Showing papers in "International and Comparative Law Quarterly in 1996"

European Legal Systems are not Converging

Abstract: Since the late 1940s, economic considerations relating to the globalisation of world markets have led an ever larger group of Western European countries to unite in the quest for a supra-national legal order which, in time, generated the European Community. Most of these countries' legal orders claim allegiance to what anglophones are fond of labelling the “civli law” tradition,1 although two common law jurisdictions joined the Community in the early 1970s. The European Community's early decision to promote economic integration (and, later, other types of integration) through harmonisation or unification has involved, at both Community and national levels (for the implementation of Community rules in the member States carries the adoption of national rules in all member States), a process of relentless “juridification”; law, in the guise of legislatively or judicially enacted rules, has assumed the role of a “steering medium”.2 This development was foreseeable: once the interaction among European legal systems had acted as a catalyst for the creation of a supra-system,3 the need to achieve reciprocal compatibility between the infra-systems and the supra-system naturally fostered the development of an extended network of interconnections (such as regulations and directives) which eventually raised the question of further legal integration in the form of a common law of Europe.4

The European Central Bank: Institutional Aspects

Abstract: In this article the legal and institutional issues surrounding the transition to a European Central Bank (ECB) will be discussed. The transition to a single currency entails many legal and institutional issues, both at the European level and at member State level. I will focus on a few main themes.

The Judiciary, International and National, and the Development of International Law

Abstract: The Annual Digest of Public International Law Cases—the ancestor of the International Law Reports—was first published “under the direction” of the Department of International Studies of the London School of Economics. The “chief inspirers”, to use Fitzmaurice's phrase, were Arnold McNair and Hersch Lauterpacht, the latter then on the teaching staff of the School. There was also an Advisory Committee of Sir Cecil J. B. Hurst, a former President of the Permanent Court of International Justice and later Legal Adviser to the Foreign Office; W. E. Beckett, also of the Foreign Office; A. Hammarksjold, the Registrar of the Permanent Court of International Justice, and Sir John Fischer Williams of Oxford and the Reparation Commission.

Sustainable Development and Human Rights: An Integrated Conception

Abstract: This article seeks to present an integrated conception of sustainable development, with particular emphasis on the contribution of international human rights law and theory. Part II considers a structural conception of sustainable development. Part III considers parallels between sustainable development and self-determination. Part IV provides some general reflections on international environmental law and international human rights law in terms of analogous concepts, principles and systems. What similarities are there and what differences? Part V considers the progress made towards recognition of a “human right to the environment”. Part VI considers how international environmental claims could be brought within the existing international human rights complaint systems. Part VII analyses the judgment of the European Court of Human Rights in the Lopez Ostra case (1994), the leading case on environmental claims to have reached that Court.

Security Council Working Methods and Procedure: Recent Developments

Abstract: The Council should not commit itself to procedures which in practice might prove to be excessively rigid, since each dispute with which the Council has to deal has unique characteristics. Attention has been drawn to the danger that any premature formalization of the procedures of the Council might impede the latter in the discharge of its responsibilities under the Charter.1

The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic Case

Abstract: Dusko Tadic is a Bosnian Serb. He is the first defendant of whom the International Criminal Tribunal for Yugoslavia (the “Tribunal”) obtained custody, following his transfer to the Tribunal at its request from Germany. Tadic had been arrested there and investigations had begun into his involvement in offences in Yugoslavia. These enquiries were discontinued at the request of the Tribunal.1

Pleading and Proof of Foreign Law: The Major European Systems Compared

Abstract: Though generally uncontroversial in England, the rules on pleading and proof of foreign law are nevertheless of interest from the comparative point of view by reason of the diversity of approaches found in different European countries. There is, moreover, a feeling on the part of some Continental lawyers that the English rules undermine the objectives of international and EU initiatives on conflict of laws and that the United Kingdom does not, therefore, fully carry out its international and EU obligations in this regard. These accusations have been levelled in particular with regard to the Rome Convention.1 In view of this, a comparative study of the different approaches in the main European countries might be timely; it might also provide an appropriate background for an examination of the question whether the Rome Convention requires any modification of the traditional English approach.

Discrimination and Free Movement in EC Law

Abstract: Fundamental issues sometimes hide themselves behind what to an untrained eye might look like a technical and somewhat dry debate. Thus, a layman hearing Community lawyers' talk about the legal basis of legislation might be excused for not realising that the issue may be that of the role of the European Parliament in the European Union, and therefore the democratic legitimacy of the EU institutions. The debate about the function of the concept of discrimination in the law on the free movement of goods, services and persons in the Community is one of those discussions which has more to offer than meets the eye. What the debate is really about is the balance of powers between the member States and the Community and the federal nature of the Community legal order as well as, incidentally, the balance between market principles and other values embodied in legislation. Translated by specialists in the free movement of goods in the Community, it has become, in the context of Article 30 of the Treaty: should we read a “rule of reason” within Article 30, or can Cassis de Dijon be explained in terms of indirect discrimination?

Comparative Law and the Courts

Abstract: FOR a long time it looked as though comparative law was a matter for academic research, difficult and, surely, very interesting; beautiful to know something about, but not immediately relevant to the daily life of the law. Practising lawyers would admit the importance of comparative law in theory, but they would add that they themselves were, of course, too much occupied with the latest cases on trade marks, or with recent developments in the law of negligence.' Over the last ten or fifteen years the legal climate seems to be changing. There is more awareness that comparative methods may lead the lawyer somewhere, and that comparative materials may be a source of inspiration for legal decisions-whether by legislative bodies or by the courts. This evolution may be influenced by the process of European integration; it may also just result from the fact that we are living closer together (the "global village" situation); it may, finally, be an autonomous process, occasioned by the lawyer's search for fresh perspectives, in particular when completely new legal problems are to be solved. In the Netherlands we find a striking example of this evolution in the way the New Civil Code was prepared, from the 1950s onwards. It was based on a very thorough piece of comparative research, for example into literature concerning the German and Swiss Civil Codes. Solutions were compared; advantages and disadvantages were put in the balance, particularly in matters of property law and obligations. In England the Law Commission sometimes does the same. The old Dutch Civil Code, of 1838, was essentially founded on its illustrious predecessor, the Code Napoleon, with some additions taken from Roman-Dutch law as it had been applied in the United Dutch Republics before the unitary State was established in 1795. The new Code, however, brings Dutch private law firmly into the Germanic legal family. Obviously, comparative law had its impact.2

The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence in International Law

Abstract: In the early evening hours of Saturday, 26 June 1993, the United States launched a missile attack on Iraq. Twenty-three Tomahawk sea-to-ground missiles were fired from two US warships, the USS Chancellorsville and the USS Peterson, located in the Persian Gulf and the Red Sea respectively.1 Sixteen of those launched hit their desired military target, the Military Intelligence Headquarters, situated just outside the Iraqi capital of Baghdad. A further four missiles fell within the compound of the intelligence service complex. Conflicting reports put the death toll at between six and eight civilians, with 20 injured, when the remaining three missile warheads went astray.2 The Venezuelan Embassy was also reported to have been damaged.3

The Future of International Administrative Law

Abstract: The prospects for international administrative law and the international administrative legal system in the future and particularly in the next century will be determined to a large extent by how much importance the world attaches to international organisations and particularly to the maintenance of an independent international civil service as a means of securing international peace and security, promoting development and fostering international co-operation. Not only must there be a change in the current attitude of certain governments towards international organisations as a means to this end but there must also be a more sanguine approach to the singular importance of an independent civil service in the process. What can be said about the international administrative legal system and international administrative law in the future must be conditioned necessarily to a large extent by assumptions made about what is going to happen in the future to both international organisations and the civil service.

I. The Straddling Stocks Agreement of 1995—an Initial Assessment

Abstract: On 4 August 1995 the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, at its sixth session, adopted without a vote the text of the Agreement for the Implementation of the provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.1 The title is often shortened to “the Straddling Stocks Agreement”. To date, the Agreement has been signed by 29 States.2 It marks a significant clarification and development in the rules of international law relating to fishing on the high seas, within the framework of the UN Convention on the Law of the Sea.

The Protection of the Underwater Cultural Heritage

Abstract: In November 1995 a draft resolution was presented to the 28th General Conference of UNESCO which, among other matters, dealt with the organisation's future activities in the field of the underwater cultural heritage.1 In conjunction with this resolution, the text of a draft Convention for the Protection of the Underwater Cultural Heritage prepared by the International Law Association (ILA) was presented to the General Conference as the possible basis for a new international convention on the subject.2 Annexed to this draft Convention text was the Charter for the Protection and Management of the Underwater Cultural Heritage prepared by the International Council of Monuments and Sites (ICOMOS)3 to accompany the ILA draft Convention and serve as a set of criteria of good practice to be applied by States parties to the Convention. The General Conference adopted the draft resolution without any change and this therefore forms the basis for future deliberations within UNESCO over this issue, the question whether to draft an international convention on the basis of the ILA draft text having been a central part of the deliberations. Subsequent to the adoption of the resolution, meetings have been held between UNESCO and various bodies with an interest in the issue (such as the International Maritime Organisation and the International Oceanographic Commission as well as the UN Law of the Sea office). Following these consultations, it was agreed to hold a joint meeting of representatives of these organisations with chosen experts in order to examine the ILA draft Convention along with any other material relevant to a new legal instrument for the protection of the underwater cultural heritage.

Problems Related to the Convention on the International Trade in Endangered Species

Abstract: The Convention on the International Trade in Endangered Species (CITES) has become one of the better-known environmental treaties, partly as a result of the considerable attention it received in connection with the restrictions it imposed on the ivory trade. Despite its successes, however, the text of the treaty has not kept pace with developments since it was first approved in 1973. It remains, for instance, an environmental treaty with some of the characteristics of a trade treaty, drafted as if it were to operate in a hostile world of non-parties. Instead, in contrast, it has been signed by 128 parties1 and functions at a time when public and political concern about the environment has never been greater.

International Sports Law as a Process for Resolving Disputes

Abstract: International sports law is more than a static set of rules and principles: it is better described as a process for avoiding and resolving disputes. Recent cases highlight its significance. The Swiss Equestrian case, 1 decided by the Swiss Federal Tribunal, demonstrates the efficacy of using this process in cases involving issues of eligibility for competition. By contrast, the Reynolds case , 2 decided by US federal courts, shows the folly of ignoring non-judicial remedies prescribed by international sports law. As a result, Reynolds became a sort of Dickensian struggle involving three years of litigation and some nine decisions before the case was finally dismissed. The courts could have, and should have, reached the same result by simply enforcing decisions of the appropriate international sports federation and the arbitral tribunal that had upheld the federation's decision. The Harding case, 3 which was also decided in the United States, demonstrates that adjudication outside the prescribed process of international sports law is fundamentally unstable.

Subdivided Buildings—Developments in Australia, Singapore and England

Abstract: This article considers the development in several Commonwealth jurisdictions of the law relating to “horizontal subdivisions”2, or subdivided buildings. The latter expression describes the situation where title to land can relate to a slice of defined area or cubic space, which is not grounded on the surface layer of the earth, and is divided not only horizontally, but vertically as well.

State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights

Abstract: In 1976 the United Kingdom ratified the International Covenant on Civil and Political Rights (ICCPR) and extended it to Hong Kong. Under the Covenant the United Kingdom assumed an obligation to submit periodic reports to the Human Rights Committee on the measures it has adopted to give effect to the rights recognised by the Covenant and on the progress made in the enjoyment of these rights. 1 The United Kingdom has submitted four periodic reports on Hong Kong, in 1978, 2 1988, 3 1991 4 and 1995. 5

Constitutional Aspects of Opinion 1/94 of the ECJ Concerning the Wto Agreement

Abstract: The conclusion of the Uruguay Round and the establishment of the World Trade Organisation raised one of the most touchy issues of the European architecture, notably the division of powers between the Community and the member States in the field of international economic relations. The dispute was settled by the European Court of Justice in Opinion 1/94, which was delivered on 15 November 1994.1 Although more than a year has passed since its publication, there are still a number of good reasons to explore the findings of the Court in Opinion 1/94 from the point of view of the Community constitution.

Maastricht and the Codecision Procedure: A Success Story

Abstract: The Maastricht Treaty aimed partly to close the democratic deficit that exists in the European decision-making process. Accordingly, the role and the powers of the European Parliament were increased: a right of initiative was created, 1 committees of inquiry were reinforced, 2 the right of petition3 was recognised, an Ombudsman was created4 and a new legislative procedure, 5 which attempted to put the Parliament on an equal footing with the Council, was also included in the Treaty.

Torts in Private International Law: A New Statutory Framework

Abstract: Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

Common but Differentiated Debates: Environment, Labour and the World Trade Organization

Abstract: In June 1992 the UN Conference on Environment and Development (UNCED) took place in Rio de Janeiro; 1993 was the year of the World Conference on Human Rights, 1994 the year of the Cairo International Conference on Population and Development, and in March 1995 it was the turn of the World Summit for Social Development in Copenhagen.

Foreign Judgments in ASEAN: A Proposal

Abstract: The Association of South East Asian Nations1 (ASEAN) was formed on 8 August 1967. Inter alia, the five founding members of ASEAN agreed in the Bangkok Declaration to “accelerate … economic growth … in the region, … to promote regional peace … and … to promote active collaboration and mutual assistance in matters of common interest in the economic … and administrative fields”.2

Making the Refugee Convention Gender Sensitive: The Canadian Guidelines

Abstract: Human rights violations committed against women have become an increasingly high priority on the international agenda.1 Rape, “honour killings.”, bride-burning, genital mutilation, forced sterilisation, forced abortion, domestic violence are all acts of violence regularly committed against women. What makes women the target of such acts is primarily if not exclusively their sex. Membership of the female sex is what creates the risk. Women have been afforded minimal redress in international fora and this has been particularly true within the context of refugee determination. Women and children make up the majority of the world's refugee population2 yet, because of their comparative lack of mobility, the refugee jurisprudence which has evolved has been based primarily on the experiences of men. However, women often fear persecution for reasons different from men, and when they do fear persecution for the same reason as men they often experience the persecution differently. There is evidence that contemporary refugee law is becoming gender sensitive. In March 1993 the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution were issued by the Chairperson of the Canadian Immigration and Refugee Board.3 The Guidelines were novel in that their promulgation made Canada the first country to recognise formally that cognisance should be given to claims by refugee applicants of alleged genderrelated persecution. This short article will identify the raison d'etre of the Guidelines, articulate their principal characteristics and assess their impact both within Canada and beyond.

From Migrants to Citizens? European Community Policy on Intercultural Education

Abstract: Policy-making in the European Community in the area of education for migrants is driven by two conflicting pressures. On one side, the principle of effectiveness requires that the rights of free movement within the Community be supported by the best possible education for the children of migrants. However, on the other side is the importance of primary education to the member States as a political and cultural matter. This pressure is reinforced by the principle of subsidiarity. Member States have been relatively willing to support co-operative action by the Community in the area of higher education, such as in the ERASMUS exchange programmes. However, member States have been active in protecting their jurisdiction over education policy, particularly at the primary and secondary levels. As result, Community laws protecting the education rights of migrants have been most effective where two factors are present: first, that the rules are closely attached to the rights of free movement within the single market; and second, that the rules interfere as little as possible with substantive education policy. The first factor constitutes a significant weakness in Community education rights because it has created a distinction between Community migrants and those from third countries. The second factor has meant that the only Community policy on the education of migrants which could be described as an education right is the guarantee of equality of access to education within a member State.

Privatisation and EC Law: Is the European Commission “Neutral” with Respect to Public Versus Private Ownership of Companies?

Abstract: This article discusses the European Commission's and European Court of Justice's control of member States' privatisation operations under the State aid and free movement rules. In particular, it is concerned with the question whether and to what extent such control is compatible with the EC Treaty' s “neutrality” towards member States' choices as to the private or public character of their national economies.

Palm-Fringed Benefits: Island Dependencies in the New Law of the Sea

Abstract: The genius of the century is also changing the conditions of our action overseas, leading us to bring an end to colonization. It is entirely natural that one should feel nostalgia for what was the Empire, just as one may regret the gentle light of oil lamps, the splendour of the navy under sail. But there is no valid politics outside realities.

Does the EFTA Court Interpret the EEA Agreement as if it were the EC Treaty? Some Questions Raised by the Restamark Judgment

Abstract: The European Economic Area (EEA) Agreement signed in May 1992 between the European Free Trade Area (EFTA) States, the European Community (EC) and the EC member States' seeks to establish “a dynamic and homogeneous” area by extending provisions which apply within the European Community to the EEA.2 The first decision of the EFTA Court,3 interpreting the EEA Agreement to determine its application within the legal orders of the EFTA States, concerned the Finnish alcohol monopoly. The Restamark decision was awaited with great interest to know to what extent the EFTA Court would follow the European Court of Justice's interpretation of the EC Treaty in order to achieve the aims of the EEA Agreement.