Showing papers in "International and Comparative Law Quarterly in 2003"

Concurrence between Individual Responsibility and State Responsibility in International Law

Abstract: This article explores the consequences of the expansion of the domain of individual responsibility for the law of state responsibility. It is induced by a number of recent cases in which state responsibility claims were accompanied by prosecutions of individuals whose acts led to the responsibility of the state. An example is the parallel attribution of (alleged) acts of genocide in the former Yugoslavia between 1991 and 1995 to Yugoslavia and to Slobodan Milosevic.

Interlocking legal orders in the European Union and comparative law

Abstract: Even if an external observer who takes an interest in the case-law of the Court of Justice of the European Communities and of the Court of First Instance of the European Communities may not have such an impression at first sight, comparative law plays a central role in the activities of these courts. It means much more than simply looking at solutions given to certain problems in the legal orders of the Member States. As a former president of the Court of Justice rightly observed, recourse to comparative law is for the Court of Justice essentially a method of interpretation of Community law itself.1 For the Court of Justice and the CFI (below often referred to as ‘Community judge’ or ‘Community courts’), it is one method amongst other methods of interpretation of the law (such as literal, exegetic, historical, systematic interpretation) and it constitutes a tool for establishing the law.2

The Ogoni Case Before The African Commission on Human and Peoples' Rights

Abstract: In 2001, the African Commission on Human and Peoples' Rights concluded consideration of a communication under Article 55 of the African Charter on Human Rights and Peoples' Rights which dealt with alleged violations of human rights of the Ogoni people in Nigeria.1 This communication is important and special, because, for the first time, the Commission was able to deal in a substantive and groundbreaking way with alleged violations of economic, social and cultural rights which formed the substance of the complaint. In addition, in dealing with the communication, the Commission took a firm and dynamic approach that may contribute to a better and more effective protection of economic, social and cultural rights in Africa. This article discusses the case before the Commission and tries to characterize the decision of the Commission as an application of recent approaches to strengthen implementation and supervision of economic, social and cultural rights.

Adversarial and Inquisitorial Models of Civil Procedure

Abstract: There is a widespread belief in this country that while England and the other common law countries have an adversarial system of civil procedure, continental countries use the inquisitorial system. The fact is, however, that the only kind of situation in which a truly inquisitorial procedure can be envisaged is exemplified when a policeman who, arriving at the scene of a fracas, opens the proceedings with the time honoured formula, ‘What's going on here?’ Short of that, there is nothing to which an inquisitorial judge can direct his inquiry unless and until a complaint of some kind is addressed to him. Even writers on French administrative law, whose procedure is claimed to be inquisitorial, find it difficult to avoid language that might be thought more appropriate to an adversary system. So for example, it is said that notice of the complaint must be given to all those whom the claimant indicates as his opponents.

The ICJ, the ECJ, and the Integrity of International Law

Abstract: The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the October Human Rights Law Journal.2

The Iraq Crisis: What Now?

Abstract: Much ink has been spilled over the question of the legality of the invasion of Iraq and of the extraordinary claims to a right to override ‘unreasonable’ uses of veto in the Security Council. That invasion has taken place, and as the United States and the United Kingdom withdrew from the Security Council the draft resoluation that would have expressly authorised that invasion, there was no occasion to override any veto that might have been cast against such a resolution had it been put to the Council. Writing while fighting in Iraq is still processding, it is both too late and too early to consider those questions of legality in great detail: too late to have any practical value; and perhaps too early for the measured appraisal of the situation that will be needed in due course. I want instead to address a slightly different question.

From Centros to Ueberseering: Free Movement of Companies, Private, International Law, and Community

Abstract: Not many decisions of the Court of Justice have stirred such an intensive academic debate in Germany1 as the Court's well-known Centros judgment,2 dealing with a Danish couple that had registered a private limited company in England and had then applied to register a branch in Denmark. The Danish authorities refused a registration for the reason that under Danish law a ‘foreign limited company’ which does not transact business in its state of incorporation has to fulfil certain requirements of Danish company law, in particular the paying-up of the minimum capital fixed at DKK 200.000. The competent Danish Court referred the question to the Court of Justice whether the Danish regulation was compatible with Article 52 (now Article 43) ECT in conjunction with Article 58 (now Article 48) ECT.

Attitudes to Polygamy in English Law

Abstract: This article documents and discusses recent developments in English law towards polygamy. It begins by introducing the question of the legal treatment of polygamy in the Afro-Asian context, and discussing the consequences that colonial and post-colonial developments may have had on the character (or visibility) of English case law on the subject. The article then turns to the examination of English developments in response to different phases of non-European immigration

Some Issues for Sentencing in the International Criminal Court

Abstract: The purpose of this paper is to raise several significant issues for debate which concern the sentencing of offenders to be convicted in the newly established International Criminal Court (ICC). Such has been the impact of the terrorist attacks in New York and Washington that they have thrown into sharp focus critical deficiencies in the purpose, coherence and practical mechanisms developed for sentencing in the ICC.1 Not only did such events suggest a greater immediacy for the ICC, but also, more significantly, a realisation that crimes of this magnitude, loaded with so many ideological and political interests and crying out for a ‘just’ resolution, place the role of the international sentencer at the forefront of the debate.

Eu responses to terrorism

Abstract: Following the last update in this Quarterly,1 the European Union (EU) has been quite active in agreeing new measures relating to cross-border policing and criminal law. First of all, the Tampere European Council meeting in October 1999 agreed a list of measures to be adopted to develop the EU's ‘Area of Freedom, Security and Justice’, particularly as regards criminal procedure. Here the European Council requested the Council to agree a work programme on mutual recognition in criminal matters within a year, and to establish an EU organisation facilitating cross-border prosecutions (Eurojust) within 2 years. Following agreement in the meantime on a Convention on Mutual Assistance in Criminal Matters after 5 years’ negotiations,2 the work programme was duly adopted in November 2000, setting out a list of twenty-four measures which the Council should agree in the medium-term to facilitate cross-border investigations, prosecutions, and enforcement of judgments.3 Several Member States then began to implement this plan, tabling two versions of a proposed Decision to set up Eurojust and also making proposals for ‘Framework Decisions’ to harmonise national laws as regards enforcement of other Member States’ orders to freeze assets and evidence and enforcement of judgments imposing financial penalties.4

Positive Action to Promote Women in Politics: Some European Comparisons

Abstract: The issue of women's under-representation in politics continues to be controversial and pressing in countries all over the world. According to the Inter Parliamentary Union, only 14.7 per cent of the world's legislators are women.1 In no country do women achieve parity with men in terms of parliamentary representation. The record of many of the world's most developed countries is particularly poor. Looking at lower houses of the legislature, in the US women's representation is only 14 per cent, in the UK 18 per cent, France 12 per cent and Italy 10 per cent. These countries are considerably out-performed by others such as South Africa and Argentina, both at 30 per cent.2

Judicial Approaches to the Human Rights Act

Abstract: The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

Genocidal Intent Before the Icty

Abstract: Several crimes recognized in international criminal law are intimately linked to the horrors of the holocaust. Persecution, extermination, and genocide are historically intertwined notions that in all minds refer to the ordeal of the Jewish people before and during the Second World War. This is particularly so with genocide. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) is a legal answer to the holocaust. Yet, as any legal notion, genocide goes beyond the characterisation of a specific historical tragedy. It is fated to evolve through legal interpretation, which operates pursuant to certain rules and principles that only subsidiarily rely on the drafting history.

Institutional Developments within the Antarctic Treaty System

Abstract: In July 2001, 40 years after the entry into force of the 1959 Antarctic Treaty, the Antarctic Treaty Consultative Parties (ATCPs) decided to establish a Permanent Secretariat to the Treaty. This latest development within what has been described as ‘an evolving international institutional structure’ will undoubtedly serve to strengthen the Treaty, as well as provide support for the wider Antarctic system, in particular, the 1991 Environmental Protocol. Its impact within the wider environmental institutional context will depend to an extent upon the grant of legal personality to the secretariat, and the definition of its functions, rights and privileges. Described as an historic and landmark decision, the establishment of a permanent secretariat has the potential indirectly to provide an additional line of defence in the fight to preserve and protect the Antarctic environment. The purpose of this article is to consider the future impact of, and issues relating to, this significant institutional development.

Public Participation in the North American Agreement on Environmental Cooperation

Abstract: The subject of this article is public participation in the NAAEC. It will be analysed against the background of certain other international conventions that make provision, in one way or another, for public participation in relation to environmental protection, in particular, the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’) and the 1974 Convention on the Protection of the Environment between Denmark, Finland and Sweden (the ‘Nordic Convention’). The 1950 European Convention of Human Rights will also be referred to in so far as it secures public participation and from the point of view of its effectiveness in assisting in the enforcement of national environmental law. Reference to these instruments will, however, be limited to that which is relevant to the present essay.

Access to court v state immunity

Abstract: This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

The Road From Doha: The Issues for the Development Round of the Wto and the Future of International Trade

Abstract: After the debacle in Seattle in December 1999, the Fourth Ministerial Conference of WTO members took place successfully under tight security in the capital city, Doha, of the small Arabian state of Qatar in November 2001. The Doha conference did not adopt any new treaty or protocoll to add to the network of WTO agreements already in place. It did, however, approve a ‘broad and balance ’ work programme in the form of two declarations—a main declaration and one on trade related intellectual property rights (TRIPS) and public health, plus a decision on implementation designed to alleviate the difficulties of developing countries in implementing the existing WTO agreements. In other words, the Doha conference agreed on the nature and scope of the next round of trade negttiations, named as the ‘Development Round’. Although some least-developed countries had argued that ‘no new round should be started until there has been full implementation of the agreements concluded in the last Round, and an evaluation of their effects done’, the Doha Conference decided to start a new round of trade negotiations. How development oriented is the agenda of the new round of trade negotiations? What is going to be negotiated during th e negotiations? Is it indeed going to be a ‘Development Round’ in more than name? The object of this article is to analyse the background to the Doha conference, to assess the nature of negotiations at the conference and to evaluate its outcome.

II. The Lamfalussy Legislative Model: A New Era For The Ec Securities And Investment Services Regime

Abstract: The worldwide repercussions of the Enron collapse have placed the effectiveness of the EC's system of securities and investment services market regulation, particularly with respect to disclosure, market transparency, and auditor independence, under a harsh spotlight.1 But the regime was already undergoing a sea change that may have longstanding repercussions for how EC securities and investment services markets are regulated. In particular, sweeping changes have been made to the way in which EC securities and investment services measures are adopted. These changes have set the stage for a dramatic change in the detail, regulatory sophistication, and degree of intervention in Member States' system of the EC securities and investment services regime. They have not, however, required a Treaty revision but are based on the comitology process for delegated law making.

The Community Courts Post-Nice: A European Certiorari Revisited

Abstract: In December 2000 the European heads of government, gathered at Nice, took several important steps in the constitutional development of the European Union. Chief among them are the various provisions in the Treaty of Nice1 disposing of the so-called ‘Amsterdam leftovers’, ie, those issues of institutional reform left unresolved by the Treaty of Amsterdam. The central focus of IGC 2000, and of the publicity surrounding its negotiations, was reform of the political institutions, notably the Commission and the Council, in preparation for enlargement. Reform of the Community courts was a less conspicuous but, ultimately, no less important item on the agenda. In the case of the judicial branch, the new provisions are inspired in large part by the well-publicised need to remedy overburdened dockets and the attendant inefficiencies in the administration of justice in Luxembourg.2

Independence, Impartiality, and Immunity of Arbitrators—us and English Perspectives

Abstract: At the 2002 conference of ICCA (International Commercial Congress of Arbitration), the conference participants debated the following proposition: ‘the parties, not the arbitrators, control the arbitration.’ Thus, the proposition permitted only two answers—either the parties or the arbitrators control the arbitral process. Both answers were consistent with the contractualist theory of arbitration:

The New Lex Mercatoria: International Interests in Mobile Equipment

Abstract: Historically, the trend towards the harmonisation of commercial laws has been concerned either with the creation of a regime dealing with international transactions while preserving the identity of national laws or alternatively the emergence of supranational entities where the focus has been upon progressing a common market or political or economic grouping. The legal instruments that have promoted harmonisation1 have mainly revolved around a model law such as the UNCITRAL Model Law on International Commercial Arbitration (1985) or those instruments that deal with international commercial contracts and depend for their application on incorporation into contracts. Clearly there are limits on the effectiveness of international proposals for contractual incorporation. By definition, they are not mandatory and for them to have any realistic effect there must exist a considerable degree of homogeneity in commercial practice as seen, for example, with documentary letters of credit.2 In addition, contractual mechanisms have mainly an inter-partes dimension3 and are not therefore apt to deal with third party rights including the recognition and enforcement of international security interests.

International Jurisdiction Over Consumer Contracts in e-Europe

Abstract: In its work to maintain and develop the free mobility of judgments within the European Union, the EU approved on 22 December 2000 a new regulation1 (hereafter the Jurisdiction Regulation) that replaced the Brussels Convention with effect from 1 March 2002.2 Possibly the most discussed and disputed new development in the Jurisdiction Regulation is Section 4, which concerns jurisdiction over consumer contracts. Before the approval of the Regulation, the provisions of Section 4 were heavily debated. The unreserved right of the consumer, under certain circumstances, to sue the other party in the courts of the State where the consumer is domiciled met strong resistance. This was particularly the case in relation to e-commerce, where there was an expressed fear that the provisions would lead to a scenario where anyone doing business through the Internet or by other electronic means could face the risk of being hauled into court in every state in Europe. It was asserted that this would significantly increase the costs of establishing new businesses online, and that, as a result, small and medium size enterprises would be deterred from offering their products online throughout the EU, and restrain the development of e-commerce in Europe.

Recognition of companies incorporated in EU member states

Abstract: Few decisions of the European Court of Justice have received as much attention as the 1999 judgement in Centros.1 This decision provided private international lawyers with an opportunity to examine choice of law in relation to companies against the background of European law. It also caused company lawyers to re-examine their national legislation in the light of foreign rules.

Protecting the Interests of Civil Society in Community Decision-Making - The Limits of Article 230 EC

Abstract: In the Commission's White Paper on European Governance1 and the subsequent Laeken2 Declaration, the participation of civil society in the Community method of decision-making was viewed as the primary way of engaging directly with EU citizens. The White Paper accepts that participatory democracy is created from the bottom up by ‘groups of people dedicated to the disinterested search for the public interest in society’.3 This statement recognises that participation goes beyond the pre-legislative lobbying process. It suggests that the representation and protection of citizens' interests requires ex post judicial protection in circumstances where the legislative measure breaches fundamental rights or if its application infringes principles of procedural propriety. The only vehicle for such judicial protection at the Community level is paragraph 4 of Article 230 EC, which already provides recourse to individuals who are ‘directly and individually concerned’ by an act of the institutions. Direct actions under Article 230 EC are preferable to the indirect protection available in national courts when a preliminary reference can be made under Article 234 EC. This is because national courts cannot declare a Community measure as being invalid or provide a remedy against the Commission. Despite these deficiencies with domestic enforcement actions, the Court's judgments have been consistently of the view that the granting of locus standi under Article 230 EC should be narrowly construed and most significantly does not extend to judicial review actions by representative groups. This is in stark contrast to the practice within the domestic courts of Member States where proxy actions have, in recent years, been encouraged.

Clinical Negligence Reform: Lessons from France?

Abstract: On 4 March 2002, the French legislature enacted the ‘Patients’ Rights & Quality of the Health System Act’ which introduces reforms in the relationship between the medical profession and the patient.1 As part of this wider reform, Part IV of the Act establishes a new system for the compensation of victims of medical accidents. The new legislation retains the traditional liability rules but puts in place a parallel system which aims to guarantee compensation for serious accidents, whether or not the accident is caused by negligence, without the need to resort to litigation in these cases. The new French rules are of considerable interest in view of the current debate in the United Kingdom on clinical negligence reform.

A Role For Tort In Pre-Contractual Negotiations? An Examination Of English, French, And Canadian Law

Abstract: The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4

Reflections on Maritime Delimitation in the Qatar/Bahrain Case

Abstract: After nearly 10 years of proceedings before the International Court of Justice (ICJ), the Court, on 16 March 2001, rendered the decision concerning maritime delimitation and territorial questions between Qatar and Bahrain. One may identify two interesting features in this judgment. First, the ICJ, in the Qatar/Bahrain case (Merits), peacefully resolved a difficult dispute regarding territorial sovereignty as well as maritime delimitation.1 In this connection, a question which arises is the interrelation between territorial disputes and maritime delimitation.2 As will be seen later, the status of low-tide elevations, in particular, generated a serious disputes between the Parties. Secondly, the equidistance method was, for the first time in the case law of the ICJ, explicitly applied to a delimitation between States with adjacent coasts under customary law. Considering that the Court has been reluctant to apply the equidistance method to delimitations in situations of adjacency, this may be said to be a new development.

Enlarging ‘Fortress Europe’: Eu Accession, Asylum, and Immigration in Candidate Countries

Abstract: The European Union is soon to be composed of twenty-seven Member States. The first wave of enlargement is to take place in 2004 and may see the accession of Cyprus, the Czech Republic, Hungary, Malta, Poland, Slovakia, Slovenia, and the three Baltic states. A few years later, Bulgaria and Romania are also expected to join the EU. Although previous enlargements have taken place,2 the imminent accession of ten countries, mainly from Central and Eastern Europe, is unprecedented not only in terms of scale, but also for its political symbolism: for these states, EU membership confirms the success of their democratic and economic transition efforts and represents their (re-)integration to the European family after decades of isolation under the Soviet domination.

Developing a ‘Peace and Security’ Approach Towards Minorities' Problems

Abstract: The centuries old problem of protecting minorities with in multicultural states through international law is a recognised contemporary global issue.2 Minority protection schemes constitute an important facet in the arsenal of techniques available to states and international policy-makers in managing the potentially destabilising effects of nationalist aspirations, where manifested in ethnic conflict.3 These aspirations range from minimalist claims for personal autonomy to maximalist claims for spatial autonomy, even independent statehood.

III. Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria:: Equatorial Guinea Intervening) , Merits, Judgment of 10 October 2002

Abstract: On 10 October 2002 the International Court of Justice gave its decision on the merits in the case brought by the Republic of Cameroon against the Federal Republic of Nigeria over their land and maritime boundary. The judgment, which addresses a number of issues of general international law concerning maritime boundaries and territorial sovereignty, as well as providing a detailed treatment of the particular facts, concludes a case that began in 1994 and has had an unusual history. As this background had a significant bearing on the eventual outcome, a brief recapitulation may be useful.