Showing papers in "International and Comparative Law Quarterly in 2009"
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TL;DR: The Association of Southeast Asia Nations (ASEAN) as mentioned in this paper adopted the ASEAN Charter in 2007, an important document that seeks to establish a legal and institutional framework for the Association This note surveys the Charter's key provisions and offers some remarks about its broader strategic imperatives.
Abstract: For 40 years the Association of Southeast Asia Nations (ASEAN), an intergovernmental organization of 10 Member States, has had a sort of double life in the international system: both with the appearance of being an international organization and the reality of not acting like an international organization. It continues to suffer from a fundamental problem of perception. However, it has now tried to bring appearance and reality closer together with the adoption in treaty form of the ASEAN Charter in 2007, an important document that seeks to establish a legal and institutional framework for the Association This note surveys the Charter’s key provisions and offers some remarks about its broader strategic imperatives.
90 citations
TL;DR: The potential contribution of SRI to address climate change problems more comprehensively is presently limited owing to inadequate governance frameworks, as well the sector's increasing abandonment of its traditional ethical agenda as discussed by the authors.
Abstract: ‘Climate finance’ is becoming an important feature of the emerging legal and policy regimes to address global warming. However, the current approach largely confines the financial sector to a transactional agent to mobilise capital for clean energy and to broker emission allowance trading. The sector's potential to leverage more sweeping positive changes in the economy as sought historically through the movement for socially responsible investment (SRI) has been insufficiently acknowledged. Indirectly, by regulating greenhouse gases the legal system is helping to create a business case for investors to respond to climate change threats. However, the potential contribution of SRI to address climate change problems more comprehensively is presently limited owing to inadequate governance frameworks, as well the sector's increasing abandonment of its traditional ethical agenda.
48 citations
TL;DR: The authors examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations.
Abstract: This article examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by its reluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.
41 citations
TL;DR: In this article, the authors argue that states can play two different roles: to assist in some conduct while not endorsing the legal claim associated with it, and that states should be careful in considering the long-term implications of such behaviour.
Abstract: Issues of State complicity arise ever more frequently in international relations. Rules which deal with the responsibility of States for aiding or assisting in the commission of internationally wrongful acts by other States are, however, not yet fully developed. States frequently support each other's actions without necessarily considering the potential implications of the rules on complicity in international law. This leads to another problem: is support given to another State automatically to be seen as relevant practice for the development of new customary rules or the interpretation of treaties through subsequent practice? Or is it possible for complicit States to play two different roles: to assist in some conduct while not endorsing the legal claim associated with it? This contribution aims to untangle the various facets of complicit State behaviour. It will argue that in some cases, States can indeed play two different roles. States should, however, be careful in considering the long-term implications of such behaviour.
37 citations
TL;DR: In this paper, the authors examine the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture and suggest that there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.
Abstract: This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.
33 citations
TL;DR: The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represents the culmination of an extraordinary process which has fundamentally transformed the status of indigenous peoples under international law as discussed by the authors.
Abstract: The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represents the culmination of an extraordinary process which has fundamentally transformed the status of indigenous peoples under international law. However, whereas the historic and symbolic importance of the instrument is indisputable, its overall value remains controversial. More precisely, since the UNDRIP does not per se create legally binding obligations, some doubts exist with regard to its legal significance and capacity to affect State behaviour. This article discusses these two intertwined issues in conjunction with an analysis of the evolving indigenous rights regime at the international level, with a view to establishing the overall potential impact of the UNDRIP. It argues that, given the specific context and circumstances, the non-binding nature of the instrument does not fundamentally undermine its value. By contrast, a number of factors suggest that the UNDRIP can generate reasonable expectations of conforming behaviour.
32 citations
TL;DR: In this article, the authors map a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments, concluding that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims.
Abstract: Collective redress mechanisms for consumer claims seek both to allow legal systems to accommodate mass litigation without being overwhelmed and to enable litigation to be viable where individual claims would not be economic. The article maps a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments. It notes that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims. There are however signs that a European style of collective redress procedure is developing, which emphasize the role of public authorities and consumer organizations as gatekeepers to collective redress. The EU is unlikely to be able to impose collective redress procedures on national civil procedures, but the EU could prompt Member States to reflect on the need for national reforms. There may be limited scope for an EU mechanism to address the problem of individually non-viable consumer claims. This would however have to address certain fundamental issues such as the opt-out mechanism, cy-pres distribution and funding if consumer organizations are to be encouraged to bring such actions. At a legal doctrinal level, it is interesting to note the influence of comparative studies on policy development within Member States as well as at the EU level.
31 citations
TL;DR: In this article, the authors address the problem of democratic legitimacy posed by the executive branch's use of delegated legislative powers and identify in a comparative perspective three approaches of ensuring that delegated legislation carries sufficient democratic legitimation.
Abstract: This article addresses the problem of democratic legitimacy posed by the executive branch's use of delegated legislative powers. After some remarks on the need for delegated legislation and the problem of legitimation the study identifies in a comparative perspective three approaches of ensuring that delegated legislation carries sufficient democratic legitimation. A first means of democratic legitimation is parliamentary predetermination of the executive role. German law proves that the proper legislature under the Damocles sword of unconstitutionality is in many cases well able to prescribe for the executive a substantive programme of delegated legislation. A second technique of democratic legitimation is that parliament in some way participates in the rule-making procedure. German and British law show that by means of subsequent approval the proper legislature assumes political responsibility for subordinate legislation beyond the original empowerment. The US Supreme Court, however, considers the legislative veto to be unconstitutional. Therefore, American law developed a third approach to solve the problem of democratic legitimacy. American experience makes clear that the democratic legitimation of secondary legislation can also be secured by means of comprehensively involving the public in the delegated legislative process. The author assesses the different models for legitimation and explains that the different approaches suggest valuable solutions to each country's problems.
31 citations
TL;DR: In this article, the authors assess the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective, and analyze the principal inconsistencies between BIT provisions and the EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ.
Abstract: Bilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.
28 citations
TL;DR: In this article, various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.
Abstract: In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.
24 citations
TL;DR: In this paper, the authors argue that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the "post-Kyoto stress disorder", a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement.
Abstract: In December 2007, the international community adopted the Bali Action Plan which launched a process to reach an ‘agreed outcome’ on long-term cooperative action on climate change, with a scheduled end in Copenhagen, December 2009. The term ‘an agreed outcome’ suggests a lack of agreement on both the legal form that the likely outcome of this process could take, and the level of ambition that it should reflect. This lack of agreement continues to haunt the process. There are a range of legal form options for a new climate instrument—from a set of Conference of Parties decisions to a legally binding instrument, either to replace or supplement the Kyoto Protocol—and the choice between them for States is predicated primarily on political and strategic considerations. Nevertheless the legal status, procedural requirements, symbolic signalling effects and regime-building characteristics of different legal form options will play an important role in determining the legal form of the Copenhagen ‘agreed outcome’. This article identifies and explores the range of legal form options available to States in the negotiation process, and outlines the political and strategic considerations at play and will ultimately govern choice of legal form. This article argues that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement. This article makes the case that post-Kyoto stress disorder will likely prevent certain legal form options from acquiring traction in the process and favour others.
TL;DR: In this article, the authors compare the current treatment of financial supplies under a VAT-type system, in the EU and in Australia, and ascertain whether the Australian GST treatment is, as commonly thought, superior to the EU one, and consequently, whether introducing an Australian-type model should constitute a policy consideration for the EU.
Abstract: The taxation of financial services is one of the most vexing aspects of a Value Added Tax (VAT). Conceptually, VAT should apply to any fee for service but where financial services are concerned there is a difficulty in identifying the taxable amount, ie the value added by financial institutions. As a result, most jurisdictions, including the EU, simply exempt financial services from VAT. Treating financial services as exempt, however, gives rise to significant legal and economic distortions. Consequently, a few countries have in recent years attempted an alternative VAT approach to financial services. Amongst these is Australia, which in 2000 introduced a Goods and Services Tax (GST) with a ‘reduced input tax credit’ system. This paper compares the current treatment of financial supplies, under a VAT-type system, in the EU and in Australia. The aim is to ascertain whether the Australian GST treatment of financial services is, as commonly thought, superior to the EU one, and consequently, whether introducing an Australian-type model should constitute a policy consideration for the EU.
TL;DR: In this paper, it was pointed out that the DRC v Uganda decision'set out' such evidentiary standards in this context 'in accordance with normal practices' and that this decision offered a 'ray of hope' with regard to understanding evidentiary standard in the ICJ.
Abstract: During a debate at the 100th annual meeting of the American Society of International Law in 2006,1 passing reference was made by one of the participants to the 2005 Democratic Republic of the Congo v Uganda merits judgment of the International Court of Justice (ICJ).2 Specifically, this decision was cited with regard to the evi dentiary standards employed in determining international legal questions, parti cularly those involving the use of force. The claim was briefly made that, in the view of the speaker, the DRC v Uganda decision 'set out' such evidentiary standards in this context 'in accordance with normal practices.'3 In the same year, it was noted in an article in the European Journal of International Law that the DRC v Uganda deci sion offered a 'ray of hope' with regard to understanding evidentiary standards in the ICJ.4 At first glance, these high profile comments are understandable, given that the ICJ allocated a large amount of the DRC v Uganda judgment to evidentiary issues relating to the use of force. Indeed, more of the judgment was devoted to evidentiary questions than in any use of force decision since the Corfu Channel case of 1949.5 However, the evidentiary standards applicable to the law on the use of force, as with international law more generally, remain extremely unclear. It is manifestly incorrect to say that the DRC v Uganda decision 'set out' an evidentiary standard for legal assessment. Moreover, in the important context of the law governing self-defence, not only did the DRC v Uganda decision fail to clarify the existing situation with regard to evidentiary standards in the ICJ, in several passages, it contradicted the standard that
TL;DR: The judgment of the ECJ in Kadi is a significant decision in understanding the relationship between EU law and public international law, specifically the UN Charter and, more especially, the exercise of Chapter VII powers by the Security Council as discussed by the authors.
Abstract: The judgment of the ECJ in Kadi is a significant – though perhaps not a ground-breaking – decision in understanding the relationship between EU law and public international law, specifically the UN Charter and, more especially, the exercise of Chapter VII powers by the Security Council. The approach of the ECJ is ultimately premised upon three key understandings, namely the autonomy of the EU legal system, the constitutionality of the EU legal system and the centrality of fundamental rights to the operation of that legal system. Thus, the reason that the Kadi judgment should not be characterised as radical is because it reflects the long-standing view of the Court that the EU legal system is an autonomous legal framework independent of, and not reliant upon, public international law. Moreover, the ECJ in seeing and speaking of itself as a court protecting constitutional guarantees is also not a novel innovation. In both respects, the Court has simply applied its settled jurisprudence in a way that is consistent with past practice.
The judgment raises a range of issues on both EU and international law; this note limits itself to two. First, the place of the UN Charter and UNSC resolutions in EU law, and second, whether the current understanding of article 103 UN Charter in marginalising human rights arguments in favour of security measures can be supported in the light of a less atomistic interpretation of the UN Charter.
TL;DR: In this paper, the authors argue that the European Court of Human Rights has failed to provide a convincing rationale for the privilege against self-incrimination and the right of silence in recent decisions.
Abstract: As the European Court of Human Rights has come to qualify the privilege against self-incrimination and the right of silence in recent decisions, this article argues that the Court has failed to provide a convincing rationale for these rights. It is claimed that within the criminal process the right of silence should be distinguished from the privilege against self-incrimination and given enhanced effect in order to uphold the protective and participatory rights of the defence which come into play when a suspect is
called upon to answer criminal allegations.
TL;DR: The need for a truth and reconciliation commission in a democratic transition process in Zimbabwe may include a "truth and reconciliation" commission, and the need for any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy.
Abstract: An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.
TL;DR: Wang et al. as discussed by the authors proposed the Trust Law of China (TLoS) of 2001 to regulate trust-related economic activities that were already in place and respond to the increasing demand for applying the trust in asset management, financial planning and charitable activities.
Abstract: With growing international recognition and utilization of the trust concept, China caught up the trend by enacting a Trust Law of China in 2001. Its main purposes were to regulate trust-related economic activities that were already in place and respond to the increasing demand for applying the trust in asset management, financial planning and charitable activities. Drafting work began as early as 1993, but the process took longer than expected because of the lack of technical expertise and disagreements on whether trust and investment companies (TICs) were to be regulated. Nevertheless, the collapse of one of the biggest TICs, the Guangdong International Trust and Investment Corporation (GITIC) in 1998, and China’s accession to the World Trade Organisation in 2001, provided further impetus. Lawmakers hoped that the Trust Law would promote professional management of assets and, ultimately, modernize China’s financial infrastructure and provide a platform for further development of the private sector in China. Indeed, since its enactment, the Trust Law has been supplemented by laws and regulations pertaining to private investment, such as securities investment funds, occupational pension funds, collective investment trusts etc. The Trust Law sets out, in 74 articles, basic default rules governing a trust relationship and its administration. The mechanics of adapting a trust institution to a civilian jurisdiction like China, however, was not dealt with and remains a question that continues to vex many academic lawyers. English trusts are founded on the conceptual basis of equity and its consequent division between legal and equitable ownership. The law–equity duality is able to explain the location of trust property; the trustee’s powers and duties; as well as the beneficiaries’ interests. Accordingly, the
TL;DR: In this paper, the authors compare how well the two systems fare at enhancing administrative efficiency and deterrence, while maintaining transparency, in both jurisdictions they have the effect of reducing the levels of fines imposed.
Abstract: In June 2008 the European Commission adopted a system of direct settlement for cartel cases, inspired by a comparative glance across the Atlantic where the majority of antitrust defendants enter negotiated guilty pleas. Whereas settlements in Europe are viewed as a method for expediting the conclusion of cases (distinct from the leniency notice), in the US they complement the offer of immunity as a device for encouraging cooperation. In both jurisdictions they have the effect of reducing the levels of fines imposed. This paper compares how well the two systems fare at enhancing administrative efficiency and deterrence, while maintaining transparency.
TL;DR: In this paper, it is argued that the ILC's limitation to the scope of application of article 10 could have been more easily justified if the responsibility of the state for acts of victorious rebels had been designed as a rule of attribution of responsibility and not as an attribution of conduct.
Abstract: This paper argues that the rule enshrined in article 10 of the International Law Commission's articles on State responsibility, according to which violations of international law by rebels that subsequently seize power are attributable to the State, rests neither on sound precedential nor systemic grounds. It seeks to demonstrate that this provision rather constitutes the outcome of a political choice to lessen impunity and promote accountability in case of violation of international law by non-State actors. Since the rule is not based on any precise precedent nor systemic logic but only on political motives, there is no reason why one could not resort to similar motives to attempt to refine the currently hazy scope of application of that rule. Along this line of reasoning, this paper submits that - contrary to what has been advocated by the ILC and its Special Rapporteur - excluding the responsibility of the State for acts committed by victorious rebels in situations of national reconciliation or power-sharing agreements is not justified. It is argued that the exclusion of the application of the rule of attribution of the victorious rebels should only apply in cases where rebels eventually seize power through democratic elections. It is eventually explained that the ILC's limitation to the scope of application of article 10 could have been more easily justified if the responsibility of the State for acts of victorious rebels had been designed as a rule of attribution of responsibility and not as a rule of attribution of conduct.
TL;DR: In this article, the authors argue that the requirements of Article 23 are both necessary and sufficient conditions for the material validity of jurisdiction agreements in Brussels I Regulation cases, and they also argue that these formality requirements must be satisfied in order to ensure the security of such agreements.
Abstract: Article 23 of the Brussels I Regulation gives effect to exclusive jurisdiction agreements and also sets out certain requirements which must be satisfied in relation to such agreements. The precise role of these formality requirements, however, remains controversial. In particular, the extent to which Article 23 itself sets out an exclusive and comprehensive code is unclear. The purpose of this article is to argue that the requirements of Article 23 are both necessary and sufficient conditions for the material validity of jurisdiction agreements in Brussels I Regulation cases.
TL;DR: In this article, the authors examined the use of foreign law by national judges when making their own decisions on asylum in two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil-common law divide.
Abstract: Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil–common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts—one rational, the other cultural—are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.
TL;DR: In this paper, a generalizable framework of judicial independence which can be applied at both national and international level is proposed, which is based on the relational relationship between the judges and external bodies and internal relationships between judges within the judicial hierarchy.
Abstract: The rapid expansion in the size and role of the international courts raises important questions about the nature and extent of judicial independence in these relatively littleknown judicial institutions. To address these questions we need first to ask whether the analytical framework used in the study of judicial independence at national level can be transplanted wholesale to the international courts or whether a different approach is needed. Historically, these supranational judicial bodies have often been regarded as sui generis institutions only very distantly related to their domestic cousins. Given the differences in origin, jurisdiction and role between the national and international courts, there is some justification for this view. Yet these differences and their implications for our understanding of judicial independence can be overstated. In many respects the differences between national and international courts is no greater than those within the two jurisdictions. Both encompass a very diverse range of judicial forms and functions which demand the construction of a concept of judicial independence which is general enough to apply across the judicial spectrum yet specific enough to capture the very different requirements of each particular court and tier of the judiciary. The problem of how to define and measure judicial independence and where to strike the balance between independence and accountability is equally contested at both national and international level and many of the same approaches are needed to address these challenges. A key to creating a viable generalizable framework of judicial independence which can be applied at both national and international level is to understand judicial independence as essentially relational rather than behavioural. That is, it primarily concerns the relationships between the judges and external bodies—the political branches of government, the media, the public or interest groups—as well as the internal relationships between judges within the judicial hierarchy. These relationships operate through institutional arrangements, such as the mechanisms for funding the courts and decision-making in areas such as judicial appointments and dismissal, as well as through the political and legal culture within which the courts operate. Thus, identifying and analysing the nature and source of potential threats to judicial independence requires a highly specific consideration of the particular context in which any one court operates vis-à-vis other governmental bodies and institutions of power. Such an analysis will inform the question of what institutional arrangements and political
TL;DR: In this article, the Hong Kong Court of First Instance in C v Director of Immigration [2008] 2 HKC 165 (C) was the first time a common law court unequivocally recognized a customary norm of non-refoulement of refugees.
Abstract: The judgment of Hartmann J of the Hong Kong Court of First Instance in C v Director of Immigration [2008] 2 HKC 165 (“C”) was ground-breaking. For the first time, a common law court unequivocally recognized a customary norm of non-refoulement of refugees. However, Hartmann J denied that the norm had attained the status of jus cogens and found Hong Kong, always guarded about asylum seekers, to be a persistent objector. His Lordship proceeded to deny the applicants any relief. They had invoked the norm to overcome the Hong Kong government’s practice of leaving the assessment of refugee status to the UNHCR. Hartmann J refused to give the norm any such procedural reach. His Lordship also refused to apply the doctrine of automatic incorporation. Through the prism of C, this article seeks to clarify the application of that doctrine, in the context of persistent objection, a constitutionally prescribed separation of powers, inconsistency between custom and statute, as well as administrative law and tortious liability. The author concludes that C should be reversed on appeal.
TL;DR: The arrest of Karadžić indicates willingness on the part of the new Serbian coalition government (including Milošević's own former party) to complete its cooperation with the ICTY and arrest the two remaining fugitives as mentioned in this paper.
Abstract: The arrest of Karadžić indicates willingness on the part of the new Serbian coalition government (including, bizarrely enough,Milošević’s own former party) to complete its cooperation with the ICTY and arrest the two remaining fugitives. The Government suffered less political fallout due to the arrest than could have been expected, possibly in no small part due to the rather inglorious circumstances in which the would-be national hero of the Serbian people was apprehended. Indeed, the main nationalist opposition party, led by Šešelj, recently split in half. Therefore, some degree of optimism that Ratko Mladić, the alleged architect of Srebrenica, will soon find himself in the dock, would not be unwarranted. As for Karadžić, the ICTY Prosecutor and judges certainly have an enormous task ahead of them. It can only be hoped that they have learned from the mistakes of the Milošević and Šešelj trials and that these will not be repeated.
TL;DR: The British Government's nationalization of the shares of Northern Rock plc and Bradford & Bingley plc in 2008 raises important issues about the standard of protection owed to the banks' non-UK investors and the manner in which compensation should be calculated as discussed by the authors.
Abstract: The British Government's nationalization of the shares of Northern Rock plc and Bradford & Bingley plc in 2008 raises important issues about the standard of protection owed to the banks' non-UK investors and the manner in which compensation should be calculated. The United Kingdom is party to numerous bilateral investment treaties as well as the European Convention on Human Rights, which adopt an international standard of protection for foreign investors and require the payment of ‘market value’ compensation for the property taken. As the analysis in this article shows, the compensation scheme established by the British Government appears to fall short of these obligations.
TL;DR: The authors examines the role of judges in the field of family law and how, through creative use of comparative legal thinking, they contribute to the development of the law in countries where the state is slow to reform outdated and often inadequate legislation.
Abstract: Emerging from a colonial past, Pacific island states have legal systems which are patchy and often incoherent. This article examines the role of judges in the field of family law and how, through creative use of comparative legal thinking, they contribute to the development of the law in countries where the state is slow to reform outdated and often inadequate legislation.
TL;DR: In this paper, the authors compare and contrast Austrian and German public law, focusing on the similarities and differences between the two systems, comparing and contrasting the merits and drawbacks of each system.
Abstract: Comparative constitutional lawyers of common law countries might have a temptation to identify German and Austrian constitutional thinking - not only because both are German speaking countries, but also because comparative law textbooks (based mostly on private law) present them as being in the same “legal family” or “legal circle”. This assumption would, however, be wrong. The German doctrinal figures more or less well known amongst comparative constitutional lawyers throughout the whole world do not apply in Austria automatically, and even what seems to be familiar for the first sight (for those who know German public law) often appears in a foreign light. Scrutiny of such differences promises insight into the merits and drawbacks of each alternative; therefore, this article undertakes to compare and contrast the two systems. The focus is not on specific tenets of Austrian or German public law but on its set of doctrinal concepts and style of argumentation, compared and contrasted to each other.
TL;DR: In this article, the vertical versus horizontal debate in the context of small island countries of the South Pacific, and particularly those countries where there has been friction between human rights and other laws and/or where there have been recent conflict between the State and individuals or sections of civil society is considered.
Abstract: A key issue in countries where human rights charters have been constitutionally enshrined is the extent to which those rights apply. Intertwined with this is the question, crucial to the rational evolution of the interrelationship of public international and private law, of what role should be played by human rights law in governing the relationships between private individuals or groups. In the South-West Pacific, where human rights charters were embodied in constitutions at independence, there has been little discussion of this issue, despite its particular relevance to the wider debate on the suitability of human rights agendas developed in the West to newly emerging nations. This article considers the vertical versus horizontal debate in the context of small island countries of the South Pacific, and particularly those countries where there has been friction between human rights and other laws and/or where there has been recent conflict between the State and individuals or sections of civil society. The purpose of this inquiry is not only to establish where those countries now stand with regard to this aspect of applicability, but also to illustrate the necessity of accounting for locally and or culturally specific factors when establishing a human rights regime in any part of the world. The article identifies distinguishing factors in the legal and social systems of South-West Pacific States and puts forward suggestions for the development of South Pacific jurisprudence on human rights.
TL;DR: The decision to transfer was taken following the finding by both the Divisional Court and the Court of Appeal that the proposed transfer would be lawful, dismissing the claimants' claim for judicial review.
Abstract: On 31 December 2008 British forces transferred two Iraqi citizens, Faisal Attiyah Nassar Al-Saadoon andKhalaf HussainMufdhi (the claimants), to the jurisdiction of the Iraqi High Tribunal (IHT). The decision to transfer was taken following the finding by both the Divisional Court and the Court of Appeal that the proposed transfer would be lawful, dismissing the claimants’ claim for judicial review. In transferring the claimants, the United Kingdom violated a provisional measures order issued by the European Court of Human Rights (the ECtHR). The Secretary of State for Defence characterized United Kingdom compliance with such orders ‘normally [as] a matter of course’ but cited ‘exceptional circumstances’ in the present case: ‘[w]e cannot comply with requests to act in a manner which the [. . .] Court of Appeal has held to be a breach of our international legal obligations.’ Given the expiry of the United Nations mandate for the Multi-National Force (MNF) in Iraq, the United Kingdom Government considered itself to have ‘no lawful option other than transfer to the Iraqi authorities’.
TL;DR: The work of the IAEA and its Director General in strengthening the nuclear nonproliferation regime was acknowledged as being of incalculable importance by the Committee which in 2005 awarded them the Nobel Peace Prize as mentioned in this paper.
Abstract: control agreements. Although the traditional focus of such treaties has been on the prevention of conflict and the limitation of damage where conflict occurs, confidence building among States and the limitation of unnecessary expenditure are now major factors. It is stressed that the entry into force of an arms control treaty should be seen as the beginning rather than the end of the matter— moreover, the test of success is not only compliance but the perception by both sides of compliance by the other. It follows that for these treaties verification is of central importance even though it is particularly sensitive. Institutional inspectors are the best guarantee of objectivity and confidentiality. There are peculiar difficulties such as the proliferation of weapons outside state control—private security firms and terrorists among others. Counter-measures are perceived as particularly inappropriate unless authorised by the UN Security Council. The Treaty on the NonProliferation of Nuclear Weapons among those studies has the longest history of increasingly systematic and intrusive inspection. Some good examples are given of the use of varied sticks and carrots to ensure compliance with this treaty, although there might also have been mention of the deployment of carrots which secured the de-commissioning or removal of nuclear weapons from Ukraine, Belarus and Kazakhstan and their accession to the NPT as non-nuclear-weapon States (a status confirmed by International Atomic Energy Agency inspections). The work of the IAEA and its Director General in strengthening the nuclear non-proliferation regime was acknowledged as being ‘of incalculable importance’ by the Committee which in 2005 awarded them the Nobel Peace Prize. This outstanding book concludes with three analytical chapters which separately appraise dispute settlement, compliance control and enforcement across the three selected areas and draw general conclusions which also link to innovative features in the International Law Commission’s Articles on State Responsibility. As emphasised in the final chapter, the various contributions bring out the complexity and sophistication of modern treaty regimes aimed at securing observance of rules of international law.