Showing papers in "International and Comparative Law Quarterly in 1999"
TL;DR: The relationship between treaties and soft law is explored in this paper, where the authors argue that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty.
Abstract: My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom, are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organizations.
160 citations
TL;DR: In this paper, three main tasks can be identified for comparative law: the first is to investigate differences between legal systems and, in particular, to distinguish between real differences, where the outcomes of the application of principles diverge between different legal systems, and the second is to trace developments in the relationships between legal system and thus to explore tendencies of convergence or divergence (in terms of real differences).
Abstract: Three main tasks can be identified for comparative law. The first is to investigate differences between legal systems and, in particular, to distinguish between “real” differences, where the outcomes of the application of principles diverge between legal systems, and “superficial” differences, where similar outcomes are masked by the conceptual structures of the relevant systems. The second is to trace developments in the relationships between legal systems and thus to explore tendencies of convergence or divergence (in terms of “real” differences), noting that in some areas convergence may be required under international legal instruments. The third task is to explain and to evaluate such developments: why do systems converge or diverge? Is convergence desirable or undesirable?
154 citations
TL;DR: The margin of appreciation doctrine has become a fundamental part of the jurisprudence of the European Court of Human Rights and has played a central role in most of the cases decided by that Court, including many of its most significant and controversial, and until recently has been the subject of remarkably little analysis as mentioned in this paper.
Abstract: The margin of appreciation doctrine has become a fundamental part of the jurisprudence of the European Court of Human Rights. It has played a central role in most of the cases decided by that Court, including many of its most significant and controversial, and until recently has been the subject of remarkably little analysis. However, there has been a spate of interest in the doctrine in the last year or so. 1 Most of this debate has concerned the details of how the margin of appreciation operates in the context of particular articles of the European Convention on Human Rights. This article's purpose is to look at the wider picture. After an outline of the essential characteristics of the doctrine, I will examine the nature of the margin and its role in adjudication. I will suggest that there are logical flaws in the margin as currently conceived, and that these undermine the quality and coherence of the Court's judgments.
82 citations
TL;DR: The International Law Commission (ILC), the UN organ responsible for the preparation of the Code, decided to separate the two objectives and to proceed with the drafting of a statute for an international criminal court that was distinct from the Draft Code of Crimes.
Abstract: The conclusion and adoption of the Statute of a permanent International Criminal Court2 (“Statute”) in Rome in July 19983 represent a turning point in the enforcement of legal norms regulating armed conflict. Th e Rom e Conference was the latest, and most important, chapter in a long saga concerning the broader issue of the conclusion and adoption of a Draft Code of Crimes against the Peace and Security of Mankind, an important part of which was the establishment of an international criminal court to try such crimes.4 The International Law Commission (ILC), the UN organ responsible for the preparation of the Code,5 decided to separate the two objectives and to proceed with the drafting of a statute for an international criminal court that was distinct from the Draft Code of Crimes: the ILC envisaged a court that would exercise jurisdiction in respect of crimes of international concern which existed as such in various treaties already in force.6 This approach is reflected in the provisions of the Statute adopted at Rom e concerning the jurisdiction of the Court, as explained below.7
65 citations
TL;DR: The Treaty of Amsterdam as discussed by the authors opened up new horizons in relation to European civil procedure and brought various aspects of civil procedure within the scope of Community law, in so far as they are necessary for the proper functioning of the internal market.
Abstract: The Treaty of Amsterdam, expected to come into force this year, opened up new horizons in relation to European civil procedure. Article 65 of the revised EC Treaty will bring various aspects of civil procedure within the scope of Community law, in so far as they are “necessary for the proper functioning of the internal market”.
63 citations
TL;DR: In a seminal 1992 article, Thomas Franck as discussed by the authors argued that the acceptance of a government by other States turns on whether the government governs with the consent of its people and pointed to events such as the 1991 effort by Haitian military and police authorities to overthrow the elected President of Haiti, Jean-Bertrand Aristide.
Abstract: In a seminal 1992 article Thomas Franck postulated the emergence in international law of a right to democratic governance.1 Franck argued that, increasingly, the acceptance of a government by other States turns on whether the government governs with the consent of its people.In supporting this notion, Franck pointed to events such as the 1991 effort by Haitian military and police authorities to overthrow the elected President of Haiti, Jean-Bertrand Aristide. Although those authorities exercised complete control over Haiti, the international community condemned the coup leaders, refused to engage in normal diplomatic relations with them or to seat their representatives at international organisations, and instead continued to recognise the exiled President Aristide as representing the legitimate government of Haiti. Severe economic and ultimately military sanctions were imposed on Haiti, and finally, in 1994, the coup leaders were forced to relinquish power. President Aristide then returned to Haiti to complete his term as president.
58 citations
TL;DR: For example, this article argued that English law lacks a general remedy for infringement of privacy per se: although the courts have lamented the lack of protection for private individuals (notably from the press), they have hitherto left it to Parliament to intervene.
Abstract: Protection of privacy is one of the areas most often claimed as having the potential for significant development as a result of incorporation of the European Convention on Human Rights (“the Convention”). As is well known, English law lacks a general remedy for infringement of privacy per se: although the courts have lamented the lack of protection for private individuals (notably from the press), they have hitherto left it to Parliament to intervene. After flirtation with introducing either a specific statutory code applicable to intrusive journalistic activities or a general statutory tort of infringement of privacy, the Conservative government abandoned the idea altogether.1 Perhaps because of the lack of legislative concern (politicians, after all, have reasons of strong self-interest not to provoke the press), the judiciary has expressed renewed interest, at least through extra-judicial pronouncements2 and broad hints in one recent House of Lords decision that the time for reconsideration may be fast approaching.3
49 citations
TL;DR: In this paper, the authors reviewed the scope of protection afforded under the three treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction, including the European Convention on Human Rights and Fundamental Freedoms (the European Convention), the International Covenant on Civil and Political Rights (the Political Covenant), and the Refugee Convention.
Abstract: A growing opinion has appeared in refugee and human rights discourse that the 1950 European Convention on Human Rights and Fundamental Freedoms (the European Convention) provides more extensive protection against refoulement than the 1951 UN Convention relating to the Status of Refugees (the Refugee Convention). However, uncertainties remain as to whether the protection offered by the 1984 UN Convention against Torture (the Torture Convention) and the 1966 UN International Covenant on Civil and Political Rights (the Political Covenant) may substitute, or, rather, reinforce, that of the European Convention. Which of these four instruments offers the greatest protection against a decision of refoulement from a European country? The answer to this question is far from being academic. The rule that an international organ may only be competent to consider an individual petition or communication provided “the same matter is not being examined under another procedure of individual investigation or settlement” is embodied in all three instruments providing a procedure for individual complaints. It is therefore crucial for an asylum-seeker to give his or her best shot first, even if, as rightly pointed out by Liz Heffernan, the Strasbourg organs and the Geneva organs are not in competition. This article will review the scope of protection afforded under the three of these treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction.
43 citations
TL;DR: The restoration of the pre-war property fights of displaced persons and refugees is critical to restore the peace in Bosnia and Herzegovina as mentioned in this paper, particularly in the case of Bosniac, Croats and Serbs.
Abstract: The restoration of the pre-war property fights of displaced persons and refugees is critical to restore the peace.This is particularly true for Bosnia and Herzegovina. The devastating impact of the war which ravaged Bosnia from 1992 until 1995 has left a third of the housing stock destroyed or otherwise uninhabitable. The systematic practice of ethnic cleansing forced Bosniacs, Croats and Serbs to seek shelter in areas of Bosnia and Herzegovina where their ethnic group was in the majority or to seek refuge abroad.1 More than half the 4.5 million the pre-war population of Bosnia and Herzegovina fled their homes in search of safety during the course of the war. According to recent estimates from the UN High Commissioner for Refugees, over 800,000 refugees from Bosnia and Herzegovina are still abroad today.2 Within Bosnia and Herzegovina, more than 800,000 people remain displaced from their pre-conflict homes.3
41 citations
TL;DR: Can a person who has agreed to an out-of-court settlement for a certain offence in country A still be prosecuted for the same crime in country B under the same charge of swindling in country D? as mentioned in this paper.
Abstract: Can a person who has agreed to an out-of-court settlement for a certain offence in country A still be prosecuted for the same offence in country B? What if a person is found guilty of theft in country C and is subsequently prosecuted in respect of the same facts, but under the charge of swindling in country D? Suppose two persons are suspected of having set up a money-laundering scheme, which involves financial transactions in several countries. Can the offenders still be prosecuted in one country concerned, after they have been acquitted for moneylaundering in one of the other countries?
37 citations
TL;DR: In the case of the United States' prohibition on the importation of certain shrimps and shrimp products with fishing technology considered to adversely affect the population of sea turtles under CITES as mentioned in this paper.
Abstract: At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4
TL;DR: When the Permanent Court of International Justice (PICA) was established in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court.
Abstract: When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that: “In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Court's] Statute frankly recognises and deals with.”1
TL;DR: It is a common observation that the theory and practice of international law are far apart as mentioned in this paper, and it is also common to observe that lawyers and diplomats are not even attempting to talk to each other, turning away in silent disregard.
Abstract: It is a common observation that the theory and practice of international law are far apart. Richard Falk, for example, begins his 1970 book by chastising international legal theorists for failing to “provide adequate guidelines for evaluating particular decisions”.2 Likewise, Louis Henkin asserts that, “Lawyer and diplomat are engaged in a dialogue de sourds. Indeed, they are not even attempting to talk to each other, turning away in silent disregard.”3
TL;DR: The majority of the House of Lords in Reg. v. Bow Street Magistrate, ex parte Pinochet (No. 3) as discussed by the authors was of a solid majority support for the position that Pinochet was not entitled to immunity in the United Kingdom in respect of the criminal acts he is alleged to have committed.
Abstract: While lacking the raw excitement of the live 'penalty shoot-out' that was the announcement of the decision of the House of Lords in Reg. v. Bow Street Magistrate, ex parte Pinochet,1 the initial impression of the decision in Reg. v. Bow Street Magistrate, ex parte Pinochet (No. 3)2 was of a solid majority support for the position that Pinochet was not entitled to immunity in the United Kingdom in respect of the criminal acts he is alleged to have committed. Even as Lord Browne-Wilkinson attempted to explain the intricacies of the decision, the matter of immunity appeared settled and of secondary consideration to the 'new' requirement of double criminality which alone, it seemed, had resulted in the considerable reduction in the list of crimes for which Pinochet could be extradited to Spain. Closer examination of the reasoning of their Lordships, however, quickly dispels that impression and reveals a range of opinions across a wide spectrum. What agreement there was between their Lordships on the matter of Pinochet's immunity from jurisdiction is diverse and often contradictory. In particular, the Lordships who formed the majority were equally divided on the question as to whether Pinochet was acting within his official capacity when carrying out the acts of which he is accused. Given that immunity rationae materiae appears to be available only in respect of official acts, it is difficult to see how the six could have agreed on the fact that Pinochet was not entitled to such immunity. Indeed, given the fact that Lord Goff (dissenting) was of the opinion that the alleged acts were performed in the course of Pinochet's functions as head of state, there was in fact a majority in favour of the prima facie existence of immunity rationae materiae.
TL;DR: The importance of the LOLR under the umbrella of the central bank is seldom contested as discussed by the authors, and it is the immediacy of the availability of central bank credit (the central bank being the ultimate supplier of high-powered money) that makes the LOLr particularly suitable to confront emergency situations.
Abstract: The name “lender of last resort” owes its origins to Sir Francis Barings, who in 1797 referred to the Bank of England as the “dernier resort” from which all banks could obtain liquidity in times of crisis.1 The lender of last resort (“LOLR”) role of the central bank remains a major rationale for most central banks around the world, in both developed and developing countries.2 While other central bank functions have recently come under fire (e.g. banking supervision), the importance of having the LOLR under the umbrella of the central bank is seldom contested.3 It is the immediacy of the availability of central bank credit (the central bank being the ultimate supplier of high-powered money) that makes the LOLR particularly suitable to confront emergency situations.
TL;DR: The authors found references to the notion of "reasonable" in a large variety of primary rules pronounced in both legal instruments and the case law, such as the right to be tried within a reasonable time guaranteed by Articles 5 and 6 of the European Convention on Human Rights.
Abstract: Far from being confined to its most obvious manifestations, such as in the right to be tried within a “reasonable time” guaranteed by Articles 5 and 6 of the European Convention on Human Rights, references to the notion of “reasonable” are found in a large variety of primary rules pronounced in both legal instruments and the case law.1
TL;DR: The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question as discussed by the authors.
Abstract: The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question. What is meant by the claim by the European Court of Justice that the European Com-munity Treaties have created “a new legal order of international law” 1 or, more radically, “a new legal order”? 2 Is EC law to be regarded as a particularly effective system of regional international law, or has it been created as, or mutated into, an entirely new species of law? If there are indeed two legal orders, to what extent are they still capable of cross-fertilisation? What about “European Union law”? Have the Treaty on European Union and now the Treaty of Amsterdam eroded the dichotomy between the two legal orders of public international law and EU law? Is public international law itself taking on some of the characteristics which have made EC law an attractive as well as an effective system for regulating relations between sovereign States? Are the two streams converging?
TL;DR: The Hungarian Constitutional Court, Dec.30/1998 (VI.25) AB 1 has highlighted the constitutional implications of applying EC law in the domestic system of an associate state as mentioned in this paper.
Abstract: Against a background of increasingly intense legal harmonisation and with the prospects of Central European accession to the EU drawing ever closer, a recent decision of the Hungarian Constitutional Court, Dec.30/1998 (VI.25) AB 1 has highlighted the constitutional implications of applying EC law in the domestic system of an associate state. The judgment itself concerned the constitutionality of the competition provisions of the EC-Hungary Europe Agreement (“EA”) together with Decision 2/96 of the Association Council on the relevant Implementing Rules (“IR”). While the Hungarian court is not the first of its type in an associate state to deal with the effect internally of an Association Agreement, 2 nevertheless its decision offers certain insights into the judicial response to the integration process in Central Europe.
TL;DR: The decision of the Appellate Committee of the House of Lords, given on 24 March 1999,1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture as mentioned in this paper.
Abstract: The decision of the Appellate Committee of the House of Lords, given on 24 March 1999,1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.
TL;DR: In the last few months of 1997, vast areas of South-east Asia were choked by air pollution caused by smoke arising from massive forest fires in Indonesia as mentioned in this paper, and significant transboundary pollution was also caused to several neighbouring States, primarily Malaysia, Brunei and Singapore.
Abstract: During the last few months of 1997, vast areas of South-east Asia were choked by air pollution caused by smoke arising from massive forest fires in Indonesia. Thick smoke blanketed not only Indonesian territory, but significant transboundary pollution was also caused to several neighbouring States, primarily Malaysia, Brunei and Singapore.1 The problem was caused largely by the indiscriminate use of fire in the clearing of land by large-scale plantation owners and timber concessionaires on Indonesian territory. Land-clearing by government-sponsored transmigration programmes also involved significant burning. To lesser extents, small-scale “slash-and-burn” agricultural practices were implicated as well.2 The problem was exacerbated by the onset of severe droughts associated with the El Nino climatic phenomenon and the presence of combustible peat bogs in several parts of the sprawling Indonesian archipelago.
TL;DR: The People's Republic of China (hereafter “PRC” or “China”) is set to attain a leading position in the world economy as discussed by the authors.
Abstract: The People's Republic of China (hereafter “PRC” or “China”) is set to attain a leading position in the world economy. Headlines such as “the giant awakes” have been in common usage for some time.1 European businesses have come to realise that China cannot be ignored. Their legal advisers should follow suit. This explains the motivation for this article.
TL;DR: The International Tribunal for the Law of the Sea (ITLOS) heard its first case at the end of 1997 as discussed by the authors, and a remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.
Abstract: The International Tribunal for the Law of the Sea (ITLOS—“the Tribunal”) heard its first case at the end of 1997. 1 A remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.
TL;DR: In this paper, the territorial sovereignty over several uninhabited islands in the area, the definition of the maritime boundary between the two States and the use of the waters surrounding the islands by fishermen of both States.
Abstract: In December 1995 Eritrean and Yemeni armed forces clashed in one of the islands situated off the coast of these two States in the Red Sea (Greater Hanish1). Behind the incident was a dispute concerning, inter alia, the territorial sovereignty over several uninhabited islands in the area, the definition of the maritime boundary between the two States and the use of the waters surrounding the islands by fishermen of both States.2 Undoubtedly, this dispute is deeply rooted in the history of the two States, and their peoples.
TL;DR: The case of Pinochet has aroused enormous interest, both political and legal as mentioned in this paper, and has been heralded by organisations for the protection of human rights as one small step on the long road to justice.
Abstract: The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.
TL;DR: In this paper, the authors analyse the practice regarding reservation clauses within the Council of Europe and the lack of well-organised and easily accessible documentation on reservations, declarations and objections regarding the treaties of the Council.
Abstract: The purpose of this article is to analyse the practice regarding reservation clauses within the Council of Europe. In spite of a vast amount of literature on the issue of reservations in general and on reservations to specific treaties in particular, little has been written about the regional practice in Europe and then especially within the framework of the Council of Europe.1 This is quite remarkable since a large number of treaties have been concluded under the auspices of the Council and its Secretary General has the role of their depositary. One of the reasons for this absence of academic work on reservations within the Council of Europe as a whole is probably the lack of well-organised and easily accessible documentation on reservations, declarations and objections regarding the treaties of the Council of Europe.
TL;DR: A number of different types of interim and provisional remedies have been proposed in the legal system as discussed by the authors, such as interim payment, interim damages, and interim freezing of the property of the other party to the action.
Abstract: It is a well-known facet of litigation that the first step is often more important than any to follow. Virtually all legal systems bestow on litigants a variety of interim and provisional remedies. These remedies have a number of different functions and rationales but two in particular are thought to be fundamental.1 First, protective remedies provide a litigant with a degree of protection by ensuring that the status quo is preserved while the litigation is proceeding; second, these remedies secure the position of a litigant not only during the course of an action but also once it is over and he has judgment in his favour. This second function is usually achieved, in one way or another, by tying up and freezing the property of the other party to the action.2 However, protective remedies also serve other functions. Some remedies exist to promote the interest of a party in the advancement of his case (e.g. orders for disclosure of evidence), whereas others provide a litigant with part of the overall final remedy or judgment that he is seeking to gain from the action (e.g. interim payment or interim damages).
TL;DR: In this paper, the issue of whether it is possible or desirable to have an arbitral award enforced under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards despite the award's having been annulled in the State where it was made is discussed.
Abstract: An impressive corpus of legal literature has accumulated in the last few years on the question whether it is possible or desirable to have an arbitral award enforced under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 despite the award's having been annulled in the State where it was made. The issue is important not only in the context of the New York Convention, which itself is the most widely used vehicle of recognition and enforcement of foreign arbitral awards,2 but also in the context of other international documents3 or national law provisions modelled on the Convention4 and bilateral treaties that incorporate it by reference.5 The debate has largely centred on two well-known cases, Hilmarton and Chromalloy. It is the purpose of this article to analyse those cases and other relevant case law and offer a comprehensive analysis of the relevance of judicial decisions of the State of origin for purposes of enforcement under the New York Convention. In doing so this article proposes to discuss both the technical aspects of the relevant provisions of the Convention, and in particular their interrelationship, and the issues of legal policy that arise. Though the discussion will touch upon the wider doctrinal question of the degree of independence of arbitral proceedings from the law of the arbitral situs.