Mémoire numérisé par la Direction des bibliothèques de l'Université de Montréal.

How facticity influences normativity: conventions in law This thesis is about social practice and its influence on the legal system. We examine the basic philosophical approaches to law and use them to challenge the very existence of conventions in law. After we derive the basic notion of convention we develop the three-step test to guarantee that we are able to identify conventions within the legal system and distinguish them from other categories of legal notions. The three-step test presented in chapter two is slightly modifying Andrei Mamor's test. The first criterion of the test is the existence of certain social group that maintains in certain situation specific conventional rule. The second criterion is build around the idea that conventions exist when there are people who have certain reasons to comply with this rule. Final criterion represents the existence of an alternative rule that could be upheld by those people as well. Nevertheless, those people rather comply with the conventional rule. If those three criterions are met, it is probable that we are dealing with conventions. We conclude that the conventions are present within every system of social norms although its importance within various legal cultures and systems varies dramatically. The value of social practice for legal practice shall...

International protection of persons with disabilities Summary The theme of this thesis is the protection of persons with disabilities under international law. In last decades there have been a dramatic shift in the perception of disability. It has changed from medical approach to the social model of disability, which is closely connected with the human rights perspective on the "disability rights". This paradigm shift has culminated in adoption of the United Nations Convention on the rights of people with disabilities. Violating of their human have several forms and is spreaded all over the world. Nevertheless, the number of them is still growing. According to the WHO estimations about 15 % of world population live with some form of disability and most of them in developing countries in the condictions of the lack of elementary resources and support. Relation between disability, discrimination, poverty nad social exclusion is thus more than clear. On the other hand, people with disabilities definitely do not present any kind of homogeneous group. Diversity of people with disabilities brings a serious challenge in the various forms of obstacles and barriers preventing them from full and equal enjoyment of their human rights and thus a wide range of measures necessary to eliminate them. The aim of this work...

Die Arbeit gliedert sich in 6 Kapitel. Das 1. behandelt die Anwendbarkeit des deutschen Strafrechts im Rahmen der Internetkriminalität, insbesondere bei § 184 StGB. Hier wird besonders eingegangen auf das Territorialitäts- und das Weltrechtsprinzip und die Frage des Erfolges von abstrakten Gefährdungsdelikten aufgegriffen. Im 2. Kapitel wird § 184 näher betrachtet, d.h. der Schutzzweck wird erörtert und eine Normananlyse durchgeführt. Kapitel 3 behandelt die strafrechtliche Verantwortlichkeit der am Kommunikationsprozess beteiligten Personen (User, Provider). Dabei wird auch ein Blick auf das TDG und EGG geworfen. Anschließend geht es in Kap. 4 und die Stafverfolgung im Internet, d.h. um prozessrechtliche Probleme. Schließlich beschäftigt sich Kap. 5 mit der Cybercrimeconvention und Kap. 6 liefert eine Zusammenfassung. / Childpornografy

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation) / According to South African domestic law, the term ‘place of effective management’ is ‘one of the tests used to determine the residency of a person, other than a natural person’ (South African Institute of Tax Practitioners, 2010, p.549). The term ‘place of effective management’ is not defined in the South African Income Tax Act 58 of 1962 and there is very limited case law in South Africa which deals specifically with the matter. In an attempt to clarify the term, the South African Revenue Service issued Interpretation Note 6: Resident: Place of effective management (persons other than natural persons) (2002) where, as noted by Olivier and Honiball (2008, p.82), ‘emphasis is placed on where important decisions are implemented and not where such decisions are taken’ as the ‘place of effective management’. This is contrary to international guidelines, which typically focus on where important decisions are taken (Olivier and Honiball, 2008, p.75). Key Words: Board of directors, central management and control, control, day-to-day decisions, Discussion Paper on Interpretation Note 6, Interpretation Note 6, key decision making, OECD Model Tax Convention, place of effective management

Thesis advisor: M. Brinton Lykes / Most recent figures indicate that approximately one in five children in the United States is poor (Children’s Defense Fund, 2010; Moore et al., 2009). Thus, the United States ranks considerably below other Northern Hemisphere nations in indices of both child poverty and child well-being (Rainwater & Smeeding, 2003; UNICEF, 2007). Moreover, while the United States has not ratified the United Nations Convention on the Rights of the Child (CRC), this treaty has been central in reframing policy and practices towards reducing child poverty in some other Northern Hemisphere nations. Many authors and activists have suggested that US nonratification of this Convention is based on “American exceptionalism.” This paper examines these claims – and counterclaims – and explores, through comparisons with several other Northern Hemisphere nations, how the Convention on the Rights of the Child, if ratified and implemented through US policy and practice, could play a significant part in tackling child poverty in this nation. / Thesis (BA) — Boston College, 2011. / Submitted to: Boston College. College of Arts and Sciences. / Discipline: International Studies Honors Program. / Discipline: International Studies.

Thesis advisor: Donald Hafner / Thesis advisor: Timothy Crawford / This Scholar of the College senior honors thesis moves beyond moral pronouncements and the vague excuse of international "lack of will" for genocide intervention to introduce an inductive typology identifying practical, specific factors responsible for the world's repeated unwillingness to intervene during genocide under the obligations of the 1948 Genocide Convention. Drawing on original, classified documents contained in the UN Office at Geneva, the thesis proposes methods of mitigating the influence of these factors and evaluates the degree to which the Responsibility to Protect, a new humanitarian intervention norm, attenuates or exacerbates the causes of non-intervention. The project was awarded the John McCarthy S.J. Award for the most distinguished Scholar of the College senior thesis in the Social Sciences at Boston College. / Thesis (BA) — Boston College, 2011. / Submitted to: Boston College. College of Arts and Sciences. / Discipline: College Honors Program. / Discipline: Political Science Honors Program. / Discipline: Political Science.

La tension entre la singularité de chaque individu et la dimension sociale de l’être humain est souvent réduite par le droit à une contradiction. Fondé sur la nécessité de protéger la dignité individuelle et les droits qui lui sont attachés contre les atteintes portées par la collectivité et ses institutions, le droit européen des droits de l’homme fait ainsi figure de rempart à la suprématie du groupe sur l’individu. Cependant, le développement de nouveaux systèmes régionaux de protection des droits de l’homme en Amériques et en Afrique fondés sur des traités moins empreints de l’antagonisme entre l’individuel et le collectif, ainsi que la multiplication de groupes sociaux prétendant détenir et faire valoir leurs intérêts, mettent en évidence la dimension sociale de l’individu et font entrer les intérêts collectifs dans la sphère juridique. Cette étude vise à rechercher si cette dimension est, à ce point, constitutive de l’humanité de l’individu que les intérêts que ce dernier détient conjointement et indissociablement avec tout ou partie ses semblables sont des droits de l’homme, qui devraient être consacrés et défendus comme tels. / The tension between the uniqueness of each individual and the social dimension of the human being is often reduced by law to a contradiction. European human rights law is seen as a bulwark against the supremacy of the group over the individual, as it is based on the need to protect individual dignity and the rights attached to it against attacks by the wider community and its institutions. However, the development of new regional systems of human rights protection in the Americas and Africa based on conventions that are less imbued with the antagonism between the individual and the collective, as well as the proliferation of groups claiming to have interests and to defend them, highlight the social dimension of the individual and bring collective interests to the legal sphere. This study aims to investigate whether this dimension is so inherent to the humanity of the individual, that the interests that the latter owns jointly and inseparably with all or part of his fellows are human rights, which should be enshrined and defended as such.

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("the New York Convention") has provided a unique legal framework for the recognition and enforcement of foreign arbitral awards and arbitration agreements. Having been adopted by 159 States at the time of this thesis, the New York Convention represents the most significant convention in the field. Having been in force almost 60 years, it is time to assess its meaning for international arbitration. This thesis first examines the contribution of the New York Convention to the development of arbitration to date and second explores whether it has a contemporary role to play. Focusing on both its contribution through its original objective and its effect on the development of a favourable attitude towards international arbitration by courts and legislators, the study demonstrates that the New York Convention has had an impact beyond that which its drafters intended. Regarding its contemporary relevance, the thesis argues that persistent issues in the enforcement of arbitral awards proves that the New York Convention has no active relevance for contributing to facilitate enforcement of arbitral awards.

Child sexual abuse is a heinous crime. It consists of a variety of pernicious practices which include, but are not limited to, online child pornography, rape and incest. Globally, an estimated 15 million female adolescents have been coerced into sex during their lifetime, whilst the figure for boys is unknown.1 In many instances, this crime is perpetrated by those who are closest to the victims. Child victims may be severely traumatised and as a result become dysfunctional members of society. Child sexual abuse harms the very fabric of society and society thus pays a heavy price for continuing to tolerate this crime. As such, as this crime predominantly takes place behind closed doors and victims only very rarely report cases,2 a comprehensive legislative and policy approach must be adopted in order to effectively combat child sexual abuse. Legislators around the world as well as the international community must therefore make combating child sexual abuse a priority. However, the question arises whether there exist difficulties and weaknesses within international law which contribute to the persistent problem of child sexual abuse. Accordingly, this research probes whether international law accords adequate protection to the rights of the children and, if not, whether it fails to adequately protect children from sexual abuse. For this purpose, a detailed examination of relevant UAE laws is undertaken in the form of a case study. It is argued that international law has failed to clearly establish norms and also lacks enforcement mechanisms. The main international instrument, the Convention on the Rights of the Child, fails to determine the age of the child. Instead, it empowers domestic law to do this. Other shortcomings also limit the effectiveness of international law, particularly implementation issues. In the context of the UAE, the fundamental problem is that cultural values entrenched in Islamic criminal and family law have not shown an understanding of the child sexual abuse paradigm. Instead, the honour ideology has been reinforced.