bluuebunny/crossref_metadata_2025_split huggingface dataset:
Economic and Social Interests and the European Convention on Human Rights
Authors: Warbrick Colin 
Published: January 2009

Abstract
This chapter argues that, with the exception of the right to education, the European Convention on Human Rights (ECHR) does not protect economic and social rights. The chapter does not dispute that there may be overlaps between certain civil and political rights and economic and social rights. For instance, the trade union aspects of the political right of association with the economic right to organize for the protection of workers' interests; but they are not the same thing. Certainly they are not the same in the ECHR and the European Social Charter (ESC). It argues that what the Convention sometimes protects are economic and social aspects of explicit Convention rights. For instance, protection against state-inflicted destitution as an aspect of article 3; but again, this is not the protection of an economic and social right to social security or even to social and medical assistance.
The United Kingdom and the International Covenant on Economic, Social and Cultural Rights
Authors: Bates Ed 
Published: January 2009

Abstract
This chapter explores how the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been of relevance for the British government in recent years and the British government's view on the nature and status of Covenant rights, in particular their susceptibility to incorporation into domestic law. It looks at the 1996 UK Report to the Committee on Economic, Social and Cultural Rights (ESCR Committee) under the Conservative administration and the 2001 UK Report under the ‘new’ Labour administration. It shows that both these reporting rounds revealed a significant disparity of views between the ESCR Committee and the British government as regards the susceptibility of Covenant rights to incorporation into UK law.
Democracy and the Promotion and Protection of Socio-Economic Rights
Authors: Burchill Richard 
Published: January 2009

Abstract
This chapter examines the relationship between democracy and economic, social, and cultural rights. It discusses the problems that have arisen in the international legal discourse due to the minimalist understanding of democracy as equating to a limited range of civil and political rights. A case is made for a definition of democracy that explicitly encompasses socio-economic rights as integral features. The chapter then examines the extent to which international human rights law has moved beyond these conceptions through an examination of the International Covenant on Economic, Social and Cultural Rights. It argues that for human rights and democracy to live up to their promised deals, socioeconomic rights need to be given much greater attention in a way that places them at the centre of concerns for human dignity and development.
Trade to Live or Live to Trade: The World Trade Organization, Development, and Poverty
Authors: Joseph Sarah 
Published: January 2009

Abstract
This chapter addresses two anti-WTO critiques. First, it examines the argument that current WTO rules are biased in favour of developed states. Second, it examines the argument that trade liberalization, which has been facilitated, but certainly not completely achieved, by the WTO, is good for the poor, particularly in the developing world. The differing interests of the North and South are also discussed, bearing in mind that losers from economic globalization and poverty exist in developing and industrialized states. Finally, the chapter suggests a reform proposal which addresses some of the major Southern concerns, whilst also taking into account some of the concerns of Northern progressive groups.
The Right to Development as Applied in National Law
Authors: Ansah Jane 
Published: January 2009

Abstract
This chapter examines the legal status of the right to development in international law and its inclusion as an ESC right. This is applied to the particular national example of Malawi, which has the right to development protected by its Constitution. It is shown that the main obstacle for the realization of the right to development within states is the lack of equitable policies and programmes for distribution and redistribution of resources, which, if remedied, should result into the elimination of power inequalities.
The Changing Role of the Advocate General
Authors: Sharpston Eleanor 
Published: January 2009

Abstract
This chapter discusses the changing role of the Advocate General. Essentially, the Advocates' General contribution is, and remains, quasi-judicial. The Court does not deal with EU law in the abstract; it decides cases. The Advocates General helps it perform that job as effectively as possible. In so doing, they also help to place the Court's decision-making in a wider context. They can make use of the individual freedom that they enjoy to explore, to advise and to warn. Provided the role of the Advocate General is enabled to evolve sensibly, Advocates General are as relevant now as when the Court was founded.
The EFTA Court, the ECJ, and the Latter's Advocates General – a Tale of Judicial Dialogue
Authors: Baudenbacher Carl 
Published: January 2009

Abstract
This chapter focuses on the judicial dialogue between the European Court of Justice (ECJ), its Advocates General and the European Free Trade Association (EFTA) Court. The results produced by the cooperation between the ECJ and the EFTA Court are considered a true paradigm for international cooperation between judicial institutions. The European Economic Area (EEA) type of dialogue is affirmative in nature, as far as the ECJ is concerned; and the framework conditions for judicial cooperation in the EEA are particularly favourable.
Continuity and Change in the Law Relating to Services
Authors: Edward David , Shuibhne Niamh Nic 
Published: January 2009

Abstract
This chapter examines the meaning of ‘services’ in the Treaty, and how the law on services fits into the more general law of the internal market. It argues that this neglected area of free movement law, particularly as regards its future development, deserves greater attention on the part of explorers.
Equal Before the Law? Not if You Want to Register a Trade Mark
Authors: Keeling David T 
Published: January 2009

Abstract
This chapter examines the principle of equal treatment as it applies to trade mark. It argues that trade mark registration is in danger of becoming a lottery; the danger can only be averted if the CFI and ECJ start stressing the Office's duty to act consistently, to apply common standards, to identify analogous cases and to give them similar treatment. The CFI and ECJ also need to understand that genuine consistency in decision-making practice can only be achieved at the purely administrative level.
About Rules and Principles, Codification and Legislation, Harmonization and Convergence, and Education in the Area of Contract Law
Authors: van Gerven Walter 
Published: January 2009

Abstract
Experts in contract law from different Member States have drafted two volumes of Principles of European Contract Law, which are based on ‘rules’ contained in the contract laws of the EU Member States. But contrary to the (unformulated) principles referred to in Article 288(2) EC, they are worded in very precise terms, and structured and numbered in the same way as articles are in a ‘civil code’. This chapter argues that the aforementioned Principles of European Law are rules, not principles. Moreover, taken together they form a fully fledged European Code of Contract Law — or, more appropriate, it would seem, a European Contract Law Act.
An Overture
Authors: Bell Christine 
Published: January 2009

AbstractThis chapter sets out the book's aims and objectives as to provide a legal account of peace agreements as potentially legal documents with a role for legal enforcement, and peace agreements as subject to the regulation of international law. It forms an overture to the book, pointing to the book's central argument that the legal status (or not) of peace agreements and their relationship to international law are closely linked in ways that cannot easily be separated, and have operated so as to produce an emerging ‘law of the peacemakers’ or lex pacificatoria.
The Rise in Peace Agreements and International Law
Authors: Bell Christine 
Published: January 2009

AbstractThis chapter examines the argument that there has been a rise in negotiated settlement, particularly as a response to conflicts within states, post the end of the cold war around 1990. It is argued that to the extent that the post 1990 rise of peace agreements was a real one, it was propelled by international legal developments in the area of self-determination law, human rights law, and peacekeeping.
Peace Agreement Obligations
Authors: Bell Christine 
Published: January 2009

AbstractThis chapter examines whether and how peace agreement language aims to induce compliance through the way in which provisions are framed. This examination confirms the importance of precision to certain types of peace agreement obligation, but demonstrates how peace agreements rely equally on constructive ambiguity. Here too lies an alternative challenge for drafting of peace agreement obligations. Rather than a challenge of attempting to maximise precision over ambiguity, this challenge lies in the difficulty of crafting obligations that will serve both short term ceasefire commitments and longer term conflict transformation goals, and assists a transition between the two. Thus, precision has drawbacks in limiting the peace agreement's development in the long-term, while constructive ambiguity can be used to begin to build shared constitutional frameworks in divided societies.
Peace Agreement Third Party Enforcement
Authors: Bell Christine 
Published: January 2009

AbstractDelegation of powers of interpretation and enforcement to third parties constitutes the third dimension of legalisation of agreements. The argument is that the more third parties are given powers to interpret and ‘enforce’ agreements, the more these agreements are legalised. Independent third parties with clear decision-making authority and enforcement powers (such as courts) are understood to promote compliance. This chapter argues that while peace agreements use of third parties in the same ways as other agreements, they cannot be fully understood in terms of conventional assumptions about when and how third party enforcement operates most effectively. Rather, peace agreements use ‘hybrid legal pluralism’ — that is multiple institutions which straddle the law/politics divide and contain both international and domestic actors — to enable a broad range of diverse international participation in peace agreements. Thus, they acknowledge the ‘third party’ as simultaneously guarantor, mediator, administrator, ‘actual’ party, and norm promoter, and enable third party actors to shift the emphasis between these different functions as circumstances and legitimacy require.
The New Law of Hybrid Self-determination
Authors: Bell Christine 
Published: January 2009

AbstractThis chapter explores how peace agreement content is regulated by international law. It begins by examining self-determination law as relevant to the constitutional and territorial arrangements of peace agreements. The chapter argues that the combination of conflict settlement and normative framework has produced a new practice which is taking on the form of a ‘new law’ of self-determination. This new law stands, not as established law, but as a normative expectation with regard to how self-determination disputes will be resolved, whose normative ‘creep’ can be seen in state practice and the reasoning of international tribunals.
Lex Pacificatoria: Marriage of Heaven and Hell
Authors: Bell Christine 
Published: January 2009

AbstractThis concluding chapter summarizes and brings together the book's central argument for a lex pacificatoria as a new law of the peacemakers. It proposes an ambivalent response to the new lex, and concludes by suggesting a concept of law that is necessary to ‘doing good’ in peace negotiations and when working to implement peace agreements. This concept of law involves six key commitments: to legal pluralism, constitutional pluralism, to recognition of law's performative dimension, to negotiated justice, complex accountability, and to enabling moral and political imagination.
Privileged Access and the Mark of the Mental
Authors: Farkas Katalin 
Published: January 2009

AbstractOur conception of the mind is essentially shaped by the Cartesian theory, and this book suggests this should be embraced, rather than overthrown. The chapter argues that we can abstract a method for distinguishing mental and non-mental features from Descartes's Second Meditation, which bears the title: ‘The nature of the human mind, and how it is better known than the body’. Different cognitive faculties are distinguished. Only one of them has the following feature: it enables the subject to know its subject matter in a way that no-one else who is endowed with the same cognitive faculty, can. Everything that is known through the use of this faculty belongs to the mind. Privileged accessibility is the mark of the mental.
Indiscriminability
Authors: Farkas Katalin 
Published: January 2009

AbstractThe following terminology is introduced in this chapter: ‘indiscriminability’ is a possibly non-transitive epistemic relation; ‘sameness of appearance’ is the transitive relation of the identity of phenomenal properties. The ‘fitting relation’ is the relation constitutive of Twin situations (same as the relation of ‘subjective indistinguishability’ of the previous chapter). This chapter distinguishes various notions of indiscriminability: active indiscriminability is the inability to activate knowledge that things are distinct; access indiscriminability is compatibility with everything the subject knows; and response indiscriminability is the sameness of cognitive responses. It is argued that none of these can be used to define the fitting relation. An objection against the notion of phenomenal properties based on the possibility of a phenomenal sorites series is considered and answered. The conclusion is that subjective indistinguishability cannot be defined in epistemic terms; instead, has to be defined as sameness of phenomenal properties.
Externalism and Privileged Self‐Knowledge
Authors: Farkas Katalin 
Published: January 2009

AbstractThis chapter shows that externalism is incompatible with the claim that all mental features are accessible in a privileged way. All and only phenomenal properties of conscious events give rise to perspectival facts, which are precisely the facts that are open to privileged access. Phenomenal properties are shared by subjects in Twin situations. According to externalists, mental features are determined by factors that go beyond phenomenal properties, and hence they do not register within the subject's point of view. Compared to internalism, externalism limits privileged accessibility. The chapter also criticises the account of self-knowledge based on the fact that some reflective thoughts are conceptually self-verifying, evaluates the argument based on the so-called ‘travelling cases’ for the incompatibility of externalism and self-knowledge, and discusses the relation between discrimination and introspective knowledge.
Reference and Sense
Authors: Farkas Katalin 
Published: January 2009

AbstractEven philosophers who are sympathetic to internalism believe that a full account of intentionality or representation requires two kinds of intentionality: phenomenal and externalistic; or two kinds of content: narrow and broad. It is argued that the source of this conviction is an unnecessarily restrictive interpretation of the doctrine — going back to Frege — that sense should determine reference. On the restricted interpretation, sense alone determines reference, but very few philosophers agree with this today. Once we understand the doctrine more liberally, requiring only that sense determines reference relative to some external factors, we make room for a single notion of completely internal content. The resulting view of content is similar to the position known as ‘non-indexical contextualism’ in another debate. Once the doctrine that sense determines reference is understood properly, the Twin Earth argument turns out to be inconclusive, and the need to posit an externally individuated content disappers.
Introduction
Authors: McNamara Lawrence 
Published: January 2009

AbstractThis introductory chapter outlines the current legal framework and its shortcomings, and explains how the book uses reputation as the point of reference for analysing, evaluating, and proposing a revision of the law that governs determinations of what is defamatory. In spite of the axiom that defamation law aims to protect reputation, the common law has no principled, theoretically coherent statement of law regarding what is defamatory. This is so because there has not been sufficient attention paid to the nature of reputation or to the relationship between reputation and defamation. Without a satisfactory account of reputation, the law that seeks to protect it is bound to be inadequately conceived. The question posed takes a very particular form, with the premise itself being a critical issue: if reputation is the interest to be protected by defamation law, then what should be the test(s) for what is defamatory?
Reputation and Community: The Centrality of Moral Judgment
Authors: McNamara Lawrence 
Published: January 2009

AbstractWithout a clear sense of what reputation is, it will be difficult to make a judgment about the manner and extent of its protection under the law. To that end, this chapter commences the inquiry with the aim of theorizing reputation. That is, it sets out to articulate the nature of the interest that the law seeks to protect. The selection of reputation, rather than defamation, as the analytical category is explained. A definition of reputation proposed that identifies community as the form of association upon which reputation rests, and it is argued that moral judgment is the central feature of reputation. This provides the best basis on which both reputation and defamation can be understood, and lays the foundations for the later resolution of some of the legal choices that the courts must make with respect to the scope and limits of protection for reputation.
Moral Judgment and Conceptions of Reputation
Authors: McNamara Lawrence 
Published: January 2009

AbstractThis chapter asks how the conceptions of reputation in the literature (and especially those in Robert Post's work) can be of assistance in understanding the nature of reputation. Section I examines and rejects the proposition that reputation is a form of property. Section II eschews the conception of reputation as honour in favour of a more richly rewarding inquiry into honour as a concept. Drawing on historical and anthropological work. It argues that honour can best be understood in terms of the ‘moral taxonomies’ that underpin judgments of social and self-worth in a community. The connections between social and self-worth, and between honour, reputation, and dignity, suggest that the idea of a moral taxonomy will also be a useful way to think about honour and dignity, and about reputation and its relationships to defamation law.
The ‘Shun and Avoid’ Test as the Basis for Actionability
Authors: McNamara Lawrence 
Published: January 2009

AbstractIt is commonly said that the supplementary ‘shun and avoid’ and ridicule tests are distinguished from the principal test because words can be actionable under these tests even if they do not suggest that the plaintiff has been at fault. The distinction is said to be supported by authority that goes back to the time before the common law's claim to protect reputation was firmly established. The analysis of the ‘shun and avoid’ test in this chapter is structured around these two themes of moral fault and precedent. A study of imputations regarding chastity, disease, and insanity leads to a rejection of the moral fault distinction in favour of a focus on moral worth, and shows that the ‘shun and avoid’ test has little basis in precedent. Accordingly, there needs to be a substantial revision of the place the ‘shun and avoid’ test occupies in the contemporary legal framework.
The Ridicule Test as the Basis for Actionability
Authors: McNamara Lawrence 
Published: January 2009

AbstractThis chapter examines how a publication is actionable under the ridicule test, and the extent to which the test protects reputation. The formation of the test from 1680-1936 shows no clear sense of why or in what circumstances ridicule could be the basis for a defamation action, even as the test came to have a wide scope and much room for flexibility in its application. In 1936, the American courts attempted to discern and articulate some rationale for the test Burton v Crowell. This marked an expansion of the law as publications would be actionable when they damaged a plaintiff's sense of self-worth regardless of whether their reputation was affected, and this became a settled part of the law in the later 20th century. The chapter argues that the flaws, exhibited most markedly where satire is concerned, require that the test be disposed of.
Buying Social Justice
Authors: McCrudden Christopher 
Published: January 2009

AbstractGovernments spend huge amounts of money buying goods and services from the private sector. How far should their spending power be affected by social policy? Arguments against the practice are often made by economists — on the grounds of inefficiency, and lawyers — on the grounds of free competition and international economic law. Buying Social Justice analyses how governments in developed and developing countries use their contracting power in order to advance social equality and reduce discrimination, and argues that this approach is an entirely legitimate and efficient means of achieving social justice. The book looks at the different experiences of a range of countries, including the UK, the USA, and South Africa. It also examines the impact of international and regional regulation of the international economy, and questions the extent to which the issue of procurement policy should be regulated at the national, European or international levels. The role of EC and WTO law in mediating the tensions between the economic function of procurement and the social uses of procurement is discussed, and the outcomes of controversies concerning the legitimacy of the integration of social values into procurement are analysed. Buying Social Justice argues that European and international legal regulation of procurement has become an important means of accentuating the positive and eliminating the negative in both the social and economic uses of procurement.
Set-asides in the United States and Canada
Authors: McCrudden Christopher 
Published: January 2009

AbstractThis chapter examines different schemes that link the award of contracts to programmes that advantage particular status groups that are considered to be economically disadvantaged by giving preferences to businesses that are owned or controlled by such groups in the award of contracts, so-called ‘set-asides’. It begins by examining the development of set-asides in the United States, including the significant legal challenges to such schemes under the United States Constitution. It then considers the development in Canada of set-asides favouring Aboriginal-owned businesses.
Procurement Linkages and the 1980s Reform of EC Procurement Regulation
Authors: McCrudden Christopher 
Published: January 2009

AbstractThis chapter examines the approach taken to domestic procurement linkages during the first wave of European procurement reforms of the 1980s. It begins by examining the extent of equality-promoting domestic procurement linkages in EC Member States just prior to these reforms. It shows that such linkages were particularly in play in Britain, Northern Ireland, and Germany.