Showing papers in "International and Comparative Law Quarterly in 1985"
51 citations
TL;DR: The most striking problem of international humanitarian law today is its general lack of applicability as discussed by the authors, and a solution to this problem is presented in this article. But it is not a solution for all cases.
Abstract: THE four Geneva Conventions of 12 August 1949,1 the main instruments of contemporary international humanitarian law, apply as a whole in an international armed conflict if at least two of the High Contracting Parties are parties to that conflict.2 The most striking problem of humanitarian law today is its general lack of applicability. In the past 15 years several internal and international armed conflicts have occurred. However, in almost every case at least one of the parties to the conflict did not consider international humanitarian law to be applicable. This article will attempt to analyse this most difficult problem and to outline a possible solution.
49 citations
TL;DR: In this article, it is argued that none of the current approaches to "the problem of extraterritorial jurisdiction" is satisfactory, and that the complexity of the problem is such that a satisfactory solution based upon the development of case law or agreed allocations of jurisdiction is impracticable.
Abstract: IN this article it will be argued that none of the current approaches to "the problem of extraterritorial jurisdiction" is satisfactory, and that the complexity of the problem is such that a satisfactory solution based upon the development of case law or agreed allocations of jurisdiction is impracticable. The "problem" is in truth a bundle of closely related problems, each giving rise to distinct issues of law and policy. However, by acknowledging that the right to control certain elements of economic activity is an essential component of sovereignty, it may be possible to identify a legal principle-"'economic sovereignty"-to guide the resolution of jurisdictional disputes. This article tentatively outlines some possible ways in which attempts to identify the content of economic sovereignty might proceed. The article has three main sections: (1) an introduction to the problem; (2) an examination of some of the characteristics which distinguish different kinds of problem concerning extraterritorial jurisidiction; and (3) a sketch of the concept of economic sovereignty and of the role which it might play in resolving these conflicts. Most of the discussion is placed in the context of competition laws which have been the major, but not the only, source of jurisdictional disputes.
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TL;DR: In this article, the achievements of the "biomedical revolution" have heightened expectations of legal redress for injuries which only a few years ago would have been perceived as the cruel hand of fate to accommodate within the framework of conventional tort law.
Abstract: ADVANCES in biology and medical science have led to ever-increasing control over life processes and human attributes As well as presenting a challenge to deeply held values, the achievements of the "biomedical revolution"' have heightened expectations of legal redress for injuries which only a few years ago would have been perceived as the cruel hand of fate To accommodate within the framework of conventional tort law
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TL;DR: In this paper, the scope of the exceptions contained in ss.3-11, e.g., contracts of employment and tortious liability for personal injuries (s.3.4), is discussed.
Abstract: 1. The extensive literature on the subject includes Harvard Research (1932) 26 A.J.I.L. Suppl. 451-738; Lauterpacht (1951) 28 B.Y.I.L. 220; Sucharitkul, State Immunities and Trading Activities (1959), and his reports as Rapporteur to the International Law Commission on Jurisdictional Immunities of States and their Property, UN Documents A/CN.4/323, 331 and Add.l, 340, 357, 363 and Add.l, 376 and Add.1-2; Sinclair (1973) 22 I.C.L.Q. 254 and (1980-II) 167 Hague Rec. 113; see also (1979) 10 Neth.Y.B.I.L. for national reports on State practice. 2. Alcom Ltd. v. Republic of Colombia [1984] 2 W.L.R. 750 (HL reversing the CA: [1983] 3 W.L.R. 906). 3. Other problems concern the scope of the exceptions contained in ss.3-11, e.g. contracts of employment (s.4; see Sucharitkul, op. cit. supra n.1, at Document A/CN/4/363 (1982), and, for the English law prior to the Act, see Sengupta v. Republic of India (1982) 1 C.R. 221; 64 I.L.R. 352 (EAT)); tortious liability for personal injuries (s.5; for conflicting US decisions as to whether the injuries as well as the tortious act have to occur within the local jurisdiction, see Persinger v. Islamic Republic of Iran (1984) XXIII I.L.M. 384 (US Ct. App. Col. Cir., 13 March 1984); the construction of a State's submission (s.2(2); cf. Libra Bank Ltd. v. Banco Nacional de Costa Rica, 676 F.2d 47 (2d Cir. 1982), S & S Machinery Co. v. Maxinexportimport, 706 F.2d 411 (2d Cir.), cert. denied 104 S.Ct. 161 (1983)); and the scope of exclusions, e.g. s.16(2) relating to armed forces of the State.
7 citations
TL;DR: This article discusses the legal liability, in different jurisdictions, of human tissue transplants.
Abstract: This article discusses the legal liability, in different jurisdictions, of human tissue transplants.
TL;DR: The first report of the Foreign Affairs Committee of the House of Commons examines the abuse of diplomatic immunities and privileges in the light of the Libyan Bureau shooting in April 1984 and the attempted kidnap of the former Nigerian Transport Minister, Mr Dikko, in July as mentioned in this paper.
Abstract: THE First Report of the Foreign Affairs Committee of the House of Commons examines the abuse of diplomatic immunities and privileges in the light of the Libyan Bureau shooting in April 1984 and the attempted kidnap of the former Nigerian Transport Minister, Mr Dikko, in July. This short article will examine the incidents in question, the response of the United Kingdom Government and the Committee's conclusions and recommendations.
TL;DR: In this article, the authors look at the rules in the United States' Uniform Commercial Code (UCC) and apply them in isolation from the case law to gain some additional perspective on the problem and how a solution to it might be approached.
Abstract: questions. It will then look at the rules in the United States' Uniform Commercial Code. The purpose here will not be to look at how these rules have been applied in the courts in the United States, but to look at the provisions in isolation from the case law to try to gain some additional perspective on the problem and how a solution to it might be approached. Next the results of empirical research into how businessmen view the problem will be summarised. Finally some principles on which it is suggested any solution should be based will be examined.
TL;DR: In fact, Australia has often been the sole country seeking a federal clause, other than a territorial units clause, in recent treaty negotiations as discussed by the authors, and this renewed enthusiasm for federal clauses dates from 1976 and the commitment of the then Australian Government to a
Abstract: THE inclusion of federal clauses in treaties has been a recurring issue at multilateral conferences in recent years. The widespread dislike of such clauses, and the suspicion that federal States will be able, by use of these clauses, to assume unequal obligations compared with unitary States remains as strong now as in earlier periods.' Nevertheless, a particular type of federal clause-a territorial units clause which has been championed by Canada-appears to have won limited acceptance, and is now regularly included in UNCITRAL and Hague Conference Conventions.2 Other types of federal clause have not met with such success. During recent years Australia has been the major advocate of other types of federal clause. In fact it has often been the sole country seeking a federal clause, other than a territorial units clause, in recent treaty negotiations. This renewed enthusiasm for federal clauses dates from 1976 and the commitment of the then Australian Government to a
TL;DR: In this article, a survey of the relevant decisions rendered mainly since the 1950s by the courts of eight European jurisdictions, of which the majority are Member States of the European Communities, to discuss their possible application to English non-possessory security rights, and finally to venture a view as to the way English courts might treat foreign chattel mortgages.
Abstract: THERE exists a wealth of English language literature on the problems concerning the private international law of non-possessory security rights such as chattel mortgage or retention of title.' However, it appears that decisions of European courts on the change of situs of encumbered movables have not yet been discussed to any extent in English. In view of the close economic and political connections between the United Kingdom and continental Europe it is submitted that these decisions and their possible application to chattels used as a security in England and subsequently removed to a continental jurisdiction are of interest. It is therefore proposed to give a survey of the relevant decisions rendered mainly since the 1950s by the courts of eight European jurisdictions, of which the majority are Member States of the European Communities, to discuss their possible application to English non-possessory security rights, and finally to venture a view as to the way English courts might treat foreign chattel mortgages.
TL;DR: In this article, the International Court of Justice rejected Italy's request to intervene in the Libya/Malta Continental Shelf dispute, which raised serious questions as to the role that the Court considers that it should play in the development of the rules and principles of international law.
Abstract: IN March 1984 the International Court of Justice handed down its judgment dismissing Italy's request to intervene in the Libya/Malta Continental Shelf dispute.' The reasoning of the judgment raises serious questions as to the role that the Court considers that it should play in the development of the rules and principles of international law. This article is in two parts: the first deals with the case and its antecedents; the second examines the problems and concerns to which it gives rise.
TL;DR: In this article, it has been shown that for a variety of reasons it is more common for the State to take over the shares in the company, and it is these shares which have to be valued.
Abstract: given to the specific techniques of valuation involved,2 even though some difficult problems of practice and principle arise in that context. One way of nationalising a company is to take over its assets. However, for a variety of reasons it has been more common (at any rate in the relatively few Western countries that have engaged in nationalisation) for the State to take over the shares in the company, and it is these shares which have to be valued. Two recent decisions of the
TL;DR: The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention) as discussed by the authors placed international legal relations in the six original Contracting States on an entirely new footing.
Abstract: THE entry into force on 1 February 1973 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (popularly known as "the Brussels Convention") placed international legal relations in the six original Contracting States on an entirely new footing. Jurisdiction rules in cases with a foreign element, and rules on the recognition of foreign judgments, which took centuries to develop, no longer had any validity. Jurisdictional privileges and other expressions of national interest had to be foregone. Labyrinths of dogmas which had assumed awe-inspiring proportions in continental jurisprudence in connection with international procedural law were overturned-only, however, to be replaced by new
TL;DR: In this article, a general reconsideration of the law of privacy, and in particular of that relating to the press, may be considered necessary, especially after the recent judgments awarded by the French courts against three English newspapers in respect of invasion of private life, and the practice of at least one English newspaper in publishing a separate Continental edition in order to avoid actions for breach of the individual's right to respect for his private life.
Abstract: IN 1984 in the Malone' case the United Kingdom was held to be in breach of Article 8 of the European Convention on Human Rights2 in intercepting the applicant's communications. While this case in fact concerns only the narrow area of governmental surveillance, a general reconsideration of the law of privacy, and in particular of that relating to the press, may be considered necessary, especially after the recent judgments awarded by the French courts against three English newspapers in respect of invasion of private life,3 and in the light of the practice of at least one English newspaper in publishing a separate Continental edition in order to avoid actions for breach of the individual's right to respect for his private life.4 In English law there exists at present no separate and general right to respect for one's private life, and such protection as does exist is piecemeal and incomplete. An aggrieved person must frame his action under an existing head of tort---defamation, contempt of court, trespass, nuisance, breach of confidence or breach of copyright-or he will be without a legal remedy.5 However, some measure of extra-legal protection is available through the Press Council, which in 1976 issued a Declaration of Principle on Privacy,6 paragraph (i) of which reads: