Showing papers in "International and Comparative Law Quarterly in 1982"

The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking

Abstract: ON July 17, 1978, at the close of an economic summit meeting in Bonn, West Germany, the leaders of the major industrialised countries of the free world1 issued an unexpected Declaration on International Terrorism.2 This Declaration, commonly known as the Bonn Declaration, specifically describes how the signatories3 of the Declaration intend to treat cases of aircraft hijacking.4 The Bonn Declaration was first invoked against a State which purportedly violated the principles of the Declaration when it was implemented on July 21, 1981, against Afghanistan.5 Later, the Bonn Declaration was reportedly used to bring diplomatic pressure to bear against South Africa in an

Is the Commonwealth an International Organisation

Abstract: THE "British Commonwealth of Nations" has, of late, seemed to baffle the writers on the Law of Nations, or at least to be regarded by them as a no-go area. A general work contains no more than a passing reference to it, if that. Or one encounters a defeatist observation such as that of Eagleton: "What this Commonwealth is it would be hard to say. It has no constitution, no organisation, no headquarters." ' Conversely, one finds, in the most recent and exhaustive of the works on Commonwealth law, but one or two references to international law. 2 This is not to complain that the writers are at fault, or have given short measure. They are concerned with other matters. Certainly, too, the Commonwealth relationship is unusual, perhaps unique. 3 But what exactly is it, today? Eagleton's despairing cry was raised in 1957, and things have changed since then. The very name has almost disappeared, "British" having been dropped as Anglo-centric, and "of Nations" as redundant. Within the Commonwealth except in the Commonwealths of Australia, and, now, of the Bahamas and of Dominica it is enough, in most contexts, to speak simply of "The Commonwealth". Outside, it obstinately remains "British". The title suggested by Patrick Gordon Walker, one of its principal latter-day architects iih the political sphere, was "The Euro-Afro-Asian Commonwealth".4 That idea has not caught on. The changing name indicates fundamental changes in the nature of the Commonwealth association. These will be examined as this study progresses, so far as significant for its main purpose, which is to assess the status of the contemporary Commonwealth in the international field. A convenient approach is to consider whether it is an "international organisation", a term in common use in international law. The question has been foreshadowed. Fawcett, in 1963, described the Commonwealth as "a kind of international

The Protection and Promotion of Foreign Direct Investment in Developing Countries: Interests, Interdependencies, Intricacies

Abstract: Direct investment means the investment of money, goods or services in a project for entrepreneurial commitment, especially establishing subsidiary companies or take-over of enterprises; capitalising branches and plants (endowments); securing equity holdings in corporations with powers of management and control (generally of 25%7o); making long-term loans with low or partnershiptype interest rates in conjunction with equity holdings. Such investments are thus characterised by their direct use for a specific project (not through the capital market), amortisation and profit dependent upon the success of the project (entrepreneurial risk), long-term or unlimited period and an enduring entrepreneurial commitment to the project accompanying the investment. This is in contrast with "portfolio investments" which are placed through the capital market without entrepreneurial commitment, are relatively short-term and made only for the sake of capital yield (fixed interest securities, capital shares of enterprises without controlling interest, bank loans, etc.), and other capital investment (purchase of real estate, etc.). In contrast with these types of investment, the direct investor also provides a package of business and technical know-how for the project.' Thus, a protection and promotion policy concerning direct investments exclusively does not aim at a general protection of assets abroad, but specifically at a functional protection of direct investments as a special type of economic cooperation. Accordingly, it is not primarily a concern of

The Legal Competence of the United Nations High Commissioner for Refugees

Abstract: A MAJOR problem facing the international community today is the emergence of vast numbers of refugees, particularly in parts of Africa and Indo-China. The number of refugees is said to be in excess of ten million. More than half that number is found in Africa, where inflows of refugees compound the economic and social problems of countries which are already among the least developed. Public attention has been focused recently on African refugees, especially through the International Conference on Assistance to Refugees in Africa (ICARA), convened by the United Nations at Geneva from April 9 to 10, 1981. More than $566 million dollars in cash or in kind' were pledged at that conference, in addition to funds already available for assistance to refugees. The Office of the United Nations High Commissioner for Refugees (UNHCR)2 has primary responsibility for the protection and assistance of refugees, although other organisations, such as the United Nations Children's Fund (UNICEF) and the World Food Programme, also play a significant role. The purpose of this article is to examine the limits which circumscribe the field of activity of UNHCR. It treats the legal competence of UNHCR by reference to the principal treaties and resolutions on which his authority is based, and shows how the Office of UNHCR has adjusted to the current circumstances of mass movements of people seeking refuge, including the so-called "displaced persons". The United Nations appointed UNHCR by General Assembly resolution 319 (IV) of December 3, 1949, to continue to provide protection for refugees after the International Refugee Organisation came to an end. Over the years, the mandate of the Office of UNHCR has been successively extended; the current term will expire in December 1982.

The Extraterritorial Enforcement of U.S. Antitrust Laws: Conflict and Compromise

Abstract: THE position taken by the courts of the United States as to the extraterritorial reach of the Sherman Act' and other U.S. antitrust laws2 has caused considerable concern to the States belonging to the Commonwealth. At a meeting of Commonwealth Justice Ministers at Kingston, Jamaica in June 1980, the Australian Attorney-General presented a paper arguing that the States of the Commonwealth should adopt a uniform attitude to efforts by the United States courts to enforce the Sherman Act extraterritorially. 3 In the recent past, there have been several rebuffs by Commonwealth courts to efforts made by American courts seeking to secure evidence through letters rogatory4 and Commonwealth legislatures have enacted legislation which would prevent documents situated within their countries being made available to plaintiffs in the United States to prove violations of antitrust laws before United States courts.

Anglo-American Co Operation in the Suppression of Drug Smuggling

Abstract: ON November 13, 1981 the Government of the United Kingdom and the Government of the United States concluded an Exchange of Notes (the text of which is set out in the Appendix to this article) concerning cooperation in the suppression of the unlawful importation of narcotic drugs into the United States.' The Exchange of Notes permits the United States authorities to board private British vessels on the high seas in the Gulf of Mexico, the Caribbean Sea and on the Eastern seaboard to search for drugs destined for unlawful importation into the United States. If drugs are found on board, the vessel may be seized and taken back to the United States where the vessel is liable to forfeiture and the crew to stand trial. The agreement represents a significant departure from the customary rule that on the high seas jurisdiction follows the flag. These exceptional measures have been brought about by the dramatic increase in recent years of drug smuggling into the United States by sea. Some British vessels, among others, have been involved in this illicit trade. The Exchange of Notes is reminiscent of the Convention between the United Kingdom and the United States respecting the Regulation of the Liquor Traffic, concluded in Washington on January 23, 1924,2 which dealt with a similarly exceptional situation. In that case the United Kingdom agreed to raise no objection to the boarding of private vessels under the British flag to search for "alcoholic beverages" on their way to beat the prohibition. In return for the cooperation of the British Government, the United States agreed to allow British vessels into their ports on their way to other destinations with liquor under seal on board. There is no quidpro quo for the new agreement, beyond the satisfaction for the British Government that it is protecting the good name of the British flag and cooperating in the suppression of a trade which is part of a universal problem. Before examining the provisions of the Exchange of Notes in detail it may be

The Constitutional Court of the German Federal Republic: Jurisdiction Over Individual Complaints

Abstract: THE purpose of this article is twofold. As the title indicates, the explicit topic is the jurisdiction of the Constitutional Court of the Federal Republic of Germany ("the court") over cases of a particular type. These are the individual constitutional complaints [Verfassungsbeschwerden] which, it would seem from the face of the legislative provisions authorising them, might be lodged with the court by any person nursing a grievance. This study sprang from a sense of dubiety that any court could survive as an institution under the pressure of an unchecked stream of complaints. Thus the investigation is focussed upon how, despite some rather clear statutory language considered in the body of this paper, the court has managed to protect itself from being overwhelmed. If this were all, this article would have served merely to alleviate a mild feeling of curiosity and, perhaps, to provide a useful manual for any would-be litigant before the court who might chance upon it. But its approach has been influenced by the broader consideration of gaining some insight into the jurisprudential workings of the court. To be sure, there is no dearth of studies devoted to precisely this task. Such studies fall essentially into two groups. First, and most numerous, are those which delve into particular cases of some notoriety to draw conclusions about the court's role as a political and policymaking institution.' Secondly, there are articles setting out in some detail the jurisprudential difficulties entailed in particular areas of the court's endeavours. 2 The present paper must be included in the second category, but differs in certain respects from the approach adopted elsewhere. Writers in this vein to date have largely been judges of the court or professors at German Universities. 3 The former have tended to concentrate on what they think the court is doing in its decisions, the latter on what they think the court ought to be doing. In all of this, any awareness of what the court is doing gets a trifle

Should social insurance pay compensation for pain and suffering

Abstract: origins in ancient Roman Law and which regulated civil liability in this field. In the process of its historical evolution, this system found concrete legislative expression in Continental Law in the French Code Civile of 1804', and later, in many laws in most States. Then, about a century ago, a second system emerged, designed, inter alia, for the same purpose. This was the system of social insurance, 2 and since that time, there are two parallel - albeit totally different - legal systems for ensuring conpensation for personal injury. The first milestone in the above-mentioned evolution was the German Workmen's Compensation Act 1884. This revolutionary Law, the passage of which constituted an event of utmost importance in the history of law, ushered in a new era in the field of compensation for personal injuries. Its importance was fourfold: first, it extricated, for the first time, a most important and defined segment of compensation (i.e. for work injuries) from the sphere of tort law, relocating it in another, totally new field. Secondly, it introduced, for the first time, liability insurance (concerning the liability of employers) of significant dimensions, in the novel form of compulsory insurance. Thirdly, it implemented, for the first time, a comprehensive system of No-Fault liability and insurance in the form of absolute liability; and fourthly, it embodied the archetype of social insurance in our time for the injured, and symbolised the birth of such insurance. In all these aspects, the said Law possesses the birthright on a world-wide level. In recent years, there has been an increasing trend for certain provisions in the field of tort law to be brought closer to the field of social insurance: consequently, it is possible to talk of the birth of a new category of legal provisions designed to compensate the victims of personal injury, represented by quasi-social provisions which have departed significantly from the classical forms of tort law.

Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?

Abstract: ON August 13, 1980 Australia ratified the International Covenant on Civil Political Rights, fourteen years after it was adopted by the United Nations and four years after it came into force.' This ratification is a reflection of the particular difficulties federal States encounter where the subject-matter of a treaty lies wholly or partly within the jurisdictional competence of the constituent federal units. In order to overcome this constitutional impediment to treaty participation the Commonwealth and States agreed at the October 1977 Premiers' Conference on certain procedures to facilitate the ratification and implementation of treaties. 2 The Commonwealth agreed to consult with the States before deciding to legislate to adopt or implement a treaty that "affects a legislative area traditionally regarded as being within the responsibilities of the States". 3 Ratification of the International Covenant on Civil Political Rights was possible only after extensive consultative discussions between the Commonwealth and State Ministers at the Meeting of Ministers on Human Rights. Indeed the Attorney-General has described the ratification as an "important achievement in the area of the Government's Federalism Policy". 4 Ratification was achieved on the basis of extensive reservations and declarations limiting Australia's international obligations in relation to specific provisions of the Covenant.5 The first of these reservations represents an attempt to conform, at least in spirit, with the agreement reached at the Premiers' Conference to insert a federal clause in treaties involving matters governed by State law. While the International Covenant does not include a federal clause, Article 2(2) requires that a State shall give effect to the rights recognised in the Covenant "in accordance with its constitutional processes". Australia purports to "advise" that its constitutional process is that of a

Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems

Abstract: THE unique contribution of American conflict of laws to modern ideas on choice of law is the introduction of governmental interest analysis to solve the perennial problem of which law to apply. Whilst this approach has been used extensively in several areas of choice of law in America it is only in tort choice of law that it has found favour in England. In this particular sphere interest analysis is advocated not only by English academics' but, even more importantly, by at least one Law Lord in the leading case of Boys v. Chaplin. 2 With the likelihood of reform of our tort choice of law rules in the near future it is appropriate to consider whether it is desirable or even possible to apply interest analysis in England to this area. In answering these questions it is proposed first to look at interest analysis as a means of arriving at particular decisions and secondly to consider the wider consequences for us in England of adopting interest analysis.

The European Communities and Control of Criminal Business Activities

Abstract: IT is axiomatic that, with the development of increasingly complex and sophisticated systems of State regulation of the economy, opportunities for illegal advantage to be taken of such systems also multiply. Taxation provides the most obvious example: the more complex the system of administering the taxes, the easier it becomes not only to evade liability but also to make illicit gains over and above simple evasion. Similarly, economic support systems, whether of a social security or trade subvention character, provide a temptation to make illegal profits. The setting up of the European Communities, and of the EEC in particular, has provided additional opportunities of this kind ', with the difference that usually the pickings are larger and often the activities involved have an international character. This article is concerned with unlawful and usually criminal activities, the opportunities for which have been provided by the systems and procedures established by the European Communities: unlawful activity which therefore has a European as opposed to a national dimension. The interest of the present research lies not so much in the existence of this kind of delinquency as in problems relating to the investigation, prosecution and uniform handling of the resulting offences. The cross-frontier character of many offences of this kind may result in problems of jurisdiction and of mutual assistance between national authorities in matters of investigation and prosecution. Even when such offences occur wholly within the territory of one State, there remains the possibility of an uneven application and enforcement of rules of criminal law as between different States, which is an undesirable situation from the Community point of view. The Community context of these activities itself raises special problems as

The Codification of Constitutional Conventions in the Commonwealth Caribbean Constitutions

Abstract: IN common with many States once colonies of the United Kingdom, the Independence and post-Independence constitutions' of all Commonwealth Caribbean territories, have codified many of the constitutional conventions of the United Kingdom. It is proposed to examine these codifications and their method and to make observations on the working out of the codifying exercise. It is not proposed to restate the arguments relating to the general character of conventions and to the distinction between conventions and laws. Discussion will however presuppose the distinction, based on the difference to be found between law and convention when applying Hart's2 celebrated concept of a "rule of recognition", as identifying any given "proposition" as law. Thus if a rule of recognition, in the context of the United Kingdom, is that whatever rules courts assert to be law are laws, then one can conclude with Hart that conventions are not laws "because the courts do not recognise them as imposing a legal duty." 3 It will further be postulated that prima facie the enactment of Westminster style conventions or analogous propositions in the constitutions concerned invested these conventions with the character of law. Here once again, adopting the tool of a rule of recognition, it might be said that for the pre-independent territories of the Commonwealth Caribbean acts of the Queen in Parliament and/or in Council extending to them constitute law, giving legal force to the provisions of the constitutions adopted at independence. The incorporation or reincorporation of conventions in republican and "other" constitutions, made under powers given by the independence constitutions, would be law, based on a proposed rule of recognition that the enactments of "local legislatures" as empowered by the independence constitutions are themselves law. It was doubtless thought meet and fitting that the territories of the

Medical Professional Privilege in Commonwealth Law

Abstract: THE law of privilege involves the resolution of a conflict of policy. No doubt the exclusionary rules applicable to privileged communications are often an impediment to ascertainment of the truth; but "so are all the rules which fetter the giving of evidence".' The law of privilege is founded on the premise that, in some contexts, this price is well worth paying to safeguard confidences in the setting of basic fiduciary relationships. The underlying principle is "the significance to human freedom of well based privileges of confidential communication".2 The distinction between confidentiality and privilege is an essential feature of the law. An English court has declared: "Confidentiality of itself has never been recognised as a ground for a valid claim of immunity."3 This approach was adopted by the Supreme Court of New Zealand in its comment: "A mere pledge of secrecy, however solemnly given, will not hold good when in the course of litigation the transactions which were the subject of that pledge become relevant as a part of the case of some person not a party to the pledge of secrecy."4 The treatment of confidentiality as a mere element of privilege is underscored by the observation of the House of Lords that the fact that relevant information was communicated in confidence does not neces-