Post-colonial law : legal establishments from past empires are illegitimate

The extant literature covering the plights of indigenous people resident to the African continent consistently targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued to be archaic and in need of review, which it is, this article argues the new perspective that colonial law is illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial legal structures have not considered the legitimacy of colonial law and have rather modified a variety of statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s legitimacy.

Creating an enabling legal framework fro REDD+ investments in Kenya

Reducing Emissions from Deforestation and Forest Degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries (REDD+) has emerged out of the United Nations Framework Convention on Climate Change (UNFCCC)/Kyoto Protocol negotiations. It is intended to be a mechanism to channel funding (from both public and private sources) for reducing emissions from the forest sector. It is an international climate change policy that relies on national implementation. In order to attract and manage REDD+ investments (both public and private), countries need to decide on their approach to REDD+ implementation through a series of policy choices, and then implement those policy choices through strong legal frameworks. An important question for REDD+ host countries to consider, therefore, is how to develop robust legal structures to facilitate REDD+ implementation. These legal frameworks could be based on existing laws, and/or require new law making.

The Legal Construction of Membership: Nationality Law in Germany and the United States. CES Germany & Europe Working Papers No. 00.5, 2000

The argument of this paper is that several empirical puzzles in the citizenship literature are rooted in the failure to distinguish between the mainly legal concept of nationality and the broader, political concept of citizenship. Using this distinction, the paper analysis the evolution of German and American nationality laws over the last 200 years. The historical development of both legal structures shows strong communalities. With the emergence of the modern system of nation states, the attribution of nationality to newborn children is ascribed either via the principle of descent or place of birth. With regard to the naturalization of adults, there is an increasing ethnization of law, which means that the increasing complexities of naturalization criteria are more and more structured along ethnic ideas. Although every nation building process shows some elements of ethnic self-description, it is difficult to use the legal principles of ius sanguinis and ius soli as indicators of ethnic or non-ethnic modes of community building.

Regionalism as trading blocks, a comparative analysis of the legal structure of the EC and NAFTA within the context of the WTO

Geography has almost become obsolete. The world’s goods and services can now be accessed instantaneously by electronic commerce. Small and medium sized countries have felt the cold winds of change blowing, and have adopted the “safety in numbers” philosophy. Regional organisations throughout the world have sprung up, with their original raison d'être the encouragement and development of regional trading blocks. Two of the most developed regional groupings are the EU/EC and NAFTA. These two organisations represent two quite different philosophies of regional trade groupings, with contrasting legal structures. The advent of Trade Globalisation, with the founding of the WTO has brought these two approaches into confrontation, as each side of the Atlantic Ocean tries to influence the development on the naissant WTO. This paper examines the two contrasting legal structures, and the conflict on an inter regional level that they are engendering.

African Indigeneity

The current argument is that there exist no indigenous people in Africa because all Africans are indigenous. The obverse considers those Africans who have not been touched by colonialism and lost their traditional cultures commensurate with attachments to the lands or a distinguishable traditional lifestyle to be indigenous. This paper argues in favor of the latter. For example, modernism, materialism, ex-colonial socio-cultural impacts (as in the remnants of European legal structures, and cultural scarring), globalization, and technology are international social homogenizers. People who live in this telos and do not participate in a distinct traditional culture that has been attached to the land for centuries are not indigenous. It is argued that this cultural divergence between modern and traditional is the major identifying point to settle the indigenous-non indigenous African debate. Finally, the paper looks at inclusive development, how this helps to distinguish African indigeneity, and provides a new political analysis model for quantifying inclusivity.

Unincorporated associations as entities : a matter of balance between regulation and facilitation?

Small non-profit organisations play a vital role in the creation of social capital and resilience of civil society in Australia. A number of government inquiries have recently been commissioned to propose reform to non-profit enterprise and it is timely to examine the suitability of legal structures available for small non-profit organisations. This article reviews the characteristics of small Australian non-profit organisations and the legal treatment of similar associations in New Zealand, the United Kingdom, Europe, Canada and United States to inform possible reform strategies. Reforms are then proposed for small Australian unincorporated organisations which allow them access to the benefits of separate legal entity status, but with regulation proportionate to the risks posed to the broader community.

Murri Courts : Indigenous Magistrate Courts : communicating for better outcomes

In setting the scene for this paper, it is useful to briefly outline the history of the Queensland legal system. Our legal system was largely inherited from Britain, so it is, therefore, based in European-Western cultural and legal traditions. Alongside this, and over many thousands of years, Australian Indigenous communities devised their own socio-cultural-legal structures. As a result, when Indigenous people are drawn into interactions with our English-based law and court system, which is very different from Aboriginal law, they face particular disadvantages. Problems may include structural and linguistic differences, the complex language of the law and court processes, cultural differences, gender issues, problems of age, communication differences, the formalities of the courtroom, communication protocols used by judges, barristers, and court administrators, and particularly, the questioning techniques used by police and lawyers.

Nonprofits

Nonprofit organizations have existed, in one form or another, for thousands of years. In many countries of the world nonprofits employ significant numbers of people, and contribute a significant percentage of GDP. Consequently, nonprofits are an important element of modern economies. Additionally, nonprofits make a significant contribution to society, due to the roles they play in caring for the poor or sick, fostering civil society, providing education and promoting religion...

Cross-Border Insolvency Law

This new work provides a comprehensive and theoretically rich discussion of the law on cross-border insolvency. It engages with several current multi-billion dollar insolvencies such as those of Nortel Networks and Lehman Brothers to provide the reader with state of the art knowledge of the complex problems posed by transnational insolvency. As the number of transnational insolvencies grows due to prevailing economic conditions, practitioners are increasingly required to navigate the mass of legal rules applicable to cross-border insolvency situations. The associated challenges are heightened by the diversity of legal structures employed by modern business entities and a patchwork of costly, inefficient, and unpredictable national legal rules. The response has been a proliferation of international legal instruments such as the UNCITRAL Model Law and the the EU Insolvency Regulation, supplemented by judicial practice, adding further layers of complexity. Writing from an Australian perspective, the authors analyse this network of legal rules and subsequent case law. In addition, they explain the theoretical underpinnings of these rules in an accessible manner to build a solid foundation for practice, facilitate advanced reasoning, and enable the development of sophisticated arguments for law reform. Comparative case law from jurisdictions such as the United States and United Kingdom is also included. This book is highly relevant to insolvency practitioners faced with the recovery of assets located in different jurisdictions, transactional lawyers for whom knowledge of potential insolvency pitfalls is essential, and academics. It is invaluable for students at both undergraduate and postgraduate level seeking a sound understanding of this challenging area of law.

Responding to crisis: When the telephone fails

The world is changing. Advances in telecommunications have meant that the world is shrinking – data can be moved across continents in the time it takes to send an email or access the cloud. Although developments such as these highlight the extent of scientific and technological evolution, in terms of legal liability, questions must be asked as to the capacity of our legal structures to evolve accordingly.

This article looks at how emergency telephone provision and any shift to VoIP systems might fit with existing tort liability and associated duty implications. It does so by analysing the technology through the principles that signpost UK tort law. This article recognises that as an emerging area, the legal liability implications have not yet been discussed in any great detail. The aim of this article therefore is to introduce the area, encourage debate and consider the issues that may become increasingly relevant as these types of technologies become industrial standards.

The sound of a breaking string: critical environmental law and ontological vulnerability

This is a thought-provoking contribution on the space of ontological vulnerability as the awareness of being existentially exposed. This space, conceptualised as a space of ‘the middle’ (as opposed, emphatically, to ‘the centre’) offers an opportunity to think away from the sterile debate on eco/anthropocentricity and from such limiting hierarchies as animal/human, human/environmental, natural/artificial. This new, vulnerable position of the middle allows the reconfiguration of ecological processes, and more specifically the position of environmental law in relation to them. Environmental law now finds itself amidst a new, moving, ‘open ecology’ of social, biological and ecological processes. This is a new, radical conceptualisation of what the author has called ‘critical environmental law,’ based upon an epistemology of observation and an ontology of being part of this open ecology. Environmental law, in this light, is simultaneously reformulated as an invitation to disciplinary and ontological openness and yet a call to remain immanent within existing legal structures. This finds expression in four critical environmental positions that set the stage for the further elaboration of a critical environmental law.

The patentability of human genetic material in China : a comparative analysis

"Mémoire Présenté à la Faculté des Études Supérieures en vue de l'obtention du Grade de Maîtrise En Droit Option Recherche"

As duas faces da Petrobrás: a persistente dinâmica da empresa estatal no arranjo institucional brasileiro

A presente dissertação analisará a persistente dinâmica da Petróleo Brasileiro S.A. – Petrobras – no arranjo institucional brasileiro. O objetivo é identificar se essa permanência foi acompanhada de mudanças na estrutura macro e microjurídica da empresa estatal que promoveram a sua adaptação às alterações da relação Estado e mercado promovidas por reformas institucionais. O trabalho parte do pressuposto de que, na recente evolução histórica brasileira, quatro correlações de forças promoveram reformas jurídicas que alteraram a relação Estado e mercado em quatro diferentes períodos: (i) da Era Vargas ao governo Juscelino Kubitschek; (ii) do golpe militar ao processo de redemocratização; (iii) do governo Fernando Collor ao término do governo Fernando Henrique Cardoso; e (iv) do início do governo Lula até o momento da elaboração deste trabalho. Para desenvolver esse precedente, o primeiro capítulo analisará o modo e a intensidade da intervenção direta do Estado no setor produtivo para identificar as características da relação Estado e mercado nos períodos. Os capítulos subsequentes se deterão à análise da estrutura da Petrobras na esfera microjurídica – organização societária – e macrojurídica – articulação da empresa estatal com outros agentes públicos e privados – em cada um dos quatro períodos delimitados no capítulo anterior. O segundo capítulo descreverá institucionalmente a Petrobras durante seus primeiros dez anos. O terceiro capítulo identificará as mudanças institucionais promovidas na empresa estatal durante o regime militar. O quarto capítulo disporá sobre as alterações jurídicas na Petrobras promovidas pela Reforma do Estado. Por fim, o quinto capítulo tratará das mais recentes mudanças institucionais da empresa estatal decorrente da descoberta da vasta reserva de petróleo denominada pré-sal.

Women are silver, women are diamonds: Conflicting images of women in the Cambodian print

This paper examines 116 articles related to sexual and reproductive health translated into English from the Khmer press from April 1997 to February 2004. These excerpts were found in The Mirror, a publication of the non-governmental organisation Open Forum of Cambodia, which collates Grid reviews all issues of the Khmer press on a weekly basis. Five major themes were identified: the politics of women's health, government regulation and control, the sex industry in Cambodia, rape, and the HIV epidemic. Discourse analysis of these articles in the context of other sources and experience allows a gendered exploration of the reporting of sexual and reproductive health and rights issues in Cambodia by the Khmer print media. The reports explore the contested political empowerment of women in this strongly hierarchical society, and the mechanisms used to regulate and control sexual activity. The expanding sex industry and associated sexual trafficking ore reported, together with the corruption of legal structures designed to regulate health systems and protect women and children from sexual exploitation and rope. The growing problem of AIDS and successes in reducing HIV transmission through the collaboration of sex workers in the 100% condom use policy is documented, and the tensions implicit in G Cultural representation of women that both protects and constrains women ore explored. (C) 2004 Reproductive Health Matters. All rights reserved.

Determinants of resource development strategies in nonprofit organizations: An analysis of children, youth and family services

This study is an exploratory analysis of an operational measure for resource development strategies, and an exploratory analysis of internal organizational contingencies influencing choices of these strategies in charitable nonprofit organizations. The study provides conceptual guidance for advancing understanding about resource development in the nonprofit sector. The statistical findings are, however, inconclusive without further rigorous examination. A three category typology based on organization technology is initially presented to define the strategies. Three dimensions of internal organizational contingencies explored represent organization identity, professional staff, and boards of directors. Based on relevant literature and key informant interviews, an original survey was administered by mail to a national sample of nonprofit organizations. The survey collected data on indicators of the proposed strategy types and selected contingencies. Factor analysis extracted two of the initial categories in the typology. The Building Resource Development Infrastructure Strategy encompasses information technology, personnel, legal structures, and policies facilitating fund development. The Building Resource Development Infrastructure Strategy encompasses the mission, service niche, and type of service delivery forming the basis for seeking financial support. Linear regressions with each strategy type as the dependent variable identified distinct and common contingencies which may partly explain choices of strategies. Discriminant analysis suggests the potential predictive accuracy of the contingencies. Follow-up case studies with survey respondents provide additional criteria for operationalizing future measures of resource development strategies, and support and expand the analysis on contingencies. The typology offers a beginning framework for defining alternative approaches to resource development, and for exploring organization capacity specific to each approach. Contingencies that may be integral components of organization capacity are funding, leadership frame, background and experience, staff and volunteer effort, board member support, and relationships in the external environment. Based on these findings, management questions are offered for nonprofit organization stakeholders to consider in planning for resource development. Lessons learned in designing and conducting this study are also provided to enhance future related research. ^