Oxford University Press's Blog, page 611

September 30, 2015

Breaking down barriers

Barriers, like promises and piecrust, are made to be broken. Or broken down, rather. Translators, like teachers, are great breakers-down of barriers, though, like them, they are almost always undervalued.


This autumn our minds and our media are full of images of razor-wire fences as refugees, fleeing war zones, try to cross borders legally or illegally in search of a safe haven. The UK, made by immigration and with a long and honourable tradition of giving asylum, is nonetheless often suspicious of the Foreign; and at present, looking out on an almost apocalyptic displacement of peoples, is more inclined to erect barriers than to break them down.


It may not be far-fetched to associate this present aversion with our characteristic unwillingness to cross the language barrier and enrich our own literature with writing from other countries and cultures; though again, through a thousand years runs a counter-tradition of welcoming in and benefiting from foreign tongues. The near-hegemony of the English language is a very mixed blessing, for us and for foreign writers who will now sometimes choose English in preference to their own native speech. I’ve just met an author from Gaza who has written one of his novels in English, and nobody thinks that very strange. Yet it would be very odd to meet an English writer who had written a novel in Arabic, would it not?


We are not the only nation to be fiercely protective of its cultural heritage. The French Académie Française, established in 1635 and still going strong, has fought consistently against the importing of English and American words, although it seems to be losing the battle in, for example, the field of technology. Nevertheless the French translate more than five times as many books into their language, as the British or Americans do (though this number includes much pulp fiction that some might say is not worth translating). But translated literature having so important a share of the total book-market may account for the fact that, on the whole, French translators are also better paid than their British colleagues, and the job of translating is, unlike in Britain, a widely-recognized and respected one.



translationImage: Atypical welcome, by Quinn Dombrowski CC BY-SA 2.0 via Flickr.

I have been very privileged on several occasions to spend time translating novels in the Translation Centre in Arles, run by the Centre International de Traduction Littéraire. In this centre, which is as good an image of the breaking-down of barriers as you would want, you meet translators from all over the world translating French texts into their own literatures. Last year, when I was translating Flaubert, my colleagues at their own tasks were from Serbia, Russia, Iran, Iceland, and France. On the site (once home to Van Gogh) there is also a Fabrique des Traducteurs, where students can discuss problems of translation with their tutors. This spring the focus was on Portuguese literature, in the autumn they will hold the first Franco-Korean sessions.


There is no such centre in Britain. Important work is done by the British Centre for Literary Translation in Norwich, where an annual summer programme for translators is held; and by courses held in association with the Translators’ Association, for example at Free the Word. But we also need something more permanent on the Arlesian model, where translators from all over the world can get together, work and talk to one another. Translation is a fascinating and much misunderstood vocation, and such an institution would raise morale and at the same time demonstrate how important we think it is to break down those barriers.


Contrary to popular belief, translations do not leap on to the page ready-made. Most take many months, even years, much creative effort and a great deal of revision. That is why translators quite rightly sometimes feel aggrieved when their work is not properly credited on the cover of books, or on radio and in newspapers. Members of the Association frequently complain about this, but the outcomes to such complaints are not always successful.


It feels sometimes as if translators complain a great deal: about lack of recognition, lack of money, lack of time. But on the plus side it should be said that in addition to OUP and Penguin, who continue to update their publications of translated classics, there are a number of small presses now in Britain that regularly seek out and publish work in translation: Bloodaxe, Smokestack, Arc, Anvil, Comma, And Other Stories, Portobello, Quercus, to name but a few. The magazine Modern Poetry in Translation, started by Ted Hughes and Daniel Weissbort not long after the erecting of the Berlin Wall, has for the last fifty years acted as a portal for poets from all over the world, and will soon bring out an anthology of poems which will demonstrate the continuing importance of breaking down those barriers and of asserting the human values that unite us all.


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Published on September 30, 2015 00:30

September 29, 2015

Connecting with Law Short Film Competition 2015 winners

The ‘Connecting with Law Short Film Competition’ is an annual event run by Oxford University Press Australia & New Zealand. Now in its seventh year, the ‘Connecting with Law Short Film Competition’ runs from March to July and is open to all students currently enrolled in an Australian law school. Over the years, the competition has proven to be a unique way to encourage students to connect with the law and make a contribution to legal education in Australia.


This year, students were invited to make a two- to five-minute film exploring the 2015 theme, ‘bring your favourite case to life’. The standard of entries submitted was very impressive and the winners were those judged to be the most creative, instructive and original. They demonstrated an ability to understand and analyse case law, and will help to educate and entertain Australian law students. We are pleased to share the winning entries:


1st prize winner: Chester v Waverly Council (1939) 62 CLR 1


Ray Waterhouse, Nikita Vidyaev, Bella Noon, Ben O’Sullivan & Molly-Anne Clark (University of Notre Dame, Sydney)





 


Donoghue v Stevenson is the dawn of the modern law of negligence. Just seven years later, the High Court considered a negligence claim made by Mrs. Chester. Her young boy, Maxie, drowned in a flooded council trench. She witnessed his body being lifted from the trench and suffered nervous shock as a result. Her claim failed in the High Court because the majority said that it was not foreseeable that a mother would suffer nervous shock in those circumstances.


Justice Evatt dissented. He found her reaction entirely foreseeable. He was the only judge to identify Maxie by name. He humanised Mrs. Chester and her loss. The power of his dissent has resonated down the years. His reasoning was vindicated by Justice Deane in Jaensch v Coffey in 1984 and by Justice Gaudron in Annetts v Australian Stations Pty Limited in 2002. Evatt J’s judgment illustrates the importance of dissenting judgements – sometimes their reasoning is picked up by later judgements and becomes the law. His judgement was more forward looking than the blinkered legalisms of the majority. In the words of Deane J, Evatt’s judgement was plainly to be preferred to that of the majority.


2nd prize winner: An Expert’s Opinion on his Ordinary Observation: The Case of Honeysett


Jonathan Mo (University of New South Wales)





 


3rd prize winner: Precisely Nothing: Fagan v Metropolitan Police Commissioner


Lauren Stefanou & Rebecca Ward (University of New South Wales)





 


A version of this article originally appeared on the Oxford Australia Blog.


 


Featured image credit: “Courtroom One Gavel” by Beth Cortez-Neavel. Public Domain via Flickr.


 


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Published on September 29, 2015 04:30

Preparing for world travel [infographic]

Are you planning a trip to Brazil, Cambodia, The Dominican Republic, Haiti, or another destination that requires immunizations in advance of your arrival? Are you a health care worker, about to travel to a destination currently dealing with an epidemic or outbreak? Do you know the best way to find medical care if you are a traveler with limited resources? Check out this infographic on international travel to answer these questions and more, with information from CDC Health Information for International Travel 2016.


CDCInfographicFinal


Download the infographic in JPEG or PDF.


Feature Image Credit: Two hikers exploring the Amazon Rainforest, CC0 Public Domain via Pixabay.


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Published on September 29, 2015 03:30

New appreciation for composer Henry Cowell

The extraordinarily innovative American composer Henry Cowell took Europe by storm as a touring pianist in the 1920s, playing his unforgettable compositions that often required using the entire forearm to play dozens of keys simultaneously. In later years he returned to give talks about his music and American music under the auspices of the State Department. Yet now, if he is remembered at all, it is only for a few of those solo piano pieces.


That situation is beginning to change, and it is gratifying that my biography of Cowell has put me in a position to help bring back his music, even in England. My talks at the Royal College of Music, the Royal Academy of Music, and the University of London have helped re-acquaint young musicians, scholars from multiple fields, and music lovers with Cowell’s astonishing life, his crucial work for the development of an infrastructure of support for composers, and, above all, his music.


Now the best news of all: BBC Radio 3 will feature Cowell on its award-winning “Composer of the Week” show, thanks to the indefatigable program host Donald Macleod, who realized that the combination of Cowell’s almost unbelievable life and the quality and variety of his music make perfect material for this series. Preparing such a show about a composer who wrote hundreds of compositions and had an action-packed life was no easy matter. Donald Macleod planned from the beginning to make me part of the process and I offered to record some of his less-known piano pieces. After months of boiling down this immense repertory to about four hours of selections that could represent its variety, producer Johannah Smith prepared a playlist that is brilliantly comprehensive, considering the enormity of Cowell’s output, which then allowed Donald to write the five scripts of 13-14 minutes each, which he hoped would communicate a sense of a life that I had had to boil down to 513 pages. In July, when the show was ready for assembling, I spent a day at BBC Salford (Manchester) recording the piano music. I was eager to include some piano pieces from his later days, when his style was less obviously “radical” but still very innovative, since many people believe that he had become an arch-conservative in his older age. Three days after the Manchester session, producer Smith, host Macleod, and I convened at Broadcasting House in London to record the commentary — Macleod’s extraordinary scripts, into which my spontaneous commentary was inserted as if we were live-on-the-air. (Indeed, although the show sounds as if it is live, it may be broadcast so long after it was recorded that when Macleod is asked by this or that acquaintance “Who is the composer this week?” he often does not know.) The shows will be broadcast 19-23 October 2015.


As delighted as I was to have a role in Composer of the Week, I am gratified to have had absolutely nothing to do with another major Cowell event in London this summer. On 30 August, at the BBC Proms concerts, Michael Tilson Thomas conducted the San Francisco Symphony in a program of Schoenberg’s Variations for Orchestra, Mahler’s Symphony No. 1, and Cowell’s rarely-heard, tone cluster-filled piano concerto, superbly played by American pianist Jeremy Denk. Particularly wonderful was Denk’s thoroughly sensitive approach to the concerto; one heard real music, not the usual crashing and banging to which Cowell’s music is often subjected. The performers were rewarded by a huge ovation from the near-capacity crowd of, I would estimate, 4,500-5,000 people. The large audience may have be partly attributable to a BBC broadcast the previous morning, Radio 3’s “CD Review,” which devoted half an hour to Cowell and made his accomplishments vivid. (Of course, I was delighted to hear that host Andrew McGregor included one of my performances and a plug for the book too.)


Needless to say, I now enjoy fantasies of happy Proms-goers and BBC listeners eager to learn more about Henry Cowell.


Featured image: An altered version of W.P.A. concerts of unusual music Pre-Bach to moderns (1936). Federal Music Project (U.S.). Library of Congress.


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Published on September 29, 2015 01:30

Hallo Wien! International Bar Association annual meeting 2015

After venturing to the far East of Japan last year, 2015 sees the return of the International Bar Association’s annual meeting to Europe. Vienna will host the conference this year, a city which holds an interesting pedigree as a legal centre.


Vienna is currently home to the Vienna International Arbitral Centre, one of Europe’s leading arbitral institutions, and which serves as a focal point for the settlement of commercial disputes in the regional and international community. Founded in 1975 as a permanent arbitral institution of the Austrian Federal Economic Chamber (AFEC) the centre has enjoyed a steadily increasing caseload from parties across Europe, the Americas and Asia.


Vienna is also well-known for the international law treaty: the Vienna Convention on the Law of Treaties (VCLT), which was adopted on 22 May 1969 and entered into force on 27 January 1980. Ratified by 114 states, the VCLT was drafted by the International Law Commission of the United Nations. During the twenty years of preparation, several draft versions of the convention and commentaries were prepared by special rapporteurs of the Commission. The Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law,” as well as affirming that “every state possesses the capacity to conclude treaties.” Most nations, whether they are party to it or not, recognize it as the preeminent “Treaty of Treaties”.


Vienna is perhaps better known for its cultural highlights. Developed from early Celtic and Roman settlements into a Medieval and Baroque city, Vienna played an essential role as a leading European music centre, from the great age of Viennese Classicism through the early part of the 20th century. The historic centre of Vienna is rich in architecture, including Baroque castles and gardens, as well as the late-19th-century Ringstrasse from which grand buildings, monuments and parks can be viewed.


Some of the interesting cultural sights in Vienna include Vienna’s most important Gothic landmark: Stephansdom (St. Stephen’s Cathedral); Hofburg, the royal Habsburg residence and the Kunsthistorisches Museum – a palace housing vast collections of fine art which the Habsburgs had acquired throughout the centuries.


On October 3, 2015 a single ticket grants holders access to the exhibitions and collections on show at around 100 Viennese museums, galleries and cultural institutions between 6pm and 1am during the Long Night of Museums. The event also features discussions with artists, readings and live music. The Long Night ticket also acts as a free pass for the special shuttle bus and the Viennese public transportation network.



Vienna cake shopImage: Cafe Central, Wien, by Ungry Young Man. CC-BY-2.0 via Flickr.

The Annual Meeting itself promises to be a must-attend event for all international lawyers, with the chance to join over 6,000 lawyers in sessions ranging from climate change justice to human trafficking, as well as to celebrate the 800th anniversary of the Magna Carta, signed in England in 1215.


Some of the other key things to look out for at the annual meeting are:


Tuesday 6 October 1315 – 1415 – A conversation with… José María Aznar


José María Aznar served as a Member of Parliament for Madrid, firstly as the Leader of the Opposition then becoming President of the Government of Spain in 1996, following the electoral victory of the Partido Popular. With the party’s subsequent electoral victory in the year 2000, this time with an absolute majority, he led the country again for a new term. His time as President of the Government of Spain lasted until the elections of 2004, when he voluntarily chose not to run for office again.


Wednesday 7 October Afternoon – IBA football match


One of Europe’s most famous footballing teams is the aptly styled ‘Rapid Wien’, founded in 1898 as Erster Wiener Arbeiter-Fußball-Club (First Viennese Workers’ Football Club). Although many of the regular players may no longer be as ‘rapid’ as they were in their twenties, once again the IBA Annual Conference will provide an opportunity for delegates to parade their footballing skills.


Thursday 8 October 2030 – Late Law Rocks!


Vienna Law Rocks! is a series of live ‘battle of the bands’ style rock concerts in which law professionals battle it out on stage for charity at legendary music venues around the world. Law Rocks! Started in London five years ago, with the first IBA edition taking place at the Paradise Rock Club in Boston in 2013. The net proceeds of the event will go to the IBA’s Human Rights Institute and local charity so, if you want to battle it out on stage, or simply enjoy a night of great music for a good cause, you can do.


Here are a few tips on what to expect when you get to Vienna:



The weather in Vienna in October will be cool. Expect temperatures to reach between 15-16 degrees Celsius.
The conference venue is the Austria Center Vienna, which is just 7 minutes from the city centre and a few minutes’ walk from the Danube and the Donaupark.
Finding your way around: You can find details of the layout of the Austria Center Vienna on their website.

If you have any free time during the week, why not drop by the OUP booth (22-23) and pick up a sample journal copy or take in a free demonstration of one of our online services including Oxford Legal Research Library: International Commercial Arbitration and International Commercial Law. We will have a full library of books to purchase and our friendly staff will be on hand to help with advice and to take your order including the new edition of Redfern and Hunter. If you’re lucky you may also bump into your favourite legal author! We will also have the opportunity for you to take part in our prize draw for a chance to win a collection of six OUP law books. This includes selected titles such as Point Made: How to Write Like the Nation’s Top Advocates by Ross Guberman, International Capital Markets by Cally Jordan, and Ethics in International Arbitration by Catherine Rogers.


To follow the latest updates about the IBA Conference as it happens, follow us @OUPCommLaw, @OUPIntLaw, @blackstonescrim and via the hashtag #IBAvienna. See you in Vienna!


Featured image credit: Karlskirche, Vienna, by John Mernard. CC-BY-SA-2.0 via Wikimedia Commons.


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Published on September 29, 2015 00:30

September 28, 2015

Gershwin and color: how blue is the Rhapsody?

Everyone knows George Gershwin as a composer, songwriter, pianist and icon of American music. But few know of his connections to the world of paintings and fine art. As a practicing artist himself, Gershwin produced over 100 paintings, drawings, and photographs, most famously including his portrait of Arnold Schoenberg. “He was in love with color and his palette in paint closely resembled the color of his music. Juxtaposition of greens, blues, sanguines, chromes, and grays, fascinated him,” recalled Merle Armitage. “Of course I can paint!” Gershwin was said to have told his girlfriend Rosamond Walling, an aspiring landscape painter. “If you have talent you can do anything. I have a lot of talent,” he added.


Aside from creating art, Gershwin was also one of the foremost collectors of modern art in his day, assembling a collection comprised of about 150 paintings, drawings, sculptures, and decorative objects. With help and advice from his cousin, a painter named Henry Botkin, Gershwin spent about $50,000 acquiring masterpieces. He looked for luminosity in the canvasses he acquired. “It seems to throw out its own light. I am crazy about it,” he exclaimed of Utrillo’s painting, The Suburbs.


Picasso’s The Absinthe Drinker of 1901 was the crown jewel of his collection. This work, from Picasso’s so-called “blue” period, depicts a sorrowful drinker in the nightlife of Montmartre, all dressed in red and nursing a drink of brilliant green.


At Gershwin’s request, Botkin acquired for him Mark Chagall’s painting, The Rabbi, now in the collection of The Jewish Museum. This is the work that Gershwin saw in front of him every day when he went to sit down at the piano. Gershwin studied this painting closely, and used it as a model for his own work. His portrait of his grandfather was an updated version: the American Jew, dressed sharply in a morning coat, with his beard neatly trimmed, his hat and eyes upturned, ready for what the future may bring. Behind him is the new shtetl, the Lower East Side. And Gershwin’s own pose, in his self-portrait photograph with Irving Berlin, is very clearly modeled on Chagall’s rabbi.


George Gershwin, probably a self-portrait taken with timer. Image courtesy of the author.George Gershwin, probably a self-portrait taken with timer. Image courtesy of the author.

Portrait of Dr. Devaraigne was one of several Modigliani paintings that he owned, and it was his favorite. Gershwin used Modigliani’s hallmark, the two-toned gray and orangey-red background, as the background to his own self-portrait.


Linie-Fleck (Line Spot) from Wassily Kandinsky’s late period, now at the Santa Barbara Museum of Art, caused a sensation when Gershwin’s collection was exhibited at the Arts Club of Chicago in 1933. It was described by the art critic at the Chicago Tribune as “decidedly in the manner of the American Indian.” A critic at the Chicago Herald Examiner described it as “brown triangles on a yellow background with dots and dashes and whatnot.” This painting was one of at least three abstract works in Gershwin’s collection. Gershwin’s statement that “music is design; melody is line; harmony is color” is very close to language used in Kandinsky’s synaesthetic treatise Point and Line to Plane.


One could dismiss Gershwin’s hobbies as simply part of his attempt to be highbrow, or as Leonard Bernstein put it, “to cross the tracks,” but I think there’s more to it than that. These works and the others in Gershwin’s collection, such as Max Weber’s Invocation (1919), Charles Filiger’s Portrait of Gauguin, and Thomas Hart Benton’s Burlesque were not trophies to the composer, or mere symbols of his financial success. On the contrary, they were deeply meaningful objects to him. Edward G. Robinson described a visit to an art exhibition with George Gershwin: “We would stand quietly enough before the paintings we were watching, but inwardly…we felt we were fellow travelers into the very life of the picture, and partners in the inspiration of the artist who painted it.”


Left: Amedeo Modigliani: Doctor Devaraigne, oil on canvas, 1917. Private Collection, image in the Public Domain. Right: George Gershwin: Self-Portrait. Library of Congress, Special collections of the Music DivisionLeft: Amedeo Modigliani: Doctor Devaraigne, oil on canvas, 1917. Private Collection, image in the Public Domain.

Right: George Gershwin: Self-Portrait. Library of Congress, Special Collections of the Music Division.

Armitage recalled watching Gershwin looking intently at a watercolor by Paul Klee. “After studying a Klee watercolor with a magnifying glass,” Armitage recalled, “[Gershwin] stopped abruptly and exclaimed that his music would not stand up under that kind of scrutiny.” Henry Botkin described Gershwin’s voracious appetite for art: “We would go into some gallery—and I’m not speaking of a little gallery but a big one. Do you think he was satisfied in seeing the show that hung on the walls? No! When he went through there they had to open the whole place and pull everything out. He just couldn’t wait. He wanted more, and more, and more.”


But what about color in Gershwin’s music? Painting and music “spring from the same elements,” he told a friend, “one emerging as sight, the other as sound.” In speaking of jazz, Gershwin said, “At first it was mere discord for the sake of discord, a simple reveling in animal vigor. But slowly the meaning of that discord, its color, its power in the depiction of the American sentiment, has been brought to life.” In light of such powerful statements, I would like to propose that we consider giving a synaesthetic reading to Gershwin’s only work with an explicit color reference, Rhapsody in Blue (1924). Can we take at face value Gershwin’s description of the work as “a kaleidoscope of America” composed in a blaze of synaesthetic creativity, combining sound and sight? “It was on the train with its steely rhythms, its rattle-ty-bang that is so often so stimulating to a composer…. And there I suddenly heard—and even saw…— the complete construction of the rhapsody from beginning to end…. I heard it as a sort of musical kaleidoscope of America.” Perhaps we can try to see the “musical kaleidoscope” in action in this work, whose climax, a moment of pure noise, might be understood as representing a flash of blinding light.


Image Credit: “Birthday party honoring Maurice Ravel in New York City, March 8, 1928. From left: Oskar Fried; Éva Gauthier; Ravel at piano; Manoah Leide-Tedesco; and George Gershwin” by Wide World Photos. Public Domain via Wikimedia Commons.


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Published on September 28, 2015 05:30

Patients battle for justice

Is it possible that a disease as impairing as Type II diabetes mellitus, congestive heart failure, multiple sclerosis, and end-stage renal disease could be repeatedly belittled and delegitimized by scientists and health care professionals? Tragically, this is the case for a devastating illness affecting over one million Americans, and these patients have been deprived of their basic rights to respect, appropriate diagnosis, and humane treatment.


In the beginning, patients with this illness had a credible name, myalgic encephalomyelitis (ME), and diagnostic criteria that had been developed by the distinguished British physician, Dr. Melvin Ramsay. Yet, in 1988, the Centers for Disease Control (CDC) renamed this illness chronic fatigue syndrome (CFS). Patients were unanimous in their disdain for this trivializing term, but they were no match for the supreme power and authority of the CDC. The new name placed patients around the world in a compromised position, as they were now forced to use a degrading and stigmatizing term in explaining their illness to family members, friends, work associates and medical personnel.


Patients were next characterized as having a relatively rare “Yuppie Flu” disease, and flawed epidemiology was responsible for these inaccurate and biased characterizations. If this were not enough, the CDC in 1994 developed a case definition that did not require the cardinal symptoms of this illness (such as post-exertional malaise and neurocognitive impairments). When this porous case definition was used to select patients, the resultant heterogeneity increased the risk of failing to consistently identify biomarkers, which contributed once again to dismissing those affected as having a psychiatric illness. Misguided psychiatrists then developed treatment approaches focusing on increasing exercise, even though the patients’ chief complaints were muscle weakness and exercise-induced fatigue.


Rarely in the annals of recorded medicine has there been such a David and Goliath-like battle, with impaired and sick patients trying to defeat an entrenched medical and scientific establishment. Their story of resistance is not one of an epic skirmish, but rather a veritable war with health care professionals and scientists that has endured for decades, as has been so well documented by Hillary Johnson.


This past year, in an effort to rectify these tragic abuses, the Institute of Medicine (IOM) released a report that not only clearly emphasized the debilitating nature of this illness, but also strikingly rejected the stigmatizing name CFS and the defective case definition. Unfortunately, particularly in light of decades of past disastrous scientific blunders, the IOM once again imposed an inappropriate name (i.e., systemic exertion intolerance disease) on the patient community, but patients valiantly challenged this recommendation by collecting data that exposed the spuriousness of this foolish name change effort.  Even a federal panel called the Chronic Fatigue Syndrome Advisory Committee at its recent meeting in August has rejected this new name.


The IOM also released a new case definition to replace CFS, and our published work now suggests that these new criteria would almost triple the prior CFS prevalence rate, and this is in part due to the inclusion of individuals who formerly had been excluded. Unwittingly, this inadvertent action accomplished much of what Bill Reeves and the CDC had attempted to do a decade ago when they proposed an ill-fated expansion of the case definition.


Is there any way to salvage the damage inflicted on the larger patient community by well-intentioned scientists from the IOM?  Perhaps we might consider re-activating the brilliant scholarship of Dr. Melvin Ramsay and the term Myalgic Encephalomyelitis, which would identify a smaller more homogenous group of patients as having ME. In contrast, those meeting the broader IOM criteria, which we might call neuroendocrine dysfunction syndrome (which had been recommended by the patient inspired Name Change workgroup over a decade ago) could replace CFS and this category would represent a larger group captured by the key IOM symptoms. Those that do not meet the ME criteria or the broader IOM criteria could be classified as having chronic fatigue, which is the most general category, and represents those with 6 or more months of fatigue. Such a tripartite classification system would eliminate the detested term CFS, validate the original respected name ME, differentiate ME from the IOM criteria, and provide a new nonstigmatizing term for those not meeting the more restrictive ME criteria. In addition, the broader IOM criteria could be used for clinical purposes, whereas the more restrictive ME criteria could be used for research purposes. Some scientists might prefer to consider this tripartite grouping a matter of severity rather than categorical differences, but all agree that differentiations of this type occur with many diseases, and such a classification system has the potential to clarify discrepant findings from epidemiologic, etiologic, and treatment studies.


Ultimately, whatever decisions are made on the names and criteria, the vetting process needs to be open, inclusive and transparent, with patients playing a prominent, decisive, and leadership role in these deliberations.


Image credit: Photo by Dr.Farouk, CC BY 2.0 via Flickr


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Published on September 28, 2015 04:30

Blackstone’s Statutes: top legislation

With the recent publication of the 2015-2016 editions of the Blackstone’s Statutes series, we asked some of the authors to select a piece of legislation from the series that has the most impact on their subject area.


Alison Bisset: Universal Declaration of Human Rights (UDHR)


In international human rights law, the instrument that has had most impact must be the Universal Declaration of Human Rights (UDHR). Truly capturing the universality, indivisibility and interdependence of human rights, the UDHR gives equal standing to civil, political, economic, social and cultural rights. Since its adoption in 1948, it has served as the foundation and the springboard for modern international human rights law; continually cited by the UN in its legislative work and operating as the yardstick to which all UN human rights treaties must conform. It has acted as the catalyst for regional human rights treaties, has informed national constitutions and has been cited by international, regional and domestic courts, tribunals and adjudicatory bodies. Although as a Declaration it was non-binding at the time of its conclusion, many of its provisions are now considered to enjoy customary status, creating binding obligations even for states not parties to the major human rights treaties. The UDHR holds the Guinness World Record for the most translated document. It is translated into more than 300 languages and dialects, from Abkhaz to Zulu. Its provisions have stood the test of time and are as relevant today as they were in 1948. The UDHR remains “a common standard of achievement for all peoples of all nations”, making it the most significant international human rights law instrument.


Alison Bisset is the Associate Professor in International Human Rights Law at the University of Reading, and the author of Blackstone’s International Human Rights Documents (9th edition).


Robert Lee: European Communities Act 1972


In the run up to a referendum on the UK’s continuing membership of the European Union, it is timely to review the workings of the European Communities Act 1972; the vehicle by which the U.K.’s accession to the E.U. was accepted by Parliament. In A White Paper of 1971 Prime Minister Heath stated that ‘there is no question of Britain losing essential sovereignty.’


Nowhere in the Act is there any direct mention of Parliament ceding its sovereignty. However, section 2(2) of the Act allows the Government to lay regulations before Parliament to implement required changes to UK law. Section 2(4) states that UK legislation should be construed “subject to” the foregoing provisions of the section. This includes section 2(1) which states that all obligations arising by or under the European Treaties are without further enactment to be given effect. Finally in section 3(1) requires that questions of the meaning or effect of the Treaties is a matter of law to be determined in accordance with the decisions of the European Court.


By the time of British entry there was a decision of the European Court (Costa V ENEL [1964] ECR 585) establishing the supremacy of EU law over domestic law of the member states. Later in the case of Factortame [1991] 1 AC 603, these provisions were said to create an implied clause rendering all domestic law inapplicable to the extent of any conflict with E.U. law. Lord Bridge stated that it had ‘always been clear’ that this was required under the 1972 Act. But when the Act was passed few would have realised that its effect was to bind Parliament in the future from repealing the Act impliedly.


So, in its oblique terms, the 1972 Act sowed the seeds of a dissatisfaction that has never quite dissipated and which form no small part in the political pressure for a referendum on membership.


Robert Lee is the Head of Birmingham Law School and Director of Centre for Professional Legal Education and Research at the University of Birmingham, and the author of Blackstone’s Statutes on Public Law and Human Rights 2015-2016.



Featured image credit: Hammer, Books, Law by succo. CC0 Public Domain via Pixabay.

Anne Morris: The Mental Capacity Act 2005


The Mental Capacity Act 2005 (in force, England and Wales, 2007), was hailed as a ground breaking piece of legislation. Many years in preparation, its purpose was to put on a statutory footing common law principles on decision-making for adults who lacked the mental capacity to make their own choices. It was meant to protect but also, wherever possible, to empower vulnerable adults. It covers all aspects of life, including not just medical treatment, but also, for example, where and with whom a person lives. Besides providing a statutory test for capacity, the Act lays down five key principles. The first of these is that every adult has the right to make his or her own decisions (wise or unwise) and must be presumed to have capacity to do so. Only if a person is shown to lack capacity may a decision be made on his behalf, in his best interests. The importance of the Act is reflected in the amount of case law it generates and in the on-going criticisms of its operation. In 2014 a Select Committee Report by the House of Lords described it as a “visionary piece of legislation”, but also noted that it has “suffered from a lack of awareness and a lack of understanding”. As a result, various proposals for reform have been made and the Act will continue to be a focus for attention for some time to come.


Anne Morris is an Honorary Senior Research Fellow at the University of Liverpool, and is the co-author of Blackstone’s Statutes on Medical Law.


Meryl Thomas: Law of Property Act 1925


The Law of Property Act 1925 was one of seven property statutes introduced at the beginning of the twentieth century by the Lord Chancellor Lord Birkenhead. It was part of a package of reform of land law that was begun in 1906 by the then Liberal government, and its importance lies in the fact that it largely represents a break with the previous system of land law whose concepts and ideas were rooted in the medieval feudal system. The statute met with much opposition both political and practical, and is a highly technical statute, containing 209 sections and seven schedules. Nevertheless it is a testament to the proponents of the Act that, despite being amended on a number of occasions, it remains the foundation upon which modern day land law is based.


The aim of the Act was two-fold, firstly it aimed to protect the position of the purchaser, and secondly, in order to achieve the first, the Act simplified the conveyancing process. The key to this simplification was to reduce the number of legal estate that could exist to two, namely the leasehold and the freehold, and to distinguish between ‘family’ interests and those of a commercial nature. The law introduced changes which made it easier for a purchaser to purchase the land free of the former.


Meryl Thomas is a lecturer at Truman Bodden Law School in the Cayman Islands, and the author of Blackstone’s Statutes on Property Law 2015-2016.


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Published on September 28, 2015 02:30

Combatting the IS’s law violations: Should we reprise reprisals?

Since its inception, the Islamic State (IS) has engaged in continuous behavior that violates the law of armed conflict (LOAC). These acts include the torture and killing of civilians; inhumane treatment of detainees generally, and in particular, women; forced compliance with religious and cultural practices; and, most recently, the systematic destruction and/or illegal sale of important cultural property. New reports appear to indicate that in addition to these violations, members of the IS have used chemical weapons against opposing forces.


In response to these open and notorious violations of international law, the international community’s response has been, at best, ineffective. Not only has the current coalition of nations fighting the IS been unable to make major military gains, but the almost universal condemnation of the IS LOAC violations has done nothing to prevent the on-going wanton destruction in Palmyra. Calls for action by world leaders are increasing in the face of these atrocities.


Reprisals

Historically, when nations wanted to discourage opposing nations from violating the LOAC, they would resort to reprisals. The doctrine of reprisal allows a nation to respond to an unlawful act by committing acts that would otherwise be unlawful under international law but are done with the intent to bring the original violator back into compliance. While reprisals were a justified course of action in the 18th and 19th centuries, the doctrine has fallen into disrepute in the 20th and 21st centuries, mostly out of the fear that they are ineffective and only lead to escalation.


As a result, through treaties and the development of customary international law, most nations have either completely eliminated reprisals as a legal response to LOAC violations, or at least severely restricted the instances under which such actions can be taken. Generally, before a country can resort to reprisals against another nation for violations of the law, the country must meet the following criteria:



the use of reprisals must be in response to prior serious violation of the law and must be done only for the purpose of inducing compliance by the violator;
the reprisal must be a measure of last resort and can only occur after the offending nation has been notified that it may be the subject of reprisals if it doesn’t come back into compliance;
any use of reprisals must be proportionate to the initial violation;
the decision to use reprisals and the reprisals selected must come from the highest authority, such as the national government or the Security Council, as opposed to the tactical commander on the ground; and
the use of reprisals must stop once the violator ceases its unlawful actions and returns to compliance with the law.

Prohibitions

In addition to the limitations above, there are specific prohibitions on who and what a nation can target as a reprisal. For example, the 1949 Geneva Conventions prohibit the use of reprisals against the wounded, sick, medical personnel, and medical buildings; the wounded, sick and shipwrecked at sea; prisoners of war; and protected civilians and their property. Other specific prohibitions apply to those nations who are Parties to the 1977 Additional Protocol I (which include most nations across the world, but not the US).


IAC vs NIAC

Perhaps most problematic when considering reprisals with respect to the IS, they were historically applied only in armed conflicts between nations, or IACs. The fight against the IS is not an IAC, but a non-international armed conflict or NIAC—meaning a fight against a non-state actor—and is governed by a much less robust set of rules and restrictions. With respect to reprisals in non-international armed conflicts, the International Committee of the Red Cross concludes in its Customary International Humanitarian Law Study that “Parties to non-international armed conflicts do not have a right to resort to belligerent reprisals.”


Given that the doctrine of reprisal does not exist in NIACs, could the doctrine be borrowed with some effect by those nations opposing the IS? Could reprisal type actions play any role in inducing the IS to comply with international law? The answer is a very cautious “possibly.” There appears to be at least three potential areas that the IS cares deeply about and that are key to their success which might be reached by reprisal-like actions: funding, religious buildings, and media access.


Potential reprisal-like actions

A not-insignificant amount of the IS money comes from the production and sale of oil. About a year ago, the US decided to conduct air strikes on oil production facilities. Detractors from this approach noted that such economic targets might not fit the definition of lawful military objectives. For those who believe such attacks are violations of international law, they would become reprisal-like so long as they met the criteria above. Other similar income producing civilian assets might present reprisal-like targets for those opposed to the IS to consider in an attempt to bring the IS back into compliance with the law.


While religious buildings such as mosques are protected from attack as civilian objects, they might be made the subject of reprisal-like strikes in order to induce compliance with the law. Mosques and other religious buildings that constitute the cultural and spiritual heritage of all peoples would be exempt from such reprisals, but other buildings that did not carry this significance might be targeted. While the optics of this type of action are very poor, it may be that with proper advance notice of the proposed strikes, the IS would be induced to reconsider its LOAC violations.


Finally, and perhaps most acceptable of the proposed options, the IS thrives on media attention. They effectively use social media to pass their message, recruit both fighters and followers, and publicize their actions. While certain uses of the Internet and social media may be considered a military objective, using force to shut down the Internet access to a geographic region or group of civilians would normally not be considered legal by a non-territorial state. However, such action could have a significant impact on the IS and might be an effective means to encourage compliance with the LOAC.


A different solution

Though these options may have some basis in law, and sound inviting as a way to stop the IS from its continued flaunting of international norms and laws, I am not sure this is the right occasion for the international community to decide reprisal-like actions are valid in NIACs. First, it is unclear that these actions, or any others that might be devised, will bring the IS into compliance. Though not one of the recognized legal criteria, I believe reprisal-like actions should only be resorted to if there is a good chance that they will be successful. Second, any application of the law by analogy, particularly when carried out by a single nation or even a small group of nations, runs the risk of discrediting existing law. Getting consensus of the international community would be very important before the US or a group of its allies decided to adopt IAC reprisals in a NIAC environment.


Rather, if the international community is outraged by the actions of the IS, perhaps a more aggressive military and diplomatic approach is necessary. I don’t believe that the IS could withstand a truly concerted effort by the united international community to lawfully prevent future outrages. If we are distraught by the destruction of Palmyra, the treatment of civilians and particularly women, and the use of mustard gas by the IS, there are still a number of lawful actions that can be effectively used to solve those problems.


Featured image: Syria. (c) the_guitar_mann via iStock.


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Published on September 28, 2015 01:30

Wine globalization set to continue

The past two decades have seen globalization of the world’s wine markets proceed like never before, in both speed and comprehensiveness. There was a degree of trade expansion in the five decades to World War I but, until the late 20th century, interactions across continents involved little more than the exporting of vine cuttings and traditional production expertise. Indeed most wine was consumed in the country of production, and those countries were mostly in Europe.


The fall in transport and communication costs since the 1980s is largely responsible for the change. That has made it affordable for many more producers to focus on exports, and for some to also focus on mergers or acquisitions.


Falling international trade costs and de-regulation of liquor retailing have also allowed large supermarket chains to become buyers of both bottled or bag-in-box wines and wine for building their own brands.


Retailing through such chain stores requires large quantities of homogenous wine year after year. Producers in the New World were more adept at initially responding to this new demand, creating a huge new category of robust, fruity ‘commercial premium’ wines that fall between expensive fine wines and cheap non-premium (‘table’) wines.


The share of global wine production exported, which had always been below 15 per cent and mostly Mediterranean or intra-European, grew dramatically from the late 1980s. By 2012 it exceeded 40 per cent.


The New World’s share of global wine exports rose from 3 per cent in the late 1980s to 25 per cent (if sparkling wine is excluded) by 2004.


Recognizing their poor performance, Europe’s producers during the past decade have been adapting their practices to compete. The three leading European wine-exporting countries as a group now export almost half their production, up from just one-fifth a generation ago.



Ocean LinerImage credit: APL Post-Panamax container ships. Public Domain via Wikimedia Commons.

Simultaneously, New World producers are seeking to expand their exports of more-expensive wines to complement their lower-end products. The next phase of wine’s globalization therefore may involve a convergence whereby both groups produce terroir-driven super-premium wines alongside more-affordable ‘commercial premium’ branded wines. Meanwhile, cheap basic non-premium wines are continuing their demise.


Technological developments are rapidly altering the means of exporting commercial premium wines. In the past decade or so the share of wine that is exported from the New World in bulk shipping containers has risen from less than 15 to more than 40 percent. Bottling in the country of destination is sometimes cheaper, and it lowers the cost and carbon footprint of shipping. By shipping in 24,000-litre bladders to fit 20-foot containers, this new technology offers greater opportunities to blend wines from any region of the world.


Greater openness to trade means winemakers and hence grapegrowers are far more exposed now than pre-1990 to exchange rate volatility, and also to greater import competition in their domestic market as consumers seek to choose from an ever-broader range of wines. Wide fluctuations in exchange rates since the global financial crisis began in 2008 have substantially altered national shares in key markets.


Greater openness and international travel also alter tastes and preferences. Nowhere has this been more obvious in the case of wine than in China. Chinese wine imports grew more than 50 percent per year during 2006-12. With the number of middle class in China currently around 250 million and growing at 10 million per year, and with grape wine accounting for less than 5 percent of alcohol consumption, further large increases in wine consumption are expected. How much of that Chinese demand will be supplied by domestic producers is difficult to guess, but import growth is likely to continue for the foreseeable future (see Wittwer and Anderson 2015).


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Published on September 28, 2015 00:30

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