Showing papers in "International and Comparative Law Quarterly in 1981"
TL;DR: In this article, the authors examine the question whether insurgents have rights and duties under the Protocol and in particular, whether they can claim respect for the Protocol by the incumbent Government and, if so, at what stage of civil war they become bound by the obligations of and benefit from the Protocol.
Abstract: THE question to which I wish to address myself in this paper relates to the possible legal standing of rebels in the case of civil war under the II Additional Protocol to the four 1949 Geneva Conventions, which was adopted by a Diplomatic Conference in 1977. I shall examine the question whether insurgents have rights and duties under the Protocol and in particular, whether they can claim respect for the Protocol by the incumbent Government and, if so, at what stage of civil war they become bound by the obligations of and benefit from the Protocol.
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TL;DR: The image projected in Africa since the early seventies has been one of strife, mismanagement, cruel leadership and selfserving elites as mentioned in this paper, and philosophical issues have become burdened with political and emotional issues giving rise to inconsistencies which have made progress towards a greater respect for human rights difficult and embarrassing.
Abstract: A SUBJECT Of contemporary relevance to African States is the protection of human rights': these rights find expression in many international and regional documents2. The image projected in Africa since the early seventies has been one of strife, mismanagement, cruel leadership and selfserving elites3. Furthermore philosophical issues have become burdened with political and emotional issues giving rise to inconsistences which have made progress towards a greater respect for human rights difficult and embarrassing. Most people now realise how urgent and important it is to take a positive step in order to fill the vacuum in the African continent on human rights.
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TL;DR: The Mare Liberum of Grotius, published in 1609, is considered to be the seminal work of international maritime law as discussed by the authors, and is considered the "father of international law".
Abstract: IT IS generally believed and commonly asserted that the modern law of the sea, like other rules of inter-State conduct inherited by the world-wide community of States, is "essentially the product of the European mind" and "European beliefs" ' which got consolidated and developed by European practices during the last three centuries. 2 The bulk and essence of maritime law during the last more than one hundred and fifty years can be summed up in the doctrine, "freedom of the seas". Although accepted as a binding principle under Roman law, it was lost and forgotten in Europe after the disintegration of the Roman Empire and was said to have been enunciated for the first time during the modern period by the seventeenth century Dutch scholar and jurist, Grotius, in his Mare Liberum, published in 1609.3 "The freedom of the sea slumbered the sleep of the Sleeping Beauty", it is suggested, until this gallant knight from the the Netherlands appeared "whose kiss awakened her once more". I Few works of such small size have gained such great reputation as the Mare Liberum. It is said to be "the first, and the classic, exposition of the doctrine of the freedom of the seas".' In this remarkable small book, published anonymously in the first instance in 1609, perhaps even more than in his later and more authoritative work De Jure Belli ac Pacis (1625), "Grotius is so especially associated with the birth of international law as to become entitled to the general tribute he has received in modern times as 'Father of International Law'." 6
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TL;DR: In this paper, the possible remedies available to an investor who has been the victim of expropriation might be spelled out as follows: municipal law, international law, and exclusively international law.
Abstract: SINCE 1945 the risk of expropriation has been a key factor in the decision to invest overseas and investors have sought to use many devices to eliminate, or more usually to reduce, the risk of losing the investment. Yet despite the risks, States have been anxious to encourage corporations to exploit the overseas market, corporations have continued to invest overseas, and mineral rich underdeveloped States have welcomed the investment. A typical arrangement is for a corporation or a consortium or corporations ("the investor") to conclude a concession agreement ' with a State ("the host State") for the exploration and exploitation of mineral resources. Such agreements are complex and their precise status is a matter of some real controversy. 2 The controversy centres around the problems of the choice of law and of the special position of the host State as both contractor and legislator. 3 But no matter how carefully such agreements are drafted, expropriations continue to occur,4 usually by legislative act of the host State, and the investor is then obliged to look to his choice of remedies. It is here that the subtle blending of municipal law and international law which pervades such agreements becomes particularly apparent. Some remedies are principally municipal law remedies in which the courts of one or more States are asked to consider the legality of the actions of the host State. Others are principally international law remedies where the dispute will be examined against current international standards relating to expropriations. Finally there are the exclusively international law remedies. The possible remedies available to an investor who has been the victim of expropriation might be spelled out as follows.
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TL;DR: The authors examines the responses of selected African countries to foreign control of their economies and examines host-governments' responses to foreign economic control and takes a look at the experiences of selected Africa countries.
Abstract: enterprises which play a key role in the economy and development of these countries. In some LDCs, governments are under strong and increasing pressure to pursue a nationalistic, albeit chauvinistic course. More fundamentally, the drive by LDCs to increase or gain control over their economies and restrict the role of alien-owned enterprises, particularly local subsidiaries of transnational corporations (TNCs), is often motivated by a popular belief that they can secure greater economic benefits from resource development and industrialisation, not only now but more particularly in the future. This paper attempts to examine the responses of selected African countries to foreign control of their economies. It is divided into three parts: Part I deals with efforts by African Governments to attract direct foreign investments (DFI); Part II examines host-governments' responses to foreign economic control and takes a look at the experiences of selected African countries; Part III deals with the responses of alien investors and their home governments (investor-States).
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TL;DR: A brief examination of the nature of the maritime domain will show how its relative particularity affects the system of its regulation as discussed by the authors, i.e., the technique of international maritime legislation.
Abstract: THE SEA plays a very important role in international intercourse because of its manifold uses to mankind. History is replete with ventures made by different nations at different times to control it, with instances of diverse international conferences to regulate its use and with attempts by international lawyers to define its legal regime. A brief examination of the nature of the maritime domain will show how its relative particularity affects the system of its regulation, i.e. the technique of international maritime legislation.
TL;DR: The question of the legitimacy of the external support and its ramifications in the province of domestic jurisdiction in international law have received a new dimension and hence a discussion of this incident will certainly focus attention on a contemporary current political and legal problem.
Abstract: THE incident leading to the overthrow of President Amin in Uganda by means of external support has given rise to considerable political and legal controversies and indeed has opened a new vista in certain provinces of international law. The question of the legitimacy of the external support and its ramifications in the province of domestic jurisdiction in international law have received a new dimension and hence a discussion of this incident will certainly focus attention on a contemporary current political and legal problem.
TL;DR: The development of the jurisprudence of the Court of Justice of the European Communities relating to "general principles of European Community Law" and its increasing reference to the European Convention on Human Rights and other sources of fundamental rights as forming an integral part of that law suggests that the European convention may have been accommodated into the corpus of European community law as discussed by the authors.
Abstract: THE DEVELOPING "jurisprudence" of the Court of Justice of the European Communities relating to "general principles of European Community Law" and its increasing reference to the European Convention on Human Rights and other sources of fundamental rights as forming an integral part of that law suggests that the European Convention may have been accommodated into the corpus of European Community law.' This "communitisation" of the European Convention may well endow its substantive provisions with special Community law features in relation to national law, thus radically altering the Convention's status in the domestic law of the nine member States.2 In the words of the former President of the Court of Justice of the European Communities (the Luxembourg Court): Just as Community law has become effectively established thanks to national courts, so the [European] Convention [on Human Rights] can become part of national legislation by means of the combined compulsory force of the decisions of the Court of Justice and national judgments. By interpreting Community law in the light of the Convention, the Court of Justice would place the efficacy of its decisions at the latter's disposal. Direct effect, uniformity, the primacy of community law could also help the rights safeguarded by the Convention to penetrate both into the Community and each of the member States. 3
TL;DR: In this article, the external relations of the European Economic Community have been the object of a growing number of general overviews in recent years' as a consequence of the case-law of European Court of Justice in this field, little has been written on the external powers of the E.E.C with regard to specific areas.
Abstract: ALTHOUGH the external relations of the European Economic Community have been the object of a growing number of general overviews in recent years' as a consequence of the case-law of the European Court of Justice in this field, little has been written on the external powers of the E.E.C. with regard to specific areas. 2 So the object of this paper is to try to fill the gap, as far as the field of the protection of the environment is concerned.
TL;DR: In this paper, the authors assess the contribution of the International Labour Organisation (I.L.O.) in this important area, including the control of substandard vessels, including those registered under flags of convenience.
Abstract: IN October 1976, the 62nd (Maritime) Session of the International Labour Conference adopted the Convention concerning Minimum Standards in Merchant Ships, and the Recommendation concerning the improvement of Standards in Merchant Ships. These instruments, which have been described as a "significant breakthrough" in the control of substandard vessels, are the culmination of activities by the International Labour Organisation (I.L.O.) over half a century. The control of substandard vessels, including those registered under flags of convenience, 2 is now a major preoccupation of the international community, and the purpose of this article is to assess the contribution of the I.L.O. in this important area.
TL;DR: In this article, the authors define state succession as "a change in the possession of competence to conclude treaties with respect to a given territory" rather than "sovereignty" in the sense that it would cover a wider range of international situations including international mandates, territories under trusteeship, protectorates and maritime zones over which the coastal State may exercise limited jurisdiction.
Abstract: A. Theories of Succession THE definition of State succession has, over the years, posed certain difficulties. O'Connell' describes it as "the factual situation which arises when one State is substituted for another in sovereignty over a given territory". This leaves unanswered the question whether international rights and duties of States arising from treaties remain unaffected by the change in sovereignty and whether they are automatically, as a matter of law, succeeded to by the successor State. Sir Humphrey Waldock, Special Rapporteur on the Succession of States and Governments in respect of Treaties, in his first report to the International Law Commission of the United Nations, preferred to define State succession as "a change in the possession of competence to conclude treaties with respect to a given territory".2 Waldock employed the term "competence" rather than "sovereignty" because it would cover a wider range of international situations including international mandates, territories under trusteeship, protectorates and maritime zones over which the coastal State may exercise limited jurisdiction.3 However, in the ensuing debate on State succession in the Commission 4, the view was expressed by other members that the concept of "sovereignty" is indispensable to any definition of State succession because it is intended precisely to exclude certain situations such as those resulting from a military occupation. As a result, in the Special Rapporteur's second and third reports, 5 succession was defined as "the replacement of one State by another in the sovereignty of territory or in the competence to conclude treaties with respect to territory". This definition subsequently underwent further changes
TL;DR: In this paper, the question arises as to whether, apart from defacto and dejure recognition, there is another kind of recognition which enables the court to take cognisance of the existence of an "actual", "effective", or "established" government and give effect to its acts of State.
Abstract: THE TRADITIONAL view is that there are two kinds of recognition of a government which may be accorded by the executive, i.e. defacto and dejure recognition. If a government is de facto recognised, this is an indication of willingness to maintain diplomatic or consular contacts, however limited, with that government. However, there is no consensus of opinion as to its precise legal meaning. De jure recognition, on the other hand, implies a definite indication of preparedness for normal diplomatic relations. This type of recognition is undoubtedly the fullest kind of recognition. It demonstrates confidence in the stability of the government and the State, the expectation that international obligations will be met, and a willingness to maintain normal diplomatic relations. If such a confidence is not as yet very firmly placed, de facto recognition is usually given as a transitional stage. De facto recognition is therefore, more tentative and less committed. It is not normally accompanied by the establishment of full diplomatic relations. ' The question arises as to whether, apart from defacto and dejure recognition mentioned above, there is another kind of recognition which enables the court to take cognisance of the existence of an "actual", "effective", or "established" government and give effect to its acts of State. 2 On the other hand, recognition of a government is distinguisable from recognition of a State. 3 Recognition of government implies recognition of the State; it would be impossible to recognise a government but not the State of which it is the governing body. Conversely, it is possible to recognise a State but
TL;DR: The recent Israeli prisoners' rights case of Katalan et al. v. Prison Authority (hereinafter, Katalan),6 decided by the High Court of Israel' on as discussed by the authors, showed that the judiciary must always defer to the judgment of prison administrators with regard to prison regulations.
Abstract: PRISONERS' rights have developed slowly in the United States. For many years, courts considered a prisoner to be a "slave of the State" who "not only forfeited his liberty, but all his personal rights . . ."' Many jurisdictions adhered to the infamous "hands off" doctrine which held that the judiciary must always defer to the judgment of prison administrators with regard to prison regulations.2 In this context, many courts held that they lacked jurisdiction to adjudicate prisoner complaints. 3 While later decisions have recognised that prisoners have constitutional rights,4 recent Supreme Court cases continue to limit prisoners' rights. In the Fourth Amendment context, for example, the'court continues to defer to "reasonable" and "necessary" regulations established by prison officials. 5 In this light, the recent Israeli prisoners' rights case of Katalan et. al. v. Prison Authority (hereinafter, Katalan),6 decided by the High Court of Israel' on