Showing papers in "International and Comparative Law Quarterly in 1984"

Human Rights in Africa: Thoughts on the African Charter on Human and Peoples' Rights in the Light of Case Law from Botswana, Lesotho and Swaziland

Abstract: THERE is nothing new about the proposition that the international human rights movement reflects, to a large extent, the liberal, individualistic tradition of civil and political liberties as developed in such countries as Great Britain, the United States and France.1 There is something very new, on the other hand, in the present attempt by the Organisation of African Unity to embody a list of collective or peoples' rights in a human rights convention that provides for the enforcement of those rights.2 For some time now, the belief has been expressed that the world must move beyond the standard Western-oriented civil and political rights. Only now, however, with the drafting in 1981 of the Banjul Charter on Human and Peoples' Rights,3 are serious steps being taken in that direction.

The Evolution of Refugee Status in International Law: 1920—1950

Abstract: A REFUGEE is usually thought of as a person compelled to flee his State of origin or residence due to political troubles, persecution, famine or natural disaster. The refugee is perceived as an involuntary migrant, a victim of circumstances which force him to seek sanctuary in a foreign country.' Since Rome's reception of the fleeing Barbarians, States have opened their doors to many divergent groups corresponding in a general way to this description of what it means to be a refugee.2 During a period of more than four centuries prior to 1920, there was little concern to delimit the scope of the refugee definition.3 Groups of refugees tended to be relatively small4 and many of them chose to migrate to the Americas and other newly-discovered lands." Moreover, the reign of liberalism with its individualistic orientation and respect for self-determination led most European powers to permit essentially uncontrolled and unrestricted immigration.6 This freedom of international movement accorded to persons broadly defined as refugees came to an abrupt halt after the First World War. The existence of massive groups of refugees who had been dislocated during the war coincided with the rise of political and economic nationalism throughout the Western world.7 Governments responded to this new social situation by adopting more guarded approaches to immigration in general and to refugee movements in particular.8 Out of

The Court of Justice of the European Communities

Abstract: To choose and prepare a subject worthy of the objectives of those who established this lecture is a formidable task, not least for one who follows the lecturers chosen for previous years. I confess that I took advice. It was suggested on the one hand that it would be an appropriate tribute to take as a theme "Money in Community Law"; and on the other that it would be safer and more comfortable for a former member

Public International Law and the Conflict of Laws: The European Response to the United States Export Administration Regulations

Abstract: IN the summer of 1982 the European Communities, and their Member States, reacted vigorously to attempts by the United States to impose an embargo on the supply by certain European companies of goods destined for use in the construction of the Soviet gas pipeline. The European States objected to the claimed extraterritorial ambit of the American legislation and to its retroactive effect in prohibiting the performance of contractual obligations lawfully entered into before the embargo was imposed. The objections were spelled out in unusual detail in the European Communities' "Comments on the Amendments of 22 June 1982 to the Export Administration Regulations", communicated to the US Department of State on 12 August 1982.1 They were followed by an aide-memoire on the same matter on 14 March 1983.2 Those documents-particularly the first-are of great significance both politically, because of the importance of the EEC as a trading partner and ally of the United States, and legally, because of the detail in which the question of extraterritorial jurisdiction is addressed. This article does not attempt to discuss the whole issue of extraterritorial jurisdiction. It concentrates upon some of the novel issues raised by the EC Comments, and particularly upon the question of the legal effect of "submission clauses" included in contracts between the American sellers and European buyers (in both cases, private companies) of American technology, in which the buyers agreed to comply with the US export regulations in their use of the technology. Those clauses give rise to fundamental questions concerning the relationship between public and private international law. In order to set the Comments in context, they and their background are described in the first part of this article. The second, and main, part discusses the issues arising from the use of submission clauses; and the

The English Proper Law Doctrine and the EEC Convention

Abstract: THE EEC Convention on the Law Applicable to Contractual Obligations,1 recently signed by the United Kingdom, has not been well received by some lawyers in this country. The object of this article is to try to show that the main provision of the Convention dealing with the ascertainment of the proper law of a contract in the absence of a choice by the parties, if implemented, will be a considerable improvement on the existing English law. It will be necessary therefore to draw attention to some of the weaknesses of the English proper law doctrine, and put forward suggestions as to the appropriate criteria for ascertaining the governing law of a contract, before turning to consider the Convention.

Regulating sexual history evidence - the limits of discretionary legislation

Abstract: IN 1976 the Sexual Offences (Amendment) Act was passed in England with the purpose, inter alia, of curbing the use of evidence concerning the sexual history of the victim in trials for rape. The relevant provisionsI are in discretionary form so that it is the judges' task2 to regulate the admission of such evidence. At the same time, legislation in a very similar mould was introduced in Australia.3 In this article, it is proposed first to discuss the different routes via which laws of this kind came to be enacted in both places, and secondly to consider their operation.

Trade Union Pluralism and Labour Law in France

Abstract: Kingdom and in the Federal Republic of Germany, for example, practically every union of significance is affiliated to the one national confederation of unions, the Trades Union Congress (TUC) and the Deutscher Gewerkschaftsbund (DGB), respectively. The picture in the Scandanavian countries is superficially one of divided labour movements, but no fundamental ideological differences exist between the manual workers', the white-collar workers' and the professionals' confederations (in Sweden, the LO, the TCO and the SACO/SR);' moreover, these confederations do not compete against each other for members. Elsewhere, however, and most notably in France, Belgium, the Netherlands and Italy, the labour movements are "pluralistic"; that is to say, trade unions are divided along ideological and sometimes confessional lines, and there is considerable rivalry among the different factions. Thus, in France, metal workers in a particular establishment could be members of unions affiliated to either a "Communist", a "Christian", a "Progressive", a "Socialist", or some apolitical confederation. One of the most significant features of labour law in a pluralistic union context is the tendency to confine certain rights of worker representation to "most representative" unions, which has given rise to legal controversy not only in the individual countries but in the international arena as well.2 This article is an account of the

The public funding of abortion services: comparative developments in the United States and Australia.

Abstract: Attempts by anti-abortionists to eliminate public funding for abortion services were recently made in Australia and in the US; these attempts were successful in the US and unsuccessful in Australia The attempts to restrict funding for abortion were described and 3 possible explanations of why the outcomes differed in these countries were offered In the US legislation passed in 1965 created Medicaid a joint federal and state health program to provide health care for the poor In 1973 the Supreme Court ruling in the Roe v Wade case decriminalized abortion and declared that women had a right to abortion It was generally interpreted that Medicaid should pay for medically indicated abortions Most states complied with this interpretation till the mid 1970s Between 1976-1981 a series of amendments referred to as Hyde Amendments were passed by Congress These amendments gradually restricted the use of public funds for abortion services to cases where the life of the mother was endangered or to cases involving rape or incest In 1980 the Supreme Court ruled that states participating in Medicaid programs were not required to pay for medically required abortions These restrictions place great hardships on poor women who seek abortions in the US In Australia the federal government administers a national health insurance scheme and also subsidizes private health companies Abortions are included in the medical benefits schedule In 1979 an effort was made in Parliament to restrict funding for pregnancy termination The effort was defeated by a 65 to 47 vote These differences in outcome may reflect 1) a rebound effect in the US due to the abrupt way in which abortion was legalized in 1972 compared to the gradual liberalization of abortion law in Australia or 2) the fact that the restriction of abortion funds in the US affected only the lower socioeconomic class while in Australia a restriction on funding would have affected a broad spectrum of the society On the other hand these differences in outcome may simply be a product of differing legislative procedures and further efforts in Australia to restrict funding may be forthcoming and successful

A Review of Regional Economic Integration in Africa with Particular Reference to Equatorial Africa

Abstract: THE history of regional economic integration in Africa should start from the signing of the "Agreement of Co-operation between the Organisation of African Unity and the United Nations Economic Commission for Africa" on 15 November 1965 in New York. However, the Economic Commission for Africa, which is a creature of the Economic and Social Council of the United Nations, is a specialised agency of the UN which predates 1965. It was established in 1958. By 1965, the Commission had fully established itself, decentralising its presence beyond its headquarters in Addis Ababa. By 1963 it had opened two regional offices, one in Niamey (Niger) and one in Tangier (Morocco). It also had an administrative outpost by 1963 in Lusaka (Zambia). Its vista of operation had expanded into a number of fields necessitating the opening of such institutions as the Land Policies Development Centre for East and Central Africa (1960) and the Agricultural Credit Centre (1962). In its report for the fifth year of its operation (1963), the Commission declared its readiness to embark on regional economic development schemes. Particular emphasis was laid on its interest in the establishment of an African common market, the creation of an African payments union and the co-ordination of national development plans. The Commission was deeply concerned with concerted efforts in regional economic development and the need to regionalise the integration of African economies. Two major projects of the Commission are the African Institute for Economic Development and Planning in Dakar, and the African Development Bank in Abidjan. Both projects have been conceived as regional projects and in their respective spheres of activity these projects were intended to contribute to a closer regional co-operation in the economic pursuits of African nations.1 The Charter of the African Development Bank is clear as to its aims at

Liability for Reckless Trading by Companies: The South African Experience

Abstract: SECTION 185bis of the Companies Act 19261 of the Republic (as it now is) of South Africa was substantially identical to section 332 of the Companies Act 1948 of the United Kingdom. In the interests of clarity all references in this article to the South African legislation will be followed by the parenthesis "(SA)" and all references to the UK legislation by the parenthesis "(UK)". The Companies Act 1926 (SA) was reconstituted and replaced by the Companies Act 1973 (SA).2 Section 185bis of the former Act now has its counterpart in section 424 of the latter Act, subsection (1) of which reads as follows:

Consumer Protection in French Law: General Principles and Recent Developments

Abstract: THE law of consumer protection' has been growing extensively in France for about ten years. It does not seem necessary to examine the reasons which motivated the creation of this protective law, the French context being very similar to that of other Western European countries. This answer to economic and technological changes was given by the legislature, which intervened several times, and so it is possible to consider the law of consumer protection as a conglomerate of various legal rules taken from different branches of the legal system. This assumption is correct to the extent that the consumer is indirectly protected by several fundamental principles contained in the Civil, Commercial and Penal Codes, and also directly by new rules enacted to support the public interest in the economic field. Nevertheless, the composite character of this branch of the law should not obscure the reality, as one must not forget that there are specific legislative techniques which do actually give a status to the consumer. This is why one should consider consumer law as a body of codified, statutory and jurisprudential rules which aim to restore a balance between parties whose economic strength is unequal. The principal statutes which should be mentioned here are, in the main, fairly recent. The first in the field was the Law of 1 August 1905 which dealt with frauds. This has been amended several times. It was