World Trade Organisation is one of the main international organisation dealing with rules regulating trade between nations. The main goal of the WTO is to regulate, negotiate business among the exporters and importers with the goods and services. This organisation gives a forum in case of dispute for the governments to step up and provide their agreements to get in consensus with their problems. World Trade Organisation is basically not a separate organisation with its own nomination, it is an organisation run by member government parts of WTO system. WTO played a very important role in boosting economic prosperity and mend relationships among the governments by providing Multi-Lateral agreements, its roots are there to be found from the silk road creation to the set-up of GATT. Even the DSP playing an important role in the development of economic relations, it has backlash on its own, the dispute settlement mechanism within the WTO system has been facing many problems regarding the decision of the forum, their competency, their qualification, the biasness within the forum to support the favouring states. The 2017 annual report by DSB Chair, Ambassador Sunanta the reports stated that there was complication with the complex dispute resolution such as the plain packaging case, too many cases reported undecided, the resource occupation suggested a problem, for example, Airbus and Boeing proceedings. The 2019 report showed that there was decrease in overall economic activity in the global trade. The project analyzes the issues with the dispute settlement mechanism in the WTO and the ways and suggestions to overcome the situations.
{"title":"WTO-Analysis of Issues with the Dispute Settlement Mechanism","authors":"D. S. Madhumitha","doi":"10.4236/blr.2020.114052","DOIUrl":"https://doi.org/10.4236/blr.2020.114052","url":null,"abstract":"World Trade Organisation is one of the main international organisation dealing with rules regulating trade between nations. The main goal of the WTO is to regulate, negotiate business among the exporters and importers with the goods and services. This organisation gives a forum in case of dispute for the governments to step up and provide their agreements to get in consensus with their problems. World Trade Organisation is basically not a separate organisation with its own nomination, it is an organisation run by member government parts of WTO system. WTO played a very important role in boosting economic prosperity and mend relationships among the governments by providing Multi-Lateral agreements, its roots are there to be found from the silk road creation to the set-up of GATT. Even the DSP playing an important role in the development of economic relations, it has backlash on its own, the dispute settlement mechanism within the WTO system has been facing many problems regarding the decision of the forum, their competency, their qualification, the biasness within the forum to support the favouring states. The 2017 annual report by DSB Chair, Ambassador Sunanta the reports stated that there was complication with the complex dispute resolution such as the plain packaging case, too many cases reported undecided, the resource occupation suggested a problem, for example, Airbus and Boeing proceedings. The 2019 report showed that there was decrease in overall economic activity in the global trade. The project analyzes the issues with the dispute settlement mechanism in the WTO and the ways and suggestions to overcome the situations.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129492774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Why, in the course of the 19th century, did legal scholars come to treat State territory as State property? This essay recounts a history of “title” to territory, as sovereignty became territorial and the State became an owner of territory. The comparison of international law and private law encouraged the treatment of territory as property, and was substantiated through prize law, colonial acquisitions of imperialism, and the analogy between the State and individual, with international leases and eminent domain modeled after property transactions. Recent affirmations of aboriginal title, however, raise the possibility of realignment among sovereignty, territory, and title.
{"title":"State Title to Territory—The Historical Conjunction of Sovereignty and Property","authors":"D. Howland","doi":"10.4236/blr.2020.114051","DOIUrl":"https://doi.org/10.4236/blr.2020.114051","url":null,"abstract":"Why, in the course of the 19th century, did legal scholars come to treat State territory as State property? This essay recounts a history of “title” to territory, as sovereignty became territorial and the State became an owner of territory. The comparison of international law and private law encouraged the treatment of territory as property, and was substantiated through prize law, colonial acquisitions of imperialism, and the analogy between the State and individual, with international leases and eminent domain modeled after property transactions. Recent affirmations of aboriginal title, however, raise the possibility of realignment among sovereignty, territory, and title.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124231230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Free Formality Principle, as a fundamental principle of Berne Convention, since its introduction has been a commodity for the protection of the works of the Union, and same time a strong obstacle for other countries to join the Convention, because of their strict and mandatory registration system. In consideration of changes, digitalization, and all different possibilities of creating, sharing and infringing works, this paper aims to highlight the need of registration of the works. By comparing and analyzing the domestic laws of two countries: Albania and U.S., both part of Berne Convention, the paper will precisely point out the differences not only in their ways of requiring registration of the works, but also in the specific effects they create. The paper will put forth some of the benefits of copyright registration and will try to explain that encouraging registration is actually not a burden, but an opportunity to provide a “healthy situation” with mutual benefits, both for copyright holders and public interest. The paper suggests introducing incentives to the registration system, which can preserve FFP, but also can make copyright holders feel interested to register their works.
{"title":"Is There an Actual Need of Registration? Reflections on Free Formality Principle","authors":"E. Ikonomi","doi":"10.4236/blr.2020.114053","DOIUrl":"https://doi.org/10.4236/blr.2020.114053","url":null,"abstract":"Free Formality Principle, as a fundamental principle of Berne Convention, since its introduction has been a commodity for the protection of the works of the Union, and same time a strong obstacle for other countries to join the Convention, because of their strict and mandatory registration system. In consideration of changes, digitalization, and all different possibilities of creating, sharing and infringing works, this paper aims to highlight the need of registration of the works. By comparing and analyzing the domestic laws of two countries: Albania and U.S., both part of Berne Convention, the paper will precisely point out the differences not only in their ways of requiring registration of the works, but also in the specific effects they create. The paper will put forth some of the benefits of copyright registration and will try to explain that encouraging registration is actually not a burden, but an opportunity to provide a “healthy situation” with mutual benefits, both for copyright holders and public interest. The paper suggests introducing incentives to the registration system, which can preserve FFP, but also can make copyright holders feel interested to register their works.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125816368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Power expansion and judicial discourse in everyday life is now a global reality. The main objective of this article is to conduct a review of the judicialization of politics literature, presenting the state of the discipline. The methodology used includes a literature review of the main authors on the subject, with a compilation of key terms that correspond to this phenomenon. There are a range of invalid compilations on the topic and a lack of classical works publications, which merely reiterates why this article is highly relevant.
{"title":"State of the Art Research in the Judicialization of Politics","authors":"Ary Jorge Aguiar Nogueira","doi":"10.4236/blr.2020.113041","DOIUrl":"https://doi.org/10.4236/blr.2020.113041","url":null,"abstract":"Power expansion and judicial discourse in everyday life is now a global reality. The main objective of this article is to conduct a review of the judicialization of politics literature, presenting the state of the discipline. The methodology used includes a literature review of the main authors on the subject, with a compilation of key terms that correspond to this phenomenon. There are a range of invalid compilations on the topic and a lack of classical works publications, which merely reiterates why this article is highly relevant.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130299946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the centre of Regina v Dudley & Stephens, “Dudley & Stephens” is the defence of necessity and its place in a criminal law built on volitional conduct. At Roman law the defence arose first from the facts but was then contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law. From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute. The English Court in Dudley & Stephens was right to have seen this anomaly as being in need of correction but instead of correcting this in a practical manner, and manipulated the case so that a pronouncement of Victorian morality could be made. This was a prime example of Arnold’s observation that: “in the public trial we find the government speaking ex cathedra”1.
在里贾纳诉达德利和斯蒂芬斯案中，“达德利和斯蒂芬斯案”的核心是为必要性辩护及其在建立在意志行为基础上的刑法中的地位。在罗马法中，辩护首先是由事实引起的，但随后取决于抽签。圣托马斯·阿奎那(St Thomas Aquinas)不喜欢这第二个特点，他在将必要性辩护写进教会法时删除了这一点。这种辩护从教会法转入普通法，同样毫无区别，但就亲属的辩护而言，这是反常的，因为它是绝对的。英国法院在达德利和斯蒂芬斯案中看到这种反常现象需要纠正，这是正确的，但他们没有以实际的方式纠正这一点，而是操纵了这个案件，以便发表维多利亚时代的道德宣言。这是阿诺德观察到的一个主要例子:“在公开审判中，我们发现政府在场外讲话。”
{"title":"Regina v Dudley & Stephens Anatomy of a Show Trial","authors":"G. Minchin","doi":"10.4236/blr.2020.113048","DOIUrl":"https://doi.org/10.4236/blr.2020.113048","url":null,"abstract":"At the centre of Regina v Dudley & Stephens, “Dudley & Stephens” is the defence of necessity and its place in a criminal law built on volitional conduct. At Roman law the defence arose first from the facts but was then contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law. From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute. The English Court in Dudley & Stephens was right to have seen this anomaly as being in need of correction but instead of correcting this in a practical manner, and manipulated the case so that a pronouncement of Victorian morality could be made. This was a prime example of Arnold’s observation that: “in the public trial we find the government speaking ex cathedra”1.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"311 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132161358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under the stimulation of artificial intelligence, legal logic has a tendency of intelligent expansion. The tendency is mainly manifested in three aspects; the first is the automation of the matching of legal norms; the second is the calculus of facts to be proved; and the third is the modeling of legal decisions. In the process of intelligent expansion of legal logic, the challenges it faces are as follows: the challenge of creativity in legal norms, the challenge of complexity of facts to be proved, and the challenge of balance of legal value. In the face of these challenges, the intelligent expansion of legal logic should adhere to the direction of scientific development. Legal logic must adhere to the practice of judicial decision, pay attention to non-monotonic logic and reasonable reasoning, and deepen and expand the cause-and-effect relationship.
{"title":"Intelligent Extension of Legal Logic: Challenge and Direction","authors":"Zhi Zhang","doi":"10.4236/blr.2020.113046","DOIUrl":"https://doi.org/10.4236/blr.2020.113046","url":null,"abstract":"Under the stimulation of artificial intelligence, legal logic has a tendency of intelligent expansion. The tendency is mainly manifested in three aspects; the first is the automation of the matching of legal norms; the second is the calculus of facts to be proved; and the third is the modeling of legal decisions. In the process of intelligent expansion of legal logic, the challenges it faces are as follows: the challenge of creativity in legal norms, the challenge of complexity of facts to be proved, and the challenge of balance of legal value. In the face of these challenges, the intelligent expansion of legal logic should adhere to the direction of scientific development. Legal logic must adhere to the practice of judicial decision, pay attention to non-monotonic logic and reasonable reasoning, and deepen and expand the cause-and-effect relationship.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129266715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The justice reform in Albania has been one of the country’s major steps to tackle corruption in all levels, to strengthen the integrity of the public administration, to support the independence and/or functional autonomy of law enforcing and independent institutions, to promote a more effective and efficient institutional cooperation and coordination, to promote public trust in juridical system and to accelerate the process of integration in the European Union. This study, through a qualitative methodology, aims at analyzing the main steps conducted by Albanian governments in initiating and adapting the justice reform, the role of EU in this process, the current progress achieved till the EU accession negotiations as well as further recommendations in the road towards EU membership. In the case of Albania, the acceleration of reforms in the judicial system among other reforms was a strong reason that the European Commission opened the accession negotiations with Albania in 25 March 2020. Based on this fact, the study enriches the juridical research in Albania and beyond.
{"title":"The Reform of Justice in Albania","authors":"A. Balliu","doi":"10.4236/blr.2020.113043","DOIUrl":"https://doi.org/10.4236/blr.2020.113043","url":null,"abstract":"The justice reform in Albania has been one of the country’s major steps to tackle corruption in all levels, to strengthen the integrity of the public administration, to support the independence and/or functional autonomy of law enforcing and independent institutions, to promote a more effective and efficient institutional cooperation and coordination, to promote public trust in juridical system and to accelerate the process of integration in the European Union. This study, through a qualitative methodology, aims at analyzing the main steps conducted by Albanian governments in initiating and adapting the justice reform, the role of EU in this process, the current progress achieved till the EU accession negotiations as well as further recommendations in the road towards EU membership. In the case of Albania, the acceleration of reforms in the judicial system among other reforms was a strong reason that the European Commission opened the accession negotiations with Albania in 25 March 2020. Based on this fact, the study enriches the juridical research in Albania and beyond.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"2020 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126961545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article aims to analyze the thesis that the application of the doctrine of precedent, originated in England, could reduce judicial litigation in Brazil, mainly in tax law procedures, such as tax enforcement. Brazil Law applies Civil Law, which means that the law is based on the principle of legality. However, the Brazilian Judiciary System is costly and has lower effectiveness. To deal with these problems, the National Congress has changed the law, providing mechanisms from the Common Law, mainly by introducing the binding precedents system. Respect for precedent is a requirement of the Brazilian Civil Procedure Code of 2015. However, the theory of precedent was developed in a society culturally very different from the Brazilian, which leads to the need for comparisons such as the exposed here that will justify the differences facing the source procedure that will undoubtedly occur. However, there are doubts if the transformation of the legal system will reduce the impressive figures of judicial cases. Nevertheless, the conclusion is definite. The precedent theory involves techniques that can potentially reduce tax lawsuits, representing a significant number of all legal disputes in Brazil. This conclusion was reached through data analysis, some doctrinal sources, and, mainly, by the author’s reflections. This mix of scientific method verifies the hypothesis: describes and analyses the system and presents a definite conclusion.
{"title":"The Application of Judicial Precedents as a Way to Reduce Brazilians Tax Lawsuits","authors":"Renato Lopes Becho","doi":"10.4236/blr.2020.113044","DOIUrl":"https://doi.org/10.4236/blr.2020.113044","url":null,"abstract":"This article aims to analyze the thesis that the \u0000application of the doctrine of precedent, originated in England, could reduce \u0000judicial litigation in Brazil, mainly in tax law procedures, such as tax \u0000enforcement. Brazil Law applies Civil Law, which means that the law is based on \u0000the principle of legality. However, the Brazilian Judiciary System is costly and has lower effectiveness. To deal with these problems, the National \u0000Congress has changed the law, providing mechanisms from the Common Law, mainly \u0000by introducing the binding precedents system. Respect for precedent is a \u0000requirement of the Brazilian Civil Procedure Code of 2015. However, the theory \u0000of precedent was developed in a society culturally very different from the \u0000Brazilian, which leads to the need for comparisons such as the exposed here \u0000that will justify the differences facing the source procedure that will \u0000undoubtedly occur. However, there are doubts if the transformation of the legal \u0000system will reduce the impressive figures of judicial cases. Nevertheless, the \u0000conclusion is definite. The precedent theory \u0000involves techniques that can potentially reduce tax lawsuits, representing a \u0000significant number of all legal disputes in Brazil. This conclusion was reached \u0000through data analysis, some doctrinal sources, and, mainly, by the author’s \u0000reflections. This mix of scientific method verifies the hypothesis: describes \u0000and analyses the system and presents a definite conclusion.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"137 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125039244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This research sought to explore the legal framework governing investment areas and incentives under the investment law of Ethiopia. In particular, the main emphasis of the research is to investigate whether the legal framework governing investment areas and incentives could be used for the promotion of investment and overall economic growth. The research employed doctrinal legal research approach and the investment law of the country were discussed in detail. The study found that the government publicized desire to facilitate the expansion of investment and stimulate the growth of the economy by opening up the investment areas for the private sector and providing incentives for potential investors, particularly to attract foreign investment. The researchers suggested that, if open admission is not allowed, residual reservation should be allowed and the government should not be included under the definition of domestic investors. So, the discrepancy against investment areas reserved for domestic investors should be avoided.
{"title":"The Legal Framework Governing Investment Areas and Incentives in Ethiopia: A Critical Appraisal","authors":"Bogale Anja Abba, Yared Kefyalew Demarso","doi":"10.4236/blr.2020.113045","DOIUrl":"https://doi.org/10.4236/blr.2020.113045","url":null,"abstract":"This research sought to explore the legal framework governing investment areas and incentives under the investment law of Ethiopia. In particular, the main emphasis of the research is to investigate whether the legal framework governing investment areas and incentives could be used for the promotion of investment and overall economic growth. The research employed doctrinal legal research approach and the investment law of the country were discussed in detail. The study found that the government publicized desire to facilitate the expansion of investment and stimulate the growth of the economy by opening up the investment areas for the private sector and providing incentives for potential investors, particularly to attract foreign investment. The researchers suggested that, if open admission is not allowed, residual reservation should be allowed and the government should not be included under the definition of domestic investors. So, the discrepancy against investment areas reserved for domestic investors should be avoided.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"427 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115955681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The nexus between the indigenous African and the land on which they live cannot be gainsaid. So important is this relationship that land is a sine qua non for the survival of the indigenous African and indigenous African cultures. However, despite this undisputed link, the indigenous African as well as other colonized peoples, lost ownership of their lands due mainly to the adverse effects of subjugation. The direct upshot of this is that even where the former colonial masters and their successor states have become sympathetic to the indigenous populations and decide to retrocede some of their land, they often encounter obstacles both in law and in modern history that are not easy to avoid. This was also the case in some countries where indigenous peoples lost their lands to settlers who took over command and decided on their destiny, such as the indigenous peoples in Australia. It was in an attempt to put this issue to rest that the High Court of Australia in the locus classicus MABO No. 2 attempted to define the circumstances under which land can revert to the indigenous populations as a matter of human rights. This article examines some of the “hooks” that the apparently generous MABO No. 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa. The paper attempts to answer the question as to what extent the decision of the High Court of Australia in MABO No. 2 can be used to resolve indigenous land claims in Africa. Through an analytical approach, the paper investigates the challenges inherent in attempting to use the decision as a South-South mutual inspiration due to the contextual, historical and evolutionary differences between the Australian and African situations. The paper finds out that the decision in MABO No. 2 carries in it the very germ of its inapplicability in the African context and makes suggestions on how to read the MABO decision in the context of the present-day dispensation of indigenous African land law.
{"title":"Reversing History?: The Challenges of Using “MABO No. 2” as an Avatar for Resolving Indigenous Land Claims in Africa","authors":"Ernest Duga Titanji","doi":"10.4236/blr.2020.113042","DOIUrl":"https://doi.org/10.4236/blr.2020.113042","url":null,"abstract":"The nexus between the indigenous African and the land on which they live cannot be gainsaid. So important is this relationship that land is a sine qua non for the survival of the indigenous African and indigenous African cultures. However, despite this undisputed link, the indigenous African as well as other colonized peoples, lost ownership of their lands due mainly to the adverse effects of subjugation. The direct upshot of this is that even where the former colonial masters and their successor states have become sympathetic to the indigenous populations and decide to retrocede some of their land, they often encounter obstacles both in law and in modern history that are not easy to avoid. This was also the case in some countries where indigenous peoples lost their lands to settlers who took over command and decided on their destiny, such as the indigenous peoples in Australia. It was in an attempt to put this issue to rest that the High Court of Australia in the locus classicus MABO No. 2 attempted to define the circumstances under which land can revert to the indigenous populations as a matter of human rights. This article examines some of the “hooks” that the apparently generous MABO No. 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa. The paper attempts to answer the question as to what extent the decision of the High Court of Australia in MABO No. 2 can be used to resolve indigenous land claims in Africa. Through an analytical approach, the paper investigates the challenges inherent in attempting to use the decision as a South-South mutual inspiration due to the contextual, historical and evolutionary differences between the Australian and African situations. The paper finds out that the decision in MABO No. 2 carries in it the very germ of its inapplicability in the African context and makes suggestions on how to read the MABO decision in the context of the present-day dispensation of indigenous African land law.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"322 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133896419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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