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Chapter 5 addresses the potential role of domestic courts and mechanisms in the adjudication and award of reparations for international crimes. It draws from existing studies in the field and examines the role that domestic courts may have in adjudicating claims of reparations for international crimes. It analyzes these questions through case studies of domestic reparations for international crimes in Bosnia and Herzegovina where the international criminal tribunal did not have a reparative dimension. It also provides a unique contribution through a timely discussion of the development of universal civil jurisdiction, including the challenges, recent case law from different countries and the United States through the Alien Tort Claims Act (ATCA), as well as recent decisions by US courts limiting its jurisdictions on the ATCA. With this chapter, the book provides a careful survey and analysis of the intricacies of international, national, and administrative mechanisms that are being developed to address reparative justice for international crimes, their unique challenges and some suggestions on how reparative justice for international crimes should develop.
This chapter explains the need for AI legal neutrality and discusses its benefits and limitations. It then provides an overview of its application in tax, tort, intellectual property, and criminal law. Law is vitally important to the development of AI, and AI will have a transformative effect on the law given that many legal rules are based on standards of human behavior that will be automated. As AI increasingly steps into the shoes of people, it will need to be treated more like a person, and more importantly, sometimes people will need to be treated more like AI.
AI has the potential to be substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than people. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention. Under current laws, suppliers of AI tortfeasors are strictly responsible for their harms. A better system would hold them liable for harms caused by AI tortfeasors in negligence. Not only would this encourage the use of AI after it exceeds human performance, but also the liability test would focus on activity rather than design, which would be simpler to administer. More importantly, just as AI activity should be discouraged when it is less safe than a person, human activity should be discouraged when it is less safe than an AI. Once AI is safer than a person and automation is practicable, human tortfeasors should be held to the standard of AI behavior.
This chapter examines the obstacles to corporate accountability at the international level: unsettled international law regarding the binding and enforceable human rights obligations of business entities, the absence of international enforcement mechanisms to hold economic actors accountable, and the related lack of international pressure on states to deliver to victims of corporate complicity their rights to truth, justice, remedy, and guarantees of non-repetition.
It looks empirically at when and why international and foreign courts advanced corporate accountability and when they have not. Second, it discusses power and politics obstacles to the development of the key elements of international pressure: international enforcement mechanisms, binding human rights obligations in international law, and international accountability agency. It concludes with the argument that the absence of international pressure has not blocked corporate accountability. Instead, corporate accountability is underway via domestic processes in the Global South.
I taught torts and legal profession at six US law schools over the course of forty years (1969–2008). This paper describes my efforts to incorporate socio-legal studies and critical legal studies into my teaching and my reflections on how successful this was.
Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.
Sixty years have passed since occupiers in England and Wales were placed under a statutory duty to keep visitors to occupied premises reasonably safe. The legislation, however, did not detail the exact operation of this duty of care. The case law, expected to fill in the gaps, has arguably developed without sufficient consistency and/or predictability. This apparent confusion can be remedied through applying a systematic test to the question of whether a breach of duty has occurred. The test follows the verification that the case falls within the field of occupiers’ liability because of the presence of a danger attributable to the state of the premises. It consists of three consecutive stages which ask: (1) whether the risk of injury was foreseeable; (2) whether the occupier could reasonably have been expected to have addressed this very particular risk; and (3) whether any remedial action the occupier actually took was appropriate.
Solar geoengineering is presently being researched through indoor work and outdoor experiments without potential transboundary impacts. Existing national and subnational legislation and common law govern such activities, including for their environmental risks, and is an essential component of the existing governance framework within which solar geoengineering is developing. To offer a case study, this chapter reviews applicable American law. The United States was chosen because its environmental legal regime is among the most elaborate and influential, and because solar geoengineering research is presently moving forward most rapidly there. The text considers three major pieces of federal environmental legislation: the Clean Air Act, the National Environmental Policy Act, and the Endangered Species Act. Liability for harm, which is found in the common law of torts, is briefly introduced. Thereafter, the chapter describes relevant laws regarding weather modification and marine pollution, as well as a federal geoengineering bill. A salient question throughout this concerns the extraterritorial application of US law.
It was her 29th birthday. After ending her shift as a nurse at West Atlanta Pediatrics, Brooke Melton headed out to meet her boyfriend for a celebratory dinner. She was a cautious driver – no speeding tickets, always a seat belt. But as she drove her Chevy Cobalt down the highway, it suddenly cut off. At just before 7:30 p.m. she swerved across the centerline. The oncoming car was unavoidable, it sent her careening into the fast-moving water of Picketts Mill Creek. Twenty minutes later, medics pulled her from the half-submerged Cobalt. And at 10 p.m., the hospital called Brooke’s parents and told them about her accident, her broken neck, and how doctors could not save her.
This paper presents a history of New Zealand's accident compensation scheme as a struggle between two competing normative paradigms that justify the core reform of the replacement of civil actions for victims of personal injury with a comprehensive no-fault scheme. Under ‘community insurance’, the scheme represents the community taking moral and practical responsibility for members who are injured in accidents, while for ‘compulsory insurance’ the scheme is a specific form of compulsory accident insurance. Understanding the history of the scheme in this way helps explain both the persistence of the scheme and important changes made to it by different governments.
This article is concerned with the question of whether malice is an appropriate touchstone of liability in tort law. It begins by identifying four torts in which malice may properly be regarded as an ingredient of liability (distinguishing various other torts, such as private nuisance and defamation, in which malice plays a merely secondary and contingent role). Having identified these four torts – namely malicious prosecution, abuse of process, misfeasance in a public office and lawful means conspiracy – the article then seeks to identify a common juridical thread which links them together. So doing serves to rebut the allegation, often made in respect of all them, namely, that they are anomalous actions. It then concludes by considering the individual worth of these torts, bearing in mind the important difference between not being anomalous on the one hand, and being positively meritorious on the other. It concludes that a respectable defence of each of the four torts can be made even though malice is an atypical touchstone of liability.
This paper seeks to explore the logic and manner of regulating tort situations in daily life. Based on interviews, it seeks to tease some societal sense out of the reactions of individuals faced with such situations. It hypothesizes that informal regulation is neither inconsistent nor amorphous and that, just like formal institutions, it contributes to the organization, facilitation and preservation of societal life and cohesion. The normative principles and the practical methods of regulation found by the research suggest that there is a perception that the cohesion of societal life is being continuously fashioned and renewed due to its conflictive nature, and that the containment of societal life within viable parameters is up to each one of society’s members.
This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.
This article addresses human rights responsibilities of multinational corporations (MNCs) in the light of what I describe as the four Bhopal catastrophes. More than thirty years of struggle by the valiant violated people to seek justice is situated in the contemporary efforts of the United Nations to develop a new discursivity for human rights and business—from the Global Compact to the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, the Guiding Principles on Business and Human Rights, and the more recent process to elaborate a legally-binding international instrument.
In determining “the scope and extent of any damage, loss and injury to, or in respect of, victims” under article 75(1) of the International Criminal Court (“ICC”) Statute, the ICC will progressively lay the foundation of reparations in international criminal justice. In the process of establishing the typology of harms sustained by natural and—under some qualifications—legal persons, inter-state claims practice may prove to be of assistance to the judges in light of the particular circumstances of each case. In addition, such an exercise illuminates how the doctrinal methods adopted in public international law scholarship categorize and describe the harms that have given rise to reparation claims during both war and peacetime.
The economic torts were developed to regulate excessive competitive practice. They had the limited function of stretching existing civil liability where a defendant deliberately inflicted economic harm on a claimant, through the use of an intermediary. However, claimants seek to expand the function of the unlawful means and conspiracy torts so that they can fill “gaps” in existing tort liability, to regulate commercial misbehaviour more generally. In light of this phenomenon, the aim of this article is to analyse the modern approach to these torts in the English, Canadian, Australian, and New Zealand courts.