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Chapter: '‘Anachronistic As Colonial Remnants May Be…’ Locating the Rights of the Chagos Islanders As a Case Study of the Operation of Human Rights Law in Colonial Territories' from book: Fifty Years of the British Indian Ocean Territory: Legal Perspectives (Book chapter)

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Book Series: The World of Small States ISBN: 9783319785400 9783319785417 Year: Pages: 39 DOI: https://doi.org/10.1007/978-3-319-78541-7_8 Language: English
Publisher: Springer Grant: European Research Council
Subject: History --- Migration
Added to DOAB on : 2018-06-01 17:23:32
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In the colonial era, it was commonplace for treaties binding on the metropolitan state to be applicable in that state’s colonies if the state made a declaration to this effect, via the operation of a ‘colonial clause’ in the treaty. This reflects concepts of trusteeship-over-people and civilizational difference which legitimized colonial rule in general and the role of the colonial authority in determining what standards were appropriate in colonial territories in particular. The colonial-clause model for applicability was adopted in the European Convention on Human Rights of 1950 and certain of its Protocols, but not other subsequent human rights treaties. The standard jurisprudential view is that in the absence of a colonial clause declaration, the Convention cannot be applicable on the alternative basis on which it operates in a state’s territory and to its extraterritorial activities. Such a declaration of applicability was not made in relation to the Chagos Islands, a UK colony, where human rights questions have been raised by the forced displacement by the UK of the indigenous population between 1968 and 1973, the continued denial of this people of their right to return, and more recent allegations concerning the US military base on one of the islands, Diego Garcia. However, in a 2012 decision, the European Court of Human Rights suggested that the standard position on the exclusive determinacy of declarations under the colonial clause may no longer be sustainable. The present piece takes this suggestion and explores its potential, taking into account the significance of the self-determination entitlement in having delegitimized the underlying concepts of trusteeship and civilizational difference on which the standard position is based.

International Law and Litigation

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Book Series: Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law ISBN: 9783845299051 Year: Volume: 15 Pages: 724 DOI: http://dx.doi.org/10.5771/9783845299051 Language: en
Publisher: Nomos Verlagsgesellschaft mbH & Co. KG
Added to DOAB on : 2019-07-11 07:22:54
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Containing contributions by twenty-five scholars, this volume aims to examine the increasingly notable subject of international dispute settlement from an innovative procedural perspective. Indeed, with the ‘jurisdictionalisation’ of international law that has taken place during the last thirty years, both scholars and practitioners have shown an important and growing interest in international law litigation. Yet, little attention has been paid to the procedural aspects thereof. In building upon research into subfields of international litigation (general international law analysis, international economic law procedures, human rights and European law mechanisms), this book endeavours to provide an up-to-date seminal picture of the evolution of the role of procedure across these domains as well as an overall illustration of the field.

The Legal Effects of EU Agreements

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Book Series: Oxford Studies in European Law ISBN: 9780199606610 Year: Pages: 399 DOI: 10.1093/acprof:oso/9780199606610.001.0001 Language: English
Publisher: Oxford University Press Grant: OAPEN-UK
Subject: Law --- Political Science
Added to DOAB on : 2013-09-21 22:37:29
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Examining the legal effects of EU concluded treaties, this book provides an analysis of this increasingly important and rapidly growing area of EU law. The EU has concluded more than 1,000 treaties including recently its first human rights treaty (the UN Rights of Persons with Disability Convention). These agreements are regularly invoked in litigation in the Courts of the member states and before the EU courts in Luxembourg but their ramifications for the EU legal order and that of the member states remains underexplored. Through analysis of over 300 cases, the book finds evidence of a twin-track approach whereby the Court of Justice of the European Union (CJEU) adopts a maximalist approach to Treaty enforcement, where EU agreements are invoked in challenges to member state level action whilst largely insulating EU action from meaningful review vis-à-vis agreements. The book also reveals novel findings regarding the use of EU agreements in EU level litigation including: the types and which specific EU agreements (including the types of provisions) have arisen in litigation; the nature of the proceedings (preliminary rulings or direct actions) and the number of occasions in which they have been addressed in challenges to member state or EU action and the outcomes; who has been litigating (individuals, institutions, or member states) and which domestic courts have been referring questions to the CJEU. The significance of the judicial developments in this area are situated within the context of the domestic constitutional ramifications for member state legal orders thus revealing a neglected dimension in the constitutionalization debates, which traditionally emphasized the ramifications of internal EU law for the domestic constitutional order without expressly accommodating the constitutional significance of this external category of EU law nor the different challenges that this poses domestically.

By Honor Bound

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ISBN: 9781501707193 Year: Pages: 312 Language: English
Publisher: Cornell University Press
Subject: History
Added to DOAB on : 2016-10-26 08:56:43
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In the sixteenth and seventeenth centuries, Russians from all ranks of society were bound together by a culture of honor. Here one of the foremost scholars of early modern Russia explores the intricate and highly stylized codes that made up this culture. Nancy Shields Kollmann describes how these codes were manipulated to construct identity and enforce social norms--and also to defend against insults, to pursue vendettas, and to unsettle communities. She offers evidence for a new view of the relationship of state and society in the Russian empire, and her richly comparative approach enhances knowledge of statebuilding in premodern Europe. By presenting Muscovite state and society in the context of medieval and early modern Europe, she exposes similarities that blur long-standing distinctions between Russian and European history.

Through the prism of honor, Kollmann examines the interaction of the Russian state and its people in regulating social relations and defining an individual's rank. She finds vital information in a collection of transcripts of legal suits brought by elites and peasants alike to avenge insult to honor. The cases make clear the conservative role honor played in society as well as the ability of men and women to employ this body of ideas to address their relations with one another and with the state. Kollmann demonstrates that the grand princes—and later the tsars—tolerated a surprising degree of local autonomy throughout their rapidly expanding realm. Her work marks a stark contrast with traditional Russian historiography, which exaggerates the power of the state and downplays the volition of society.

Nordic Mediation Research

Authors: --- ---
ISBN: 9783319730189 9783319730196 Year: Pages: 269 DOI: https://doi.org/10.1007/978-3-319-73019-6 Language: English
Publisher: Springer Grant: Københavns University
Subject: Law
Added to DOAB on : 2018-06-29 14:24:48
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This open access book presents twelve unique studies on mediation from researchers in Denmark, Finland, Norway and Sweden, respectively. Each study highlights important aspects of mediation, including the role of children in family mediation, the evolution and ambivalent application of restorative justice in the Nordic countries, the confusion of roles in court-connected mediation, and the challenges in dispute systems. Over the past 20-30 years, mediation has gained in popularity in many countries around the world and is often heralded as a suitable and cost-effective mode of conflict resolution. However, as the studies in this volumes show, mediation also has a number of potential drawbacks. Parties’ self-determination may be jeopardized, affected third parties are involved in an inadequate way, and the legal regulations may be flawed. The publication can inspire research, help professionals and policymakers in the field and be used as a textbook.

Außergerichtliche Konfliktlösung in der Antike

Authors: --- --- --- --- et al.
Book Series: Global Perspectives on Legal History ISBN: 9783944773087 9783944773186 Year: Pages: 182 DOI: 10.12946/gplh9 Language: German|English
Publisher: Max Planck Institute for European Legal History
Subject: Law --- History
Added to DOAB on : 2019-04-17 11:21:03
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"Antiquity is often utilized as a reference to provide a historical dimension for contemporary phenomena. This also holds true for the prevailing scientific discourse on alternative or adequate remedies of dispute resolution. In this context, historical perspectives seem to be in vogue as narratives to legitimize one or another role model, whereas studies on practical examples from ancient legal orders tend not to be given serious consideration in the current debate.
Just as in the case of contemporary legal research, ancient legal history also distinguishes litigation at court from other mechanisms of conflict resolution. Nevertheless, where do the boundaries of judicial and extra-judicial mechanisms of dispute resolution lie within the framework of ancient societies? Are they alternatives in a narrower sense? Is there evidence for concerning the reason there was no (or at least no exclusive) judicial decision? This volume offers a selection of studies of pertinent illustrative material pertaining to these questions. While the relevant sources stemming from the prehistorical period, the Ancient Near East, Hellenistic Egypt and Classical Roman law may vary greatly, this just serves to widen our perspective on ancient times.
Heidi Peter-Röcher focuses on strategies of conflict resolution in prehistoric times corresponding to different forms of violence. Hans Neumann, Susanne Paulus, Lena Fijałkowska and Alessandro Hirata delve into case studies situated in the Ancient Near East from Sumerian to Neo-Babylonian times. Three other contributions examine Graeco-Roman Antiquity: Marc Depauw considers non-Greek, i.e., demotic, material from a Hellenistic kingdom, Anna Seelentag embraces the phenomenon of public clamour in the Roman Republic, and Christine Lehne-Gstreinthaler provides a fresh look at the classical arbitration from the perspective of ancient legal history."

Examining the Role of Patent Quality in Large-Scale ""Patent War"" Litigation

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Book Series: Munich Intellectual Property Law Center – MIPLC ISBN: 9783845293097 Year: Volume: 31 Pages: 78 DOI: http://dx.doi.org/10.5771/9783845293097 Language: en
Publisher: Nomos Verlagsgesellschaft mbH & Co. KG
Subject: Law
Added to DOAB on : 2018-11-05 12:58:39
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Although the U.S. Patent System has been essential to spurring innovation, it has wavered in its efficiency and effectiveness at doing so. This research first makes historical comparison and analysis of the Apple and Wright landmark patent war cases to illustrate that, irrespective of timing, benefits of a patent system rest heavily on how well it defines and maintains “patent quality.” Much of the challenge in maintaining such quality relates to the subjective and often uncertain nature of invention criteria such as “non-obviousness.” As shown by recent trends, decreased patent quality leads to greater uncertainty about patent validity, which in turn invites more litigation. This work proposes that, in order to improve constancy on patent quality, the U.S. patent office should consider returning to original strategies envisioned by the Founders of the United States as described by a patent-registration system that emphasizes utility and public review in governing the patent granting process. Modern information technology can now be applied to effectively restore this original framework envisioned for patent quality control systems.

Normatividades e instituciones eclesiásticas en el virreinato del Perú, siglos XVI–XIX

Authors: --- --- --- --- et al.
Book Series: Global Perspectives on Legal History ISBN: 9783944773223 9783944773230 Year: Pages: 248 DOI: 10.12946/gplh12 Language: Spanish;
Publisher: Max Planck Institute for European Legal History
Subject: Law --- History --- Economics
Added to DOAB on : 2019-08-13 11:21:02
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Ecclesiastical institutions and actors were essential for the formation of normative orders in early modern Ibero-America. In a series of seminars, organised by the Max Planck Institute for European Legal History in Mexico City, Lima, Bogotá and São Paulo, scholars from different disciplines presented innovative studies on the history of religious normativity and its practices. Based upon the Lima colloquium, the present volume focuses on the viceroyalty of Peru (16th-19th centuries).

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