Law

Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope, and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. This book explores theoretical, normative, and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures. The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation, and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.

This book is an exploration of the ways in which Americans have perceived, applied, advanced, and frustrated international law. It demonstrates the varieties and continuities of America's approaches to international law. The book begins with the important role the law of nations played for founders like Jefferson and Madison in framing the Declaration of Independence and the Constitution. It then discusses the intellectual contributions to international law made by leaders in the New Republic — Kent and Wheaton — and the place of international law in the 19th century judgments of Marshall, Story, and Taney. The book goes on to examine the contributions of American utopians — Dodge, Worcester, Ladd, Burritt, and Carnegie — to the establishment of the League of Nations, the World Court, the International Law Association, and the American Society of International Law. It finishes with an analysis of the wavering support to international law given by Woodrow Wilson and the emergence of a new American isolationism following the disappointment of World War I.

This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor–state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.

This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals’ autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going ‘beyond constitutionalism’ towards a pluralist order may be the better option.

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’.

This book examines the relatively recent and under-explored phenomenon of outward foreign direct investment (FDI) from the large emerging market countries, focusing on the four BRIC states (Brazil, Russia, India, and China) and on the services sector meaning primarily telecommunications, finance, and transport. It considers the international legal framework governing FDI, discussing the nature and extent of the bilateral and regional investment treaty commitments undertaken by each of the BRIC states, including their commitments under the WTO General Agreement on Trade in Services, as well as their obligations as members of the International Monetary Fund and the World Bank. Drawing on trends observed in the regulatory approach of these countries to FDI in services, including the observed flow of FDI both to and now from the developing world, the book proposes a multilateral investment treaty aimed at the liberalisation and protection of FDI in services. The treaty will capture the emerging equilibrium in global FDI patterns signifying a unified approach to the regulation of foreign investment in the growing services economy by developing and developed economies alike. The treaty will strengthen the legitimacy of investor-state dispute settlement and recognise public interest norms such as environmental protection and human rights as well as allow signatories to retain sovereignty over matters relating to national security and economic stability.

Governments 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.

The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.

Displacement caused by climate change is an area of growing concern. With current rises in sea levels and changes to the global climate, it is an issue of fundamental importance to the future of many parts of the world. This book critically examines whether States have obligations to protect people displaced by climate change under international refugee law, international human rights law, and the international law on statelessness. Drawing on field work undertaken in Bangladesh, India, and the Pacific island States of Kiribati and Tuvalu, the book evaluates whether the phenomenon of ‘climate change-induced displacement’ is an empirically sound category for academic inquiry. It does so by examining the reasons why people move (or choose not to move); the extent to which climate change, as opposed to underlying socio-economic factors, provides a trigger for such movement; and whether traditional international responses, such as the conclusion of new treaties and the creation of new institutions, are appropriate solutions in this context. In this way, the book queries whether flight from habitat destruction should be viewed as another facet of traditional international protection or as a new challenge requiring more creative legal and policy responses.