Showing papers in "International and Comparative Law Quarterly in 1971"

Nationality and Diplomatic Protection

Abstract: DIPLOMATIC protection is the means by which a State gives effect to another State's responsibility for an act in contravention of international law affecting the person or property of a national of the first State.l The State's right to exercise this protection stems, in-turn, from the link of nationality existing between the individual and his State.2 Without this connecting factor of nationality there can normally be no diplomatic protection.3 It follows, therefore, that, before an international tribunal or court will entertain a claim brought by a State on behalf of an individual, it must be satisfied as to various aspects of the relationship between the individual and his State which together comprise the requirement of nationality. It is the purpose of the present writer to explore the nature of the relationship that has been required by international tribunals for the exercise of diplomatic protection with a view towards (1) better understanding of the nature of the present-day requirements in this regard, (2) evaluating the desirability of certain recent developments in the area, and (3) suggesting the desirable course of possible future developments. A few orientational remarks are appropriate at this stage. This writer is in agreement with those who believe that the individual should be accorded access to international justice in his own right. It is unlikely, however, that such a radical departure from traditional international law notions will result from case law development. If such a change is to be brought about at all, it is more likely to be accomplished by means of international conventions freely entered into between States.

The United States Draft Treaty on the International Seabed Area—Basic Principles

Abstract: AT the summer 1970 meeting in Geneva of the United Nations Seabed Committee, the United States delegation tabled, on August 3, a comprehensive and very detailed draft Seabed Treaty, of 78 Articles and five detailed Appendices. This was intended to serve as a basis of discussion and did not purport to represent the definitive views of the United States Government. This draft has already been examined in this Quarterly; and it will be assumed, therefore, that readers are already familiar with the general scheme of an International Seabed Area and with a Trusteeship Zone.' The purpose of the present note is not so much to consider the draft as a possible solution of the problem of the seabed, but to draw attention to some problems presented by the 12 Articles of Chapter I of the draft.2 Chapter I is entitled " Basic Principles "; and aptly so, for these provisions, which exhibit some remarkable novelties, bear an interest which goes beyond the question of deepsea resources, and touches on fundamental questions of international law and obligation. Thanks to the thoroughness and completeness of the draft treaty as a whole, however, it is possible to test these basic principles not only in the light of the general law of treaties so recently codified at Vienna but also in the context of actual situations and problems of a hypothetical deepsea regime based upon those principles. The problem, in a word, is how far it is legitimate and practicable to attempt to legislate for third parties through a multilateral treaty. "The International Seabed Area"-the basic concept of the draft treaty scheme-is defined in Article 1.2 of the draft as comprising " all areas of the seabed and subsoil of the high seas seaward of the 200meter isobath adjacent to the coasts of continents and islands." And Article 2 provides with respect to this area that:

Bhutan's External Relations and India

Abstract: NEPAL, Sikkim and Bhutan form a belt of buffer States lying between India and China. The independent existence and internal stability of these small, landlocked and remote States largely depend on the attitude of the great neighbours on their north and south. The British policy towards the Himalayan kingdoms was shaped by the geopolitical 1 factors of the region. The principal objective of the Himalayan policy of the British was indeed the strengthening of India's traditional borders on the north. Under this policy, it was assumed that the main threat to India's northern borders came from Russia. This was partly met by creating a ring of protected and dependent States in the North-West Frontier.2 As far as the Himalayan region was concerned, the Russian thrust was neutralised by the Anglo-Russian Convention of 1907 which clearly defined the spheres of influence of Britain and Russia in Asia.3 Eventually the Russian threat from the north receded and disappeared altogether. But the more perennial threat to India's north and north-eastern frontiers was from China. China had always held the view that the Himalayan region was "within her natural sphere." 4 The Chinese even "likened the Union of China, Tibet, Nepal, Sikkim and Bhutan to the blending of the five colours and compared the position of Tibet, Nepal, Sikkim and Bhutan to that of the molar teeth side by side in a man's mouth." 5 Whenever China was powerful enough, she was

Human Rights and the Rule of Law in Southern Rhodesia

Abstract: THE aim of this paper is to analyse whether, and to what extent, Southern Rhodesia fulfils the requirements of the concepts of the rule of law and of human rights: does Southern Rhodesia adhere to the rule of law and does it guarantee and enforce human rights? A discussion of these two questions will require, on the one hand, a definition of the terms "rule of law" and "human rights" and a discussion of their relationship In order to deal meaningfully with the two terms, it becomes necessary to make the assumption that both can be conceptualised in a way that permits us to use them as an abstract measure, against which the factual situation in a specific country can be set It is on this aspect that the emphasis will be laid, rather than on the question whether and to what extent the two concepts are in fact of a binding character and enforceable in international law On the other hand, the two questions further require, at least as a working hypothesis, an agreement on how the present constitutional status of Southern Rhodesia should be conceived