Showing papers in "International and Comparative Law Quarterly in 1986"

The Theory and Practice of Informal International Instruments

Abstract: LAWYERS practising in foreign or defence ministries are familiar with the use of informal instruments to record arrangements between States. To others, especially those outside government circles, they are documents which are seldom mentioned and even more rarely seen. They were referred to by the late Judge Baxter as a "vast sub-structure of intergovernmental paper". 1 To what extent they are a significant vehicle for the conduct of business between States must, to the outsider, be very unclear. Articles about such informal instruments-which have been described

Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels

Abstract: This is a classical exposition of the doctrine of the freedom of the high seas, but that doctrine was by no means as absolute as some might think, then as now. Indeed Lord Stowell went on to note, in a later part of the passage quoted above, that maritime States were allowed "by the common courtesy of nations for their convenience to consider those parts of the ocean adjoining their shores as part of their dominions for various domestic purposes and particularly for fiscal or defensive regulations more immediately affecting their safety and welfare". The genesis of the modern limits and nature of the contiguous zone are seen in the British Hovering Acts 1736-1825 which asserted jurisdiction over quarantine and smuggling out to eight marine leagues (24 miles). During the Prohibition era in the United States, jurisdiction over the carriage of alcoholic liquor was asserted to a 12-mile limit, but after protests was reduced by agreement to a limit of one hour's sailing distance. The universally accepted qualifications of the freedom of the seas in the nineteenth century were jurisdiction over pirates and jurisdiction over vessels of the same nationality as the intercepting vessel. Allied to both these exceptions was the right of approach by a naval or police vessel of one State to the vessel of another to verify its flag, a right to be distinguished from that of visit and search which was permitted, in times of peace, outside territorial waters only if granted by special treaty.2 Although in earlier times the jurisdiction of the coastal State over its territorial sea was considered by some writers to give that State com-

The Role of Law in the Next Stage of European Integration

Abstract: The title of this article would suggest that there have been earlier stages of European integration and that the law then had a different role to play. That suggestion would fit in with a history book image of human progress: mankind is on tis march through times, it meets problems, it solves them manfully but, alas, it is then faced with new problems to solve – and that is how it is making progress. There is, however, another picture. In it, mankind never actually solves any of its social problems; it just leaves them aside when they are overtaken by newer or more important problems.

The Institution of the Ombudsman in Africa with Special Reference to Zimbabwe

Abstract: IN recent years there has been a remarkable increase in the number of countries which have established the office of ombudsman.' Between 1966 and 1984 over 80 national and provincial offices were set up worldwide and in black Africa an ombudsman now operates in eight countries.2 As will be seen, the African ombudsman has developed somewhat differently from the original Swedish model. It is the intention of this article to consider the development and effectiveness of the ombudsman in Africa and then examine in detail one of the recent

The Eec Convention on the Law Applicable to Contractual Obligations

Abstract: ON 19 June 1980 the EECConvention on the Law Applicable to Contractual Obligations' was opened for signature in Rome. The object of the Convention is the unification within the Common Market of the rules relating to choice of law, as applied to contractual situations. When in force, the rules of the Convention will be applied by the courts of Member States to resolve all cases within its material scope where the question arises as to what is the appropriate territorial law to be applied in a certain contractual situation. It will be applied to all such cases, whether or not there is any connection with the Common Market and whether or not the applicable law is that of a Member State.2 The Convention has now been signed by nine Member States. It will enter into force among ratifying States on the first day of the third month following its ratification by seven Member States. In relation to a Member State ratifying the Convention at a later date, it will enter into force in that State on the first day of the third month following its ratification.3

The Malaysian Constitutional Crisis of 1983

Abstract: IN July 1983 the Malaysian Government presented to Parliament a substantial, but apparently uncontroversial, bill for the reform of the Malaysian Constitution. In the next six months, Malaysia endured a constitutional crisis which threatened to paralyse the processes of government. The crisis arose out of seemingly unimportant amendments proposed for the constitutional position of certain hereditary Malay Rulers, and illustrates the difficulties which may be encountered in operating a Westminster-model constitutional monarchy in a country where traditions of regal absolutism and unquestioning obedience are far from being a distant memory. The episode also provides a good example of the problems which can ensue when attempts are made to translate unwritten British constitutional understandings into written rules in independence constitutions. Malaysia is today a federal polity comprising 13 states and two federal territories.' Of these 13 states, nine,2 all of which are located in Peninsular (West) Malaysia, have at their heads hereditary Malay Rulers as constitutional monarchs. The Rulers also act as heads of the religion of Islam in their states.3 From these nine Rulers is elected the Yang di-Pertuan Agong ("the Agong"), a constitutional monarch who is Supreme Head of the Federation-head of state-for his five-year term of office. The remaining four states4 have as their constitutional heads Governors who are appointed by the Agong on the advice of the Chief Ministers of the states concerned. These Governors are appointed for fixed periods of four years. They are members of the Conference of Rulers, the functions of which are discussed below, but they are not eligible for election

Freedom of Thought in Schools: a Comparative Study

Abstract: Both these texts make it clear that freedom of thought is a basic right of "everyone"; there is no age limit at which a human being begins to enjoy such a legal right. The texts also indicate that freedom of thought includes not only freedom to control one's own inner thoughts and beliefs, but also freedom to express these beliefs in a variety of ways, including public teaching. Young citizens are persons, and therefore have a right to freedom of thought. This right is especially important in the context of education in a school, where a student's freedom of thought may be restricted by religious or ideological indoctrination. However, neither the UN Declaration nor the European Convention explicitly acknowledges the rights of children to freedom of thought in schools. The UN Declaration (Art.26, s.3) provides that "parents have a prior right to choose the kind of education that shall be given to their children". A similar principle, concerning the relative priority of parents' rights, is expressed by Article 2 of the First Protocol of the European Convention 1952:

The General Principles of Law, Separation of Powers and Theories of Judicial Decision in France

Abstract: THIS is an attempt to identify and describe,' in an elementary way, the governing principles of that part of the French constitutional structure which concerns the role of the courts in reviewing laws and regulations originating from other organs of government. Despite many changes in the almost two centuries since the French Revolution of 1789, the constitutional system as it relates to the courts has preserved the basic form and inner coherence imprinted on it by the intellectual preferences, historical perspective and law-making of the revolutionaries and thus has a strong tendency to favour legislative decision and law-making, leaving the role of the courts, however important it may have become in practice, limited and defined in reference to that central preference; and this seems to have remained true despite the establishment under the present constitution,2 that of 4 October 1958, of a Constitutional Council with important powers of judicial review of proposed legislation. This examination is "elementary" in that, firstly, it is confined to a description of the most basic features of the system and, secondly, it will be necessarily limited and incomplete. It will concentrate on one feature of the work of the French courts, their use of "general principles of law"3 to justify placing limits on other branches of the government, par-

Informed consent: a German lesson.

Abstract: THE development and role of informed consent to medical treatment in common law jurisdictions is well documented.' As a legal doctrine, informed consent originated in the United States2 and spread in modified form to Canada;3 it has failed so far, however, to have any significant impact on the English legal system. English judges remain overwhelmingly traditional in their attitudes to the liability of doctors for failure to disclose pertinent information to patients about medical procedures which they are planning to undergo.4 It is less well known that the doctrine of informed consent is also well

Some Legal Aspects of International Compensation Trade

Abstract: COMPENSATION trade is a new development in international trade, a product of the present rapidly changing economic environment. Difficulties generated by prolonged recession, huge trade deficits, cash and credit shortages, monetary instability and intensified international competition require extensive recourse to new forms of business which on the legal side entail an unconventional approach to contractual techniques and the use of some non-traditional contracts. Compensation trade is becoming a means of overcoming structural difficulties which could hinder the development of trade between States with different socioeconomic systems or at different stages of economic development. Despite the increasing interest in it and a number of studies of the phenomenon in recent years, there is still no thorough analysis of compensation trade. Given the lack of precise and comparable data, it is not possible to assess the share of compensatory transactions in world commerce accurately. Commercial confidentiality and ambiguities in certain commercial practices limit the availability of the appropriate information. A correct assessment of this information would furthermore