Showing papers in "International and Comparative Law Quarterly in 2005"
TL;DR: The authors argued that every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.
Abstract: 'Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.'
295 citations
TL;DR: This article argued that the rise of sub-state nationalism even at a time when the resilience of State sovereignty is itself coming into question, is in fact not as paradoxical as it might at first appear, at least insofar as this process is taking place within developed democracies.
Abstract: Over the past 30 years, sub-state national societies in a number of developed liberal democracies—particularly Quebec, Catalonia, and Scotland within Canada, Spain, and the United Kingdom respectively—have both reasserted their national distinctiveness and demanded recognition of it in constitutional terms.1 This re-emergence of sub-state national sentiment within industrially advanced States, and the struggle for constitutional change which has accompanied it, are considered by many observers to be strangely incongruous at a time of economic and cultural ‘globalization’ where the power of the nation- State itself seems to be waning.2 Why do sub-state nations, the common refrain asks, seek statehood when the very concept of State sovereignty is losing its meaning? This article will argue, however, that the rise of sub-state nationalism even at a time when the resilience of State sovereignty is itself coming into question, is in fact not as paradoxical as it might at first appear, at least insofar as this process is taking place within developed democracies.3 It will be contended that the elaborate constitutional programmes which are now beingadvanced by sub-state nationalist movements for the reform of their respective host States are inmany respects informed by, and reflective of, wider transformations in the patterns of State sovereignty.
56 citations
TL;DR: In this article, a new and comprehensive regime for the law of the sea is proposed, which ensures the durability over time of a globalconvention, intended to elaborate the new regime.
Abstract: How do treaties evolve? How in particular do we ensure the [durability over time] of a globalconvention, intended to elaborate [a new and comprehensive regime for the law of the sea] ?1 Earlier attempts to do so all failed. Why should the most recent attempt be any more successful?
55 citations
TL;DR: In this article, the Council of Europe's recognition of a national "margin of appreciation" has allowed new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.
Abstract: The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2 dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3 This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.
53 citations
TL;DR: In this article, the authors argue that even the ultimate bastions of establishment, such as Her Majesty's armed forces, are not immune from processes of commodification and marketization that have previously been applied to core functions such as policing and imprisonment.
Abstract: It was Robert Nozick who, distinguishing the classical liberal ‘night-watchman State’ which protected citizens against violence and enforced contracts on their behalf, conjured instead the ‘ultra-minimal State’1 in which the task of the State is confined to the monopolization of violence rather than the actual provision of security (unless paid for by citizens by choice). On the face of it, it seems that Western governments are increasingly keen to move towards this model of the ultra-minimal State and to allow even the provision of force to be assumed by private enterprise on a contractual model in which the rich or the desperate may choose to avail themselves of fortifications at the going rate while the rest take their chances in life. The ultra-minimal State is left with a residual steering2 policy role in which the parameters of contractual engagement for protection can be set. In short, it appears that nothing is sacrosanct in the onward march of the principles of neo-liberalism. Even the ultimate bastions of establishment—Her Majesty's armed forces—are not immune from processes of commodification and marketization that have previously been applied to core functions such as policing3 and imprisonment.4
49 citations
36 citations
TL;DR: In this article, the authors examined whether trafficking of human beings can be regarded as a crime against humanity under the Rome Statute of the International Criminal Court (ICC) and concluded that it is not a crime.
Abstract: This article examines whether trafficking of human beings can be regarded as a crime against humanity under the Rome Statute of the International Criminal Court.
35 citations
TL;DR: The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in December 2000, within the framework of the United Nations Convention against Transnational Organized Crime (Organized Crime Convention) as discussed by the authors.
Abstract: Trafficking of human beings is a widespread practice in the modern world. It has been estimated that up to 800,000 people, especially women and children, are trafficked all around the world each year.1 Virtually all States are affected,2 and traffickers are believed to make between 10 billion annually from the trafficking business.3 In order to combat trafficking, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in December 2000, within the framework of the United Nations Convention against Transnational Organized Crime (Organized Crime Convention).4
32 citations
TL;DR: In this article, the modern formulation of the prohibition of discrimination recognizes that protection from discrimination on grounds of nationality is central to the concept of citizenship of the Union and the Court of Justice has indicated that the requirement of proof is not a heavy one on the complainant, all that is needed to place the burden on the respondent to justify the potentially differential treatment is that complainants show that the restriction applied to them is intrinsically likely or susceptible by its very nature, to affect them adversely in comparison with the State's own nationals.
Abstract: The prohibition of discrimination, at least on grounds of nationality, has always been a constitutional principle of Community law. Such discrimination can take many forms, since Community law prohibits not only direct discrimination but various forms of indirect discrimination. Furthermore, the Court of Justice has indicated that where discrimination on grounds of nationality is in issue, the requirement of proof is not a heavy one on the complainant. All that is needed to place the burden on the respondent to justify the potentially differential treatment is that complainants show that the requirement applied to them is intrinsically likely, or susceptible by its very nature, to affect them adversely in comparison with the State's own nationals. The modern formulation of the prohibition of discrimination recognizes that protection from discrimination on grounds of nationality is central to the concept of citizenship of the Union. Advocate General Jacobs has said:
28 citations
TL;DR: Can a military occupation-and all the responsibilities of an occupying power as laid down in the laws of war-end at a single moment in time, and without the actual departure of the foreign military forces involved? This is the core question posed by the planned twin events of 28 June 2004 in Iraq: (1) the assumption of full authority by the sovereign interim Government of Iraq, and (2) the proclaimed end of the US-led occupation of Iraq that had begun during the war of March-April 2003 as mentioned in this paper.
Abstract: Can a military occupation-and all the responsibilities of an occupying power as laid down in the laws of war—end at a single moment in time, and without the actual departure of the foreign military forces involved? This is the core question posed by the planned twin events of 28 June 2004 in Iraq: (1) the assumption of full authority by the sovereign Interim Government of Iraq, and(2) the proclaimed end of the US-led occupation of Iraq that had begun during the war of March-April 2003.
27 citations
TL;DR: The EU-Mercosur Bi-regional Negotiations Committee (BNC) as discussed by the authors has already had ten meetings at which topics such as the free movement of goods, public procurement, investments, services, e-commerce, and conflict resolution were discussed.
Abstract: In the period between 1980 and 1995, both Europe and the US made huge investments in Latin America. The process of democratization in Latin America, especially in the countries marked by a tradition of military dictatorship, has reinforced the belief in political and economic stability. The economy has displayed considerable growth and, partly stimulated by the IMF and the World Bank, several countries are embarking on privatization on a grand scale.2 Political and economic cooperation between the countries is taking the place of political and military rivalry. The time is ripe for a new attempt at integration on this continent. The overtures between Argentina and Brazil led to the establishment of Mercosur. Its economic (Mercosur is the fourth largest trade bloc in the world after the US, the EU, and Japan) and political importance have been recognized, especially by the EU. As early as 1996,3 an Interinstitutional Cooperation Agreement was concluded, an interregional framework agreement for cooperation between the EU Member States and Mercosur States parties.4 Since then, the EU-Mercosur Bi-regional Negotiations Committee (BNC)5 has already had ten meetings at which topics such as the free movement of goods, public procurement, investments, services, e-commerce, and conflict resolution were discussed. The US has never appreciated the attempts at integration in Latin America and has always striven to conclude separate free trade agreements with each individual country. The recent free trade agreement with Chile is a clear example.6
TL;DR: The FA Mann lecture as mentioned in this paper has been held every year since the early 1970s, with a long line of distinguished lawyers who have paid their own tribute to one of the most outstanding German legal emigres of the 1930s.
Abstract: I feel privileged to have been invited to deliver this yearřs FA Mann lecture in succession to a long line of distinguished lawyers who have paid their own tribute to one of the most outstanding German legal emigres of the 1930s. Francis Mann became a legend in his lifetime for his profound scholarship and his expertise in international and commercial litigation. While still in Germany he had fallen under the spell of the legendary Martin Wolff, the great conflicts lawyer, with whom he was able to resume contact years later in England. Mann himself was to become a leading light in both private and public international law. He had strong views on everything, a few of them decidedly unorthodox. His work The Legal Aspect of Money became a classic, and he died in bed while correcting the proofs of the fifth edition. Happily, Charles Proctor has taken over the mantle of editing the sixth edition, which has now been published by Oxford University Press. Full details of the contributions to English law by Wolff, Mann and other outstanding German emigre lawyers will be found in a collection of essays in a fine new publication, Jurists Uprooted, edited by Sir Jack Beatson and Professor Reinhard Zimmerman.
TL;DR: English conflict of laws is the creation of the common law as discussed by the authors, which is the formal validity of wills, or torts, and the rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies.
Abstract: English conflict of laws is the creation of the common law. Prior to Britain's entry into the European Union, legislation played only a limited role. The few legislative measures concerning choice of law were narrowly targeted to remedy specific problems—for example the formal validity of wills, or torts. The rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies, such as forum non conveniens and antisuit injunctions. The common law also provided a complete system for the recognition of foreign judgments that operated untrammelled with regard to judgments from many countries, including some of the most important, while the relevant legislation, where applicable, did little more than provide a simpler procedure.
TL;DR: In this article, the authors examine the circumstances in which a court can exercise jurisdiction over a foreign defendant alleged to have committed a civil wrong over the internet, and provide general statements about how jurisdictional rules apply to wrongs committed on the internet.
Abstract: The internet presents challenges for private international law. One challenge relates to jurisdiction, which is traditionally based on territory. Transactions on the internet span many borders. When cross-border wrongs are committed they may lead to transnational litigation. This article examines the circumstances in which a court can exercise jurisdiction over a foreign defendant alleged to have committed a civil wrong over the internet. Section I examines the background to jurisdiction and the internet and sets the scope of the topic. Section n gives a brief summary of the internet and its applications. Section HI examines jurisdictional rules in civil wrongs cases.The focus is on two sets of rules commonly applied around the globe: the service abroad provisions and the special jurisdiction provisions. Section IV aims to apply those jurisdictional rules to cases of wrongs committed on the internet. It advances general principles, applicable in cases of cross-border wrongs committed on the internet, relating to the place where a wrong is committed and the place where damage is suffered. Defamation has its own peculiarities and is discussed separately. The issue of whether a court can grant an injunction against a foreign defendant in respect of foreign conduct is explored. The article concludes (in Section V) that existing jurisdictional rules need not be amended in light of the internet, and offers general statements about how jurisdictional rules apply to wrongs committed on the internet.
TL;DR: For instance, at its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (the Articles) adopted by the International Law Commission (ILC) in 2001 as discussed by the authors.
Abstract: At its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (‘the Articles’), adopted by the International Law Commission (‘ILC’) in 2001. By Resolution 59/35, adopted by consensus on 2 December 2004 on the recommendation of the Sixth Committee, the General Assembly once again resolved to defer further consideration and any decision on the final form of the Articles, postponing the matter to its 62nd session in 2007. It also asked the Secretariat to prepare a compendium of jurisprudence and State practice to assist the Assembly in its consideration of the topic at that time.
TL;DR: A lecturer on the Alabama claims and the Geneva Tribunal of 1871-2, like a director of Hamlet, has to accept one inescapable fact: that everyone knows, broadly at least, how the story ends.
Abstract: A lecturer on the Alabama claims and the Geneva Tribunal of 1871–2, like a director of Hamlet, has to accept one inescapable fact: that everyone knows, broadly at least, how the story ends. There can be no reliance on suspense to sustain interest in the narrative. So I shall begin at the end.
TL;DR: The Human Rights Act 1998 (hereafter HRA) as mentioned in this paper has been used by the courts to interpret primary and secondary legislation to be, as far as possible, compatible with the Convention rights.
Abstract: Questions surrounding the legitimate extent of the judicial role have long been the source of controversy. Concerns that unelected and unrepresentative judges are ‘legislating’ rather than interpreting the law or are interfering in matters of ‘democratically endorsed’ government policy, have often been, and will continue to be, raised by academics and politicians alike. The question is one of separation of power— of the appropriate constitutional role and division of functions between the executive, judicial, and legislative branches of the United Kingdom Government. This debate has been given a new dimension by the Human Rights Act 1998 (hereafter HRA), most obviously through the courts' exercise of their power under section 3(1) of that Act—the duty to interpret primary and secondary legislation to be, as far as possible, compatible with ‘the Convention rights’. Indeed much has been made of the unique method by which the HRA reconciles the interpretative obligation under section 3(1) with the sovereignty of Parliament by way of the ‘declaration of incompatibility’ under section 4. The doctrine of parliamentary sovereignty imposes limits on the scope of section 3(1); in spite of its ‘broad and malleable’ language, which might permit ‘an interpretation which linguistically may appear strained’, it does not sanction courts to act as legislators. As Lord Nicholls of Birkenhead noted in Re S; Re W, attributing to a statutory provision ‘a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment’. That case has been seen by some as a retreat from what has been termed the ‘far-fetched’ interpretation of section 3(1) adopted by the House of Lords in the earlier decision of R v A. Nicol, for one, has argued that Re S; Re W and Anderson taken together, clearly reject ‘the notion that “interpretations” could conflict with clear statutory words' — as R v A had arguably suggested — thereby endorsing parliamentary sovereignty, above the Convention, ‘as the country's supreme constitutional doctrine’. For it to retain its legitimacy therefore, the judicial act under section 3(1) needs to remain an exercise of ‘interpretation’: to attribute a meaning to a legislative provision ‘quite different from that which Parliament intended … would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act’. It would ‘not be judicial interpretation but judicial vandalism’.
TL;DR: The United States' hegemonic position, and its implication for international law, are rapidly emerging as sites of intense scholarly interest as discussed by the authors, and since the invasions of Afghanistan and Iraq, and with the global 'war on terror' reaching into ever-increasing spheres, the debate has intensified significantly.
Abstract: The hegemonic position of the United States, and its implication for international law, are rapidly emerging as sites of intense scholarly interest.1 It is a truism that the fall of the Berlin wall has been followed by a period of unprecedented American predominance in the military, economic, and political spheres. Replacing the bi-polar certainties of the Cold War is a world in flux, dominated, to a significant extent, by one remaining superpower, or, in the words of the former French Foreign Minister, Hubert Vedrine, by a ‘hyperpower’. 2 Some though, have emphasised the continuing importance of other loci of (lesser) power in a ‘uni-multipolar’ world.3 That this domination posed critical questions for international law was obvious well before the 9/11 atrocities, as the debate over NATO's use of force in Kosovo illustrated. Since the invasions of Afghanistan and Iraq, and with the global ‘war on terror’ reaching into ever-increasing spheres, the debate has intensified significantly.
TL;DR: In this article, the war comes through the air, bombs drop in the night, and people go out in the morning, and see air-fleets passing overhead, dripping death-dripping death!
Abstract: No place is safe-no place is at peace. There is no place where a woman and her daughter can hide and be at peace. The war comes through the air, bombs drop in the night. Quiet people go out in the morning, and see air-fleets passing overhead-dripping death-dripping death!1
Journal Article•
TL;DR: In 1919, the United States Supreme Court upheld the conviction of Charles Schenk, general secretary of the American Socialist Party, under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment as discussed by the authors.
Abstract: It was Oliver Wendell Holmes who used the words ‘clear and present danger’ in the judgment of the US Supreme Court in the Schenk case in 1919.1 The Court upheld the conviction of Charles Schenk, general secretary of the American Socialist Party, under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment. Schenk had distributed leaflets allegedly calculated to cause insubordination and obstruction among recruits. He argued that his conviction was incompatible with the freedom of speech guaranteed by the First Amendment.
TL;DR: The English doctrine of forum non conveniens was inconsistent with the Brussels Convention when a defendant was domiciled in the United Kingdom, even if the natural forum was in a Non-Contracting State as mentioned in this paper.
Abstract: On 1 March 2005 the European Court of Justice in Owusu v Jackson held that the English doctrine of forum non conveniens was inconsistent with the Brussels Convention (the ‘Convention’) when a defendant was domiciled in the United Kingdom, even if the natural forum was in a Non-Contracting State.
TL;DR: The Italian Court of Cassation has recently delivered a judgment of great interest denying State immunity to Germany for committing crimes under customary international law on the exclusive basis of international law.
Abstract: The Italian Court of Cassation has recently delivered a judgment of great interest denying State immunity to Germany for commission of crimes under customary international law on the exclusive basis of international law.
TL;DR: The E-commerce Directive as discussed by the authors has introduced a country of origin rule for the provision of online services (information society services) which means in principle that service providers are only subject to the rules of their country of origins or home country, i.e. the country to which they are providing the services to, the country of destination.
Abstract: The E-commerce Directive1 has introduced a country of origin rule2 for the provision of online services (‘information society services’). This means in principle that service providers are only subject to the rules of their country of origin or home country, ie the country where they are established. The country to which they are providing the services to, the country of destination, must refrain from applying its regulations. For regulators this means that they must not applytheir national regulations to services provided from another Member State3 (‘incoming services’).Likewise they must extend national regulation to services provided to residents in another MemberState (‘outgoing services’).
TL;DR: In this article, the authors present a comprehensive review of the development of human rights in Africa, focusing on civil and political rights and economic social and cultural rights, and linking this to African values as a distinctive contribution to human rights discourse.
Abstract: and political rights and economic social and cultural rights) and linking this to African values as a distinctive contribution to the development of human rights discourse. Similar approaches were also taken to theat bestidiosyncratic fashion in which civil and political rights were couched. In retrospect, these writings have the feel of an apologia about themseeking to explain away features which might otherwise be considered open to question. The opening chapters of this work (which I suspect were felt to need less by way of revision) retain this quality. But this is now matchedand overtakenby the frank robustness of some of the subsequent criticisms of both the structural and normative elements of the Charter, and this has been made possible by the generally balanced and nuanced way in which the Commission has interpreted and developed it. When the Commission is doing so well in making sense out of the Charters provisions, it is not so necessary to explain away its textual shortcomings. It is, then, perhaps not surprising that it is in precisely those areas where the Commission has had little to say (for example, as regards the content of peoples rights and individual duties) that the voice of the apologist still seems strongest (eg the title to Chapter IV remains The Duties of Individuals: Much ado about nothing?, not to mention the claim at 414 that Article 27(2) of the Charter should be seen as protecting rather than potentially limiting the enjoyment of individual rights). Likewise, the chapter devoted to the Protocol establishing the African Court of Human and Peoples Rights is perhaps less critical than might have been expected. On the whole, however, one can almost hear the maturing of both the authors critical voice and, through it, of the Charter system as one reads though this work. Arguably, the book would have profited from some rigorous pruning, or at least restructuring. There are very valuable sections detailing the approach of the Commission to reporting and communication procedures in Chapter VII as well as some valuable explorations of the developing contours of civil and political rights in Chapter III but these do get rather submerged by the material that surrounds them. The rather lengthy and speculative discourses on peoples rights, however, are less convincing at times. Some may also question aspects of the discussion regarding the possibility of general derogations being made to the Charter (where it is concluded that rebus sic stantibus and/or the doctrine of necessity might in certain limited circumstances permit derogations). There are also some forays into comparative analysis of both practice and procedure with the UN Human Rights Committee, the European Court of Human Rights and the InterAmerican Commission and Court. As a result the book is rather unwieldy. But it is certainly a most valuable contribution to the literature andif made suitably accessiblewill be of considerable practical value as working tool for those involved in human rights promotion and protection in Africa, and beyond.
TL;DR: Following a dispute with his black neighbour, a white man in Virginia erects and ignites a crude home-made cross on the neighbor's lawn as mentioned in this paper, and is convicted under a law prohibiting intimidation by use of a burning cross.
Abstract: Following a dispute with his black neighbour, a white man in Virginia erects and ignites a crude home-made cross on the neighbouřs lawn. The white man is convicted under a law prohibiting intimidation by use of a burning cross.
TL;DR: The Court of Justice has ruled in this article that the Brussels Convention is applicable even where a case has objective connections to only one Contracting State and to a non-Contracting State.
Abstract: The Court of Justice has ruled in Owusu v Jackson that the Brussels Convention is applicable even where a case has objective connections to only one Contracting State and to a non-Contracting State. It has also held that where the court of a Contracting State to the Brussels Convention has jurisdiction on the basis of the defendant's domicile pursuant to Article 2, it has no general discretion to stay its proceedings in favour of the court of a non-Contracting State on the basis that the latter is the natural forum for resolution of the dispute. However, the ruling leaves a number of important questions unresolved. This article considers the reasoning behind, and implications of the ruling, and the permissibility of staying proceedings in other situations falling within the scope of the Brussels regime post-Owusu.
TL;DR: In this article, an analysis of recent development in international criminal law shows the emergence of two countervailing trends: on the one hand a broadening trend, in that the various prosecutorial meansused to hold individuals accountable for violations of certain international crimes has expanded; and on the other hand, a narrowing trend, that the protection from prosecution afforded by international law to certain individuals, that once seemed to falter, has been reinstated.
Abstract: An analysis of recent development in international criminal law shows the emergence of two countervailing trends: on the one hand a broadening trend, in that the various prosecutorial meansused to hold individuals accountable for violations of certain international crimes has expanded; and on the other hand a narrowing trend, in that the protection from prosecution afforded by international law to certain individuals, that once seemed to falter, has been reinstated.