Showing papers in "International and Comparative Law Quarterly in 1997"
236 citations
TL;DR: In this paper, it was shown that mandatory sanctions, which until 1990 had been ordered only twice, the comprehensive sanctions on Rhodesia and arms embargo on South Africa, have since been used by the Security Council in relation to at least eleven countries.
Abstract: The end of the Cold War and the emergence of a one-superpower world have brought about what one may call the resurrection of the Security Council and a reactivation of Chapter VII of the Charter of the United Nations. Powers of a coercive nature vested by the Charter in the Security Council which for decades seemed like a dead letter have been rediscovered since the Iraqi invasion of Kuwait. The Security Council, which until then had been deadlocked through the threat or use of the veto, has now come alive. Up to the Iraqi invasion of Kuwait in August 1990 the Security Council had passed 659 resolutions in its 45 years of existence. In the six years since then it has passed over 400 resolutions. What is more important, however, is that mandatory sanctions, which until 1990 had been ordered only twice—the comprehensive sanctions on Rhodesia and arms embargo on South Africa—have since been used by the Security Council in relation to at least eleven countries. This new and increased activity of the Security Council has provoked debate in recent years as to whether the Council is subject to any limitations when it is acting to maintain or restore international peace and security. The problem has shifted from one of trying to get the Council to work as it was intended, to one of trying to control the work of the Council. In particular there has been renewed interest in the question whether there is any room for judicial control, by the International Court of Justice, of decisions made by the political organs of the United Nations.
106 citations
TL;DR: The International Tribunal for the Law of the Sea (ITLOS) as discussed by the authors was created by the United Nations Convention on the law of the sea (UNCLOS) on 16 November 1994.
Abstract: The entry into force of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), on 16 November 1994, is probably the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice. Not only does the Convention create a new international court, the International Tribunal for the Law of the Sea (“ITLOS”), it also makes extensive provision for compulsory dispute-settlement procedures involving States, the International Seabed Authority (“ISBA”), seabed mining contractors and, potentially, a range of other entities. Implementation of the Convention has spawned a number of inter-State disputes to add to the cases already before the International Court. The initiation of the ITLOS not only opens up new possibilities for settling these disputes but it also has implications for the future role of the International Court and ad hoc arbitration in the law of the sea and more generally. It contributes to the proliferation of international tribunals and adds to the potential for fragmentation both of the substantive law and of the procedures available for settling disputes. Judges Oda and Guillaume have argued that the ITLOS is a futile institution, that the UNCLOS negotiators were misguided in depriving the International Court of its central role in ocean disputes and that creation of a specialised tribunal may destroy the unity of international law. The law of the sea, both judges argue, is an essential part of international law and any dispute concerning the application and interpretation of that law should be seen as subject to settlement by the International Court.
105 citations
TL;DR: It has recently been written that in our generation those few individuals with an opinion about the Commonwealth view it as an anachronistic organization whose retirement to the pages of history is long overdue as mentioned in this paper.
Abstract: Lord Casey's sad testament to an organisation which was perceived as “on the way to becoming not much more than a paper connection” is hardly encouraging to someone intent on studying the institution. It would appear that the Commonwealth of Nations as a contemporary discussion point is even less fashionable today than it was 30 years ago. It has recently been written that in our generation those few individuals with an opinion about the Commonwealth view it as an “anachronistic organization whose retirement to the pages of history is long overdue”. The situation of an Australian attempting to write about the Commonwealth is confused by the need to distinguish it from the “Commonwealth of Australia” by such adjectives as the “British” Commonwealth or the “Commonwealth of Nations”.
59 citations
TL;DR: In this article, the authors extend the critique of human rights law by feminist scholars to humanitarian law, or the law of armed conflict, as it is more traditionally known, and discuss the special difficulties that flow from certain characteristics of the Law of Armed Conflict.
Abstract: The aim of this article is to extend the critique of human rights law by feminist scholars to humanitarian law—or the law of armed conflict, as it is more traditionally known. When reflecting generally on the role that international law plays in providing protection for women from the effects of violence the obvious starting point is the regime of human rights. So much of human suffering in today's world occurs, however, in the context of armed conflict where to a large extent human rights are in abeyance and individuals must rely on the protections offered by the law of armed conflict.1 The debate that has been taking place for some years in the context of human rights as to the extent to which that system takes account of women&s lives needs to extend to the provisions of the law of armed conflict. Although commentators have convincingly demonstrated the limitations of the existing body of human rights law adequately to take account of the reality of women&s experience of the world,2 the law of armed conflict is even more deficient. Moreover, despite the recent focus on rape in armed conflict as a result of the international outrage at the sexual abuse of women in the armed conflict in the former Yugoslavia, these shortcomings remain largely unaddressed.3 At first glance this seems somewhat surprising until the special difficulties that flow from certain characteristics of the law of armed conflict are appreciated.
53 citations
TL;DR: In this article, the authors identify general principles of commercial law and, separately, uncodified international trade usage, and what happens to these principles when they become embodied in convention or contractually incorporated uniform rules.
Abstract: The study of what has become known as transnational commercial law is fraught with hazards. What do we mean by transnational commercial law? Is it the same as the lex mercatoria or something broader? What are its sources? Can we identify general principles of commercial law and, separately, uncodified international trade usage? If so, what happens to these principles when they become embodied in convention or contractually incorporated uniform rules? Do they disappear, maintain a parallel existence in their original form or change their shape to match the convention or rules? And how far do conventions and rules either evidence pre-existing principles and usages or influence the creation of new ones?
49 citations
TL;DR: In this paper, a general fascination with the concept of time is explored, including the fact that if we could travel at the speed of light time would not move, and the belief that before the Big Bang time did not exist.
Abstract: I begin by confessing a general fascination with the concept of time. I puzzle endlessly over the relationship between time and matter, and the insistence of scientists that before the Big Bang time did not exist. I grapple with the relationship between time and speed, and the fact that if we could travel at the speed of light time would not move. I seek to grasp Stephen Hawking's recent conversion to the view that, in the physical world, time may yet run in reverse. I am intrigued that our concepts of time came to Australia only with the First Fleet, for aboriginal time was cyclical rather than linear. Events could recur, dead people could live again. I find exhilarating the idea that we see at this moment, through our telescopes, stars that no longer exist. I love the objective reality of the equator and the total artificiality of the meridian, and the intention that this felicitous fiction is the place for us to see in the “real beginning” of the next century.
45 citations
TL;DR: In the UK, the Immigration (Carriers' Liability) Act 1987 (the Act) as mentioned in this paper imposed fine on carriers of £1,000 for each illegal entrant brought to the United Kingdom.
Abstract: It is now a decade since the United Kingdom, along with Germany and Belgium, followed the policy of traditional countries of immigration, such as the United States, Canada and Australia, and introduced legislation which provides for the imposition of fines on carriers for bringing in passengers with incorrect papers.1 The Immigration (Carriers' Liability) Act 1987 (“the Act”)2 imposed fines on carriers of £1,000 for each illegal entrant brought to the United Kingdom. This fine was doubled in August 1991 and two years later extended to cover passengers without transit visas where these were required.3
37 citations
TL;DR: The African Charter on Human and Peoples' Rights, adopted by the 18th Assembly of the Heads of State and Government of the Organisation of African Unity in Nairobi in 1981, which came into force in 1986, provided for a single commission with a wide range of powers in respect of the rights in the Charter as mentioned in this paper.
Abstract: The African Charter on Human and Peoples' Rights, adopted by the 18th Assembly of the Heads of State and Government of the Organisation of African Unity in Nairobi in 1981, which came into force in 1986, provided for a single commission with a wide range of powers in respect of the rights in the Charter. This was as a result of an initiative for an African regional mechanism for the protection of human rights by African jurists and subsequent conferences in the 1960s and 1970s, many of which were organised by the United Nations. In these debates several possibilities were raised for the form that such a body should take: from a proposal for several commissions, given the disparate and diverse cultural and political nature of African States a court, a specialised commission within the Organisation of African Unity (OAU), to a single commission. Not only was its structure contentious but also its functions, in particular whether these should include a protective as well as a promotional mandate and what such protective powers should be.
36 citations
30 citations
TL;DR: In the context of the Schengen Agreement, a contrast between the intensification (to borrow a word from the Common Agricultural Policy) of certain fundamenta s of the EC legal order in the recent case law of the European Court, and attempts by member States to escape this through non-EC forms of cooperation in the framework of European Union, the development of the idea that not all the rules of the EU Treaty apply to all the member States, and the entry by the majority of the member states into a separate Treaty dealing with matters which might be thought to fall under the
Abstract: Once upon a time, a Professor of European Institutions, at least if a lawyer by training, could simply assert that the European Communities are based on the rule of law, that they create institutions with autonomous powers, which are able to issue legislation binding as law throughout every member State of the Community, and that they create courts which have power to exercise judicial control over a complex network of relationships between the Community institutions, the member States and private citizens. While these statements are still true, however, they must now be laced in a rather more complex context. Furthermore, there is a contrast between on the one hand the intensification (to borrow a word from the Common Agricultural Policy) of certain fundamenta s of the EC legal order in the recent case law of the European Court, and on the other hand attempts by member States to escape this through non-EC forms of cooperation in the framework of the European Union, the development of the idea that not all the rules of the EC Treaty apply to all the member States, and the entry by the majority of the member States into a separate Treaty, the Schengen Agreement, dealing with matters which might be thought to fall under the EC Treaty or the Home Affairs and Justice pillar of the Treaty on European Union—all of which might generically be referred to as variable geometry. In the other direction, it may be observed that large amounts of substantive
TL;DR: The claim to ancestral land is one of the fundamental issues of our time as mentioned in this paper, and it is an issue which we cannot ignore, as stated by the UN Human Rights Committee.
Abstract: Of all the rights of indigenous people, none is more central to the survival of their culture than the claim to their ancestral lands. The resolution of their claims to ancestral lands is one of the fundamental issues of our time—indeed of all time. Often called a human rights issue—a description apt to reinforce the strong moral foundations of the claims of the indigenous peoples—it is an issue which we cannot ignore. Throughout the world people of all races and all colours have a powerful emotional attachment to their ancestral lands. That attachment is the very core of a people's culture and is vital to the survival of the culture. As the UN Human Rights Committee has recognised, in the context of the exercise of cultural rights protected by Article 27 of the International Covenant on Civil and Political Rights, “culture manifests itself in many forms, including a particular way of life associated with the use of land resources”.
TL;DR: In this article, a distinction is made from the beginning between "development" in the broad sense and the concept of economic growth in the strict sense, and the implications of such a correlation for the World Bank are discussed.
Abstract: This note addresses the possible correlation between “democracy” and “development”, and the implications, if any, of such a correlation for the World Bank. This calls, first, for providing a definition of the two concepts as they are used here. To clarify the matter further, a distinction is made from the beginning between “development” in the broad sense and the concept of “economic growth” in the strict sense.
TL;DR: The fact that the Human Rights Committee has issued a general comment on the topic of reservations is clear expression of the Committee's concerns regarding the number and scope of reservations which have been made as mentioned in this paper.
Abstract: On 2 November 1994 the Human Rights Committee adopted General Comment No.24(52) relating to reservations made on ratification or accession to the International Covenant on Civil and Political Rights. It is addressed to States party to the Covenant and indicates the manner in which reservations to Covenant guarantees will be treated. The fact that the Committee has issued a general comment on the topic of reservations is clear expression of the Committee's concerns regarding the number and scope of reservations which have been made. In its view these threaten to undermine the effective implementation of the Covenant as well as impair the performance of the Committee in respect of the subject matter to which the reservations apply. Though not as seriously afflicted by reservations as some other human rights treaties, most notably the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, the Covenant has nonetheless been the object of some sweeping reservations to which few objections have been made. There is the concern that the integrity of the Covenant may have been sacrificed in order to ensure widespread participation. “Indeed”, suggests Higgins, “one might almost say that there is a collusion to allow penetrating and disturbing reservations to go unchallenged.”
TL;DR: The New York Convention of 1958 as discussed by the authors has been widely used as a model for international commercial arbitration and has been adopted by over 90 States, including all the countries of Western Europe (with the exception of Iceland) and nearly all countries which are significant commercial centres.
Abstract: As a method for resolving commercial disputes which have connections with two or more countries, arbitration has been given a tremendous boost this century by two developments at the international level. The New York Convention of 1958—which was first implemented in England and Wales by the Arbitration Act 1975—introduced a regime which went a long way toward ensuring that arbitration agreements are respected and that arbitral awards are easily enforceable. The Convention has been hugely successful in that it has been ratified by upwards of 90 States, including all the countries of Western Europe (with the exception of Iceland) and nearly all countries which are significant commercial centres. More indirect has been the influence of the Model Law on International Commercial Arbitration, which was adopted by UNCITRAL in 1985. Although the Model Law, which seeks to encourage States to modernise their arbitration laws, has not been enacted by a very large number of countries, it has had a significant impact in that it has set an agenda for reform—even for those countries which have decided not to enact it. The Model Law has become “a yardstick by which to judge the quality of… existing arbitration legislation and to improve it”.
TL;DR: The history of clashes over extraterritorial jurisdiction between the United States of America and other States in the Americas, Europe and elsewhere is a long one as mentioned in this paper, starting with the antitrust claims arising from the Alcoa case in 1945, in which the "effects" doctrine was advanced in the peculiar and objectionable form in which it is applied, not simply to acts which constitute elements of a single offence but which occur in different jurisdictions but, rather, to the economic repercussions of acts in one State which are felt in another.
Abstract: The history of clashes over extraterritorial jurisdiction between the United States of America and other States in the Americas, Europe and elsewhere is a long one. That history is commonly traced back to the antitrust claims arising from the Alcoa case in 1945, in which the “effects” doctrine was advanced in the peculiar and objectionable form in which it is applied, not simply to acts which constitute elements of a single offence but which occur in different jurisdictions but, rather, to the economic repercussions of acts in one State which are felt in another. The conflict persisted into the 1950s, with the clashes over US regulation of the international shipping and paper industries. In the 1960s and 1970s there were further clashes in relation to the extraterritorial application of US competition laws, notably in disputes over shipping regulation and the notorious Uranium Antitrust litigation, in which US laws were applied to penalise the extraterritorial conduct of non-US companies, conducted with the approval of their national governments, at a time when those companies were barred by US law from trading in the United States. It was that litigation which was in large measure responsible for the adoption in the United Kingdom of the Protection of Trading Interests Act 1980, which significantly extended the powers which the British government had asserted in the 1952 Shipping Contracts and Commercial Documents Act to defend British interests against US extraterritorial claims.
TL;DR: The United Kingdom became the 119th State to establish its consent to be bound by the Convention and the 82nd party to the Agreement of July 1994 on the Implementation of its Part XI (the Implementation Agreement) as discussed by the authors.
Abstract: On 21 July 1997 the Foreign and Commonwealth Secretary announced the United Kingdom's decision to accede to the United Nations Convention on the Law of the Sea (“the Convention”), a decision which was acted upon four days later in New York. The United Kingdom thus became the 119th State to establish its consent to be bound by the Convention and the 82nd party to the Agreement of July 1994 on the Implementation of its Part XI (“the Implementation Agreement”).
TL;DR: The Vienna Convention on Succession of States in Respect of Treaties (the "1978 Succession Convention" and the "1983 Vienna Convention in respect of Property, Archives, and Debts") as mentioned in this paper is the only international legal framework for resolving issues of state succession.
Abstract: It is not surprising that, at a time when the world's political maps are being constantly redrawn, the subject of “State succession” features prominently in international legal discourse. By the same token, the infrequency of “waves” of transformation, the diversified modalities of change (cession, annexation, decolonisation, dissolution, secession, merger, unification) and the varying contextual circumstances have resulted in a less than coherent theoretical or practical framework for resolving issues of State succession.1 Nor can limited international attempts at “codification”—represented in the 1978 Vienna Convention on Succession of States in Respect of Treaties2 (the “1978 Succession Convention”) and the 1983 Vienna Convention on Succession of States in Respect of Property, Archives and Debts3—be regarded as expressing established customary norms or articulating laws grounded in consistent State practice, judicial precedent or juristic opinion.
TL;DR: The role and influence of the International Court as it advances on towards and beyond the millenium, one is struck by the variety of perspectives from which one may view that institution as discussed by the authors, including those adopted by the Court itself, academic theorists, practitioners both private and governmental, states more generally, international organisations and individuals.
Abstract: In looking at the role and influence of the International Court as it advances on towards and beyond the millenium, one is struck by the variety of perspectives from which one may view that institution. These include those adopted by the Court itself, academic theorists, practitioners both private and governmental, states more generally, international organisations and individuals. Each of these manifests its own methodology, needs and interests. Academics, for example, are keen to examine the intellectual basis and consistency of decisions and to infer, analyse and criticise the existence and nature of rules and institutions. Practitioners seek to equip themselves with the knowledge and tools necessary in order to enable their clients to win before the Court. States cautiously seek to uphold the dispute resolution role of the Court in general terms without losing any cases or putting themselves in a position where this is a possibility. International organisations and individuals look at the Court with keen and hopeful eyes.
TL;DR: An area which has received little attention in the academic literature of foreign State immunity to date is that concerning immunity in employment matters as discussed by the authors, and this omission can probably be explained by the scant case law which has hitherto existed on the subject.
Abstract: An area which has received little attention in the academic literature of foreign State immunity to date is that concerning immunity in employment matters.1 This omission can probably be explained by the scant case law which has hitherto existed on the subject. However, in recent years the number of decisions has increased due to the fact that employment by States of foreign nationals has become far more common. Developing countries in particular, as they seek to create new industries, have become increasingly reliant on advisers and technicians from the developed world.
TL;DR: In this paper, the authors examine the new procedures and consider whether the balance has shifted too far in favour of law enforcement at the expense of fundamental legal protections, and suggest that these concerns are acknowledged within the preambles to both the new EU conventions.
Abstract: To assist effective legal co-operation in combating criminal activity, the Justice and Home Affairs Council of the European Union has recently concluded two new conventions to simplify and improve extradition procedures between member States of the European Union. In doing so, the Council set in motion a process whereby existing arrangements for extradition were examined with a view to making them more flexible. In 1995 the Council recommended that the convention on simplified extradition be adopted in order to fulfil the aim of efficiency in the field of criminal justice. Its aim was to speed up extradition in cases where persons consented to be extradited. However, after further discussion concerning other aspects of extradition the Council eventually recommended that member States adopt far more radical procedures. The 1996 convention relating to “involuntary” extradition between member States appears to bypass several procedures designed to offer a degree of protection for the fugitive offender. Traditionally, extradition procedures have sought to offer a balance between judicial co-operation in the fight against crime and protecting the fundamental rights of the individual, and these concerns are acknowledged within the preambles to both the new EU conventions. However, the new conventions make several alterations to what can be regarded as established extradition procedures. In this article we examine these new procedures and consider whether the balance has shifted too far in favour of law enforcement at the expense of fundamental legal protections.
TL;DR: The European Court of Justice gave judgment in Francovich as discussed by the authors, which allowed an individual to claim damages from a member state for its failure to comply with Community law obligations, thus providing a method of redress where previously none existed.
Abstract: When the European Court of Justice gave judgment in Francovich it was hailed as a triumph, not necessarily for its erudite reasoning, but because it allowed an individual to claim damages from a member State for its failure to comply with Community law obligations, thus providing a method of redress where previously none existed. Although the scope of the remedy was unclear and appeared superficially limited to the facts of the case, it represents the final element necessary to establish a coherent doctrine for the effective protection of an individual's Community law rights.
TL;DR: The London Dumping Convention 1972 (LDC) was adopted in 1996 as mentioned in this paper, with the objective of protecting the marine environment from all sources of pollution, which is to be done by placing more restrictions on dumping and clarifying ambiguities in the law.
Abstract: In November 1996 a special meeting of the contracting parties to the London Dumping Convention 1972 (LDC) adopted a new Protocol. The objective of the Protocol is to protect “the marine environment from all sources of pollution”.3 This is to be done by placing more restrictions on dumping and clarifying ambiguities in the law.
TL;DR: In the context of insolvency, the legal order for the distribution of assets is very unfavourable to the supplier of goods who does not use an RTC as mentioned in this paper.
Abstract: In an economic climate plagued by the risk of insolvency, sellers will not wish to sell unless they can be sure of getting paid. At the same time most sellers would go out of business if they asked for cash on delivery and did not sell on credit. In Europe one way to combine these conflicting business realities is by selling goods subject to a reservation of title clause or a clause de reserve de propriete or an Eigentumsvorbehalt (hereafter RTC). An RTC may be defined as “merely an agreement between the parties as to the time when ownership is to pass”. By reserving title in the goods sold until they are paid for, it ensures that goods revert to the seller in case of the buyer's insolvency, and hence escape from the hands of the liquidator. The sale fails but the seller's losses are minimised. This is particularly important in the current context of insolvency practice where the legal order for the distribution of assets is very unfavourable to the supplier of goods who does not use an RTC. As an unsecured creditor he will receive any money owed only after the costs of the insolvency procedure and the shares of preferential and secured creditors are subtracted from the assets. He will, in the blunt words of Templemann LJ, ‘receive a raw deal’.
TL;DR: In US courts, the procedural device of the class action is available by virtue of Rule 23 of the Federal Rules of Civil Procedure as mentioned in this paper, subject to certain conditions, this rule enables one person to bring an action on behalf of a large number of others (the "class members") and the resolution of such an action, whether it is by way of judgment following trial or by the entry of an order of settlement, has res judicata effect on the class members.
Abstract: In US courts the procedural device of the class action is available by virtue of Rule 23 of the Federal Rules of Civil Procedure. Subject to certain conditions, this rule enables one person to bring an action on behalf of a large number of others (the “class members”) and the resolution of such an action, whether it is by way of judgment following trial or by the entry of an order of settlement, has res judicata effect on the class members. In most cases the majority of class members are all resident in the United States.
TL;DR: In New Zealand, the Bench and Bar protested against the judgment of the Privy Council in Wallis v. Solicitor-General as showing ignorance of New Zealand law and social conditions as mentioned in this paper.
Abstract: Historically, New Zealand has indicated an ambivalent attitude to the Privy Council. The appeal has existed for New Zealand since the Supreme Court was established in 1841 and the first case on appeal was heard in 1849. But, as early as 1903, the Bench and Bar protested against the judgment of the Privy Council in Wallis v. Solicitor-General as showing ignorance of New Zealand law and social conditions.