Foreword for Volume 5 Issue 2
Welcome to Volume 5 Issue 2 of the Westminster Law Review (WLR) and to our two new academic editors, Angelina and Rebab. You can read the Editorial Board’s bios on the About page. We are continuing to need more Academic Editors to review the volumes of articles submitted, so if you are interested please do get in touch.
This issue has been put together against an interesting backdrop of a referendum for the United Kingdom to remain or leave the European Union. On the one side was the argument for national and cultural sovereignty. On the other side, it was argued that it was worth giving up some sovereignty where there are common values enshrined in international law. It is therefore appropriate that, in our lead article, Do Universal Ratifications transform Human Rights into Dead Letters?, Tugba Sarikaya Guler asked the same question about the United Nations system. As with the UK’s EU Referendum, there is no black and white answer.
More recently, the world has been rocked by the findings of the Sir John Chilcot’s inquiry into the UK’s involvement in the Iraq War (2003-2008). Totalling about 2.5 million words, the report was extensive and critical of not only the then Labour government but also the military and the intelligence services. However, one issue that was outside the remit of the inquiry was the allegations of human rights abuses by private military contractors. In National Regulatory Mechanisms to Prosecute Private Military and Security Companies’ Employees for Human Rights Violations, Zafeiris Tsiftzis examines the limitations of national law in the UK, United States, South Africa and Germany and in international law, which has meant that such allegations are rarely prosecuted.
In our final article, A Critical Liability of Secondary Liability under copyright laws in the United States and India/a >, Nayomi Goonesekere looks at the difference in court decisions relating to copying video cassettes and internet file-sharing.
Finally, on behalf of the WLR, I would like to congratulate Professor Lisa Webley of University of Westminster Law School for being named “Law Teacher of the Year 2016” . Lisa is a member of our Advisory Board and played an important role in our launch back in 2011. As well as being the internal examiner for my own PhD research, she has written for the WLR . I also recommend the following presentation and video for her advice on writing journal articles.
A Critical Analysis of secondary liability under Copyright Laws in the United States and in India
This article identifies that the trajectory of decisions from Sony to Grokster by the Supreme Court of the United States have resulted in three divergent outcomes on the imposition of secondary liability under copyright laws. This article seeks to distinguish between the landmark decisions made in the Sony, Napster, Aimster and Grokster cases in order to determine the test that is most relevant today under copyright laws. It also seeks to analyse the application of the principles developed in these cases in Indian Intellectual Property (IP) laws. While the Indian Copyright Act of 1957 has laid down the law applicable to direct and indirect infringers of copyright, the two path breaking decisions of the U.S. Supreme Court in Sony and Grokster have formed the basis of the argument that secondary infringement extends beyond what is enumerated under the Indian statute. In this context, this article explores the emerging trends in Internet service provider (ISP) liability in India and the safe harbour provisions under the Information Technology Act 2000. The article further explores the question of whether these laws would potentially destroy the business model of file sharing, and how this factor was a primary concern in the most recent amendment to the Indian Copyright Act in 2012.
Do Universal Ratifications transform Human Rights Treaties into Dead Letters?
This paper discusses weak and strong aspects of the United Nations (UN) human rights regime in general and the possible outcomes of accepting worst human rights violators into the UN system in particular. On these topics, it mainly argues that the UN is in need of an urgent reformation in order to be more effective and operational. However, reform initiatives should not exclude deviant states from the UN system, because despite the cultural relativity of human rights perceptions amongst the States, ratifications might have constitutive effect for all States in the long term. More specifically, tacit awareness regarding other States’ behaviours and active dialogue amongst the members of the UN over their idiosyncratic characteristics, approaches and human rights patterns might deeply influence the deviant States’ human rights practices. For this reason, as measuring the impact of human rights treaties, the article adopts a critical approach and seeks to analyse both the problems caused by the States who perniciously violate the treaties and the weaknesses of the UN system in an attempt to create a more balanced-picture.
Keywords: United Nations, Human Rights, Ratification, Universality, Cultural Relativity, Acculturation, Persuasion, Coercion
National Regulatory Mechanisms to Prosecute Private Military and Security Companies’ Employees for Human Rights Violations
The tragic incidents in Abu Ghraib in Afghanistan (2004) and in the Nisour Square in Iraq (2007) have revealed the existing legal gap under which Private Military and Security Companies (PMSCs) operate. There was a lack of a coherent international and/or national regulatory regime applicable to these companies, which helped their employees escape prosecution for grave breaches of human rights law. In response to those human rights allegations, a number of non-binding initiatives have been enacted. However, these documents encourage States to adopt specific measures to regulate and monitor PMSCs’ activities. Accordingly, within this context, this paper examines four different types of national regulatory regimes pertaining to PMSCs’ operations (United States, United Kingdom, South Africa and Germany). It explores the existing national legislative framework, under which private contractors may be held accountable for their misconducts. Further, it considers that the absence of an international framework to punish private contractors for human rights violations allows for non-compliance with human rights law.