Showing papers in "International and Comparative Law Quarterly in 1980"

Individual Responsibility under International Law: The Nuremberg Principles in Domestic Legal Systems

Abstract: IN 1940, the United States Supreme Court decided Milliken v. Meyer,' holding that a domiciliary of a particular State could be subject to the jurisdiction of that State, irrespective of his presence in its territory, provided that a reasonable method existed for notifying the absent party of the proceedings.2 During the course of his majority opinion, Mr. Justice Douglas enunciated a principle which has been axiomatic to the relationship between a government and its citizens for many centuries: " The State which accords [a person] privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties." 3 Forty years after Milliken, this principle has become international in scope. Today, an individual whose human rights are violated by a national government may look to an entire body of international human rights law,4 and in some cases, even gain a measure of relief directly from the international community at large.5 This expansion of human rights law into the international sphere has been accompanied by an analogous trend towards the establishment of a set of international responsibilities imposed directly upon individuals. As Professor Alessandra Luini Del Russo has noted: " The growing awareness and concern of the international community for the individual human being is evidenced by the fact that in recent years man has been recognised as a subject not only of rights but also of duties at the international level." 6

The Case Against Legal Recognition of Cohabitation

Abstract: BY judicial interpretation and by outright statutory enactment, cohabitation is gradually being accorded legal status in English and in foreign law.' At no stage in this development has the whole question of the desirability of the recognition of cohabitation been considered. It has been treated pragmatically and fragmentarily. It is not yet too late to put the case against the legal recognition of cohabitation, whether such recognition is achieved by extending marital law to cohabitants as a general principle, or by enacting special laws for them, or by allowing the fact of cohabitation to give rise to legal situations that would not have been found if the two persons involved had never lived together. The case for the opposition is based partly on practical grounds and partly on ideological ones and the ideology (which may be dignified by the appellation " individualism ") has a facet which the writer has supported previously in relation to the economic rights of married persons: the assertion that women do not need and ought not to require to be kept by men after the conjugal relationship between them has come to an end.2 Individualism generally is a theory upholding and protecting the rights of a single person rather than groups or categories. The basic ideas of individualism have been described as, first, the dignity of the individual; secondly, autonomy, or selfdirection; thirdly, privacy, or a sphere of thought and action that should be free from public interference; and, fourthly, self-development.3 It will be argued that each of these ideas is well reflected by legislative non-intervention in the field of cohabitation. Sir Henry Maine traced " the emergence of the self-determining, separate individual from the network of family and group ties." 4 Maine however limited his illustration of the move from status to contract to the position of women before marriage. Now it may be possible to apply

The Sui Generis Nature of the European Convention on Human Rights

Abstract: UNLIKE the 1948 Universal Declaration of Human Rights upon which it was founded, the European Convention represents more than a " common standard of achievement." It imposes upon the Contracting State Parties a certain body of legal principles which they are obliged to conform to. In specific cases compliance with this law is ensured by the use of the Convention's enforcement machinery. Although the Convention forms an integral part of the domestic law of many of the Contracting State Parties, it is immaterial whether or not under a national legal system the Convention's provisions are deemed to be of a greater validity vis-d-vis prior or subsequent domestic legislation, since the system of implementation falls entirely outside the province of domestic law.' The basic function of this machinery-once an issue is brought before the Strasbourg organs--consists primarily of examining and determining whether domestic law as it stands complies with the provisions of the Convention. Reliance upon the traditional international law concepts of "nationality " or "reciprocity" is also unnecessary. Thus, although constructed upon tenets of traditional treaty law, the Convention law transcends the traditional boundaries drawn between international and domestic law. In short, the Convention is sui generis. Dr. A. H. Robertson has attempted to explain this phenomenon in the following terms.2 The law of the Convention (like European Community law) is neither domestic nor international law, although it comprises of elements of both. It is not simply a law applied by the Commission and Court of Human Rights since, on the one hand, the Committee of Ministers of the Council of Europe also apply it, and, on the other hand, domestic tribunals also do so. Robertson then adds

The Settlement of Boundary Disputes: Mexico, The United States, and the International Boundary Commission

Abstract: upon power politics in disregard for international law, while the former relies upon and abides by international law. The dispute between the two neighbours over El Chamizal-the refusal of the U.S. to accept the 1911 arbitral award of the Arbitral Commission-is viewed as the exemplification of the border relations between the two countries. In addition, the International Boundary Commission (IBC) is considered to have been a weak and ineffectual instrument for dealing with boundary problems. The literature, both scholarly and journalistic, supporting the above viewpoint in general and the Chamizal dispute in particular is extensive, especially in Mexico where this dispute became a cause cdlebre.

The Principles of Medical and Psychiatric Liability in French Law

Abstract: IN traditional US practice, the courts assess medical malpractice actions according to the concepts and rules of tort analysis. In general terms, the injured patient must establish that the defendant physician committed a negligent act or omission in administering medical care to him. More specifically, he must demonstrate, first, that the defendant owed him a duty of care; secondly, that the defendant's conduct fell below the appropriate standard of care (usually expressed as the standard of care of the reasonable physician, with some variation allowed for specialty and geographical area), and, thirdly, that the defendant's alleged negligent act or omission was the proximate cause of the injury sustained by him.x Some prominent US legal scholars,2 however, have criticised the resort to the tort framework in medical malpractice cases, deeming it to be analytically inappropriate for the resolution of dispute arising under the patient-physician relationship. Its application, it is suggested, leads to a misunderstanding of the consensual nature of that relationship.3 For example, recent developments in tort doctrine have encouraged US courts to deploy public policy analysis in personal injury cases, engendering the expansion of the institutional defendant's liability and the full compensation of the injured party.4 According to Professor Epstein, these cost allocation formulae run counter to the contractual nature of the patient-physician relationship:

Australia and the law of the sea: Recent developments

Abstract: AUSTRALIA'S position as an island continent located between the Indian and Pacific Oceans is a focal point for examining developments in the law of the sea in this region. In recent years, Australian legislative and executive action 1 has covered a range of matters including an extended fisheries zone,2 the demarcation of maritime boundaries with other States (particularly in the Torres Strait area) a and conservation of areas and objects of natural and cultural significance (including the Barrier Reef 4 and historic wrecks).5 It seems therefore to be a particularly appropriate time to examine these legal developments as constituting a regional perspective of issues and solutions which have their counterparts in other areas of the world

The Case for International Law Schools and an International Legal Profession

Abstract: IN most parts of the world, we have come to regard law as definitionally linked either with territory (divided by the boundaries of nation States) or with nationality (based on citizenship or residence). Historically, these notions have not always been prevalent; quite the contrary. Yet they are cornerstones in the very structure of modern societies. Government, the exclusive jurisdiction of courts and enforcement mechanisms are at once the cause of these conceptions and their tangible outward manifestation. Public international law alone, which lacks such means of power, has succeeded in remaining a universal legal system; at least that is true of some pure elements of it. It is banal to observe that the peoples and countries of the world are economically interdependent. But recent history has taught us, and the news media remind us daily, that we now depend on each other to such a degree that significant disruptions in the flows of money, transport, commodities, manufactured products and technology will endanger our survival and create upheavals even in the most stable societies. Confronted by these new and important dimensions of matters which are the stock-in-trade of the international lawyer, it is only natural for him to pose certain fundamental questions: Do the basic concepts of laws confined to territory or nationality (the latter illustrated prominently by the application of long-arm statutes) and exclusive national jurisdictions in fact apply ? Are the international financial and commercial transactions, all of which also necessarily are international legal transactions, properly designed to overcome the obvious impediments of multiple, rival legal systems ? Are the changes which have occurred in real life such that a reform of the law, and a re-orientation of our legal precepts, are called for ? It is with considerable trepidation that I have formulated in such sweeping terms the broad issues, some aspects of which I intend to discuss here. I am deeply conscious of addressing a uniquely qualified and distinguished readership whose members design and document many of these international legal transactions and resolve a number of