Comments on Guyana v. Suriname

Guyana v. Suriname is a case where the international tribunalhas an opportunity to deal with the state responsibility issuein a maritime delimitation dispute. This paper examines thejurisdiction of the arbitral tribunal over Guyanese submissionthat Suriname was internationally responsible for violatingits obligations under the LOS Convention, the Charter of theUnited Nations and general international law to settle disputesby peaceful means. And the arbitral tribunal made great contributionsto the clarification of the obligations under Articles 74(3)and 83(3) of the LOS Convention to make every effort to enterinto provisional arrangements and not to jeopardize or hamperthe reaching of a final delimitation agreement.     

Navigating the rocky waters of trade mark law

Kerly's Law of Trade Marks and Trade Names, 14th Edition ByDavid Kitchin QC, David Llewelyn, James Mellor, Richard Meade,Tom Moody-Stuart, David Keeling; with Consultant Editor: TheRt. Hon Sir Robin Jacob; Sweet & Maxwell, 2005 Price: £255,Hardback, ISBN: 0421860804, pp. 1,350   Until recently, trade mark practitioners in the United Kingdomhad to make do with the 13th edition of Kerly, the 1st editionof The Modern Law of Trade Marks, or the CIPA/ITMA Handbookwhen navigating the rocky waters of trade mark law and practice.The first two of these texts     

State Immunity for Torture

The House of Lords’ ruling in Jones v Ministry of InteriorAl-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia)and others sets an important precedent in the field of internationalcivil claims for torture. It was also the first to address indetail the ratio of the seminal judgment in Pinochet No. 3,a ruling that has given rise to much speculation as to the relationshipbetween State immunity, jus cogens norms and human rights. Thisarticle explores the significance of the Jones case, and, inthe light of that ruling, comments more generally upon the widerissue of the extent to which State immunity acts as a barrierto international legal actions for torture brought in domesticcourts in both the civil and criminal spheres.     

The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the US

In the Hamdan decision, Judge Stevens, writing for the majority,addressed the boundaries of the law of war and specificallywhether the conspiracy charge lodged against Hamdan constituteda violation of this body of customary international law. TheSupreme Court persuasively held that conspiracy does not constitutea war crime.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

The emergence of the Islamic trust

The Islamic trust, governed by both the laws of the jurisdictionunder which it is written and by Shari'ah law, has become apopular financial and devolution planning vehicle for assetsheld by Muslims. This article examines how these trusts havedeveloped.     

A lively and engaging series of essays

Intellectual Property Stories is the latest title in the ‘LawStories Series’ from Foundation Press (a Thomson/Westimprint), which sets out to explore the stories behind variousnoteworthy US Supreme Court decisions in different areas oflaw, including tax, torts, constitutional law, civil procedureand property. The series was launched in 2003 when ProfessorCaron P (the series editor) published Tax Stories, which workis complemented by an excellent companion website providinga complete record of each of the ten cases discussed in thebook, including lower court opinions, briefs of the partiesand amicus curiae, oral arguments (where available), and theSupreme Court's opinions (www.law.uc.edu/TaxStories). IntellectualProperty     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Money for nothing and your MP3s for free

The judgment of the Federal Court of Australia (‘the Court’)in Universal Music is the first judicial pronouncement in Australiaon the legality of website operators who provide hyperlinksto remote websites to allow ‘internauts’ (web users)to download MP3 music files and the liability of internet serviceproviders (ISPs) and their employees for authorizing that infringementunder Australian copyright law.     

Legal Professionalism and International Criminal Proceedings

In criminal practice before international tribunals, the boundariesbetween lack of professionalism (serious misconduct) by prosecutionand taking an erroneous position on the law (procedural error)are particularly blurred, if only because the backgrounds andexpectations of all persons involved in the proceedings areprofoundly different and the playing field is still insufficientlydefined. This is illustrated by the Furundija case brought beforean International Criminal Tribunal for the former Yugoslavia(ICTY) Trial Chamber in 1998. In that case the Chamber heldthat the prosecution, by failing to disclose a document to thedefence, had both engaged in serious misconduct and made a seriousprocedural error. Instead, the Lord Advocate and the Crown Agentof Scotland, later consulted by the ICTY Prosecutor, concludedthat there had only been an error of judgment. National caselaw, for instance that of Canadian courts, makes it clear thata good faith decision not to disclose a document, made in theexercise of professional judgment on a difficult and novel issue,may constitute an error of judgment, but certainly does notamount to misconduct.     

Michelin II: A Per Se Rule Against Rebates by Dominant Companies?

In its Michelin II judgment of September 2003, the CFI foundthat Michelin breached Article 82 EC by setting up a systemof rebates that could potentially induce loyalty and excludeits competitors. This paper comments extensively on MichelinII and other cases, with a focus on what sort of competitionpolicy is desirable as regards rebates by dominant companies.Contrary to Michelin II, pricing policies of dominant companieswhich are not linear and not strictly reflecting economies ofscale are not necessarily anticompetitive and may indeed havesignificant pro-competitive effects. Furthermore, a requirementthat a rebate scheme be "economically justified" is very difficultto apply in practice, and the Court should not have put theburden of proof for the justification of quantitative rebatesupon the dominant company. Most preoccupying is the Court'srejection of the effect criterion when deciding on the legalityof a rebate: Such an approach, which differs markedly from USand UK law as well as from the OECD report on fidelity discounts,will generally result in a disproportionate per se-prohibitionof any pricing behaviour and in economic inefficiencies. A fairerand clearer approach could therefore distinguish between rebatesthat are per se allowed and other rebates that ought to be prohibitedonly if they have effects on the market.     

Is it a fair deal to tell tales on the tabloids?

Legal context. A recent High Court judgment, Fraser-WoodwardLimited v BBC and Brighter Pictures Limited, is of key interestto those that use or advise upon the use of copyright materialfor the purposes of criticism or review. Key points. This case involved the use of newspaper photographsof David and Victoria Beckham in a television documentary aboutthe relationship between celebrities and the press. The programmeillustrated its theme using screenshots of tabloid newspaperpages, which inevitably included a number of photographs. Theclaimant was the copyright holder in respect of a number ofthe photographs, and alleged that their reproduction in theTV programme was an infringement of copyright. The defendantssuccessfully relied upon the fair dealing and incidental inclusiondefences to copyright infringement. Practical significance. Although each fair dealing case willultimately turn on its own facts, Mann J gave a very usefulreview of the state of copyright law in this difficult area.     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

The no-conflict rule: the acceptance of traditional equitable values?

Boardman v Phipps is a leading authority on the no-conflictrule. The House of Lords maintained the strict rule that historicallyequity has imposed on a fiduciary. This article explores howthe dissenting judgment of Lord Upjohn in Boardman v Phippshas been preferred by the lower courts and why the courts haveadopted such a position. This has fuelled a more general debateas to whether the no-conflict rule should be harsh or more flexible.Recent cases including Bhullar v Bhullar are discussed to illustratethe present approach of the courts to the recurring issues surroundingpossible applications of the no-conflict rule.     

Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion

In Mara'abe v. Prime Minister of Israel (September 2005), Israel'sHigh Court addressed the effect which it should give to theInternational Court's Legal consequences of the constructionof a wall in Occupied Palestinian Territory advisory opinion.This had declared the wall illegal but, while affirming thatit shared the International Court of Justice's normative rulings,the High Court reiterated that it thought the wall a lawfulsecurity measure. Rather than dissect the substantive treatmentof the issues involved, this article examines the structureand rhetorical techniques employed by President Barak in hisleading judgment in Mara'abe. He effected a skilful practicaldisregard of the International Court's normative findings throughan elision of argument by relying on the doctrine of res judicata—aconcept that has no relevance whatsoever to advisory opinions.     

The Demarcation of Straddling Villages in Accordance with the International Court of Justice Jurisprudence: The Cameroon-Nigeria Experience

Bi a ba ran eniyan ni ise eru ologbon afi ti omo je (Where instructionsare insensitive and befitting of a slave, a reasonable fellowamends it sensitively and delivers it in a manner befittingthe free).¹

The existence of straddling settlements between Cameroon andNigeria is one of the features of their geographical locationas neighbouring West African States. Although the existenceof these settlements did not constitute a central part of theboundary dispute between both States, implementation of therecent World Court judgment presents crucial dilemmas as tothe treatment of straddling communities in particular and, tosome extent, boundary villages as well. This article exploresthe alternatives that may be adopted in attaining a fair andjust implementation of the Court's judgment in relation to straddlingvillages and boundary communities. The delimitation and demarcationof straddling villages and villages that fall into another State'sterritory are bound to be an increasingly common feature ofthe work of international courts and demarcation commissionsas populations increase and the need to definitively specifyborders increases. It is, therefore, necessary that a specializedjurisprudence is developed for this area of law. This article,therefore, attempts to highlight difficulties in the jurisprudenceof the International Court of Justice in its work in this areaand suggests a typology of factors that may be adopted in varyingdelimitation lines by adjudicators and demarcators. It alsoattempts a digest of what may represent good practice in thelaw of boundary delimitation and demarcation by examining similarcases around the world. The argument presented is that thereis enough within the corpus of international law and internationalrelations for courts to avoid splitting communities needlesslyor subjecting populations to the whims and caprice of hostileStates' territorial jurisdiction, particularly in relation toa continent such as Africa, which has suffered a long and unfairhistory of balkanization of its peoples and civilizations. Thearticle makes the case that the World Court needs more law elaborationif not judicial activism in its delimitation work to avoid inadvertentcomplicity in the abuse of peoples' rights and to attain a morerobust resolution of boundary disputes. The view advanced isthat where aspects of the Court's delimitation may be unsatisfactoryand contrary to the mutual interests of disputants, those chargedwith the task of implementing the Court's judgment must notbe slavish in their appreciation of the spirit of judicial resolution.Where there is the danger that human and generational rightswould be needlessly compromised, nothing apart from an unimaginativeand unco-operative approach prevents demarcators from independentlyadopting a more holistic resolution of the dispute in the interestof human justice, such as by (within very strict limits) varyingdelimitation lines suggested by the Court in particular sectors.     

On the Use of Criminal Law Notions in Determining State Responsibility for Genocide

On the face of it the 1948 Convention on Genocide appears tobe a treaty that on the one hand obliges contracting statesto criminalize and punish genocide in their domestic legal systemsand, on the other, arranges for interstate judicial cooperationfor the repression of genocide. The International Court of Justice(ICJ), in the Bosnia v. Serbia judgment, has instead held thatthe Convention, in addition to providing for the criminal liabilityof individuals, also imposes on contracting states as internationalsubjects a set of obligations (to refrain from engaging in genocide,to prevent and punish the crime, and also to refrain for allthose categories of conduct enumerated in Article III: conspiracy,incitement, attempt, complicity). This approach raises two questions:(i) is it warranted so to broaden states' responsibility? (ii)when applying such Article III categories to state responsibility,should an international court such as the ICJ that pronounceson interstate disputes rely upon criminal law categories toestablish whether a state incurs responsibility for conspiracy,complicity, and so on? Or should it instead forge autonomouslegal categories better suited to state responsibility? Theauthor sets forth doubts about whether it is appropriate totranspose criminal law categories to the corpus of internationallaw of state responsibility. In particular, his misgivings relateto the category of ‘state complicity in genocide’as set out by the Court: once the Court decided to transplantthis criminal law category to state responsibility, arguablyit should have relied upon the rigorous concept of complicity,as derived by international criminal courts from case law andthe relevant practice of states, rather than apply a notionthat finds no basis in international criminal law, in comparativecriminal law or in state practice.