Cross-border Rights Research Articles

Immovable Property Bequests and Matrimonial bounties Rights by Foreigners in Tanzania and Zanzibar: Legislative Enforcement Challenges and Perspectives

This paper gives the society a chance to go back to immovable property rights to foreigners that inhere to him or her by virtue of foreign decrees or decisions arising from matrimonial and succession decision. The study focuses on Tanzania and Zanzibar despite the fact that Tanzania includes Zanzibar but Zanzibar stands alone in some matters considered being nonunion. It is because when Tanganyika and Zanzibar united, they signed the Article of union establishing what laws and articles of the union refer to as Union and non-Union Matters, hence land as a non-union matter. However, Zanzibaris can own land In Tanzania mainland but non Zanzibaris cannot own land In Zanzibar. The nature of the union is not the case to this study but observing cross border rights on immobile properties while going to the core issues of extracting conditions from rights as these matters appear to have been left quiet but impending enjoyment of the two. The roadmap to this approach is doctrinal and is lead by the notable decisions of the Courts of Law of Tanzania in Ghalib Abdallah Juma v Kay Mlinga, and a decision in Emmanuel Marangakis as Attorney of Anastasios Anagnostou v Administrator General. The former is the matrimonial decision with foreign bases but to be enforced in Zanzibar while the latter is a probate based decision with foreign beneficiaries of the estates for the deceased and it was and is to be enforced in Tanzania Mainland. This paper advocates that probating foreign and enforcing matrimonial decrees on immovable hinders justice and establish superfluous legal principles over others unnecessarily. Atlast, the conflict of laws becomes uncertain infringing rights of individuals if not taken keenly while losing objectives of Law.

Norwegian Law and the Swedish Sami

Abstract Modern state boundaries often cut through territories currently or formerly occupied by indigenous peoples. In many cases, the unmitigated application of laws on movement across the border can interfere with the rights and way of life of an indigenous group. This paper considers recent legal developments in Canada and Norway concerning cross-border rights and claims. It highlights conflicts that have emerged between constitutional principles that are regarded as fundamental within the state and norms drawn from international law, and in particular the norms set by United Nations Declaration on the Rights of Indigenous Peoples. We focus on the constitutional jurisprudence on cross-border rights of indigenous peoples in Norway, and draw on the Canadian law as a means of demonstrating that the Norwegian approach is unduly restrictive. This, we argue, is primarily due to the preference of the Norwegian court for a paternalistic model of indigenous claims. We contrast this with the recent jurisprudence from the Canadian Supreme Court on cross-border claims, where the reasoning is closer to a model that gives priority to the recognition of indigenous rights, as required under the UN Declaration. The final section returns to Norway, to consider the impact of the European Convention on Human Rights (‘echr’) to Sami rights. The leading case is under review by the European Court of Human Rights, and accordingly the article asks whether the paternalist model will withstand the closer scrutiny against human rights standards.

The Estonian Perspective on the Transposition of the Directive on Collective Management of Copyright and Related Rights

The article considers some key aspects of transposition of the Directive on Collective Management of Copyright and Related Rights into Estonian legislation. Estonia’s collective management system has been in place for more than 20 years without any substantial need for review. It is therefore disputable whether the requirements created by the directive improve the Estonian copyright system or not, but the complicated task of transposition is underway nonetheless. Some fundamental amendments are to be made, the most important one being the introduction of state supervision exercised over collective management organisations. In addition, the article addresses further challenging practical and theoretical issues such as cross-border rights management, the compatibility of activities of collective management organisations with competition regulations (with respect to abuse of dominant position), and matters of cultural diversity that are important to Estonia as a small country.

Council Regulation (EC) No 2201/2003 – Mechanism of Modernisation for National Legislations in the Field of Family Relationships

The European Union has turned its sights to family law. Brussels now tells us where we can raise proceedings in family cases. The European Union has brought together in a single legal instrument the provisions on divorce and parental responsibility, with a view to facilitating the work of judges and legal practitioners and to regulating the exercise of cross-border rights of access. This regulation represents a major step forward in the fight against violation of the right to privacy and family life. It establishes a full system of rules on jurisdiction. Many European states still have a limited regulation of the reasons for getting the dissolution of marriage. The European Convention (regulate the right to family and private life and, respectively, the right to marriage in art. 8 and 12 ECHR) has nothing to do with such cases because does not regulates the right to divorce and it would be an interference into the national law. In this paper we intend to find out what changes bring the regulation into national legislation and that raises many questions: How can a person be married again if he/she doesn’t have the possibility to divorce? In these conditions, can we take the European Convention into consideration as a real instrument of protection for the right to marriage? What the regulation means and what are the legal effects which it produces its application in the Member State legislation?

Treatments of Low-priority and the Patient Mobility Directive 2011, an End to Legal Uncertainty for the English NHS?

The patient mobility case law of the Court of Justice of the European Union created legal uncertainty for the healthcare systems of EU Member States. The Patient Mobility Directive setting out patients' cross-border rights was adopted to end this uncertainty. With the Directive to be transposed into national law by October 2013 this article discusses whether the Directive achieves this objective for the English NHS. It contrasts the legal position of the NHS patient under case law and under the Directive regarding the need for prior authorisation of cross-border treatment, the level of reimbursement and the ambit of the healthcare benefits basket. It is argued that the risk of legal challenge may persist under the Directive, specifically regarding treatments which are classified by health authorities as low priority, namely treatments which are either not 'generally' available or only available subject to certain clinical criteria or access thresholds.

The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States

The term of protection of copyright and related rights is generally considered to be one of the best harmonised areas of European copyright law. However, close examination of the EU Term Directive’s intricate provisions reveals a piecemeal and permissive approach to harmonisation which preserves many differences between the national rules. In this report, four main sources of legislative variability are identified and analysed: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law. As a result, the desired harmonising effect has not been fully achieved: although a single rule may be applicable across the EU in theory, drastically divergent terms of protection may attach to the same information product depending on the jurisdiction within which protection is sought. In this way, the territorial nature of copyright undercuts harmonisation efforts, forcing the public domain to contract and expand according to divergent national rules. The result is a legislative framework that makes cross-border rights clearance calculation difficult, hampering end-users and cultural heritage organisations from taking full avail of the new opportunities now technically available for the digitisation and exploitation of the public domain. If the EU wishes to establish a truly harmonised term of protection for copyright and related rights, a more committed and comprehensive approach will be a necessary.

On the Alleged Conflict between Democracy and International Law

The period since the Universal Declaration of Human Rights in 1948 has witnessed the rise of an international human rights regime. There has been a shift in international law from state-based treaty obligations to cosmopolitan norms whose subject is individuals and their rights and entitlements under international law. Along with the rise of cosmopolitan norms, conflicts between enactments by states, often through democratic legislatures, of laws and practices that may contradict these norms, has also intensified.The article focuses on one such set of cosmopolitan norms concerning the crossborder rights of immigrants within the context of the European Union. By examining a German Constitutional Court Case which denied long-term resident aliens voting privileges in local and district-wide elections, it illuminates the “paradox of democratic legitimacy.” The rights of foreigners and aliens are an intrinsic aspect of the self-understanding of a democratic people. The demos can alter the boundaries differentiating it from nonmembers. The line between citizenship and alienage can be renegotiated through processes of democratic iterations. Cosmopolitan norms can become guidelines informing the will and opinion formation of democratic peoples.