State practice, customary humanitarian law and civilian casualties of armed conflict

The article examines the customary international law credentials of the humanitarian law rules proposed by the International Committee of the Red Cross (ICR) in 2005. It relies on the BIICL/Chatham House analysis as a ‘constructive comment’ on the methodology of the ICRC study and the rules formed as a result of that methodology with respect to the dead and missing as an aid to determination of their customary law status. It shows that most of the rules studied have a customary international lawpedigree which conforms to the conclusions formed on the rules generally in the Wilmshurst and Breau study. However, the rules with respect to return of personal effects, recording location of graves and notification of relatives of access to gravesites do not seem to have even on a majoritarian/deductive approach enough volume of state practice to establish them as customary with respect to civilians.

The 'welfare of the child' in Shari'a law: an analysis of child custody law and practices in Bangladesh from a feminist perspective

The paper seeks to draw attention to some of the recent cases relating to child custody law in Bangladesh where, deviating from orthodox Shari’a rules, courts have looked to ‘the welfare’ of the child in determining which parent shall have custody. In studying the recent ‘welfare of child’ standard that has been advanced by the courts in Bangladesh, the paper aims to explore its implications for Muslim women from a feminist perspective.

Humanitarian law, human rights law and the bifurcation of armed conflict

This article offers a fresh examination of the distinction drawn in international humanitarian law (IHL) between international and non-international armed conflicts. In particular, it considers this issue from the under-explored perspective of the influence of international human rights law (IHRL). It is demonstrated how, over time, the effect of IHRL on this distinction in IHL has changed dramatically. Whereas traditionally IHRL encouraged the partial elimination of the distinction between types of armed conflict, more recently it has been invoked in debates in a manner that would preserve what remains of the distinction. By exploring this important issue, it is hoped that the present article will contribute to the ongoing debates regarding the future development of the law of non-international armed conflict.

Franz Neumann, the rule of law and the unfulfilled promise of classical liberal thought

This thesis draws on the work of Franz Neumann, a critical theorist associated with the early Frankfurt School, to evaluate liberal arguments about political legitimacy and to develop an original account of the justification for the liberal state.

Shared parenting, law and policy: considering power within the framework of autopoietic theory

This paper uses the last few decades’ developments in the area of shared parenting to explore power within the framework of autopoietic theory. It traces how, prompted by turbulence from the political subsystem, family law has made several unsuccessful attempts to solve the perceived problem of post-separation dual-household parenting. It agrees with Luhmann and Teubner that closed autopoietic systems’ developments are limited by their normative and cognitive frameworks, and also argues that changes, which have occurred in family law, show that closed social systems do not function in total isolation. It considers power as ego’s ability to limit alter’s choices. In our functionally differentiated society, with its recent proliferation of communication, power appears more diffuse and impossible to plot into causal one-way relationships.

EU free movement law and the legal recognition of same-sex relationships: the case for mutual recognition

This article seeks to examine the cross-border legal recognition of same-sex relationships in the EU. Although the Member States maintain an exclusive competence in the field of family law and, thus, it is up to them to determine whether they will provide a legal status to same-sex couples within their territory, they need to exercise their powers in that field in a way that does not violate EU law. This, it is suggested, requires that Member States mutually recognize the legal status of same-sex couples and do not treat same-sex couples worse than opposite-sex couples, if the basis of the differentiation is, merely, the (homosexual) sexual orientation of the two spouses/partners. Nonetheless, the current legal framework does not make it clear that Member States are under such an obligation. The main argument of the article, therefore, is that the EU must adopt a more hands-on approach towards this issue.

Just another case of treaty interpretation? Reconciling humanitarian law and human rights law in the ICJ

This chapter offers a fresh critique of the approach taken by the International Court of Justice to the relationship between humanitarian law and human rights law. In so doing, it seeks to move beyond the intractable debates that have dominated this area, offering an original account of the relationship that is firmly grounded in general international law concepts of treaty interpretation.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

Insuring cleaner oceans: the economics of oil pollution prevention

The current system of controlling oil spills involves a complex relationship of international, federal and state law, which has not proven to be very effective. The multiple layers of regulation often leave shipowners unsure of the laws facing them. Furthemore, nations have had difficulty enforcing these legal requirements. This thesis deals with the role marine insurance can play within the existing system of legislation to provide a strong preventative influence that is simple and cost-effective to enforce. In principle, insurance has two ways of enforcing higher safety standards and limiting the risk of an accident occurring. The first is through the use of insurance premiums that are based on the level of care taken by the insured. This means that a person engaging in riskier behavior faces a higher insurance premium, because their actions increase the probability of an accident occurring. The second method, available to the insurer, is collectively known as cancellation provisions or underwriting clauses. These are clauses written into an insurance contract that invalidates the agreement when certain conditions are not met by the insured The problem has been that obtaining information about the behavior of an insured party requires monitoring and that incurs a cost to the insurer. The application of these principles proves to be a more complicated matter. The modern marine insurance industry is a complicated system of multiple contracts, through different insurers, that covers the many facets of oil transportation. Their business practices have resulted in policy packages that cross the neat bounds of individual, specific insurance coverage. This paper shows that insurance can improve safety standards in three general areas -crew training, hull and equipment construction and maintenance, and routing schemes and exclusionary zones. With crew, hull and equipment, underwriting clauses can be used to ensure that minimum standards are met by the insured. Premiums can then be structured to reflect the additional care taken by the insured above and beyond these minimum standards. Routing schemes are traffic flow systems applied to congested waterways, such as the entrance to New York harbor. Using natural obstacles or manmade dividers, ships are separated into two lanes of opposing traffic, similar to a road. Exclusionary zones are marine areas designated off limits to tanker traffic either because of a sensitive ecosystem or because local knowledge is required of the region to ensure safe navigation. Underwriting clauses can be used to nullify an insurance contract when a tanker is not in compliance with established exclusionary zones or routing schemes.

Punitive damages in Brazilian law and the boundaries between criminal and civil liabilities

This article demonstrates the existence of civil responsibility with punitive purposes in Brazilian Law, explaining how it was introduced by jurisdictional activity in cases involving moral damages. Next, it points out main problems this situation represents to Brazilian Law from the standpoint of our juridical dogmatics and public policies. Additionally, it proposes the execution of an empirical research for comprehension of the structure and fundamentals of jurisprudence on the punitive character of civil responsibility for moral damages and establishes criteria for use in this research based on theories of punishment. Finally, it positions the problem of punitive function of civil responsibility in the broader ambit of relationships and boundaries between civil and criminal responsibility.

Islamic law and international law: the terms of a relationship

The relationship between Islamic Law and other legal systems (basically western type domestic legal orders and international law) is often thought of in terms of compatibility or incompatibility. Concerning certain subject matters of choice, the compatibility of Islamic (legal) principles with the values embedded in legal systems that are regarded as characteristic of the Modern Age is tested by sets of questions: is democracy possible in Islam? Does Islam recognize human rights and are those rights equivalent to a more universal conception? Does Islam recognize or condone more extreme acts of violence and does it justify violence differently? Etc. Such questions and many more presuppose the existence of an ensemble of rules or principles which, as any other set of rules and principles, purport to regulate social behavior. This ensemble is generically referred to as Islamic Law. However, one set of questions is usually left unanswered: is Islamic Law a legal system? If it is a legal system, what are its specific characteristics? How does it work? Where does it apply? It is this paper`s argument that the relationship between Islamic Law and domestic and international law can only be understood if looked upon as a relationship between distinct legal systems or legal orders.