La presencia del Soft Law en el derecho administrativo colombiano : los documentos Conpes como manifestación del Soft Law en Colombia

El derecho internacional, como el derecho administrativo de cada Estado, se encuentra vinculado a la finalidad universal del derecho. No obstante, la influencia de la comunidad internacional en los asuntos jurídicos de los Estados está generando, con el auge de la globalización, mecanismos o instrumentos que de forma no impositiva pero sí persuasiva, vienen delimitando las competencias estatales. Estos instrumentos ejercen la función de ordenar los ámbitos de validez de dichas competencias jurídicas y administrativas internas, a través de formas declaratorias de carácter internacional, mediante normas jurídicas blandas denominadas soft law. El amplio y variado uso del soft law en temas como los derechos humanos y el medio ambiente plantea una dificultad para la teoría tradicional de fuentes, inspirada en la voluntad de los Estados, los cuales se constituyen a partir de su soberanía estatal (hard law). Esto sugiere una dicotomía jurídica, en donde el soft law se contrasta con las reglas legales que definen obligaciones específicas de hard law, es decir, “son normas o principios más abiertos o generales en su contenido y significado, comprendiéndose como suaves. En tal caso, el Soft Law plantea una apertura a la internacionalización y democratización del derecho administrativo. La creciente adopción de instrumentos de soft law de influencia internacional o global permite la participación de actores no estatales, tales como las organizaciones no gubernamentales (ONG), y de carácter civil en la construcción de políticas e instrumentos que en ocasiones adquieren más legitimidad que las leyes creadas para atender tales asuntos.

Down the aisle : the effects of technological change on retail workers skills

Reconfiguration of corporate structures and the retailer-supplier interface in the retail industry have restructured product markets and supply chains, as well as supermarket employment, over the past decade or so (Baret, Lehndorff & Sparks 2000; du Gay 1996). Various studies have examined the consequent changes in labour usage practices within supermarkets or superstores (Baret et al. 2000; Marchington 1995; Penn & Wirth 1993; Sparks 1992; Dawson, Findlay & Sparks 1987, 1986). Commonly, this literature explores the interplay between shifts in the structure of the labour market, broader societal trends and retailers’ employment strategies. One study found that domestic and gender dimensions, accompanied by industrial relations regimes, exert considerable influence on patterns of labour usage (Baret et al. 2000). However, while the types of labour usage and the drivers of changes to labour usage patterns have attracted significant academic attention, research has largely overlooked the ways in which the nature of supermarket work has evolved as a result of changing technology, which effectively bolsters managerial prerogative, and which has affected the skill levels of workers in the industry (Marchington 1995).

Union strategies in representing ‘new workers’ : the case of UK retail union

The purpose of this paper is to explore the changing nature of employee voice through trade union representation in the retail industry. The retail industry is a major employer in the UK and is one of the few private sector service industries with union representation (Griffin et al 2003). The requisite union: the Distributive and Allied Workers (USDAW) union is one of the biggest unions in the country. However, the characteristics of the industry provide unique challenges for employee voice and representation including: high labour turnover; high use of casual, female and student labour; and, variable levels of union recognition (Reynolds et al 2005). Irrespective of these challenges, any extension of representation and organisation by unions in the retail sector is inherently valuable, socially and politically, given that retail workers are often categorised as vulnerable, due to the fact that they are among the lowest paid in the economy, sourced from disadvantages labour markets and increasingly subject to atypical employment arrangements (Broadbridge 2002; Henley 2006; Lynch 2005; Roan 2003).

Debate on statutory control of the surveying profession in Queensland : 1907 to 1975

This article was written in 1997. After a 2009 review the content was left mostly unchanged - apart from this re-written abstract, restructured headings and a table of contents. The article deals directly with professional registration of surveyors; but it also relates to government procurement of professional services. The issues include public service and professional ethics; setting of professional fees; quality assurance; official corruption; and professional recruitment, education and training. Debate on the Land Surveyors Act 1908 (Qld) and its amendments to 1916 occurred at a time when industrial unrest of the 1890s and common market principles of the new Commonwealth were fresh in peoples’ minds. Industrial issues led to a constitutional crisis in the Queensland’s then bicameral legislature and frustrated a first attempt to pass a Surveyors Bill in 1907. The Bill was re-introduced in 1908 after fresh elections and Kidston’s return as state premier. Co-ordinated immigration and land settlement polices of the colonies were discontinued when the Commonwealth gained power over immigration in 1901. Concerns shifted to protecting jobs from foreign competition. Debate on 1974 amendments to the Act reflected concerns about skill shortages and professional accreditation. However, in times of economic downturn, a so-called ‘chronic shortage of surveyors’ could rapidly degenerate into oversupply and unemployment. Theorists championed a naïve ‘capture theory’ where the professions captured governments to create legislative barriers to entry to the professions. Supposedly, this allowed rent-seeking and monopoly profits through lack of competition. However, historical evidence suggests that governments have been capable of capturing and exploiting surveyors. More enlightened institutional arrangements are needed if the community is to receive benefits commensurate with sizable co-investments of public and private resources in developing human capital.

Environmental rights, justice and climate change

The human rights implications of climate change are increasingly gaining attention, with wider international acknowledgement that climate change poses a real threat to human rights. This paper considers the impact of climate change on human rights, looking particularly at the experiences of Torres Strait Islanders in northern Australia. It argues that human rights law offers a guiding set of principles which can help in developing appropriate strategies to combat climate change. In particular, the normative principles embodied in environmental rights can be useful in setting priorities and evaluating policies in response to climate change. The paper also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

Providing youth with skills, training and employment opportunities through ICT Initiatives

Youth population is increasing explosively particularly in developing countries as a result of rapid urbanization. This increase is bringing large number of social and economic problems. For instance the impacts of job and training availability, and the physical, social and cultural quality of urban environment on young people are enormous, and affect their health, lifestyles, and well-being (Gleeson and Sipe 2006). Besides this, globalization and technological developments are affecting youth in urban areas in all parts of the world, both positively and negatively (Robertson 1995). The rapidly advancing information and communications technologies (ICTs) helps in addressing social and economic problems caused by the rapid growth of urban youth populations in developing countries. ICTs offer opportunities to young people for learning, skill development and employment. But there are downsides: young people in many developing countries lack of having broad access to these new technologies, they are vulnerable to global market changes, and ICTs link them into global cultures which promote consumer goods, potentially eroding local cultures and community values (Manacorda and Petrongolo 1999). However we believe that the positives outweigh such negatives. At the beginning of the twenty-first century, the world’s young population number more than they ever have. There are over a billion young people between the ages of 15 and 24, which 85 per cent of them live in developing countries and mainly in urban environments. Many of these young people are in the process of making, or have already made, the transition from school to work. During the last two decades all around the world, these young people, as new workers, have faced a number of challenges associated with globalization and technological advances on labour markets (United Nations 2004). The continuous decrease in the manufacturing employment is made many of the young people facing three options: getting jobs in the informal economy with insecurity and poor wages and working conditions, or getting jobs in the low-tier service industries, or developing their vocational skills to benefit from new opportunities in the professional and advanced technical/knowledge sectors. Moreover in developing countries a large portion of young people are not even lucky enough to choose among any of these options, and consequently facing long-term unemployment, which makes them highly vulnerable. The United Nations’ World Youth Employment report (2004) indicates that in almost all countries, females tend to be far more vulnerable than males in terms of long-term unemployment, and young people who have advanced qualifications are far less likely to experience long-term unemployment than others. In the limited opportunities of the formal labour market, those with limited vocational skills resort to forced entrepreneurship and selfemployment in the informal economy, often working for low pay under hazardous conditions, with only few prospects for the future (United Nations 2005a). The International Labour Organization’s research (2004) revealed that the labour force participation rates for young people decreased by almost four per cent (which is equivalent of 88 million young people) between 1993 and 2003. This is largely as a result of the increased number of young people attending school, high overall unemployment rates, and the fact that some young people gave up any hope of finding work and dropped out of the labour market. At the regional level, youth unemployment was highest in Middle East and North Africa (MENA) (25.6%) and sub-Saharan Africa (21%) and lowest in East Asia (7%) and the industrialized economies(13.4%) (International Labour Organization 2004). The youth in economically disadvantaged regions (e.g. the MENA region) face many challenges in education and training that delivers them the right set of skills and knowledge demanded by the labour market. As a consequence, the transition from school to work is mostly unsuccessful and young population end up either unemployed or underemployed in the informal sectors (United Nations 2005b). Unemployment and lack of economic prospects of the urban youth are pushing many of them into criminal acts, excessive alcohol use, substance addiction, and also in many cases resulting in processes of social or political violence (Fernandez-Maldonado 2004; United Nations 2005a). Long-term unemployment leads young people in a process of marginalisation and social exclusion (United Nations 2004). The sustained high rates of long-term youth unemployment have a number of negative effects on societies. First, it results in countries failing to take advantage of the human resources to increase their productive potential, at a time of transition to a globalized world that inexorably demands such leaps in productive capacity. Second, it reinforces the intergenerational transmission of poverty. Third, owing to the discrepancy between more education and exposure to the mass media and fewer employment opportunities, it may encourage the spread of disruptive behaviours, recourse to illegal alternatives for generating income and the loss of basic societal values, all of which erode public safety and social capital. Fourth, it may trigger violent and intractable political conflicts. And lastly, it may exacerbate intergenerational conflicts when young people perceive a lack of opportunity and meritocracy in a system that favours adults who have less formal education and training but more wealth, power and job stability (Hopenhayn 2002). To assist in addressing youth’s skill training and employment problems this paper scrutinises useful international practices, policies, initiatives and programs targeting youth skill training, particularly in ICTs. The MENA national governments and local authorities could consider implementing similar initiative and strategies to address some of the youth employment issues. The broader aim of this paper is to investigate the successful practice and strategies for the information and communication related income generation opportunities for young people to: promote youth entrepreneurship; promote public-private partnerships; target vulnerable groups of young people; narrow digital divide; and put young people in charge. The rest of this paper is organised in five parts. First, the paper provides an overview of the literature on the knowledge economy, skill, education and training issues. Secondly, it reviews the role of ICTs for vocational skill development and employability. Thirdly, it discusses the issues surrounding the development of the digital divide. Fourthly, the paper underlines types and the importance of developing ICT initiatives targeting young people, and reviews some of the successful policy implementations on ICT-based initiatives from both developed and developing countries that offer opportunities to young people for learning, skill development and employment. Then the paper concludes by providing useful generalised recommendations for the MENA region countries and cities in: advocating possible opportunities for ICT generated employment for young people; and discussing how ICT policies could be modified and adopted to meet young people’s needs.

Realistic yet humanitarian? The comprehensive plan of action and refugee policy in Southeast Asia

The 1989 Comprehensive Plan of Action (CPA) has recently been described as a successful example of how to manage large protracted refugee flows. However, this article revisits the circumstances surrounding the CPA used to resolve the prolonged Indo-Chinese refugee crisis to highlight that part of its development was linked to the fact that Southeast Asian states refused to engage with proposed solutions, which did not include repatriation for the majority of the Indo-Chinese asylum seekers who were deemed to be ‘non-genuine’1 ( UNGA, 1989a) refugees. This resulted in the CPA often forcibly repatriating ‘non-genuine’ refugees, particularly near the end of its program. This article reviews the CPA in order to assess whether its practices and results should be repeated.

Competition laws and policies in China and Hong Kong : a tale of two regulatory journeys

Reviews the background to China's enactment of the Anti-Monopoly Law in 2007 and compares the debate surrounding the proposed introduction of similar legislation in Hong Kong. Examines the main issues arising during the Law's 13 year drafting stage, its key provisions and the remaining areas of uncertainty concerning its enforcement. Discusses ongoing efforts to introduce competition law regulations in Hong Kong, the main features of the draft General Competition Law and the shortcomings of its approach to penalties and exemptions.

Post-WTO China : competition and technology transfer laws in the 'new' socialist market economy

China has been the focus of much academic and business scrutiny of late. Its economic climate is changing and its huge new market opportunities seem quite tantalizing to the would-be 'technology entrepreneur'. But China's market is a relatively immature one; it is still in the process of being opened up to real competition. The corollary of this is that, at this stage of the transitional process, there is still significant State control of market function. This article discusses Chinese competition law, the technology transfer system, how the laws are being reformed and how the technology entrepreneur fares under them. The bottom line is that while opportunities beckon, the wise entrepreneur will nevertheless continue to exercise caution.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice