bluuebunny/crossref_metadata_2025_split huggingface dataset:
Limitations on Article 27
Authors: Thornberry Patrick 
Published: October 2023

Abstract
Apart from the question of the ‘existence’ or ‘non-existence’ of a minority which may be used to limit rights in the interpretation of some States, are there other limitations on the exercise of minority rights contained either in the remaining phrases of the Article, at least by implication as there is no express limitation, or by virtue of other provisions of the Covenant? The existence of certain limitations was strongly suggested by a number of States Representatives in the drafting stages of the Covenant.
The Helsinki Final Act and Minorities: A Note
Authors: Thornberry Patrick 
Published: October 2023

Abstract
The Final Act of the Conference on Security and Co-operation in Europe, 1975, is one other major document of modern international relations which makes references to ‘minorities’ in its text. The Final Act was signed by representatives of thirty-four States, including the United States and the USSR, and by the Holy See.The Final Act is not a treaty; the signatories did not wish to bind themselves by an international treaty. A paragraph in the concluding part of the document is clear on this: ‘The Government of the Republic of Finland is requested to transmit to the Secretary-General of the United Nations the text of the Final Act, which is not eligible for registrationunder Article 102 of the Charter of the United Nations ... .’ Article 102 of the Charter provides that every treaty entered into by any member of the United Nations must be registered with the Secretariat and published by it.
The United Nations Covenants on Human Rights
Authors: Thornberry Patrick 
Published: October 2023

Abstract
The concepts of non-discrimination and equality are asserted throughout the two UN Covenants on Human Rights. In almost identically worded Preambles, the ‘equal and inalienable rights of all members of the human family’ are recognized as the foundation of freedom, justice and peace in the world. In Article 2(1) of the Covenant on Civil and Political Rights, the States parties undertake ‘to respect and to ensure’ to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant ‘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 ... ‘. It is clear that other kinds of ‘distinctions’ may infringe the article besides those specified. The unmentioned distinctions must logically be in parimateriawith those listed, that is, distinctions unrelated to an individual’s merit, abilities, or efforts.
The Authority to Use Force in International Law
Authors: Wilson Heather A 
Published: October 2023

Abstract
The purpose of this chapter is to examine who had the authority to use force in international law before the idea that identifiable peoples have a right to self-determination gained much support.
Ideas change slowly and inconsistently. It would be misleading and somewhat simplistic to suggest that there is a clear division between traditional legal principles and some new law or a particular date on which these new rules came into force. Indeed, some scholars maintain that the traditional rules are still the law today, while others claim that the new ideas have always been part of the law. Both views have an element of truth. Changes in ideas about legitimate authority are part of the seamless evolution of ideas. This chapter tries to describe a reference point without minimizing the complexity of international law.
Humanitarian Protection in International Law
Authors: Wilson Heather A 
Published: October 2023

Abstract
In a city taken by storm almost any licence was condoned by the law. Only churches and churchmen were technically secure, but even they were not often spared. Women could be raped, and men killed out of hand. All the goods of the inhabitants were regarded as forfeit. If lives were spared, it was only through the clemency of the victorious captain; and spoliation was systematic.
Keen’s description of being on the losing side in a war of the Middle Ages shocks the sensibilities of those who accept as commonplace that victors do not have unlimited rights over vanquished. Gradually, over 500 years, a consensus has developed that the methods and means of warfare are not unlimited, that those not taking active part in the hostilities should not be made the target of attacks, and that combatants placed hors de combat have certain rights including the right not to be punished for their legitimate acts of warfare.
Self-Determination in International Law
Authors: Wilson Heather A 
Published: October 2023

Abstract
One of the most controversial issues in international law since the end of World War II has been whether self-determination is a right in international law or simply a principle of political thought which has assumed great prominence in international affairs at various periods since the late eighteenth century. Certainly the principle has a highly charged political content leading one author to contend that it is a ‘convenient plaything both for international politics and propaganda’. Whether a convenient plaything’ or a powerful tool, self-determination has profoundly affected ideas about the relationship between people and their governments. It is not my intention to chronicle the development of the idea of self determination. The history of the idea may be found elsewhere. Rather, this chapter examines how self-determination developed into a legal right, and secondly, who the self is that can exercise this right.
Introduction
Authors: Ellmann Stephen 
Published: October 2023

Abstract
Can the rule of law preserve us from oppression? Or must the complex institutions of justice that we establish and nurture inevitably become mere bystanders, or even helpmates, to governments determined to rule by auth¬ oritarian or totalitarian means? Is the proud independence of judges only another vanity, to be blown away like gossamer by the winds of power? Or can legal institutions and traditions develop so deep an interweaving with principles of human rights that law’s disciples will stand firm even when their neighbours and friends deny the force of these principles? These questions echo through modem Westem history, for courts have carried on the business of administering justice in the midst of some of the most unjust regimes we have yet experienced. Northern and Southern judges in the pre-Civil-War United States were called upon to enforce the laws of slavery; German judges continued to work while the Nazis used legal and extralegal means to pursue the Jews of Europe; Argentinian judges held office while the junta caused its opponents to disappear. So, too, South African judges have ascended the bench throughout the long decades of apartheid.
The Rabie Court and the Judicial Protection of the State of Emergency
Authors: Ellmann Stephen 
Published: October 2023

Abstract
The principal focus of this chapter and the next will be on the Appellate Division’s handling of state of emergency cases during the years in which the court was headed by Chief Justice, then Acting Chief Justice, Pieter J. Rabie. The state of emergency outlasted Chief Justice Rabie’s tenure in office, and the Appellate Division has continued to make emergency law decisions since he left the court. We will look at those post-Rabie decisions, but we will begin by focusing on the Rabie court. We will do so because a study of the emergency cases of ‘the Rabie court’ is a study of a court of a particular character, and not simply of an arbitrary period of time.
The Corbett Court and the Emergency
Authors: Ellmann Stephen 
Published: October 2023

Abstract
On 31 January 1989 Rabie ACJ retired. He was replaced as chief justice by Justice Michael Corbett. As his name suggests, Corbett CJ is a member of the English-speaking white South African community-though he speaks Afrikaans, and in some of his speeches he turns to Afrikaans with the apparent goal of communicating more fraternally with Afrikaners in his audience.2 At the age of 18 he enlisted in the South African armed forces, and served in Egypt and Italy during the Second World War. Educated at the University of Cape Town, one of the leading English-speaking universities of South Africa, he earned a second law degree at Trinity Hall, Cambridge, and then joined the Cape Bar in 1948. He became a senior counsel in 1961 and in 1963 was appointed to the bench of the Cape Provincial Division. In 1974 he joined the Appellate Division and so, in 1989, he was a very senior member of the court.3 Corbett CJ’s concern for human rights had been apparent for many years before his appointment as chief justice. In 1979 he gave the opening address at the First International Conference on Human Rights in South Africa, held at the University of Cape Town, and told his audience that two years earlier he had made his first visit to the United States and become acquainted with the Bill of Rights and the American system of judicial review. In his words, ‘I returned home a convert to that system.’4 A longtime member
Introduction
Authors: Clapham Andrew 
Published: October 2023

Abstract
This book challenges several traditional assumptions concerning human rights. In particular it challenges the presumption that the fundamental rights and freedoms contained in the European Convention on Human Rights are irrelevant for cases which concern the sphere of relations between individuals. It asks whether victims should be protected from non-state actors, and attempts to develop a coherent approach to ‘human rights in the private sphere’. It is the application of human rights law to the actions of private bodies which I label ‘human rights in the private sphere’ or ‘the privatization of human rights’. The book concentrates on the rights contained in the European Convention on Human Rights, and their enforcement in the courts of the United Kingdom and at the European level: at the European Commission and Court of Human Rights in Strasbourg, and at the European Court of Justice in Luxembourg.
The European Community Legal Order
Authors: Clapham Andrew 
Published: October 2023

Abstract
This chapter explores the operation of human rights in the private sphere within the Community legal order. There are two dimensions to rights in the private sphere within the Community legal order. The first involves what may be called ‘fundamental Community rights’ which individuals have under Community law and which may, or may not, be enforced· against other private or non-state bodies (that is to say bodies such as employers, professional associations, corporations, etc.), or even used to invalidate the rules and regulations of such private organizations.
A ‘Private Police’ for Human Rights in the Private Sphere
Authors: Clapham Andrew 
Published: October 2023

Abstract
A recurring theme in this study has been the suggestion that the current and future success of the European Convention on Human Rights owes a great deal - to a number of pressure and interest groups. These groups have seized the opportunities which the Convention offers and have often exploited its potential through a number of applications. Furthermore, these applications have often been fought over fundamental principles; victory for the applicants has meant fundamental changes in the law affecting whole classes of people. Examples include the campaign by STOPP (Society of Teachers Opposed to Physical Punishment) which, following the Campbell and Cosans case, resulted in the legislation which abolished corporal punishment in state schools, and the campaign by NIGRA (Northern Ireland Gay Rights Association) which, following the Dudgeon case, resulted in the repeal of the law which criminalized homosexual relations in Northern Ireland.
Inclusive v. Exclusive Positivism
Authors: Waluchow W J 
Published: October 2023

Abstract
It is not easy to characterize natural-law theory in a way which captures what is more or less common to all theories going by that name. The same is true of positivism. Nevertheless, if pressed, one might reasonably identify natural-law theory as the view which affirms the proposition that there is a law, above (Augustine and Aquinas) or implicit in (Dworkin and Fuller) the explicit positive law in terms of which, necessarily, the existence and content of the latter can either be derived or challenged. It is no contingent accident that law and morality are connected: law just is a vehicle for the expression and enforcement of the moral law, or some particular element of it. Whether that element is to be identified with justice (as opposed to charity, benevolence, etc.) or with what Aquinas would have called ‘exterior’ as opposed to “interior’ movements, 1 the point remains: it is in the very nature of law to express moral demands and affirm moral rights, whether these are rights of political morality, as in Dworkin, or rights affirmed in or derivable from God’s Eternal law, as in Aquinas. A law could no more fail to express (perhaps inaccurately) a moral requirement than could the making of a promise.
Party Choice and Proof
Authors: Fentiman Richard 
Published: October 2023

Abstract
Courts are reluctant to intervene in how conflicts cases are presented. But, as we have seen, the introduction of foreign law is exceptionally manda tory. And, as the present chapter shows, courts may sometimes regulate whether, how, and by whom foreign law is proved. This is not to say that a court will make directions to this effect, still less that it will seek to deter mine foreign law on its own. But a party who is duty-bound to plead for eign law and does not do so, or who offers insufficient proof, faces a powerful and persuasive sanction. The penalty for insufficiently proving foreign law is the failure of the defence or claim, either because the court will prefer the other party’s evidence, or will apply English law by default. Where foreign law is relied upon but no evidence is tendered, the effect may be still more severe. Arguably, the defective case should simply be dismissed.
Inside the Diplock Court
Authors: Jackson John , Doran Sean 
Published: October 2023

Abstract
This chapter describes the methods we adopted to study whether the absence of the jury pushes the Diplock trial procedure in the direction of an inquisitorial mode of proof. The point was made in the last chapter that this question cannot be determined merely by looking at the formal changes which have been made to the rules of evidence and procedure. These rules remain substantively the same in both Diplock and jury trials and yet the absence of the jury may have significantly altered the way in which trials are conducted in practice. For example, we have seen that the analytically separate issues of the admissibility of confessions and the weight to be given to those confessions are treated together in Diplock trials, not because of any requirement of the rules of procedure but simply because it has been most convenient to adopt this practice. Counsel have generally followed the practice of questioning witnesses on the voir dire on the issues of admissibility and weight because the same tribunal, the judge, decides both matters.
From Contest to Inquest?
Authors: Jackson John , Doran Sean 
Published: October 2023

Abstract
Before we consider further the respects in which Diplock procedure reflects a shift towards the inquest model of proof, we need to remind ourselves of the essential ingredients of the inquest model, as described in Chapter Three. There we identified the role of the judge as an active inquirer as a crucial indicator. Judges in the inquest model have ultimate responsibility for determining the range of the dispute, gathering the evidence relevant to it, and testing and evaluating the evidence in courts of law. Our study has focused mainly on trial practices, but it is useful at this point to consider that no matter how inquisitorially oriented the trial procedures observed may appear, they are still embedded in an essentially adversarial mould.
Common Law Exceptions to the Hearsay Rule
Authors: Choo Andrew L -T 
Published: October 2023

Abstract
In this Chapter, it is proposed to examine a number of the exceptions to the hearsay rule that are recognized at common law. The discussion is selective rather than comprehensive, focusing on the exceptions which are most controversial and relevant to criminal trials. Other exceptions are either treated only in outline or omitted altogether. One might have expected the exceptions to the hearsay rule to perform the function of facilitating the admission of reliable evidence which would otherwise be excluded by the rule. However, it may be demonstrated that not only have the exceptions failed adequately to perform this function, but that some evidence which is admissible under the exceptions is no more reliable (and sometimes less reliable) than hearsay evidence to which the exceptions do not apply and which must therefore, in theory, be excluded.
Regulatory Competition as Regulatory Capture: The Case of Corporate Law in the United States of America
Authors: Bratton William W , Mccahery* Joseph A 
Published: October 2023

Abstract
America has a standing agenda of corporate governance reform items. All the items pursue a common, but elusive goal-the institutionalization of effective contractual regulation of corporate managers. The goal appeared to be within easy reach twenty years ago. It was then thought that transactions in markets for corporate control, corporate products, and corporate employment imported sufficient discipline. But intervening business cycles and regulatory barriers have reduced prospects for corporate control through the indirect means of discrete market contracts.
Supply-Side Inefficiencies and Competitive Federalism: Lessons from Patents, Yachting, and Bluebooks
Authors: Ayres Ian 
Published: October 2023

Abstract
The ongoing debate about whether Delaware’s dominance in the market for corporate charters is a race to the top or a race to the bottom often turns on whether one believes corporate managers are driven to incorporate (or rein corporate) in the state that provides the most efficient law. William Cary (1974) and his followers have argued that managers abuse their discretion to incorporate in states that benefit managerial interests at the expense of share holder interests; Ralph Winter (1977) and his followers (see, e.g., Easterbrook & Fischel 1991) have argued that, because managers’ discretion is constrained by promoters or by the threat of a potential takeover, managers will tend to incorporate in states that provide laws which maximize the value of corporate equity.
Competitive Federalism and Legislative Incentives to Recognize Same-Sex Marriage in the USA
Authors: Gerarda Brown Jennifer 
Published: October 2023

Abstract
In Baehr v. Lewin, 1993, the Supreme Court of Hawaii held that Hawaii’s marriage statute discriminates on the basis of gender and may therefore violate the state constitution’s equal protection clause. The statute allows marriage only between a man and a woman; same-sex couples are excluded. The trial court in Baehr (1993: 68) must now decide whether the law serves a compelling state interest. Some predict that the state will be unable to justify the law and that Hawaii will become the first state to solemnize marriages between people of the same sex.
Public Law and the Environment: The Prospects for Decision-Making
Authors: Jewell Tim 
Published: October 2023

Abstract
In this chapter, I will explore some of the processes provided by statute for making decisions with a direct environmental impact. In this way I hope to draw out some of the tensions which arise between issues of legal form or process, and substantive environmental protection. This is not, then, a thorough exploration of contemporary environmental regulation,1 but rather an examination of some of the ways in which process and substance interrelate in UK environmental regulation, and the implications of that relationship. The first step in addressing these questions is to identify those features of statutorily-defined environmental decision-making processes with which I will be concerned, and to place them in a broader public law context.
Dynamics, Process, and Instruments of Environmental Decision-Making in the European Union
Authors: somsen* Han 
Published: October 2023

Abstract
Although the birth of a discrete legal corpus designed or at least frequently applied specifically with the aim of preventing or resolving environmental problems is of recent origin, law as the instrument by which society is moulded and transformed always has been a significant factor in shaping the natural and physical environment. Feudal rules on the ownership of land explain the practice of extensive (as opposed to intensive) land use and the absence of over-exploitation in the middle ages, for example, whilst one result of the French Revolution was the complete liberalization of hunting, in tum leading almost overnight to the extinction of all species of game in the Republic.
Manner of Involvement in Australia
Authors: Stapledon G P 
Published: October 2023

Abstract
This chapter adopts the same fourfold classification of the manner of institutional monitoring that was employed in Chapter 5 (for the UK situation), and there is the same general structure within the four sections. There would appear to have been even less industry-wide monitoring carried out directly (i.e. by institutions personally) in Australia than the fairly small amount in the UK. The formation of the AIMA in 1990 certainly led to a substantial reliance upon it to formulate and promulgate institutional views on best practice in matters of corporate governance and investor protection. Nevertheless, there was an instance of direct industry wide involvement in 1993, when several institutions each made a submission to the ASX in relation to its discussion paper on equity voting rights. Also, Mr Leigh Hall, a senior investment manager at AMP, was a member of the Australian Law Reform Commission until the end of 1992, and a member of the Companies and Securities Advisory Committee ( ‘CASAC ‘) at mid-1994.
Infringement: Jurisdiction Under the European Community/European Free Trade Association Rules
Authors: Fawcett James J , Torremans Paul 
Published: October 2023

Abstract
Convention, ie it is a civil and commercial matter, and, when it comes to bases of jurisdiction, the defendant is domiciled in an EC Contracting State. Likewise, when it comes to the Lugano Convention, its jurisdiction rules apply where the matter is within the scope of the Convention, ie it is a civil and commercial matter, and, when it comes to bases of jurisdiction, the defendant is domiciled in an EFI’A Contracting State. It is dear that intellectual property matters are intended to come within the scope of these Conventions because of the presence of Article 16(4).
Complementary Torts and Other Causes of Action: Jurisdiction
Authors: Fawcett James J , Torremans Paul 
Published: October 2023

Abstract
There is a wide variety of causes of action under English and foreign law which are complementary to the tort of infringement.1 In this chapter, we will be examining these other causes of action: ie passing-off; malicious falsehood; defamation; unfair competition; wider Continental protection in delict; breach of competition rules; breach of confidence. Most of these causes of action are tortious. Passing-off, which is often used in combination with a trade mark infringement action, is the most obvious example to start with. In many continental legal systems, this area is taken up by the tort of unfair competition. Whilst not identical, there is an overlap between the common law and the continental civil law approaches. This overlap will be examined from a comparative point of view.