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Deadline for Submissions
30th November 2014

Comment: Kettel v Bloomfold and the 'ouster principle' in the law of easements
James Fisher

This case note relates to the decision of the Chancery Division of the High Court in Kettel v Bloomfold, a recent decision concerning the test for ouster in the English law of easements. For the past half century the courts have taken different views of the ouster principle, which limits the number of use-rights over another's land that may validly exist as easements. Kettel can be seen as an attempt to accommodate a conflicting collection of authorities. This case note outlines the key authorities preceding the High Court's decision in Kettel, identifying the rules of law for which each stands and explaining the legal tensions that emerge. It then provides an explanation and analysis of Kettel itself. It is submitted that Kettel is most noteworthy for its innovative (indeed surprising) use of factual analysis to circumvent perceived problems in the state of the law. The case therefore highlights the need for authoritative settlement of this tortured legal question by means of a Supreme Court decision.

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Book Review: Samera Esmeir, Juridical Humanity. A Colonial History, (California, Stanford University Press, 2012), paperback, ISBN: 970-0-8047-8125-1, 384 pp, £ 45.54
Giorgia Baldi

Samera Esmeir’s Juridical Humanity provides a compelling analysis of the relationship between law and sovereignty in the Muslim world, a topic which has been treated by many scholars in the last two centuries. At the center of Esmeir’s brilliant book is the creation of ‘humanity’ through the operation of law. Through a rich legal and philosophical analysis Esmeir analyzes the creation of the ‘new man’ by colonial British officials in Egypt through the introduction of the modern, positive, universal western law. In her analysis law produces the human: thus, the human become the subject/end of the modern secular law and it acquires its humanity when inscribed in the law. Law becomes a tool in the hand of the newly secularized state, unlike Shari’a law, which was historically in the hands of Muslim scholars. Consequently, Egypt witnessed a profound legal and political change: the rise of a new concept of sovereignty modelled on the European legal system, and a stop in temporality, which resulted in a profound loss of what preceded it. Juridical Humanity is thus a book about loss: with the triumph of ‘humanity’, the ‘inhumane’ (or ‘pre-human’) seemed disappeared. However, as Esmeir argues, the aim of the colonizer was not to eliminate the ‘unhuman’ violence of the despotic Khedival system, but to organize it by defining the distinction between ‘human’, utilitarian, colonial violence and ‘inhumane’ pre-colonial violence.

In the first part of this review I highlight the gap of sovereignty typical of Muslim majority societies before the colonization period and, through Esmeir’s work, how the stop of temporality operated by the colonizing forces had create a different concept of sovereignty in Egypt. In the second part I conclude by addressing the reader on the link between positive law and the subject and human rights law and ‘juridical humanity’. In fact, the modern human rights law, as well as positive law, presupposes a subject inscribed in a universal and transcendent law which had posed the individual as telos of the law.

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The Right of Political Self-determination and Shifting in the Principle of Non-interference
Yahya Alshammari

International interest in the promotion of political rights, elimination of dictatorships and support of democratic governance is growing. In international law this interest is manifested in international conventions and practices that devote attention to the right of political self-determination. For example, in 1994 the United Nations Security Council issued Resolution No. 940 calling for support of the Haitian people’s right of political self-determination. The world recently witnessed the movement known as the Arab Spring, and many countries and regional organizations have supported efforts to end slavery and construct good governance tools across the globe. The right of political self-determination has become an integral part of global legal discourse because it is consistent with the ideology of modern international law which gives primacy to individuals. There is no doubt that this right needs international support because dictatorial governments do not recognise this right and expose their people to suppression and international crimes.

However, international support of this rightc an conflict with one of the most important legal principles, that of non-interference. The last period of many strikes began to undermine the principle of non-interference, and this legal clash brought the world’s attention to human rights, including the right to political self-determination. In this paper I study and analyse evidence of the right to political self-determination in international law and interventions that promote it within the legal framework. Then I attempt to encourage the transformation of the sovereignty and the principle of non-interference from an absolute to a relative concept, which would permit violating this principle in order to respect other rights granted by international law, in particular the right to political self-determination.

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Capital Punishment: An Institution Vanishing Through the Evolution of the Eighth Amendment
Charlie Eastaugh

Generations of authors have written reams of literature on capital punishment's flaws and its moral reprehensibility. This article avoids that track, instead reviewing the evolution of the Eighth Amendment's restriction on capital punishment, through a reduction in the constitutional modes of capital punishment, the range of crimes punishable by death and those classes of prisoners to which the ultimate sentence is permissible. The article then makes the argument that the Supreme Court has narrowed the death penalty to such an extent that it is a vanishing institution, for better or worse, providing two potential explanations for the Court’s evolution in this direction.

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‘Freedom and bread: On the justiciability of economic and social rights
Luke Butterly

Despite many domestic and regional jurisdictions ruling in favour of the justiciability of economic and social rights (ESR), many states and some commentators continue to put forward arguments denying the suitability of ESR for judicial enforcement. This essay will explain the importance of ESR, both alone and in unison with other human rights. It will then set out the main arguments against ESR justiciability – the nature of ESR, their alleged anti-democratic implications, and courts’ capacity in enforcing ESR – before highlighting the weaknesses in these arguments. Finally, the paper will consider how far ESR can advance socio-economic justice.

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A Critical Evaluation of the Law of Copyright Authorship in Relation to Derivative Musical Works
Shane O’Connor

Copyright law has shortcomings in the area of authorship of derivative music that are exacerbated by the extent of judicial discretion involved in analysing a piece of music at issue in a case. In addition to the vagueness that exists in the scope of copyright, the judiciary undertakes the inherently intangible task of analysing the properties of music. Judgments have been based on assumptions that an author is a lone figure who creates works that are clearly distinct from other works. This has meant that performers have not historically been recognised as contributing to compositions. Also, elements of music that cannot be represented by notation have been undervalued. The proliferation of derivative music is part of the changes in creativity and culture in recent times. Copying and collaboration can be positive cultural forces and are the reality of creativity, but the law has been slow to recognise this. The free discretion of the judiciary to analyse music has facilitated attempts to accommodate authorship of non-classical music. The rights of performers have increased and music is defined as existing beyond the score. This has gone some way to allay criticisms of elitism and academicism. However, reconfiguring legal principles in accordance with developments in music have merely served to create greater uncertainty and there has been recent criticism regarding the conflation of issues and a lack of clarity around copyright’s role in property and commodification when it comes to art. Through an analysis of case law, I have examined the impact of the approach of the judiciary on copyright law. This article argues that music analysis is inherently subjective and judges presiding over authorship cases require a framework in order to set out a workable law.

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Dr. Cedric Gilson & Pravin Jeyaraj





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Professor Bill Bowring & Sen Dervish





Where is the Law in War? An analysis of Omar Khadr's case
Dennis Edney QC




VIDEOS

Westminster Law Review National Debate Competition



Automatic security negative pledges – are they effective in protecting creditors?
Peter Madden

The automatic security negative pledge is a commonly used mechanism in financing arrangements whereby the creditor is granted security over the assets of the debtor in the event that the debtor breaches the terms of the negative pledges found within the loan agreement. In this way, the automatic security negative pledge bridges the gap between the unsecured and secured creditor by offering greater flexibility than an outright security and greater protection than a purely contractual negative pledge. However, due to the flexibility required in equity and statutory law to accommodate such an ambitious security arrangement, sceptics have questioned the capacity of the automatic security negative pledge to produce a valid security interest, much less a security interest that provides the same level of protection as outright security. This article will argue that the legal mechanics required by an automatic security negative pledge are perfectly acceptable and accommodated in equity and that the legal and practical issues highlighted by sceptics can be managed through careful drafting and monitoring of the debtor. Overall, this article will elucidate why an automatic security negative pledge is a flexible and effective protection for creditors in financing arrangements.

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The Tribunal System in India- Increasing in Importance but Increasing in Effectiveness?
Sarayu Satish

Presently, the tribunals occupy an important part in the sphere of adjudication of disputes. The tribunals have original jurisdiction over many matters. As there are aspects which are different in the functioning of a tribunal from the courts, because it is a quasi-judicial body, there arises certain problems as well. This paper proceeds to analyze the position of law with regard to the tribunal system in India, look at its issues and challenges and offer recommendations for the same.

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