Pub Date : 2018-09-25DOI: 10.18261/ISSN.2387-3299-2018-02-03
S. R. Johansen
{"title":"So Man Created Robot in His Own Image: The Anthropomorphism of Autonomous Weapon Systems and the Law of Armed Conflict","authors":"S. R. Johansen","doi":"10.18261/ISSN.2387-3299-2018-02-03","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2018-02-03","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43224469","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}
Pub Date : 2018-05-09DOI: 10.18261/ISSN.2387-3299-2018-01-03
Sevda Clark
This paper offers a deconstruction of the framing of childhood and child rights as ‘disability’, arguing for a strengthening of the legal personhood of children, based on the revolution of personhood and the re-making of the human condition in the disability rights movement. As the general debate on children’s legal capacity and standing tends to take place from within the traditional liberal and existing legal paradigms of children’s rights – which emphasise the legal disability of children and their lack of agency – it occurs in isolation from the broader theoretical debates on personhood and capacity. In re-imagining disability, new insights can be gained by reflecting on the scholarship from other perspectives, such as disability theory.
{"title":"The (Dis)Ability of Child Rights","authors":"Sevda Clark","doi":"10.18261/ISSN.2387-3299-2018-01-03","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2018-01-03","url":null,"abstract":"This paper offers a deconstruction of the framing of childhood and child rights as ‘disability’, arguing for a strengthening of the legal personhood of children, based on the revolution of personhood and the re-making of the human condition in the disability rights movement. As the general debate on children’s legal capacity and standing tends to take place from within the traditional liberal and existing legal paradigms of children’s rights – which emphasise the legal disability of children and their lack of agency – it occurs in isolation from the broader theoretical debates on personhood and capacity. In re-imagining disability, new insights can be gained by reflecting on the scholarship from other perspectives, such as disability theory.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"5 1","pages":"42-66"},"PeriodicalIF":0.0,"publicationDate":"2018-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42126013","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}
Pub Date : 2018-05-09DOI: 10.18261/issn.2387-3299-2018-01-01
Alla Pozdnakova
The Brussels I Regulation is crucial for the effectiveness of EU competition law in the field of private enforcement because it provides a legal framework for the recognition and enforcement of judgments in civil and commercial matters, which includes antitrust damages cases. However, the interaction between the rules governing private enforcement of EU competition law and the Regulation is unclear. This article discusses one of the issues arising from this interaction, namely, whether the public policy objection envisaged in the Regulation may be invoked to refuse recognition and enforcement of an antitrust damages award. The argument advanced in this article is that the public policy exception can be invoked successfully in the case of a serious violation of the procedural rights of the defendant. By contrast, the public policy exception is generally not applicable if enforcement of a foreign award may lead to infringement of substantive national provisions, even those of fundamental importance for the Member State in which enforcement is sought. This would go against the rights and principles of EU competition law, such as the principle of effectiveness and the right to full compensation for antitrust-related damages.
{"title":"Public policy as a ground for refusal to enforce EU antitrust damages awards","authors":"Alla Pozdnakova","doi":"10.18261/issn.2387-3299-2018-01-01","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2018-01-01","url":null,"abstract":"The Brussels I Regulation is crucial for the effectiveness of EU competition law in the field of private enforcement because it provides a legal framework for the recognition and enforcement of judgments in civil and commercial matters, which includes antitrust damages cases. However, the interaction between the rules governing private enforcement of EU competition law and the Regulation is unclear. This article discusses one of the issues arising from this interaction, namely, whether the public policy objection envisaged in the Regulation may be invoked to refuse recognition and enforcement of an antitrust damages award. The argument advanced in this article is that the public policy exception can be invoked successfully in the case of a serious violation of the procedural rights of the defendant. By contrast, the public policy exception is generally not applicable if enforcement of a foreign award may lead to infringement of substantive national provisions, even those of fundamental importance for the Member State in which enforcement is sought. This would go against the rights and principles of EU competition law, such as the principle of effectiveness and the right to full compensation for antitrust-related damages.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"5 1","pages":"4-20"},"PeriodicalIF":0.0,"publicationDate":"2018-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45401886","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}
Pub Date : 2018-01-01DOI: 10.18261/ISSN.2387-3299-2018-01-02
P. Kameri-mbote
Kenya has made significant strides in overhauling its legislation to better deal with gender discrimination. However, the legislative steps taken seemingly understate the environment of legal pluralism that characterises the Kenyan state where, for instance, customary law is still pervasive and operates side by side with formal laws. The traditional approach generally gives premium to formal laws while treating customary law with scepticism or altogether disdain in the hope that all individuals will ultimately transition to formal laws. Yet, this has not necessarily been the case. Customary law continues to survive and thrive. Accordingly, this paper argues for a departure from the jaundiced view that customary law only serves to further gender inequalities. The paper argues for a more balanced approach that recognises that customary law has aspects that could be harnessed to foster gender equality and thus complement formal laws on gender equality. In rooting for an appreciation of the role and place of legal pluralism in promoting gender equality, the paper contends that formal laws in and of themselves are not enough to effectively deal with gender discrimination; the two must operate side by side, not necessarily one below the other, as has been the case.
{"title":"Constitutions As Pathways to Gender Equality in Plural Legal Contexts","authors":"P. Kameri-mbote","doi":"10.18261/ISSN.2387-3299-2018-01-02","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2018-01-02","url":null,"abstract":"Kenya has made significant strides in overhauling its legislation to better deal with gender discrimination. However, the legislative steps taken seemingly understate the environment of legal pluralism that characterises the Kenyan state where, for instance, customary law is still pervasive and operates side by side with formal laws. The traditional approach generally gives premium to formal laws while treating customary law with scepticism or altogether disdain in the hope that all individuals will ultimately transition to formal laws. Yet, this has not necessarily been the case. Customary law continues to survive and thrive. Accordingly, this paper argues for a departure from the jaundiced view that customary law only serves to further gender inequalities. The paper argues for a more balanced approach that recognises that customary law has aspects that could be harnessed to foster gender equality and thus complement formal laws on gender equality. In rooting for an appreciation of the role and place of legal pluralism in promoting gender equality, the paper contends that formal laws in and of themselves are not enough to effectively deal with gender discrimination; the two must operate side by side, not necessarily one below the other, as has been the case.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"5 1","pages":"21-41"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67720683","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}
Pub Date : 2017-12-15DOI: 10.18261/ISSN.2387-3299-2017-03-03
O. M. Arnardóttir
{"title":"Vulnerability under Article 14 of the European Convention on Human Rights","authors":"O. M. Arnardóttir","doi":"10.18261/ISSN.2387-3299-2017-03-03","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-03-03","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":"150-171"},"PeriodicalIF":0.0,"publicationDate":"2017-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45000814","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}
Pub Date : 2017-12-15DOI: 10.18261/ISSN.2387-3299-2017-03-04
Henriette Jakobien Liesker
When the European Convention on Human Rights was drawn up in 1948, the issues of sexual orientation and gender identity were not considered by its drafters. At that time, the discussion of the rights of LGBT people (Lesbian, Gay, Bisexuals and Transsexuals), which has at present become very vivid, was virtually non-existent. As a consequence, the legal protection provided to heterosexual and cisgender people in the areas covered by the right to respect for private and family life (Article 8), the right to marry and found a family (Article 12), and the prohibition of discrimination (Article 14) was inaccessible to the non-heterosexual and non-cisgender community. The current article elucidates on the topic of the gradual opening up of the European Court of Human Rights in applying the Convention to sexual minorities, and argues that the Court has made significant progress in defending the rights of LGBT ever since its installation in 1959. The article describes the Court’s ultimate balancing act, in which it oscillates between progressiveness and reticence, never fulfilling the role of protagonist but still aiming at providing a most fundamental principle of human rights law: equality.
{"title":"Caught in a Balancing Act : The European Court of Human Rights and the Road to Recognition for Sexual Minorities","authors":"Henriette Jakobien Liesker","doi":"10.18261/ISSN.2387-3299-2017-03-04","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-03-04","url":null,"abstract":"When the European Convention on Human Rights was drawn up in 1948, the issues of sexual orientation and gender identity were not considered by its drafters. At that time, the discussion of the rights of LGBT people (Lesbian, Gay, Bisexuals and Transsexuals), which has at present become very vivid, was virtually non-existent. As a consequence, the legal protection provided to heterosexual and cisgender people in the areas covered by the right to respect for private and family life (Article 8), the right to marry and found a family (Article 12), and the prohibition of discrimination (Article 14) was inaccessible to the non-heterosexual and non-cisgender community. The current article elucidates on the topic of the gradual opening up of the European Court of Human Rights in applying the Convention to sexual minorities, and argues that the Court has made significant progress in defending the rights of LGBT ever since its installation in 1959. The article describes the Court’s ultimate balancing act, in which it oscillates between progressiveness and reticence, never fulfilling the role of protagonist but still aiming at providing a most fundamental principle of human rights law: equality.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"172-194"},"PeriodicalIF":0.0,"publicationDate":"2017-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42184906","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}
Pub Date : 2017-12-15DOI: 10.18261/ISSN.2387-3299-2017-03-01
V. Strand, Ingunn Ikdahl
{"title":"Responding to Disadvantage and Inequality through Law","authors":"V. Strand, Ingunn Ikdahl","doi":"10.18261/ISSN.2387-3299-2017-03-01","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-03-01","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"124-132"},"PeriodicalIF":0.0,"publicationDate":"2017-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47199492","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}
Pub Date : 2017-12-13DOI: 10.18261/ISSN.2387-3299-2017-03-02
M. Fineman
The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence, and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in the context of struggling with the limitations of equality in situations I will refer to as examples of ‘inescapable’ inequality. Some paired social relationships, such as parent/child or employer/employee are inherently, even desirably, unequal relationships. In recognition of that fact, the law creates different levels of responsibility, accepting disparate levels of authority, privilege, and power. Those laws, and the norms and rules they reflect, must carefully define the limits of those relationships, while also being attentive to how the social institutions in which they exist and operate (i.e. the family and the marketplace) are structured and functioning.
{"title":"Vulnerability and Inevitable Inequality","authors":"M. Fineman","doi":"10.18261/ISSN.2387-3299-2017-03-02","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-03-02","url":null,"abstract":"The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence, and self-sufficiency. \u0000This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in the context of struggling with the limitations of equality in situations I will refer to as examples of ‘inescapable’ inequality. Some paired social relationships, such as parent/child or employer/employee are inherently, even desirably, unequal relationships. In recognition of that fact, the law creates different levels of responsibility, accepting disparate levels of authority, privilege, and power. Those laws, and the norms and rules they reflect, must carefully define the limits of those relationships, while also being attentive to how the social institutions in which they exist and operate (i.e. the family and the marketplace) are structured and functioning.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"133-149"},"PeriodicalIF":0.0,"publicationDate":"2017-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43458433","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}
Pub Date : 2017-08-25DOI: 10.18261/ISSN.2387-3299-2017-02-02
Charlotta Holmström, May-Len Skilbrei
In this article, we present and discuss the intended and unintended effects of the Swedish Sex Purchase Act, which criminalises the purchase of sex within a context where the sale of sex is legal. ...
{"title":"The Swedish Sex Purchase Act : Where Does it Stand?","authors":"Charlotta Holmström, May-Len Skilbrei","doi":"10.18261/ISSN.2387-3299-2017-02-02","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-02-02","url":null,"abstract":"In this article, we present and discuss the intended and unintended effects of the Swedish Sex Purchase Act, which criminalises the purchase of sex within a context where the sale of sex is legal. ...","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"82-104"},"PeriodicalIF":0.0,"publicationDate":"2017-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43963843","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}
Pub Date : 2017-06-20DOI: 10.18261/ISSN.2387-3299-2017-02-03
L. Bygrave
In this paper, a critical examination is conducted of Article 25 of the European Union’s General Data Protection Regulation (Regulation 2016/679). Bearing the title ‘data protection by design and by default’, Article 25 requires that core data protection principles be integrated into the design and development of systems for processing personal data. The paper outlines the rationale and legal heritage of Article 25, and shows how its provisions proffer considerably stronger support for data protection by design and by default than is the case under the 1995 Data Protection Directive (Directive 95/46/EC). The paper further shows that this strengthening of support is in keeping with jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. Nonetheless, it is herein argued that Article 25 suffers from multiple flaws, in particular a lack of clarity over the parameters and methodologies for achieving its goals, a failure to communicate clearly and directly with those engaged in the engineering of information systems, and a failure to provide the necessary incentives to spur the ‘hardwiring’ of privacy-related interests. Taken together, these flaws will likely hinder the traction of Article 25 requirements on information systems development.
{"title":"Data Protection by Design and by Default: Deciphering the EU's Legislative Requirements","authors":"L. Bygrave","doi":"10.18261/ISSN.2387-3299-2017-02-03","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-02-03","url":null,"abstract":"In this paper, a critical examination is conducted of Article 25 of the European Union’s General Data Protection Regulation (Regulation 2016/679). Bearing the title ‘data protection by design and by default’, Article 25 requires that core data protection principles be integrated into the design and development of systems for processing personal data. The paper outlines the rationale and legal heritage of Article 25, and shows how its provisions proffer considerably stronger support for data protection by design and by default than is the case under the 1995 Data Protection Directive (Directive 95/46/EC). The paper further shows that this strengthening of support is in keeping with jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. Nonetheless, it is herein argued that Article 25 suffers from multiple flaws, in particular a lack of clarity over the parameters and methodologies for achieving its goals, a failure to communicate clearly and directly with those engaged in the engineering of information systems, and a failure to provide the necessary incentives to spur the ‘hardwiring’ of privacy-related interests. Taken together, these flaws will likely hinder the traction of Article 25 requirements on information systems development.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"105-120"},"PeriodicalIF":0.0,"publicationDate":"2017-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45885994","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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