Minorities Article from the Universal Declaration of Human Rights
Authors: Thornberry Patrick
Published: October 2023

After the UN Charter, the Universal Declaration of Human Rights is perhaps the most significant document in the field of human rights. The Declaration was adopted by the General Assembly of the United Nations on 10 December 1948, by forty-eight votes to none, with eight abstentions. It contains civil, political, economic, social, and cultural rights. It does not make any references to ‘minorities’, though it does refer to the principle of non-discrimination or ‘non-distinction’: ‘Everyone is entitled to the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2). There is also the promise of equality:
History of Article 27
Authors: Thornberry Patrick
Published: October 2023

In General Assembly Resolution 217c(III), entitled ‘Fate of Minorities’,1 it was stated that the United Nations could not remain indifferent to the fate of minorities, but that it was difficult to adopt a uniform solution of this complex and delicate question. The General Assembly requested the Economic and Social Council to ask the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities ‘to make a thorough study of the problem of minorities, in order that the United Nations may be able to take effective measures for the protection of racial, national, religious or linguistic minorities’. The Sub Commission discussed the resolution at its third session.2 Draft resolutions were submitted by members of the Sub-Commission containing positive proposals for the protection of minorities.
Enjoyment of Culture
Authors: Thornberry Patrick
Published: October 2023

Contemporary indications from legal instruments as to what cultural rights entail are found in Articles 13 to 15 of the Covenant on Economic, Social, and Cultural Rights. By Article 13 the States parties ‘recognize the right of everyone to education’, which ‘shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms’, as well as, inter alia,promoting ‘tolerance and friendship among all nations and all racial, ethnic or religious groups’. The States parties also agree to respect the liberty of parents ‘to ensure the religious and moral education of their children in conformity with their own convictions’.
Profession and Practice of Religion
Authors: Thornberry Patrick
Published: October 2023

These last remarks apply with some force to the question of religion. Some conception of what amounts to a religion was outlined above. No doubt States will continue to deny the status of a religion to certain practices in order to evade obligations. But the major problem is not the definition of practices and creeds as religious or non-religious, but the challenges posed by recognized and organized religions to the fabric of States. The issue is not confined to States committed to a rejection of traditional religions, but finds equal expression in States manifesting an attachment to a particular religion in laws or through State policy.
Article 27 and the Optional Protocol
Authors: Thornberry Patrick
Published: October 2023

The first ‘case’ under the Protocol with Article 27 as its focal point appears in the Human Rights Committee’s report for 1981. Cases such as Lovelacev. Canadacontribute to the interpretation of the Covenant and provide contemporary illustrations of the practical difficulties in implementing any general principle of minority protection. The original ‘communication’ from Sandra Lovelace who was born and registered as a ‘Maliseet Indian’ is dated 29 December 1977. The substance of the complaint was that she lost her status and rights as an Indian in accordance with the Indian Act of Canada by marrying a non-Indian in 1970.
Self-Determination in the Covenants: A Note
Authors: Thornberry Patrick
Published: October 2023

Article 1 of both UN Human Rights Covenants commences with ‘All peoples have the right of self-determination’. The other paragraphs refer to economic self-determination (paragraph 2); and to the duty of States Parties to the Covenants to promote self-determination (paragraph 3): ‘The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall pro mote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.’
Jurists
Authors: Thornberry Patrick
Published: October 2023

Capotorti, in a passage not entirely free from ambiguity, states, apropos of Article 27, that while this article is not a source of legal obligations for States which have not yet ratified the Covenant, the approval of the Covenant by the General Assembly of the United Nations has conferred upon the articles the value of general principles no less significant than those set forth in solemn United Nations Declarations. From this point of view, the right granted by Article 27 to persons belonging to ... minorities can be considered as forming an integral part of the system of protection of human rights and fundamental freedoms instituted after the Second World War ...
International Law
Authors: Thornberry Patrick
Published: October 2023

The fact that propositions favoring the idea of Article 27 as generally applicable law derive from reputable jurists makes it expedient to recall that juristic opinion is itself a subsidiary source of international law under Article 38(1)(d), of the Statute of the International Court of Justice. The evidence of law provided through the opinions of writers must be assessed critically as must other ‘sources’. Remarks have been made in the present text on the relative lack of demonstration in the legal propositions. None the less, the argument that Article 27 represents general international law is assisted by the opinions outlined, bearing in mind, however, that this sample of writers is limited.
United Nations Instruments on Racial Discrimination
Authors: Thornberry Patrick
Published: October 2023

On 20 November 1963, the United Nations General Assembly in Resolution 1904(XVIII) proclaimed the Declaration on the Elimination of All Forms of Racial Discrimination. It had previously been suggested at the Sub-Commission’s session in 1961 that the Assembly should be encouraged to undertake the preparation of an international convention which would impose specific legal obligations on the parties to prohibit manifestations of racial and national hatred. The Economic and Social Council recommended to the General Assembly the adoption of a draft resolution on ‘Manifestations of Racial Prejudice and National and Religious Intolerance’. The item was allocated to the Third Committee of the General Assembly which decided to split the issues of racial discrimination and religious intolerance,3 adopting separate resolutions on the two issues. Resolution 1780(XVIII) requested the Economic and Social Council to ask the Commission on Human Rights to prepare a draft declaration on the elimination of all forms of racial discrimination and a draft international convention on the same topic.
Education
Authors: Thornberry Patrick
Published: October 2023

The UNESCO Convention against Discrimination was adopted by the UNESCO General Conference in 1960 and entered into force in 1962. The Convention is of importance to minorities in that it deals with the most important general means of preserving the identity of the group. UNESCO is a specialized agency of the United Nations; its competence relates to education, science, culture, and communication, and it is by reference to these four aspects that the organization’s interest in human rights is circumscribed. The purpose of UNESCO as laid down in its constitution is:
Judge Tanaka s Dissenting Opinion in The South-West Africa Cases (Second Phase) (II)
Authors: Thornberry Patrick
Published: October 2023

The dissenting opinion of Judge Tanaka is described as ‘profound and eloquent’ by Professors McDougal, Lasswell, and Chen, and as ‘probably the best exposition of the concept of equality in existing literature’ by Professor Brownlie. In this case, the International Court of Justice failed to deal with the merits of the submission by applicant States Ethiopia and Liberia that South Africa had violated her international obligations in relation to the territory of South-West Africa.
The Advisory Opinion on Namibia 1971 (III)
Authors: Thornberry Patrick
Published: October 2023

Authors who declare that the principle of non-discrimination is part of general international law often place the Advisory Opinion of the International Court of Justice on Namibia at the centre of their arguments. Resolution 2145(XXI) of the General Assembly of the United Nations terminated South Africa’s Mandate in South-West Africa. In this Resolution, the Assembly recited its conviction that ‘the administration of the Mandated Territory of South Africa [had] been conducted in a manner contrary to the Mandate, the Charter of the United Nations and the Universal Declaration.’
The ILO and Indigenous Populations: The Convention and Recommendation of 1957
Authors: Thornberry Patrick
Published: October 2023

The International Labour Organization has exhibited an interest in the condition of indigenous populations since its inception. In a description of its work submitted to the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities on the question of discrimination against indigenous populations, it stated that as early as 1921, the International Labour Office had carried out studies on indigenous workers in independent countries. Following the establishment of a Committee of Experts on Native Labour in 1926, a series of conventions and recommendations were adopted by the ILO Conference at its fourteenth, twentieth, and twenty-fifth sessions.
The Concept of Law
Authors: Wilson Heather A
Published: October 2023

This chapter addresses certain fundamental questions about the nature and function of international law without which this book would be incomplete. It is not intended to be an exhaustive examination of the definition, sources, and subjects of international law, as these questions have been amply discussed elsewhere. Rather, its purpose is to state briefly the assumptions on which later arguments are based, and to examine in a general way certain issues which are central to the discussion which follows. More specifically, this chapter addresses three questions:
National Liberation Movements as Representative Authorities
Authors: Wilson Heather A
Published: October 2023

Chapter 5 addressed the authority of liberation movements to use force as a matter of international law. There is a second question, reminiscent of that explored by Augustine, Aquinas, and their contemporaries, which is separate from that discussed in the previous chapter but related to it: if it is the case that there is a right of ‘peoples’ to self-determination and some claim that the use of force to secure this right is justified, then how does a particular liberation movement become a legitimate representative of a people? This is a broad and complicated question which could be the subject of a book on its own. The purpose of this chapter is to explore the question in a general way as it relates to the larger issue of the authority to use force in international law.
South African Internal Security Law: Constitutional Framework and Statutory Designs
Authors: Ellmann Stephen
Published: October 2023

The system of apartheid offers all too many echoes of Nazism, but South African law is not Nazi law. To take the measure of South African law, however, we must begin with its most chilling features: the constitutional framework which gives South Africa’s Parliament, for which most South Africans cannot vote, virtually unchecked authority to work its will, and the statutes through which Parliament has exercised this prerogative.
The Rabie Court’s Protection of Human Rights
Authors: Ellmann Stephen
Published: October 2023

E. P. Thompson wrote those words at the end of a study of what he called, two pages later, ‘a bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges’.2 In offering a chapter on the Rabie court’s protection of human rights, similarly, I do not mean to suggest that the emergency decisions of this period are an evenly balanced set. They are not. The most important cases, those involving the most far-reaching challenges to the emergency system, were all, without exception, decided in favour of that system, and these judgments sanctioned profound violations of human rights in the name of the emergency.

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Lawyers Against the Emergency
Authors: Ellmann Stephen
Published: October 2023

Since 1985 many South African lawyers have devoted great effort and ingenuity to the practice of emergency law on behalf of the victims of the emergency. From the start, this work has had an ironic quality. Confronting a government armed with legal powers so vast as to call into question the legitimacy of the law itself, attorneys and advocates have none the less sought to fashion legal limits on the state’s authority. The effort has been difficult, and those who have made the effort courageous. Yet it might be argued that this legal struggle has been to little avail, that the lawyers who have practised in this field have misdirected their energies, and that it would have been better either to adopt some harsher, more confrontational lawyering style or to reject such courtroom efforts altogether as a fruitless, and even counterproductive, response to apartheid. My purpose in this chapter is to demonstrate that in general the strategy South African lawyers adopted has been well-founded. In doing so, I will undoubtedly be urging a conclusion that many South African lawyers have long since reached. But this point has an importance extending beyond South Africa’s borders, for lawyers in many other lands have faced, and will face again, the question of whether to try to protect human rights in the courts of an oppressive country.
Lawyers and Law Refarm
Authors: Anderson J Stuart
Published: October 2023

1.1 As Henry Brougham began his great six-hour speech on law reform to the Commons in February 1828, the speech that declared open season for assault upon all the densest thickets of the common law, he promised to skip lightly past real property law. He had been beaten to the post by James Humphreys, whose visionary proposals for systematic reform he compared with the pioneering work James Mackintosh had done for penal reform a decade before. Home Secretary Peel was believed to be about to introduce legislative proposals in response, so he, Brougham, need add little. He was being disingenuous. Humphreys’s work and Brougham’s own prescriptions represent visions of law reform so different that they have next to nothing in common save the name. Humphreys had written a code, working outwards from basic principle to construct a system. Brougham proposed a medley of ad hoc statutes to right individual nonsenses—each one much needed, but each one quite independent of the others; laws reform, not law reform.
Law Fit for Heroes
Authors: Anderson J Stuart
Published: October 2023

1. For the legal profession’s first great expositor of modern land law, G. C. Cheshire, the statutory reforms of 1922–5 were explained by a general post-war desire to set the nation’s social life in order. It would be easy to agree, since it is a common-place that the war was a watershed after which nothing was the same again. The bills originated moreover from the Ministry of Reconstruction, and from its Land Acquisition Committee at that, from which much that was novel and radical had first appeared. There were great plans for legal reform. Mirroring the Ministry, the Solicitors’ Journal opened its pages to projects for ‘legal reconstruction’ of great ambition. A Ministry of Justice, a united grand school of legal education, admission of women (now a certainty to be welcomed rather than a fear to be joked about), the removal of barriers between the bar and solicitors, the destruction of barristers’ privileges, new systems for remuneration (made the more urgent as clerks’ wages rose), legal aid schemes for the poor, all these were discussed at length. These were all structural professional matters. Just one old favourite touched our concerns, the spread of state bureaucracy. But even in that context, land law, conveyancing, and registration were but briefly mentioned.
Methods of Research
Authors: Genders Elaine , Player Elaine
Published: October 2023

Describing the methods by which a piece of research has been carried out can be a tedious task which, for the general reader, engenders as much interest and entertainment as a car repair manual for the average motorist. It is for this reason that methodological details are frequently relegated to the backwaters of an appendix, to be unearthed by the enthusiast while discreetly closeted from the rank and file. This tradition tends to be broken when researchers have undertaken fieldwork with a strong participant observation component. In such cases it is not uncommon for there to be a lengthy discussion in the heart of the text about how the fieldwork was set up and accommodated, how the researchers performed their fieldwork roles, and how difficulties were managed and triumphs achieved.1 Such examples rarely take the form of a technical treatise, which tests the resolve of all but the most dedicated or obsessive reader. Instead they are often engaging stories which breathe life into the process of data collection, and which justify their liberation from an appendix by the claim that the subtleties of the evolving fieldwork situation have shaped the nature of the information collected, and may even have influenced its presentation.
Issues of Order and Control
Authors: Genders Elaine , Player Elaine
Published: October 2023

The preceding chapters have discussed the organization of Grendon as a collection of therapeutic communities, but they have largely deferred any consideration of the fact that these communities are located within the walls of a prison. So far, the role of the establishment has been portrayed in terms of its treatment dimension, that is, the opportunity it affords inmates to understand their problems and to identify alternative and socially acceptable ways of coping with them. But it must be remembered that Grendon is also charged with a duty to contain in secure conditions, and maintain control over, a population of men who have been convicted ofseri ous crimes and who have received some of the most severe penal ties which the criminal justice system can impose. Essentially, Grendon may be conceived as embodying two separate institutions: on the one hand, the therapeutic community and, on the other, the prison, each with their own principles, aims and practices co existing under one roof. This chapter seeks to examine how Grendon attempts to achieve the dual task of treatment and control, and what consequences this has for the functioning of the therapeutic communities and for the order and security of the prison.
Leaving Grendon: Back in the System
Authors: Genders Elaine , Player Elaine
Published: October 2023

This chapter examines how and why inmates leave Grendon and seeks to describe the post-Grendon experiences of those men transferred back to other prisons. Where do they go? Why do they leave? Who makes the decision? And how do they adapt to the change? First, we identify the men’s destinations and describe the reasons which underlie the decision-making process which leads up to a man’s transfer out of Grendon. We then examine how the men feel they have benefited from their time in therapy, and what consequences they believe this will have for them in the future.
Elements of a Legal System
Authors: Ost Michel Van De Kerchove François , Stewart Iain
Published: October 2023

Common to the theories of Kelsen and Hart is a reduction of the elements of a legal system to rules or to norms. To privilege this level of enquiry is understandable, since norms are clearly ‘a legal system’s most prominent element’. As Jhering suggests, ‘what the human mind perceives first are the prominent, exterior and practical parts of law, the parts whose action strikes it immediately: the legal rules’. Moreover, by retaining only this element it is possible to satisfy both a requirement of homogeneity inherent in the existence of what has been called a ‘system of synthesis’3 and a requirement of rigorous unity of object that some writers such as Kelsen have erected as a basic epistemological postulate.
Legal System and Temporality
Authors: Ost Michel Van De Kerchove François , Stewart Iain
Published: October 2023

The study of systems through time-their emergence, evolution, and equilibration, their way of handling the contradictory imperatives of adaptation and stability, their ability to alter their own rules of functioning, and their disappearance or possible entropy-is an important area of systems theory. After defining a system’s state, or its situation of optimal equilibrium, one goes on to look at the various factors of alteration, both internal and external, that can affect its evolution; likewise, one uncovers the mechanisms (particularly of retroaction) that can restore the system’s equilibrium or ensure it a higher level of integration, that is, a stronger capacity to adapt. Thus one gradually clarifies the phases of the system’s transition and its laws of evolution. In this type of study, two approaches are often opposed: the structuralist method, which stresses the system’s relatively stable elements, its invariant structures which define synchronic properties; and the genetic method, which emphasizes its variable elements, its factors of irreversible evolution which define diachronic properties.1 The particular virtue of the systemic method is to link these two approaches: one arrives at a true understanding of change through taking account of a system’s internal structures.
The Relevance of the Convention in the United Kingdom Courts
Authors: Clapham Andrew
Published: October 2023

The United Kingdom was one of the key actors in the drafting of the European Convention on Human Rights, was one of the original signatories on 5 November 1950, and on 8 March 1951 was the first State to ratify the Convention. Although the Convention has not been incorporated into domestic law it is surprisingly relevant in the domestic courts of the United Kingdom. Chapters I and 2 deal with some of the case-law of the British courts and these decisions have been analysed under a number of headings. The Convention may be relevant in the following situations:
Incorporation of the European Convention on Human Rights in the United Kingdom?
Authors: Clapham Andrew
Published: October 2023

So much has been written about the desirability and feasibility of a written constitution for the United Kingdom that no attempt will be made to summarize the various difficulties involved,1 or the political stances taken.2 This chapter imagines a future legal order with the more recent proposals that have reached Parliament for a Bill of Rights which incorporates the Convention already in place, and seeks to show that such a Bill of Rights would not transfer vital political questions to an unelected body of judges, but could operate to prevent some violations of civil liberties, and at the same time perform an important educative function.
The Application of the European Convention on Human Rights to the Acts of Non-State Actors: The Case-Law of the European Commission and Court of Human Rights
Authors: Clapham Andrew
Published: October 2023

Chapter 4 suggested two approaches to the possible application of the Convention in the private sphere. The first was that the method of interpretation of the European Court of Human Rights was forward looking and contextual, rather than backward-looking and positivist, and therefore it had to take into account current trends in international and constitutional law which suggest that individuals have to be protected from acts which violate human rights, even when the actors are private bodies. Furthermore, an ‘effective’ implementation of the Convention means that the changing social context within which it operates has to be considered.
The Application of Human Rights in the Private Sphere in the United Kingdom
Authors: Clapham Andrew
Published: October 2023

Part II has so far demonstrated three things. First, that international treaties can create duties for individuals to respect the rights of others. (The most relevant example is the Treaty establishing the European Economic Community, but mention was also made of duties in the context of war crimes, genocide, and apartheid.) Secondly, it has been shown that, although the European Commission of Human Rights rejects applications against non-state bodies (including the European Community) as inadmissible ratione personae, the Strasbourg Court’s interpretation of the European Convention authoritatively states that the Convention is relevant ‘even in the sphere of relations between individuals’ However, the exact way in which duties arise under national law cannot be decreed by the European Court of Human Rights (in the way that the ECJ created Community duties for individuals under Community law).
Jurisdiction
Authors: Amerasinghe C F
Published: October 2023

On the third issue concerning the reservation of the right of appeal to the Tribunal from the decision of February 26, 1987 of the VPCTR until 90 days after the date of the release of the job audit findings by reason of the existence of exceptional circumstances under Article II, para. 2 of the Statute, the Tribunal holds that it is inappropriate for it to decide at the present time on the conditions or requirements of an application which is not before it. (Breton, Decision No. 69 [1988], para. 32)
Review Of Judgments
Authors: Amerasinghe C F
Published: October 2023

The Applicant has misunderstood the nature of the Tribunal’s observation. The Applicant made a request for 20 Review of Judgments costs and the Tribunal did not make an interim decision on his request, postponing a final decision and inviting him to submit further particulars to enable it to make a final decision. On the contrary the Tribunal did make a final decision-awarding him costs in the amount of $1,000 which was intended to include attorney’s fees. This decision makes the award res judicata, as is confirmed by Article XI (1) of the Tribunal’s Statute, which declares its judgments ‘final and without appeal’. Thus, clearly the Tribunal cannot reopen Decision No. 73 by way of appeal. As was stated in Van Gent (No. 2), Decision No. 13 [1983], para.
Discretionary Power
Authors: Amerasinghe C F
Published: October 2023

According to the Respondent, the actions taken m this case were an integral part of the Bank-wide Job Grading Program and constituted a reasonable and non-discriminatory exercise of its discretionary authority. The Respondent claims that, in such cases, ‘it is not for this Tribunal to substitute its own judgment for that of the Bank.’ (de Merode, Decision No. 1 [1981], para. 45)
Substantive Irregularity
Authors: Amerasinghe C F
Published: October 2023

The Tribunal does not agree with the Applicant’s criticism of the generic criteria for grade 24. The discretion given to the grading individuals and committees under the mechanism established and applied by the Respondent does not differ in nature or scope from the discretion possessed by management in other areas relating to the conditions of employment. In all cases of discretion, unless otherwise proven, it is assumed that the administrative authority will exercise its discretion in an objective and non-discriminatory manner. The very fact of allowing the grading and reviewing bodies a wide range of discretion does not by itself invalidate the scheme. It is the exercise of discretion by individuals and committees in particular cases that may be challenged and criticized.
Procedural Irregularity
Authors: Amerasinghe C F
Published: October 2023

Decisions made by the Bank regarding the criteria for evaluating staff positions, the assignment of various tasks to particular positions, and the ultimate determination of grade levels for such positions, are properly regarded as within the discretion of the Bank.
Terms And Conditions Of Employment
Authors: Amerasinghe C F
Published: October 2023

The Tribunal does not deem it necessary to pronounce in the present case on the question whether... the Respondent has the power to deprive a staff member of a grade previously held by him. In particular, with respect to the Job Grading exercise, there can be no certainty that in all cases an exact correspondence exists between the former grades and the present ones, ... [T]he Applicant herself has not invoked the existence of a right indefinitely to maintain her former grade. Her contentions and arguments have been essentially concerned with ... her entitlement to continued salary increases....
Classification
Authors: Amerasinghe C F
Published: October 2023

The Applicant’s principal contention is that her salary review increases after the effective date of her job regrading should not be limited by the two-year grand-fathering prov1s1on in Staff Rule 5.06, para. 3.01. That section provides:
Transfer And Reassignment
Authors: Amerasinghe C F
Published: October 2023

The record shows that the Respondent did promise to convert the Applicant’s appointment into a permanent one but that the fulfillment of that promise was conditional upon the Applicant’s satisfactory performance. By a letter dated December 22, 1986, the Applicant’s supervisor informed the Personnel Management Department (PMD) of the Applicant’s selection as a Cofinancing officer.
Disciplinary Measures
Authors: Amerasinghe C F
Published: October 2023

The record shows that the Respondent did promise to convert the Applicant’s appointment into a permanent one but that the fulfillment of that promise was conditional upon the Applicant’s satisfactory performance. By a letter dated December 22, 1986, the Applicant’s supervisor informed the Personnel Management Department (PMD) of the Applicant’s selection as a Cofinancing officer.
Termination
Authors: Amerasinghe C F
Published: October 2023

The analogy, however, is not convincing. Once the Applicant’s position as Division Chief was eliminated, he had no comparable claim upon other vacancies at the same grade level-any more so than other qualified staff members, each of whom was vying for the vacancy. The Bank, by thus making a comparative judgment about the abilities of the various canditates for the vacancy, cannot be said to be acting in a manner comparable to terminating the service of an incumbent staff member. In the process of selecting for vacancies, it is reasonable for the Bank to employ the criterion of comparative skills and abilities, unlike the case of a termination where a more ‘absolute’ standard-such as ‘cause’ for dismissal is customary and correct. This seems equally to be the case whether the contenders for the vacancy are at the same grade level or whether they include highly qualified ‘promotables’. (Fernandes, Decision No. 90 [1990], para. 39)
Procedure Before Tribunal
Authors: Amerasinghe C F
Published: October 2023

The Tribunal rejected the Applicant’s request for discovery of certain documents and for hearing of witnesses. (Sebastian, (No. 2) Decision No. 57 [1988], para. 1)
‘Like That Desmond Morris?’
Authors: Armstrong* Gary
Published: October 2023

In an attempt to redress gaps in our knowledge this study attempted a specific anthropological case study of a group of football hooligans. These were supporters of Sheffield United FC, nicknamed ‘The Blades’ due to their being founded by cutlers of the city’s renowned steel industry. Borrowing this nickname all supporters of the club and also the Hooligan Element call themselves and each other Blades. For clarity I used this title when referring to the hooligans, and ‘Unitedites’ when referring to dub supporters. Blades know they arc hooligans, but do not refer to themselves or others by this term except in jest and ridicule.
Comparative Excursus
Authors: Fentiman Richard
Published: October 2023

A comprehensive survey of national approaches to foreign law is beyond the scope of this discussion.1 But it is necessary to draw selectively on the experience of other systems, the better to assess the English approach and to identify possible patterns for its reform. In doing so, whether foreign law must be applied (which is properly part of the choice of law process) must be separated from how it is established (which is a procedural matter).
Introduction
Authors: Jackson John , Doran Sean
Published: October 2023

There is no more potent symbol of the common law tradition than the jury. From fictional portrayals of the legal process in action to popular accounts of notable cases, the jury is typically presented as the fulcrum of the adversary trial system. Legal scholarship too has concentrated considerable attention on the institution of the jury, both on the mechanics of this method of trial and on the broader issue of the desirability of lay participation in the administration of justice. In the words of one author, the orthodox literature in the field of evidence has tended ‘to treat the contested jury trial as the paradigm case of all trials.’1 There are, however, several ironic facets of such ‘jury-centredness’ which have provided much of the stimulus for this book. First, the actual part played by the jury in the legal process is much more limited than its popular depiction would suggest. Although the jury is viewed by most as the ideal mode of conducting trials according to adversarial tenets, its practical influence has for many years been in steady decline.
The Hearsay Rule in Operation (and Inoperation)
Authors: Choo Andrew L -T
Published: October 2023

This Chapter considers diverse situations which are linked in some way to the rule against hearsay. They range from situations in which the hearsay rule has been applied with vigour, with resulting unfairness to accused persons, to situations in which the rule has been ignored or misapplied. The aim in this Chapter is not to develop a particular theme, but simply to highlight the fact that the hearsay rule is a potentially far-reaching one, albeit one which has been conveniently sidestepped in some circumstances.
Statutory Exceptions to the Hearsay Rule
Authors: Choo Andrew L -T
Published: October 2023

In this Chapter we shall examine a number of statutory provisions which have the effect of rendering admissible, in criminal trials on indictment, evidence which might otherwise be hearsay. Of these provisions, arguably the most important are those contained in Part II of the Criminal Justice Act 1988.1 Statutory reform of the hearsay rule in the criminal sphere has been piecemeal, and there is nothing approaching the fundamental statutory reform encapsulated in the Civil Evidence Act 1968. The provisions examined below are largely self-explanatory, and thus the aim here is not to provide a detailed description of their operation, but rather to draw attention to any relevant interpretations of the provisions in case law, as well as to highlight possible difficulties with the provisions and to assess whether the goal of ensuring the admissibility of reliable evidence, especially reliable documentary evidence, has been achieved.
The Secret Patents Act of 1859
Authors: O’Dell T H
Published: October 2023

On 21 March 1859 Sir Fitzroy Kelly, (1796-1880), Attorney General in the Earl of Derby’s second Tory administration, introduced the Patents for Inventions (Munitions of War) Bill to the House of Commons (H3, 153 at 482). The bill, he explained, was ‘intended to accomplish a very important object’, in that ‘it was thought that inventions respecting munitions of war, or others of a character which it was for the public interest to conceal, should be vested in the Crown’. He went on to describe the procedures that were proposed for ‘sealing up’ and ‘keeping secret’ the specifications of these patents, and concluded that ‘to such a proposal there could ... be no objections because, in ancient times it was the prerogative of the Crown to secure to itself an exclusive right to all inventions of a military character.
Towards an Official Secrets Act
Authors: O’Dell T H
Published: October 2023

The last chapter has taken us as far as 1870 in the history of secret patents, when Parliament was clearly preparing for a change in the patent system. This occurred in 1883, and will be dealt with in this chapter, which will then consider a closely related Act, the Official Secrets Act of 1889. The Public Record Office holds papers concerning the preparation of both Acts, and some of the papers concern discussions and decisions that took place back in the 1870s. This is in great contrast to the situation surrounding the Acts of 1852 and 1859, which were discussed in Chapters 2 and 3: no records survive that might tell us about the confidential discussions that preceded the preparation of these bills.
The Secrets of Two Technical Revolutions
Authors: O’Dell T H
Published: October 2023

In February 1896 Guglielmo Marconi (1874-1937) sailed from Italy to England with his mother. He brought with him his experimental equipment for wireless telegraphy, and the plan was to contact some wealthy people with whom his mother was connected and persuade them to provide capital for the exploitation of his ideas (Marconi (1962), 33; Baker (1970), 28; Jolly (1972), 34). The Marconis first lived in one of the apartments that Sophia Gerstner rented out at 71 Hereford Road, in a part of London then called Westbourne Park, a large-scale speculative development of terraced family houses that had been built around 1850. ‘Until 1830 this was one of the most beautiful rural spots for which the parish of Paddington was renowned’ (Clunn (1932), 385). Perhaps the speculative builders hoped that its glorious past would ensure a glorious future, but by 1896 the houses were nearly all in multiple occupation.
Making Wartime Procedure Permanent
Authors: O’Dell T H
Published: October 2023

The war with Japan ended in August 1945, a few days after atomic bombs had been dropped on the cities of Hiroshima and Nagasaki. The unexpectedness of this latter event was without precedent. The explosions were over 2,000 times the intensity of any previous explosion caused by a bomb dropped from an aircraft.
The Regulatory Criss-Cross: Interaction between Jurisdictions and The Construction of Global Regulatory Networks
Authors: Picciotto* SOL
Published: October 2023

Concern with international regulatory competition, or at least its explicit theorization, is relatively recent, although the issues it raises have a much longer history. This is partly because discussion of the regulation of eco nomic relations has also been recently renewed, as privatization and the reduction of direct state intervention in economic activity have brought more sharply into focus the many other ways in which economic trans actions and relations are socially ordered, whether by formal or informal, public or private means. The second main factor is that regulatory regimes have been brought into greater interaction, as the removal of direct barriers to the flows of goods and money between states (tariffs/quotas and exchange controls) has shifted attention towards regulatory difference as a barrier to entry of commodities or capital.
European Integration and a Pensions Problem: Coping with a Chameleon
Authors: Moffat Graham
Published: October 2023

A central issue for the EU in the 1990s is how far it can develop on the basis of liberalization of the free movement of economic factors, while allowing or retaining a significant degree of national diversity in social and welfare provision. A related question, central to the concerns of this book, is the extent to which there needs to be integration or coordination between the differing national regulatory frameworks, or whether differences and competition between them can provide important incentives to produce an opti mal regulatory scheme, whether by deregulation or reregulation.
Dreaming Trade or Trading Dreams: The Limits of Trade Blocs
Authors: Drache Daniel
Published: October 2023

The global trading system post r 945 was founded on the principles of lib eral internationalism--multilateralism, non-discrimination, and the economic theory of comparative advantage. At its core, it promised to organize the world’s trading system on a non-political basis so that dominant coun tries could not use political or military power to follow ‘beggar-thy neighbour’ policies and gain an advantage over small and medium-sized nations. Instead, the good performance of nations everywhere was thought to depend on unimpeded technology and investment inflows from private investors, converging production costs, an extended hand to developing nations, and a well-managed set of macro-economic policies to ensure that investment flowed to the strategic sectors (Friedman and Lebard 199!).
Introduction
Authors: Woodhouse Diana
Published: October 2023

The importance of good administration is frequently stressed by politicians, civil servants and judges. However, as a concept it lacks definition or at least clarity as to its content. At a minimal level administration may be considered ‘good’ if it achieves the implementation of the policy goals of the Government of the day in accordance with the values underpinning these goals. Thus what constitutes good administration may change as the requirements of Government and the role of the State changes. Good administration in the context of intervention and the Welfare State may be different from good administration in the context of rolling back the frontiers of the State and cutting public expenditure.