Month: June 2017
The Concept of Property in English Law
The Roman law first divided the property into real and personal property and it has been stuck in the English property law ever since. Property may be either real or personal. In England, real property has superior value than personal property. The real property is owned in England in complete ownership.
This means that it is assumed that the real property is owned in perpetuity and passed on to the legal heir in case of intestate case. However, personal property moves with the owners and on the event of death of the owner, are divided according to the laws relating to such distributions unless a will is left by the deceased. A real property must also move from one person to another with the help of a deed but personal property does not need the same. In case of transfer of real property, a contract of sale needs to be prepared. Also, the real property must be registered to determine the current owner. So even in case of purchase the buyer must first look into the registration papers to find out whether the seller has the authority to sell and also must get the property registered in his name. So, transfer of real property can be a bit cumbersome. Meaning of property- In general terms, property means anything that can be legally owned by a person is known as property. This property can be of two types- real and personal property. Real Property It consists of land and the related things. The buildings that are attached to land and the things associated with the building are all included in real property.
Trees and plants growing naturally are also included in real property (Alchian, 2008). The trees and crops that are cultivated by the efforts of men are not included in the real property. Real property is also called real estate’s or realty. It consists of immovable property. Personal Property It is further divided into chattels and intangibles. Chattels- All the tangible things that a person possesses from cars to mobile phones are all considered as chattels.
Any movable tangible property that a person owns can be classified as chattels. Intangibles- All the things that cannot be seen or touched and yet are owned by individuals are called intangibles. This may include legal rights to certain things. Insurance policies, licenses, intellectual property, stocks, bonds etc. all are included in intangibles. Personal property includes all the movable property. It is the private property of an individual. Land has always been seen as a symbol of wealth and power since longest of times. Men of any culture who had land ownership were considered rich and powerful.
British considered it as a privilege to have some form of land ownership as few of them could even live off their whole lives living on the income they got from renting their land. In the 16th century England, land owners were considered nobility. The social status of the land owners was ever increasing. The poor farmers worked on the lands of the rich who were defined by the amount of land they owned. Due to several kinds of taxation introduced in 20th century, the position of land as the primary source of wealth declined. Yet, it held a great importance as compared to other kinds of property.
Also, the natives held far greater importance to their land. They were spiritually attached to their lands apart from being physically and culturally attached. They feel a connection to their lands. Their whole life is sustained by that land and they seem to attach spiritual connection to it. In the third world countries, land is the only source of income.
They people are poor enough to explore other opportunities and thus live on that piece of land for generations. It is an important element of survival to these people. The people of the countryside never traded their land except in dire circumstances. It was a source of pride and gave a stand to the person in the society. People having several hectares of land in a particular area considered themselves as elite in the area they lived in. (Cheshire and Burn, 2000) Current scenario does not see such dedication towards land. Land is considered just another property owned by an individual. He buys it for profit motive and do not associate their feelings and emotions to the land. They buy land due to its ever increasing prices and sell it at higher price.
The spiritual and cultural attachment with the land has declined but the economic attachment to land has not at all lessened. Land is kept by the people with the view to gain benefits in the future.
New opportunities and urbanization have reduced the importance of land. It does not remain the only source of survival. The natives may give importance to the land handed over to them by their ancestors but the immigrants absolutely do not. It means legal possession of land. It is an old English term which includes not only the possession but also the ownership and title of the land. It also includes the right to transfer the property. According to feudal law of England, seisin is the possession of the estate. The term is not used for any other property except land of freehold tenure. It gives the owner a legal right to the property, even if there is a matter of inheritance of land, the word seisin is used. It was passed by United Kingdom Parliament.
This Act was passed to modernize the real property law and also dealt with transfer of property. It was passed to make the transactions related to land easier. It has solved many problems related to land transactions that occurred before passing this Act. (Law of property Act, 1925) The sale of land was to be made as easy as sale of goods. The previous problems and issues related to land transfer were addressed and eventually kept in mind when the law was to be framed. The official records of title of land had to be kept. That was known to solve the problem of identification of title that seemed to commonly arise before transfer. The ownership was difficult to track before this law.
The owner of a particular estate could not be determined due to the fact that the land was divided into several small fragments and the paperwork could not always be completed. (Wolstenholme & Cherry, 1972) The non-determination of title led to reluctance of the purchasers to purchase a piece of land required. The third party involvement also made the land undesirable for the purchaser. The Act has made the procedure simpler for both buyer and purchaser. The list of owners of land had to be kept and the transfer of title had to be properly organized. Also, the Act limited the number of people with legal rights over land thus successfully avoiding fragmentation of land.
The third party interests were also kept in mind while drawing up this Act. The names of the estate owners were collected and every land that had been passed from one person to another was recorded with every owner. There were some problems regarding this as seen in the case of Oak Co-operative Building Society v Blackburn (1968) where it was held that a registration in a version of an estate owner’s full names was not a nullity against a purchaser who did not search at all or searched in an incorrect name. Diligent Finance Co Ltd v Alleyne (1971) held that registering against the wrong name will not bind a third party who subsequently searches against the correct full name. The vendor was asked to bring out all the titles within fifteen years which meant that the purchaser should not be concerned with the titles before fifteen years. It worked in the interest of both vendors as well as the purchasers. The vendors should make a note of their rights regarding the land title and the purchaser must take a notice of it. In case of Worthington v Morgan (1849) no investigation of title deed were made.
The liability does not lie in the hands of the vendor if none of the investigation has been done. Unregistered title deeds were to be made clear and if a purchaser does not mind it at the time of purchase as in the case of Hunt v Luck (1902) that brings liability to the purchaser and not the vendor.
This Act brought about ease of transfer of title bringing about certainty to vendors, purchaser and third parties. The objective of this act was to bring about a level of fairness, transparency, comprehensiveness and accuracy in the registration process. When a land is registered, the registration is itself a document verifying the title ownership. Once the land is registered, there is no further proof required for ownership of land.
Registration also reduces the risk of a purchaser being bound by undiscoverable third-party rights because a purchaser of registered land takes it free from all encumbrances except for those which are protected by an entry on the register and overriding interests, but to nothing else. Fixtures are those physical objects that are permanently attached to the house or a building. If the title of the building has been passed on by the vendor to the purchaser, the title of the fixtures goes to the purchaser too as there is permanent fixation involved. At the date of exchange of the contracts these fixtures are transferred even if the transfer does not explicitly mention them. Fittings are a part of movable property and are not permanent. They are not transferred along with the transfer of the house or building except in those cases where the transfer of these are talked about in the deed itself. (Canon, 1997) If any type of fitting is done in such a way that it cannot be separated without doing major damage to the property are perceived as fixtures and are thus transferred to the purchaser automatically so it depends upon the type of fixtures and fittings whether it will be transferred to the purchaser or not. Because the same things can sometimes, due to their temporary nature, be classified as fittings and in other times, when they are of permanent nature, are classified as fixtures. A freeholder is a person who owns the building or a house and the land where it stands, forever. He has the absolute ownership over the land and the house. There is no need to pay any type of rent and they have full control over the maintenance of the house who can change the house construction according to their whims. In UK if a person has a freehold right over a property he is said to own it outright forever. Freehold property, for obvious reasons, costs more than the leasehold property.
However, the rights over the house are also unlimited. If the owner decides to sell the house he can fully do so as he has the title over the land and the building. A leaseholder only leases the house for a certain number of years from the freeholder. He has a contract with the freeholder for a certain number of years after which the land and the building is reverted back to the freeholder and remains with him till the lease is renewed. The leaseholder needs to pay the rent, maintenance fees, insurance and service charges. They are subject to restrictions and any changes done on the property must be first communicated to the freeholder, on whose permission only, will the changes be allowed to done on the property. If the terms of lease are not followed, the freeholder is allowed to forfeit the lease. A lease with shorter time frame is not worth. (Stanciulescu, 2012): Longer leases are said to be stable. After the expiry of the lease period it can again be renewed after a fresh agreement has been made and accepted.
The leaseholder has the right to the building for a certain period but never on the land on which it stands. The leaser must make sure before renewing or extending the lease or buying the property converting himself from leaseholder to freeholder of the property that the title lies in the hands of his freeholder and he is not a third party in the whole transactions. He must look into the registration papers of the freeholders failing which will cause the liability of damage to fall on them. Also, the date of the title must be inspected. Sometimes the freeholders may no longer be the freeholders of the property and the property might have been transferred (Daniel, 2001). All the documents must be carefully inspected and all the aspects of the document must be understood. ‘House’, in case of leasehold property, does not include horizontal division of building or flats. It also does not include garage, yard, outhouse, garden and other such things. Lease contract must mention the lease of these premises too failing which will not grant the right to the leaseholder to use it. At any point of time, if the leaseholder fails to make any kind of payment or fulfil a condition mentioned in the contract, the freeholder can forfeit the contract and the leaseholder would be asked to leave the property. The notice of extension of lease or desire to have freehold right over a property must be carefully kept and must be presented in the office of Land Registry along with other documents. On the completion of the procedure of acquisition of freehold title, application must be given regarding the transfer of title, if the property is already registered and first time registration of land, if it is not registered before. On the transfer of title, the previous freeholder loses all the rights over the land and these rights transfer to the existing owner. In the earlier inheritance laws in UK, the sons were the only ones who had the authority to inherit the property.
Daughters had no said whatsoever in the inheritance. The English law of inheritance have been inspired by Anglo-Saxon law and Norman feudalism.
Earlier, various places had various types of succession rules. However, after Norman invasion uniform laws were established. Norman feudalism meant all land was held by the monarch (Klein and Robinson, 1997). These estates were granted to Lords who gave it to tenants that had no rights on the land. The land would be transferred to the lineal descendant of the tenant and there were no lineal descendant after the death of the tenant then the land would be transferred then the land would be reverted back to the Lord. When a person dies and leaves a will behind him then it is known as testate succession. If the person dies and does not leave a will behind then it is called intestate succession. In case of testate succession, the wealth is distributed as per the will keeping in mind the legal rights of the persons. In case of Intestate succession, the wealth and estate of a person is distributed according to the laws of succession being followed by the state.
The distribution of estate is easier in case of testate inheritance as the representatives just have to apply and obtain the grant of Probate that they are acting on the wishes of the testator. However, the testator must be proved to be of enough mental capacity to draw out a will and also checked that the will is not drawn under coercion. Also the testator must know all about the will and any part that is drawn without his consent must not be executed. The Court does not have the power to draw a will on behalf of the testator. Also, the ratification of the will has limited possibility. It must be ratified within six months of the date of grant according to the English rule (Eliescu, 2012). The executors of the will must also be careful while distributing the estate.
Moreover, he must not hold any property of the testator for long and pass it on to the mentioned Representatives after doing sufficient investigation of the same. But, it is important to consider that marriage of the testator automatically revokes the will. The exception may be that the testator was expecting to be married at the time of preparing the will. At all the other times, marriage revokes the will made by the person. Thus, the will must always contain the testator’s expectation of marriage to that particular person.
This should be done to avoid any type of ambiguity or uncertainty. It is also necessary to note the importance of the authenticity of the will which must be properly attested. If the executor has any doubts regarding the same then he can get an investigation done over the same. Also the unworthy heirs to the estate cannot claim their rights of succession if they are proven guilty of murder or homicide from the court of law (Popa, 2008). But, in case of the person dying intestate, the legal representatives need to apply for a Letter of Administration to deal with the estate and it may be both complex and time-consuming as the representatives claiming a stake in interstater’s property needs to have a background check and prove a legitimate interest in the same. If the person dies leaving a spouse behind then all the property of the person goes in the hands of the spouse. However, the spouse receives only a half of the property of the deceased if he has left behind his children. If the person deceased does not have any one left behind to claim his estate under intestate law, the estate escheats to the State. However, in both the cases the legal rights of a person cannot be defeated. If the legal rights have been satisfied then the remaining property as known as the deed’s part and thus becomes a part of free estate. A residuary legacy is the whole or a share of the estate once all gifts, debts, taxes and costs associated with it have been deducted. The benefit of residuary legacies is that the value is unaffected by inflation as there is no fixed sum.
The value of legacy increases with the increase in the value of estate. Pecuniary This is a gift of a fixed sum of money.
These types of legacies can often be affected by inflation and their value can decrease. Reversionary This allows a person to pass the estate to an initial beneficiary for him or her to have the benefit and enjoyment during his or her lifetime. After this time, the estate is passed to a specified person or charity absolutely. Specific This is a gift of a specific item that a person feels will be beneficial to the other person.
They either use the items as intended or we may sell the item and use the proceeds for the benefit of the person. Conditional This requires a particular event to occur. Conditional legacies mostly occur when a person outlive all of the named beneficiaries in your Will. References: Alchian, A.A. (2008). “Property Rights”. In David R. Henderson. Concise Encyclopedia of Economics (2nd ed.). Indianapolis: Library of Economics and Liberty. ISBN 978-0865976658. Canon, J (1997), The Oxford Companion to British History, p. 405 under the heading “Gentry” (Oxford University Press, 1997) Cheshire, C and Burn, B (2000) The Modern Law of Real Property (Butterworths,16th ed, 2000) Daniel W. B, (1991). Environment and Economy: Property Rights and Public Policy. Cambridge, MA: Blackwell Pub. Eliescu, M.(1997) Course of successions. In: Fasciolosis.
Bucharest. Humanitas Publishing House, 997, second vol., p. 65. Klein, B. and Robinson, J(1997). “Property: A Bundle of Rights? Prologue to the Symposium” Econ Journal Watch 8(3): 193–204, Popa, I. (2008) Course of successional lawBucharest, Legal Universe Publishing House , p. 330 StA„Æ’nciulescu, L (2012): Course of civil law. Successions, Hamangiu Publishing House, p. 204 Wolstenholme & Cherry (1972) Conveyancing Statutes (Stevens, 12th ed by BL Cherry, DH Parry & JRP Maxwell, 1932); (Oyez,13th ed by JT Farrand, 1972) Cases Oak Co-operative Building Society v Blackburn (1968) Diligent Finance Co Ltd v Alleyne (1971) Worthington v Morgan (1849) Hunt v Luck (1902)
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The Creation, Goals and Missions of the United Nations
Charter of UN, Article 1
Secondary Sources: https://www.un.org/en/peacekeeping/operations/current.shtml https://www.un.org/en/peacekeeping/news/ https://www.un.org/en/peacekeeping/operations/ https://www.un.org/en/peacekeeping/operations/past.shtml https://www.un.org/apps/news/region.asp?Region=3 https://www.haitilibre.com/en/news-11641-haiti-elections-cep-completed-max-mathurin-new-president.html[1] https://www.un.org/en/documents/charter/chapter1.shtml 27.12.14/21:22 [2] https://www.un.org/en/peacekeeping/missions/unmiss/mandate.shtml 27.12.14/21:30 [3] https://www.un.org/apps/news/story.asp?NewsID=49440#.VJ7sJV4DJA 27.12.14/21:50
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The Development of the Concept ‘best Interests of the Child’
[1] Article 1, Convention on the Rights of the Child [2] https://en.wikipedia.org/wiki/Best_interests [3] https://www.ohchr.org/en/professionalinterest/pages/crc.aspx [4] https://www.ohchr.org/en/professionalinterest/pages/crc.aspx [5] (1956) 57 N.L.R. 568 [6] 46 N.L.R. 464 [7] 66 N.L.R. 83 [8] 58 N.L.R. 262 [9] 77 N.L.R. 397 [10] 56 N.L.R. 525 [11] 79 (1) N.L.R. 209 [12] (1995) 2 Sri L.R. 167 [13] (1989) 2 Sri L.R. 312 [14] National Child Protection Act, No 50 of 1998
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Dr Ram Manohar Lohiya National
- Research methodology to be followed:
- The Doctrine of Ultra Vires: An Introduction
- The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.
- Grounds on which Delegated legislation may be challenged
- Enabling or Parent Act is unconstitutional:
- Subordinate or delegated legislation is ultra vires the Constitution:
- Delegated legislation is ultra vires the Enabling or Parent Act:
- When it is made in excess of the power conferred by the Enabling or Parent Act:
- When delegated legislation is in conflict with the Enabling or Parent Act:
- When delegated legislation is made by authority exercising its power mala fide:
- When the delegated legislation is unreasonable and arbitrary:
- Substantial Ultra vires & Procedural Ultra vires: a Comparison
- When delegated legislation is In conflict with the procedure prescribed by the Enabling or Parent Act
- Test of measuring the validity of Rules
- it must conform to the provisions of the statute under which it is framed; and
- it must also come within the scope and purview of the rule making power of the authority framing the rule.
- Difficulty in application of the Doctrine of Ultra Vires
- Exclusion of judicial review
- Case Study
- Conclusion
Research methodology to be followed:
To deliberate upon the issue "Doctrine of Substantial Ultra Vires" will be dealt in a systematic and particular way. In this regard, Doctrinal approach has been adopted and compilation from literary sources, course materials, articles, reviews, e-databases and books have been given special importance. Along with founding sources the recent developments in form of judicial pronouncement and case study has also been incorporated in this project.The Doctrine of Ultra Vires: An Introduction
The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.
When a piece of delegated legislation is declared to be ultra vires, it is void and becomes unenforceable. It cannot affect the rights and duties of any person. Until a rule is declared invalid by a court, it is presumed to be valid. If the valid and the invalid parts of a rule can be severed, only then the invalid portion of the rule is quashed and the valid portion can continue to remain operative. However, if the valid and the invalid parts are inextricably mixed up, then the entire rule has to go. A void rule cannot be the basis of any administrative action. No one can be prosecuted under a void rule. The validity of a rule can be challenged in a court either directly or collaterally, or by way of defense to a civil claim based on the impugned rule, or as a defense in a prosecution for infringing the rule. A person can challenge the validity of administrative action by challenging the validity of the relevant rule. A person whose interest is affected adversely by a piece of delegated legislation can directly challenge its vires in a court. The court may grant an injunction or declaration or issue mandamus or award damages to the affected person as may be suitable. If the subordinate or delegated legislation goes beyond the scope of authority conferred on the delegate or it is in conflict with the parent or enabling act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground.Grounds on which Delegated legislation may be challenged
Enabling or Parent Act is unconstitutional:
In India, there is supremacy of the Constitution and therefore an act passed by the Legislature is required to be in conformity with the constitutional requirement and if it is found to be in violation of the constitutional provisions, the court declares it unconstitutional and void. If enabling or parent act (i.e the act providing for the delegation) is void and subordinate or delegated legislation made under the act will also be declared to be unconstitutional and therefore void. The limits of the Constitution may be express and implied. Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the constitution in so far as they are inconsistent with the provisions of Part III (fundamental rights) shall, to the extent of the contravention, be void. According to article 13(2), the state shall not make any law which takes away or abridges the rights conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for this purpose, unless the context otherwise requires , law includes any ordinance, order, by - law, rule, regulation, notification, custom or usage having in the territory of India, the force of law. The legislature, thus, cannot violate the provisions of part III of the constitution granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental Rights granted by part III of the constitution, it will be declared by the court as unconstitutional and void, and the subordinate or delegated legislation made under the act will also be held to be unconstitutional and void. Article 245 makes it clear that the legislative powers of the parliament and that of the state legislatures are subject to the provisions of the constitution. Parliament may make laws for the whole or any part of the territory of India and the legislatures of a state make laws for the whole or any part of the state. No law made by the parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. The state legislature can make law only for the State concerned and, therefore, the law made by the state legislature having operation outside the state would be invalid. In the matter of Cauvery Water Disputes Tribunal, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was declared unconstitutional on certain grounds including the ground that it had extra territorial operation inasmuch as it interfered with the equitable rights of Tamil Nadu and Pondicherry to the waters of Cauvery River. In short, no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. However, the law made by the state legislature may be challenged on the ground of extra territorial operation. If the parent act is declared to be unconstitutional, then the delegated legislation made under such act would also be declared to be unconstitutional and thus, void. Article 246 makes provisions in respect of the distribution of powers between the powers between the Parliament and the State legislatures. From article 246 and the seventh schedule, it becomes clear that the subjects have been divided into three categories - Union list, State list and Concurrent list. Parliament has exclusive power to make laws with respect to any of the matters or subjects enumerated in the Union list and of the legislature of any state has power to make laws for such state or any part thereof with respect to any of the matters or subjects enumerated in the State list. Parliament and State Legislatures both have power to make laws with respect to any of the matters or subjects enumerated in the Concurrent List, but In the case of conflict between the law made by Parliament and a law made by the State Legislature with respect to such matter or subject, the law made by Parliament shall prevail and the laws made by the State Legislature, to the extent of repugnancy. be void, unless the law made by the State Legislature has received the assent of the President. Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it will be ultra vires the Constitution and therefore It will be void and the delegated legislation made under the Act will also be unconstitutional and void. The implied limit of the Constitution Is that essential legislative function entrusted to the legislature by the Constitution cannot be delegated by it. The essential legislative function consists of the determination of the legislative policy and its formulation as a rule of conduct. The legislature delegating its legislative power must lay down the legislative policy and guidelines regarding the exercise of tin delegated power by delegate. The delegation of essential legislative function is taken as abdication of essential legislative function by the Legislature and this is not permitted by the Constitution. In a case the Supreme Court has made it clear that the essential legislative function which consists of the determination of the legislature policy cannot be delegated. Such delegation would amount to abdication of the essential legislative functions. The Supreme Court has made it clear that the excessive delegation is not permissible. The doctrine of excessive delegation has played an important role in controlling the practice of delegated legislation. Excessive delegation is taken as abdication of essential legislative function by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the delegated legislation made under such Enabling or Parent Act will also be unconstitutional and void.Subordinate or delegated legislation is ultra vires the Constitution:
Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but the subordinate or delegated legislation made under It violates the provisions of the Constitution. Such subordinate or delegated legislation will be unconstitutional and void, though the Enabling or Parent Act is perfectly valid. Thus, the subordinate or delegated legislation, (e.g., rules, regulations, by- laws, etc.) made under the Enabling or Parent Act may be unconstitutional while the Enabling or Parent Act is constitutional. Article 31-B of the Constitution of India is also notable here. The Acts and Regulations Included in the IXth Schedule of the Constitution are protected under Article 31-B against the ground of Infringement of any of the Fundamental Rights, but not against other grounds. The protection of Article 31-B is available only to the Acts or Regulations placed In the IXth Schedule of the Constitution. If an Act Is placed under the IXth Schedule, the protection of Article 31-B will be available to such Act, but this protection will not be available to the delegated legislation made under It. Thus, the delegated legislation may be challenged on the ground that it violates the Constitution, even though the Enabling or Parent Act under, which it has been made is protected by Article 31-B. (Legislature in 9th schedule is not under judicial scrutiny) (zamindari abolishment Act)Delegated legislation is ultra vires the Enabling or Parent Act:
The validity of the subordinate or delegated legislation can be challenged on the ground that it is ultra vires the Enabling or Parent Act. If the subordinate or delegated legislation made by the delegate is in excess of the power conferred by the Enabling or Parent Act or is in conflict with the provisions of the Enabling or Parent Act or is made w ithout following the procedure required by the Enabling or Parent Act to be followed by the delegate, the delegated or subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling or Parent Act. The validity of the exercise of power is tested on the basis of the Prussians as it stands currently and not on the basis of that it was before.When it is made in excess of the power conferred by the Enabling or Parent Act:
The subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act when it is found to be in excess of the power conferred by the Enabling or Parent Act If the delegated legislation is beyond the power conferred on the delegated by the Enabling Act, it would be Invalid even if it has been laid before the Legislature. Where an administrative authority Is empowered by the Enabling Act to make by-laws to regulate market and the authority makes by-law which prohibits running of cattle market the by-law will be ultra vires the Enabling Act. In S.T.O. v. Abraham the Act empowered the Government to carry out the purposes of the Act the Government made rule so as to fix the last date for filing the declaration forms by dealers for getting the benefit of concessional rates on inter-State sales. This rule was held to be ultra vires the Enabling Act on the ground that the Act empowered the Government for making rules for prescribing the particulars to be mentioned in the forms and it was not given power to prescribe a time-limit for filling the form.When delegated legislation is in conflict with the Enabling or Parent Act:
When the delegated legislation is found to be directly or indirectly in conflict with the provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act. In Delhi Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on the ground that it was in conflict with the provisions of the Enabling or Parent Act, According to Section 92 of the Delhi Corporation Act. 1957, all persons drawing salary less than 350 rupees per month shall be appointed only by general Manager of the Delhi Transport Undertaking. According to Section 95 of the Act, no person can be dismissed by any authority subordinate to the authority who has appointed him. The rules made under the Act empowered the General Manager to delegate all his powers to the Assistant General Manager. The rule was held to be In conflict with the aforesaid provision of the Parent Act. The effect of the rule was that a person appointed by the General Manager could be dismissed by the Assistant General Manager. i.e. a person could be dismissed by an authority subordinate to the authority who had appointed him while Section 95 of the Act provided that no person can be dismissed by an authority subordinate to the appointing authority. Thus, the rule was in conflict with Section 95 of the Act. Consequently the rule was held to be invalid.When delegated legislation is made by authority exercising its power mala fide:
When the subordinate or delegated legislation is made by the administrative authority exercising its power mala fide or with ulterior motive, It is held to be ultra vires and, therefore, invalid.When the delegated legislation is unreasonable and arbitrary:
Wwhen the de1egated legislation is found unreasonable and arbitrary, it is declared invalid. In India, in some cases to High Courts express the view that the delegated legislation cannot be challenged on the grounds of unreasonableness. However, the view of the Courts is that the delegated legislation may be challenged on the ground of unreasonableness and arbitrariness. In India doctrine of unreasonableness has been given the solid base of Article 14. The delegated legislation which is unreasonable and arbitrary can be challenged on the ground that it is violative of Article 14. In Air India v. Nargesh Meerza, a regulation provided that an air hostess would retire from the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his option if an air hostess was found medically fit. The Regulation did not contain any guidelines or policy according to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the Managing Director was unguided and uncontrolled discretion. The termination of service of an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was unreasonable and arbitrary. Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate legislative authority keeps within the bunds of the power delegated, the delegated legislation is valid, however, if the authority exceeds the power delegated, then the courts will certainly declare it to be ultra vires. Substantive ultra vires means that the rule making authority has no substantive power under the empowering act to make rules in question. It refers to the scope, extent and range of power conferred by the parent statute to make delegated legislation. Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate legislative authority keeps within the scope and bounds of the power delegated, the delegated legislation is valid; but if it fails outside the scope of the power, the courts will declare it invalid. Delegated legislation to be valid must fall within the four corners of the powers conferred by the statute. Declaring a rule in the Karnataka Motor Vehicle Rules, 1963, ultra vires the Motor vehicles act, 1939, as a rule was inconsistent with a section in the act, the Supreme Court declared in State of Karnataka v H. Ganesh Kamath that the rule making power "cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule making power. Conferment of a rule making power by an Act does not enable the rule - making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." As the Supreme Court has emphasized in State of U.P v Renusagar Power Co., "if the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled." The doctrine refers to the extent, scope and range of power conferred by the parent act on the concerned authority to make rules. Conferment of rule making power by an Act on an authority does not enable the rule making authority to make a rule which is beyond the scope of the enabling act, or which is inconsistent therewith or repugnant thereto.Substantial Ultra vires & Procedural Ultra vires: a Comparison
When delegated legislation is In conflict with the procedure prescribed by the Enabling or Parent Act
When the delegated legislation is found to be in conflict with the procedure prescribed by the Enabling Act, it is held to be ultra vires the Enabling Act and, therefore, void. If the delegated legislation is made without following the mandatory procedure prescribed by the Enabling or Parent Act, It will be ultra vires the Enabling or Parent Act and, therefore, invalid. It is to be noted that the delegated legislation will be held to be invalid on the ground only if the procedure prescribed by the Act is mandatory. In short, if the procedure required to be complied with in making the delegated legislation is mandatory and it is not complied with, the delegated legislation will be held to be invalid on the ground of procedural ultra vires. If the procedure prescribed by the Enabling Act is not mandatory but directory, its' substantial compliance will be sufficient and thus in case of substantial compliance, It will not be invalid. In Raja Buland Sugar Co. v. Rampur Municipality, the U.P. Municipalities Act. 1916 provided that the draft rules must be published in a local Hindi daily. The draft rules were published in a local Urdu Daily. The Court held that what was mandatory was publication of the draft rules in a newspaper. Publication In a Hindi daily was only directory. Consequently, the Court held that the rules could not be held to be ultra vires the Enabling Act merely because they were published In Urdu daily, (instead of a Hindi daily). The publication was made in substantial compliance with the manner provided In the Act.Test of measuring the validity of Rules
Rules have to be consistent with the provisions of the parent statute. A rule cannot enlarge the meaning of a statutory provision. A rule has to yield to the statutory provision. If a rule goes beyond what the section in the Act contemplates, the rule has to go. A rule is ultra vires when it goes beyond the authority conferred on the rule making body by the relevant statute. To be valid, a rule must fulfill two conditions, they are:it must conform to the provisions of the statute under which it is framed; and
it must also come within the scope and purview of the rule making power of the authority framing the rule.
If either of these two conditions is not fulfilled; the rule would be void. To apply the doctrine of ultra vires, the court has first to interpret the statutory provisions to determine the scope of delegation of power, then to interpret the delegated legislation in question and finally, to adjudge whether the same is within, or without, the statutory power conferred.Difficulty in application of the Doctrine of Ultra Vires
The efficacy of judicial control of delegated legislation is very much dependant on how broad is the statutory formula conferring power of delegated legislation is very much dependant on how broad is the statutory formula conferring power of delegated legislation on the delegate. Usually, the application of the ultra vires rule becomes very difficult because of three reasons: Powers are usually conferred in broad language. Ordinarily, the Courts interpret the enabling provision rather broadly. The courts adopt a deferential, rather than a critical, attitude towards delegated legislation. In India, the test of reasonableness is applicable to delegated legislation, both on general principles of administrative law as well as under such fundamental rights as are guaranteed under Constitution of India.Exclusion of judicial review
Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of the Courts to review the delegated legislation. This is called exclusion clause. Usually such clause contains the words 'rules made shall have effect as If enacted or Included in the Act Itself or 'rules made shall not be called in question in any Court.' In England. in Institute of Patent Agents v. Lord Herschel expressed the view that such provision excluded the judicial review of the delegated legislation on the ground of ultra vires. However, In a later case, Minister of Health v. King. Lx Paste Yabbe. the view of Lord Herscheli has not been followed. In this case, the Court has held that inspite of the exclusion clause, the delegated legislation can be reviewed by the Court and can be declared invalid If it is found ultra vires the Enabling or Parent Act. Thus, in England, the present position is that Inspite of the exclusion clause, the subordinate or delegated legislation may be challenged on the ground that they are ultra vires the Enabling Act. In India in a few cases the Supreme Court has adopted the view expressed by Lord Herschel in the case of Institute of Patent Agents v. Lockwood, stated above (the Supreme Court has held that such clause will exclude the Judicial review of the delegated legislation on the ground of ultra vires), but in some other cases, the Supreme Court has held that inspite of such exclusion clause, the delegated legislation can be reviewed by the Court. The present position is that inspite of such exclusion clause. the delegated legislation may be challenged before the Court on the ground that they are ultra vires and the Court can hold the delegated legislation invalid, if it finds them ultra vires.Case Study
Implied limits of the Constitution are those laid down in In re Delhi Laws Act case, namely the laying down policy and enacting that policy into a binding rule of conduct. Section 7 of the Delhi Laws Act, 1972 delegated to the provincial government the power to extend to Delhi area with such restriction and modification any law in force in any part of British India. Section 2 of the Ajmer Merwaha (Extension of Laws) Act, 1947 delegated the power to the Government to extend to the province of Ajmer-Merwaha any law in force in any other province with such modification and restriction as it may deem fit any enactment which was in force in any part 'A' state. it also empowered the Govt. to repeal or amend any corresponding law which was applicable to part 'C' state. The legislature cannot delegate its essential legislative power to any other agency and if it so delegates the enabling would be ultra vires of the Constitution. In the said case the Court held that the later part of clause 2 invalid because it authorized the administrative agency to repeal a law, which in the opinion of the Court, is an essential legislative action. In Indian Council of Legal Aid and Advice v Bar Council of India the Supreme Court held that: a rule made by BCI barring qualified persons above the age of 45 years from enrollment as advocates, as ultra vires, a sit fell outside the power of BCI conferred by it by the Advocates Act, 1961, Section 49(1). In Additional District Magistrate (Revenue) Delhi Administration v Siri Ram the Delhi Land Revenue Rules 1962 made under the Delhi Land Revenue Act,1954, were declared ultra vires as being contrary to the Parent Act as well as another Act, by making the rules, the rule making authority had exceeded the power conferred on it by the Land Reforms Act 1954. Ajay Kumar Mukherjee v UOI is a case where Supreme Court has said that delegated legislation ultra vires the act by cutting down the breadth of the delegation to bring it in line with the object of the delegation of legislative power. The purpose or object of the conferment of the power must be borne in mind.Conclusion
Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground. It is a mechanism to curb down the exploitation of power by the administrative authority as we all know that "power corrupts and absolute power corrupts absolutely". However in this field there is lack of development and there is no substantial change in the concept all though the changing nature of the current legislative method has widen the horizon of the power of the authority by giving them power to act according to the need of the time, even sometimes travelling beyond the restrictions.Cite this page
Dr Ram Manohar Lohiya National. (2017, Jun 26).
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The Charities Bill 2005
Footnotes
[1] Matthews, P., ‘The New Trust: Obligations Without Rights’, in Oakley, A.J. (Ed), Trends in Contemporary Trust Law (Oxford, 1996), p1 [2] Quoted in Martin, J.E., The Law of Trusts (LexisNexis, 2003), p495 [3] Martin, p492 [4] DSC website, news archives [5] See Association of Charitable Foundations website [6] See ACF websiteCite this page
The Charities Bill 2005. (2017, Jun 26).
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The Doctrine of Constructive Notice
ROUGH DRAFT FOR COMPANY LAW PROJECT ON THE DOCTRINE OF CONSTRUCTIVE NOTICE PRELLIMINARY STAGE CONTENTS
- HISTORICAL ANALYSIS
- SHORT INTRODUCTION
- AIM OF THE PROJECT
- PROPOSED RESEARCH QUESTION
- DOCTRINE OF CONSTRUCTIVE NOTICE AND IT'S LIMITATIONS
- CONCLUSION
Historical Analysis: A Preview Of The Doctrine Of Constructive Notice The doctrine of constructive notice owes it’s origins to the United Kingdom where it was evolved on the demands of the companies so as to protect their interest against the dealings with third parties, The historical background of the doctrine is divided into two parts which is before and after 1855, since the concept of limited liability was made applicable in this year,[1] that time unlimited liability concept of shareholders ended and thus there was an urgent need felt to safeguard the companies liability. “In that they presumed to have knowledge of company’s document filed with the registrar, which are open to public for inspection and with the right to have certified 9 copies of relevant extract from them. Section 610 of our Companies Act 1956[2] contains this provision, irrespective of the fact, whether the third parties have the knowledge or not.”[3] Constructive notice refers to a legal fiction so that in a case concerning a person that person is deemed or construed to have prior information about the case even if he does not, however later it was understood that is such a procedure is to be followed than the law would be a little harsh on the less observant ones.[4] The brutality of the Doctrine of Constructive notice is to some degree lessened by the 'Tenet of Indoor administration' or 'Turquand's Rule'[5]. Initially the common law doctrine of constructive notice was laid in the case of Ernest v. Nicholls[6]and it was further explained in the case of Mahony v. East Holyford Mining Co[7] case, Master Wensleydale in Ernest case took the view that the tenets of organization would apply without the convention of helpful risk. The destination was to hold the shareholders obligated. The perception of Lord Wensleydale is not clear. Then again, it gives the idea that he appears to have recognized that it was to dodge this come about that the lawmaking body wanted to oblige an organization to enroll articles along these lines to make accessible the world data in order to make accessible to the world data in respect to who were the persons commissioned to tie the shareholders. Thus after it’s initial years of explanation it became a valid point of argument for the third parties that the doctrine was still a bit harsh on them and the courts both in India and abroad grew reluctant about it’s application. There grew to be many instances in which it was not practical enough to ascertain whether the sanctions for the company’s actions was there in the MOA and AOA or not and also the third parties were very fearful to ask the directors about it in the first place thus as a substitute the doctrine of Indoor management was culled out in the case of Royal Bank vs. Turquand[8] to mitigate the loss of the third parties. The courts in India also subsequently rejected the application of this doctrine in likewise in the case of Dehradun Mussoorie Electric Tramway Co. v. Jagamanandaradas[9]the Allahabad high court rejected it’s application holding the company liable as the directors had borrowed money which was in non-compliance with the MOA and also without resolution by members. Furthermore, in the case of Liquidator, Manasube & Co. (P.) Ltd. v. Commissioner of Police[10] the court held that it was duty of the third party lenders to acquaint themselves with the details of MOA of a company but it doesn’t mean that they have to embark upon an investigation so as to know about the legality of the dealings and regularity of directors. SHORT INTRODUCTION AND PARADOX: TODAY’S RELEVANCE In today’s recent times the doctrine of constructive notice can be best described as an unreal doctrine[11] or legal fiction it could never have been true given the kind of impracticality that it surfaced however through the years it’s application has brought a lot of disadvantage to the third parties and reaped undue benefits for the company and it’s directors. Innumerable parties enter into various contracts on a daily basis however this doctrine expects each and every one of such parties to know and have complete information about each and every official document and gazette of the company, even if we take that perspective in mind the validity of the transactions and dealings rarely depends upon these documents it depends upon the directors the real agents of the company. It’s the goodwill of the directors that matters the most. This is the primary reason why British and Indian courts have separated their ways from this doctrine, Indian courts never paid much attention to it in the first place, also the “European Communities Act by bringing section 9”[12] into perspective which works on the concept of good faith. The aforementioned stay to be the main reasons why the doctrine of Indoor Management[13] has been originated to lessen the rigor of the former doctrine, which gives a certain amount of freedom and latitude to the third parties so as to assume something on their part which any common man of “ordinary prudence”[14] would be sensible enough so as to assume. THE FUNDAMENTAL PREMISE OF THE PROJECT The doctrine of constructive notice has shown its merits and demerits well a greater deal of the latter in the past, however our main aim regarding this project is not just to dwell about them but to delve deeper into the fundamental of it’s limitations. Furthering it’s course the project will seek to show how these limitations affected the application and development of this doctrine and how it’s application has totally subsided in the modern day, getting replaced by the doctrine of indoor management. This brings us to the research question this project seeks to put up with and answer in the subsequent state. The Research Question – What are the limitations that the Doctrine of Constructive Notice had since the very beginning of it’s establishment and application, how it affected the cases in which it was applied, how it transformed and how these limitations could be or were eliminated by the Doctrine of Indoor Management? THE FUNDAMENTAL LIMTATIONS OF THE DOCTRINE OF CONSTRUCTIVE NOTICE The fundamental difficulty that exists with this doctrine is that it presupposes a lot of things n the part of the third party which in real life are very impractical and impossible, it says that the third parties must have all the prior knowledge required to enter in a particular transaction so as to mean that even if any wrongful act be done on the company’s behalf the third party could not claim compensation, like buyer beware/ caveat emptor[15] , it mitigates the duty of the company to act in good faith[16] to a very large extent. This doctrine in another of it’s following limitation extends a sense of gross negligence to the fact that of the third party being at mistake, “despite the fact that no clear run characterizing what might constitute terrible carelessness could by its extremely nature be set out, the Courts of Equity held that if a buyer of property overlooks to make legitimate and typical analyses into his seller's title, such oversight, without sensible description, might measure to horrible carelessness and the buyer must, accordingly, be altered with productive notice of realities which he might have known whether he had made such requests. This recommendation was likewise in a few cases rested on the first hypothesis of fake dismissing by saying that such exclusion from the buyer, if not demonstrated, may be proof "of an outline conflicting with genuine managing to escape information of the accurate state of the title". Anyhow whatever be the legitimate hypothesis on which the recommendation may be underpinned, the rule underlying the suggestion was that a buyer of property, as a standard judicious man, is normal, for the insurance of his own investment, to make fitting and ordinary analyses into his merchant's title before he buys the property and in the event that he discards to do along these lines, without any sensible description, a deduction can true blue be drawn that either he has willfully refrained from making requests with the end goal of escaping notice of realities which he might have known had he made the analyses or he is liable of terrible carelessness. This guideline was clarified by Lord Selborne, in Agra Bank v. Barry[17], where with reference to the obligation of a buyer to explore title the educated Law Lord said: It has been said in contention that examination of title and analysis after deeds is 'the obligation' of a buyer or a mortgagee; and, doubtlessly, there are powers, which do utilize that dialect. However this, assuming that it can legitimately be known as an obligation, is not an obligation owing to the conceivable holder of an inactive title or security. It is simply the course which a man managing genuine in the correct and ordinary way for his investment, should, without anyone else present or his specialist, to accompany, with a perspective to his title and his security. In the event that he doesn't accompany that course, the oversight of it may be a thing needing to be represented or illustrated. It may be proof assuming that it is not demonstrated, of an outline conflicting with true blue managing, to evade information of the correct state of the title. What is a sufficient illustration should dependably be an inquiry to be chosen with reference to the nature and circumstances of every specific case.”[18] Another limitation of this doctrine works on the restrictions it imposes on the companies’ directors, it is a fiction that could have biased effects for outcasts who work with the organization. INSTANCE - Case in point, if an organization's articles of acquaintanceship confined the forces of the overseeing executive and his power to enter into contracts in the interest of the organization, an outcast may finish up a business bargain with the overseeing chief, just to find that the organization revokes the agreement, and that he is then unable to propel the organization to complete its piece of the deal in light of the fact that the overseeing executive had surpassed his power, and the organization is not lawfully bound to the arrangement. The effect of the teaching of useful perceive in this circumstance might be that the outcast couldn't contend that he was unconscious of the cutoff points of the overseeing chief's power - he might be dealt with, in law, as knowing of those points of confinement on the support that he had "productive notice" of the restrictions on the grounds that they were recorded in the organization's open archives.[19] CONCLUSION It was, additionally, a fiction that could have biased effects for outcasts who work with the organization, at the time the doctrine of constructive notice was formed. The Memorandum of Association of a Company must be stopped with the Registrar of Companies. Since this is accessible for open review, individuals working with the Company are allowed to investigate the record to check whether there is any restriction of forces or constraints put on the way of the business. This made an issue untouchables are esteemed to know any confinement put on the Directors of the Company. Hence if later, it was found that there was some unpredictability inside the Company in appreciation of any choices, untouchables having managing the Company are esteemed to be mindful of it. This got known as the regulation of productive notice. [20] However this made issue for outcasts who had no information if some interior system had not been agreed to. Now we have come to a juncture where the doctrine of constructive notice is not used at all by the courts and if it is used it is used in places and cases it was not originally meant for, the aforementioned limitations have forced the jurors and interpreters to come out with the Indoor Management Rule which has taken the former doctrine’s place gradually, in today’s world. 1
[1] Doctrine of Ultra Vires under Companies Act 1956, By Hari Ram Yadav, Dept. Of Law, MDU, Rohtak, https://shodhganga.inflibnet.ac.in/bitstream/10603/9793/17/17_summary.pdf [2] Central Government Act, Section 610 in The Companies Act, 1956 [3] Ibid see 1. [4] Constructive notice, legal information institute, Cornell University Law School, https://www.law.cornell.edu/wex/constructive_notice [5] Royal British Bank v Turquand(1856) 6 E&B 327 [6] Ernest v Nicholls(1857) 6 HL Cas 401. [7] Mahony v.East Holyford Mining Co., [1875] LR 7 HL 869. [8] Royal British Bank v Turquand(1856) 6 E&B 327 [9] Dehra Dun Mussoorie Electric Tramway v. Jagmandardas, AIR 1932 A;ll 141 [10] Official Liquidator of Manasube & Co. Pvt. Ltd. v. Commissioner of police,[1968] 38 Com Cases 884 (Mad). [11] Doctrine of Constructive Notice, By Sameer Sharma, 06 September 2010, Lawyer’s Club India, https://www.lawyersclubindia.com/articles/Doctrine-of-Constructive-Notice-3133.asp#.Uxyq99YRKsZ [12] Doctrine of Ultra Vires under Companies Act 1956, By Hari Ram Yadav, Dept. Of Law, MDU, Rohtak, https://shodhganga.inflibnet.ac.in/bitstream/10603/9793/17/17_summary.pdf [13] Company Law Doctrines and Authority to Contract Andrew R. Thompson The University of Toronto Law Journal, Vol. 11, No. 2 (1956) , pp. 248-289 Published by:University of Toronto Press, Article DOI: 10.2307/824437,Article Stable URL: https://www.jstor.org/stable/824437 [14] Standard of Care and the “Reasonable Person”, Find Law, https://injury.findlaw.com/accident-injury-law/standards-of-care-and-the-reasonable-person.html. [15] Caveat Emptor Legal Definition, Latin: Buyer Beware, Duhaime Legal Dictionary, https://www.duhaime.org/LegalDictionary/C/CaveatEmptor.aspx. [16] Duty Of Good Faith, Legal Information Institute, Http://Www.Law.Cornell.Edu/Wex/Duty_Of_Good_Faith [17] Agra Bank v. Barry (1874) L.r. 7 H.l. 135 [18] Doctrine of Constructive Notice, By Sameer Sharma, 06 September 2010, Lawyer’s Club India, https://www.lawyersclubindia.com/articles/Doctrine-of-Constructive-Notice-3133.asp#.Uxyq99YRKsZ [19] The Companies Act of 2008 has not completely abolished "constructive notice", NEWSLTTER, ROODT Inc. Attorneys, https://www.roodtinc.com/newsletter55.asp [20] THE INDOOR MANAGEMENT RULE, Wednesday, October 15, 2008, https://vijayhighcourt1.blogspot.in/2008/10/indoor-management-rule.html
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The Death Penalty
THE DEATH PENALTY Abstract The article focuses on the law of death penalty which was established in the seventh B.C. the death penalty included the laws for such actions or deed committed by people who commit a sin or an action is regarded as unlawful. In this article, Death Penalty has been discussed with its history in the nineteenth and twentieth century. The article also discusses various standpoints keeping in view the different religions, such as, Islam and Christianity. Furthermore, the human rights and death penalty are related that how the punishment affects the rights of people and what are the opinions of people regarding the death penalty.
Another important aspect regarding the society is discussed that what is the effect of death penalty on the society? Has it reduced the crime rate or not? Introduction Death penalty is known as capital punishment, executed by the law governing body of a state. It is executed where a serious crime is committed, for example, murder, rape, or any other form of serious crimes. Around one third of the countries allow death penalty. Such countries include China, Iran and United States, where the death penalties are executed on a large scale. Still, there are many countries who do not allow death penalty as a solution for a crime. These countries are Canada, Australia and Mexico who have abolished the rule about death penalty.
However, many other countries have different strategies and policies which they implement for the death penalty on people even with some less serious crimes of drug business, robbery, and others. Early Centuries (B.C and A.D) First time in the history, the death penalty law was established in Eighteenth century B.C for 25 different types of crimes. In fact it does not start from Eighteenth century, as death penalty was also a part of the Fourteenth Century B.C, Even if history is viewed a little bit back then in the Seventh Century B.C there were laws for the crimes. According to those laws, death was the only punishment for all the crimes. In the fifteenth Century punishment for the crimes was also death or to use such ways to punish that leads to the death of the criminal. In the Tenth Era A.D., hanging became the regular method of execution in UK. Within the following century, William the master wouldn’t permit people to be hanged or otherwise dead for any misconduct, excluding in eras of war.
Some common strategies of execution at that point were steaming, fiery at the stake, hanging, decapitation, and depiction and dividing. Implementations were administered for such capital evil doing as wedding a Jew, not admitting to a criminal crime, and disloyalty. The number of center corruptions in UK continued to rise throughout subsequent two eras. By the 1700s, 222 misconducts were indictable by death in UK, together with stealing, thinning out a tree, and robbing a rabbit warren. Due to the severity of the execution, several juries wouldn’t convict defendants if the offense wasn’t serious. This resulted in reforms of Britain’s execution.
From 1823 to 1837, the execution was eliminated for over a hundred of the 222 crimes punishable by death (Randa, 1997). Nineteenth Century In the early Nineteenth Century, the Eradicator movement gained speed in the northeast. Many countries condensed the number of their law-breaking activities. In 1834, Pennsylvania turns out to be the first state to move implementations away from the public perceptiveness and booming them out in correctional conveniences. In mid-Eighties, Michigan became the primary state to get rid of the corporal punishment for all corruptions except disloyalty. Later, Rhode Island and Wisconsin eliminated the corporal punishment for all crimes. By the beginning of the century, the globe would see the countries of Republic of Venezuela, Portugal, Holland, Costa Rica, Brazil and South American nation imitate Rhode Island and Wisconsin (Bohm, 1999 and Schabas, 1997). Even though U.S. originated eradicating the corporal punishment, most states control onto death penalty. Some states created additional crimes capital offenses, particularly for offenses committed by slaves. In 1838, in a shot to form the corporal punishment additional edible to the general public, some states began passing laws against obligatory death sentencing instead enacting discretionary corporal penalty statutes. The 1838 enactment of discretionary corporal penalty statutes in Tennessee, and far ahead in Alabama, were perceived as an outstanding reform.
This introduction of sentencing discretion within the capital method was perceived as a conclusion for abolitionists as a result of before the enactment of those statutes; all states mandated the corporal punishment for anyone guilty of a capital crime, in spite of circumstances. With the exception of a little range of seldom committed crimes during a few jurisdictions, all obligatory death penalty regulations had been eradicated by 1963. (Bohm, 1999) All through the warfare, opposition to the corporal punishment waned, as supplementary devotion was given to the anti-slavery association. The concept of electric chair was familiarized at the top of the century. The primary instrument of execution was engineered in 1888, and in 1890 William Kemmler was the first to be killed by this instrument.
Soon, different states adopted this execution technique (Randa, 1997). Although some states abolished the corporal punishment within the mid-nineteenth century, it took place in the middle of the twentieth century that marked the start of the “Progressive Period” of reform within the U.S. From 1907 to 1917, six states utterly illicit the corporal punishment and three restricted it to the seldom committed crimes of treason and degree murder of an enforcement official. However, this reform was transient. There was a fervent atmosphere within the U.S., as voters began to panic regarding the threat of revolution within the wake of the Russian Revolution. Additionally, the U.S. had simply entered the World War I and there have been intense category conflicts as socialists mounted the primary serious challenge to laissez-faire economy. As a result, five of the six crusader states reinstated their corporal punishment by 1920. (Bedau, 1997 and Bohm, 1999) In 1924, the utilization of cyanide gas was introduced, as Silver State wanted an additional humane manner of capital punishment its inmates. Gee Jon was the primary person dead by fatal experience.
The municipal strained to thrust cyanide gas into Jon’s cell whereas he slept, however this well-tried not possible, and therefore the instrument of execution was created. (Bohm, 1999) From the Twenties to the Forties, there was a restoration within the use of the corporal punishment. This owed, in part, to the literatures of criminologists; United Nations agency argued that the corporal punishment was a necessary social life.
Within the U.S., Americans were suffering through prohibition and therefore the slump. There have been additional executions within the Thirties than in the other decade in Yankee history, a median of 167 per annum. (Bohm, 1999 and Schabas, 1997) In the Nineteen Fifties, public sentiment began to show far from death penalty. Several allied nations either abolished or restricted the corporal punishment, and within the U.S., the quantity of executions born dramatically. Whereas there have been one,289 executions within the Forties, there have been 715 within the Nineteen Fifties, and therefore the range fell even more, to solely 191, from 1960 to 1976. In 1966, support for death penalty reached Associate in nursing the bottom. Religions’ Standpoints: Christianity Old Evidence Law agreed the death penalty for a wide list of corruptions that includes Slaughter (Exodus 21:12-14;Leviticus 24:17,21), Attacking or cursing a parent (Exodus 21:15,17), Disobedience to parents (Deuteronomy 21:18-21), Kidnapping (Exodus 21:16), Failure to confine a dangerous animal, resulting in death (Exodus 21:28-29), Witchcraft and sorcery (Exodus 22:18,Leviticus 20:27,Deuteronomy 13:5,1Samuel 28:9), Human sacrifice (Leviticus 20:2-5), Sex with an animal (Exodus 22:19,Leviticus 20:16), Doing work on the Sabbath (Exodus 31:14,35:2,Numbers 15:32-36), Incest (Leviticus 18:6-18,20:11-12,14,17,19-21), Adultery (Leviticus 20:10;Deuteronomy 22:22), Homosexual acts (Leviticus 20:13), Prostitution by a priest’s daughter (Leviticus 21:9), Blasphemy (Leviticus 24:14,16,23), False prophecy (Deuteronomy 18:20), Perjury in capital cases (Deuteronomy 19:16-19), Rejecting to follow a decision of a judge or minister (Deuteronomy 17:12), Fabricated privilege of a woman’s virginity at time of matrimonial (Deuteronomy 22:13-21), Sex between a woman vowed to be wedded and a man other than her engaged (Deuteronomy 22:23-24). Christians have faith that any discrete has to suffer the concerns of their activities but no one has the right to take another human life nevertheless of the crime committed.
They believe it is God who gives life so he should be the one to take it. Religions’ Standpoints: Islam “…If anyone kills someone – unless it’s for murder or for spreading mischief within the land – it might be as if he killed all individuals. And if anyone saves a life, it might be as if he saved the lifetime in all inhabitants” (Kur’an 5:32). Existence is holy, in keeping with Islam and most alternative world faiths. However will one hold life sacred, however at rest prop up execution? The Kur’an answers, “…catch not live that God has created sacred, except by manner of justice and law. So will he command you, in order that you’ll learn wisdom” (6:151).The Qur’an legislate the capital punishment for murder, though forgiveness and compassion are powerfully inspired. The murder victim’s family is given an option to either implement the capital punishment, or to pardon the wrongdoer and settle for financial compensation for his or her loss (2:178). The second crime that execution may be applied may be a bit a lot of receptive interpretation. “Spreading mischief within the land” will mean many alternative things, however is mostly taken to mean those crimes that have an effect on the community as an entire, amd undermine the civilization. Crimmes that contain the underneath this description include: i.sedition ii.violence iii.piracy iv.Rape v.infidelity vi.Homosexual actions (Erik C. Owens) Actual strategies of execution vary from place to position. In some Muslim countries, strategies have enclosed beheading, hanging, and stoning.
Executions are command in public, to function warnings to would-be criminals. The executing has been illicit in a very majority of the world’s nations, however continues to be used wide within the geographical region. One of the most reasons for the employment of execution during this region is that it’s clearly permissible by the sacred writing, the Muslim holy text. As such, most nations that think about Islam to be the state of faith (including UAE, Iraq, Kuwait, Qatar and others) and every one Muslim states (including Asian country, Bahrain, Brunei, Iran, Mauritania, Oman, Pakistan, Kingdom of Saudi Arabia and Yemen) allow and infrequently encourage the employment of the executing (Huda). Several verses within the holy book support the employment of execution once used as a lawful suggests that of seeking justice. For instance, a favorite quote within the sacred writing relating to the executing states,”…Take not life, that God has created sacred, except by approach of justice and law. So will He command you, so you will learn wisdom” (6:151). Basically, this suggests that though murder is taken into account a sin, it’s permissible to utilize execution once needed by law. Muslims UN agency support the executing believes that its use provides an efficient deterrent against crime and in and of itself helps to push justice. Jurisprudence permits the employment of the social control corporal punishment as a penalty against deliberate killing and terrorist acts, that interprets to “spreading mischief throughout the land.” this kind of crime is understood in a very style of ways that, however will embody rape, adultery, treason, apostasy, piracy, anal intercourse and homosexual behavior (Banner, 2009). Although execution remains wide supported in Muslim states and nations within which Islam is that the state faith, there are growing teams of Muslims that support the ending of the executing.
People who oppose execution ail the thought interpretation of sacred writing passages relating to execution. It is vital to notice that there’s no place for law enforcement in Islam — one should be properly guilty in a Islamec courtyard of law before of the penalization will be allotted. The severity of the penalization needs that terribly strict proof standards should meet by a confidence is found. The courtyard conjointly has flexibility to order but the final word penalization (for example, imposing fines or jail sentences), on a individual basis. Human Rights The worldwide person rights norm and legal dialogue on civil rights in these luggage is understood and explained by scrutiny the up to date practices to the medieval IUS commune. The trendy IUS commune of human rights has 3 distinct characteristics that it shares with the historical example to that it’s analogized: it’s broadly speaking international in scope and application; it’s grounded in sure universal principles that area unit assumed to own have society and sopra optimistic soundness (in the folder of person civil rights, the concept of human dignity); and it neither trumps native law neither is essentially subordinate to that, however rather exists in a very dependent relationship with it. The article concludes with a suggestion to analyze the manner during which the US Supreme Court has begun to have interaction overseas jurisprudence, as a result of this sympathetic of the original commune of human rights (Carozza, 2003). Methods of Execution Using a panel of state-level knowledge over the years 1978–2000, this text examines whether or not the tactic by that capital punishment states demeanor their death penalty affect the percapita occurrence of kill in an exceedingly differential manner. Many measures of the subjective chance of being dead or developed are taking into consideration for the temporal order of individual executions.
The empirical estimates recommend that the deterrent result of corporal sentence is ambitious mainly by execution conduct by electrocutions. Not any of the opposite four strategies of execution (lethal injection, tool of kill aspheyxiations, hang or fir on group) are found to possess a statistically very important force on the apiece capita occurrence of kill.
These domino result or sturdy with reference to the style within which the subjective chances of being dead or outlined, whether or not or not a state features a capital punishment rule in the book the taking away of condition and time mounted effects, controls for state-specific time trends, coincident management of all execution strategies, and controls for different styles of public deterrence. Additionally, it’s shown that the negative and statistically vital impact of electrocutions isn’t driven by the prevalence of a “botched” electrocution throughout the relevant period of time (Stearman, 2007). Applied Unfairly In the states there must be equal laws for public. But the problem arises when there is injustice and unfair application of the laws on the public. It causes increase in the crime rate that leads to the death penalty indirectly. Even there must be equal implication of the laws on the criminals.
They must be bound to complete their punishment without any special favor. Supporter of the Death Penalty Supporters of the death penalty say that it is important for the true society. It helps to make things right. Because it gives lessons to others who are thinking about the crimes that spoils the society and damages the people of the society. It is the order of the Lord to punish the criminal according to his punishment. So in those countries where there are prompt decisions taken about the crimes of people is less involved in the dangerous crimes as compare to those who did not punish criminals according to their criminal activities. For the peace and justice it is necessary to justify the things. Against the Death Penalty Support for the execution has fluctuated throughout the century. In line with town surveys, in 1936 sixty one of USA citizens favored the execution for persons condemned of murder. Support reached to the lower of forty second in 1966. Throughout the 70s and 80s, the proportion of USA citizens in favor of the execution accumulated steady, culminating in AN eightieth approval rating in 1994. A might 2004 town Poll found that a growing range of USA citizens support a sentence of life while not parole instead of the execution for those condemned of murder. Town found that forty sixth of respondents favor imprisonment over the execution, up from four hundred and forty yards in 2003. Throughout that very same timeframe, support for executing as an alternate fell from fifty three to five hundredth.
The poll additionally unconcealed a growing skepticism that the execution deters crime, with sixty two of these polled speech that it’s not a deterrent. These percentages square measure a theatrical move from the response set to the present same question in 1991, once fifty one of USA citizens believed the execution deterred crime and solely forty first believed it didn’t. Solely fifty fifth of these polled responded that they believed the execution is enforced fairly, down from hour in 2003. Once not offered an alternate sentence, seventy one supported the execution and twenty sixth opposed. The general hold up is regarding a parallel that according in 2002, but downward from the 18th hold in 1994. (Gillep Polle New Service, June 3, 2005). Reduce/Increase Crimes Rate and the Sense of Injustice Death penalty helps in decreasing the criminal activities due to which crime rate goes downward. But most of the public is against such death penalty.
The opinion of the public about the death penalty is changing now days. From 19 century to onward voting rate of the public about the death penalty is in decreasing trend. They do not want to punish the criminals in such a way. Also, when public will see that criminals are not being punished by the government of that country or state, it will of course create an atmosphere of injustice among people. Conclusion Death penalty is the punishment given to law offenders who do not follow the laws and commit such crimes which include murders, rape, and robberies including other unlawful acts. The death penalty has been in the laws of many countries in the world and has been working in order to reduce the crime rate but with due respect of the human rights and other social aspects, death penalty has been condemned heavily by the people of various countries. There have been many social issues related to the death penalty and some of them include fear among the people who witness the execution.
Other social issues include injustice which is felt by many people when they do not see that death penalty is given to the offender who has hurt them or destroyed their lives or damaged their sovereignty. However, with many appraisal from the people, death penalty is also considered as cruelty for which it is been removed from the laws of many countries.
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The Constitution in the Codified
The constitution in the codified, or widely known as written form is said to promise entrenched liberties compared to the unwritten constitution. No amending powers can affect the stipulated status if the fundamental rights of citizen. However, it is indeed theoretical in nature when we have clear examples of the violation of citizens' right in the constitution of Malaysia and Singapore. Both countries codify their constitution. Yet, the citizens do not enjoy the full privilege of being free. On the other hand, countries like the United Kingdom is classified with having an unwritten constitution which implies that the country practices parliamentary supremacy instead of constitutional sovereignty as in Malaysia and Singapore. Still, their fundamental rights are so entrenched moreover with the existence of the European Court of Human Rights Convention. It cannot be denied that liberties stipulated in an unwritten constitution do pose a danger as the rights of the citizens could be revoked anytime of the day but it has been proven in some countries that the fundamental rights of the citizens will never be touched under any circumstances. Nevertheless, it is not all written constitutions that restrict the liberties of citizens. The United States of America places utmost priority to the liberties that must be granted to the citizens no matter what. It is considered an outrage to the fundamental beliefs that is the foundation of the constitution in America. Of course much has been debated about the different values upheld by the eastern and western countries in the formation of the constitution. In the West, the rights of a human being are paramount whereas in the East, the welfare of the society is placed above the rights of an individual. Now when we say that the Malaysian constitution actually poses tight restriction to the fundamental liberties of a citizen, we are referring to provisions like Article 149 and 150, besides Acts enacted for instance the Internal Security Act 1960. Shad Saleem Faruqi has divided the restrictions on the fundamental liberties in the Federal Constitution namely, ordinary legislation enacted under the authority of the constitutional provision granting the right may impose, provisions on subversion may curtail fundamental liberties, fundamental rights except freedom of religion may be suspended under any legislation enacted to battle emergency and rights conferred by the basic law is in danger of being abolished or curtailed under constitutional amendments. Till today, Malaysia is still under four emergency declarations many laws have been enacted under this provision. The four emergency declarations are the Indonesian Confrontation 1964, political crisis in Sarawak only (1966), racial riot in 1969 and political crisis in Kelantan only in 1977. None of these declarations have been removed or annulled. We must be aware of the fundamental liberties stipulated under Part 2 of the Federal Constitution of Malaysia namely Article 5 on the liberty of a person, Article 6 on the prohibition of slavery and forced labour, protection against retrospective criminal laws and repeated trials in Article 7, equality in Article 8, freedom of movement in Article 9, freedom of speech, assembly and association in Article 10, Article 11 on the freedom of religion, rights to education in Article 12 and Article 13 on the rights to property. As it is, the only articles that have no restrictions on it is Article 6 on the prohibition of slavery and forced labour, Article 7, 8 and 12. It is indeed frustrating in the legal and judicial sense that we are not allowed to mature in our fundamental liberties. Before, it was expressed in the provisions that such restrictions are subjected to judicial review but after some amendments in the 1960s, judges are only allowed to review on the procedural rather than the substantive elements brought forward by the provisions concerned. In Madhavan Nair v PP [1975] 2 MLJ 264: The Malaysian High Court had declared that the use of subjective words in article 10(2) like "necessary or expedient" rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision. The judiciary has been appointed an important role of reconciling the conflicting demands between the fundamental liberties of the citizens and the responsibilities of the state whereby the court can remedy the violation of the rights of citizens through the writ of habeas corpus, mandamus, certiori and others. Tun Suffian in Re Datuk James Wong Kim Min observed that "The laws affect the liberty of the subject and in the case of doubt or ambiguity; they should be interpreted against the authority and in favour of the citizen". Raja Azlan Shah declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd : "Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great powers and influence are exercised in accordance with law." With regard to the above, it is vital that the legislators make serious amendments to the provision s of the constitution to relieve the citizens of the bondage of restriction that prevents the fulfilment of the ideology of constitutionalism. Next, we look upon briefly on the Constitution of Singapore. The Constitution of Singapore is the grundnorm of the land. It stipulates the fundamental principles and framework for the Executive, the Legislative and the Judiciary - the three organs of the state. The constitution cannot be amended without the approval of more than two-thirds of the members of the parliament on the second and third readings. The fundamental liberties of Sigapore citizens are provided in Part IV of the Constitution namely liberty of the person, prohibition of slavery and forced labour, protection against retrospective criminal laws and repeated trials, equal protection under the law, prohibition of banishment and freedom of movement, freedom of speech, assembly and association, freedom of religion and rights to education. It is noticed that the provisions on the fundamental liberties in the Constitution if Singapore has similarities to that of the Federal Constitution of Malaysia. We can see that especially in the provision for liberty of person wherein the citizen is granted liberty to life saves in accordance to law. Isn't this an insult to the natural freedom blessed upon a human being? This implies that the government has every right to invoke restrictions on the liberty of a person as it deemed fits. Further restrictions on the fundamental rights of a Singapore citizen can be studied as in the table below. Apparently, the citizens of Singapore enjoy very much limited freedom compared to their neighbour, Malaysia. FUNDAMENTAL LIBERTIES RESTRICTIONS Liberties of a person Penal Code Internal security Act Criminal Law [Temporary Provision] Act Criminal proceduce Code Misuse of Drugs Act ** Death Penalty No slavery and forced labour Enlistment Act Prisons Act Criminal Law [Temporary Provision] Act No retrospective criminal laws and repeated trials Equality Policy on restricting marriages between Singapore citizens and work permit holders. No banishment Banishment Act Immigration Act Internal Security Act Passports Act National Registration Act Freedom of movement Housing policy on ethnic eligibility Freedom of speech, assembly and association Sedition Act Undesirable Publications Act Newspaper and Printing Presses Act Penal Code Internal Security Act Public entertainment Act Trade Unions Act Societies Act Mutual Benefit Organization Act Rules and regulations on Speakers Corner Right to lawyer Restricted by economic status of an individual Freedom of religion Religious harmony Act Right to education Policies on admission of children to schools eg. sterilization and educational achievements of parents The fundamental liberties of a human being are essential to the United States of America. It is the duty of the government to uphold the rights as conferred in the constitution. The citizens of America believe staunchly that the stipulation of rights in the constitution without restrictions is vital for the growth and maturity of a democratic society. The concept practiced in America is vastly different from that in Malaysia and Singapore as in the United States of America prioritize the rights of the citizen above the government compared to the Asian countries. Examples like freedom of communication, freedom of thoughts, freedom to obtain knowledge etc, shows the level of maturity that differs between the countries mentioned. Of course the constitution of America does impose restrictions that is deem logically necessary to maintain the peace of the public. Another comparison that is clear cut is between the Internal Security Act 1960 of Malaysia and the Patriot Act 2001 of the United States of America. Below we could see the comparison between these two pieces of legislation. Name Malaysia Internal Security Act 1960 USA Patriot Act 2001 Purpose To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto. To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes Applicability Applicable to all persons. (Both citizens and non-citizens) Applicable to alien (Non-US citizens only). Judicial Review Judicial review is restricted. Section 8B and 8C severely limit the court's ability to inquire into the legality of a detention except on questions of compliance with procedures. Judicial review in terms of habeas corpus proceedings is provided by the Act. Detention period Section 73 allows the police to detain for 60 days any person who may act "in a manner prejudicial to the security of Malaysia."The Home Minister may authorize indefinite detention renewable every two years ad infinitum.
A
The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision provided for the person to be detained for up to six months. The Court ruled that Attorney General is authorized to detain aliens as long as removal is reasonably foreseeable. Restricted conditions after released Those released before the end of their detention period are subject to "imposed restricted conditions"for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country Either deportation or let free. No restricted conditions after released. Report to Parliament No equivalent provisions. Every 6 months, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the reporting period, the details of the detainees and the grounds for the detention. Review The Advisory Board shall review the detention every 2 years. The Attorney General shall review the detention every 6 months Sunset Provision No equivalent provisions The Act shall cease to have effect on Dec 31, 2005. We see from this classic example of the differences between the liberties granted by two countries from the east and west respectively. Consequently, it is vital for Malaysia to make serious amendments to uphold the liberties of the citizen with respect to the idealism of constitutionalism.
A
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The Convention on the Law of the Sea
Introduction
On 16th November 1994 the convention on the Law of the Sea (UNCLOS) came into force, it was establish in 1982. The purpose of this convention is to provide nations with four methods to resolve maritime disputes, two of these methods were (1) submit the dispute to the international Tribunal for the Law of the Sea (ITLOS) and (2) the adjudication of the dispute by the international court of justice, (ICJ).
ITLOS
Description
The International Tribunal for the Law of the Sea is an independent judicial body established by the United NationsConvention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention.
How and why was it formed?
The Tribunal came into existence following the entry into force of the Convention on 16November 1994. After the election of the first judges on 1 August 1996, the Tribunal took up its work in Hamburg on 1 October 1996. The official inauguration of the Tribunal was held on 18 October 1996. The Tribunal was established as a specialized tribunal to deal with disputes arising out of the interpretation and application of the Convention https://www.itlos.org/general-information/
Rules
Membership
- No two members of the Tribunal may be nationals of the same State. Aperson who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.
- There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm Section 1 Article 2
Members
The Tribunal is composed of 21 independent members elected by secret ballot by the States Parties to the Convention. Each State Party may nominate up to two candidates from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. No two members may be nationals of the same State and in the Tribunal as a whole it is necessary to assure the representation of the principal legal systems of the world and equitable geographical distribution; there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations (African States, Asian States, Eastern European States, Latin American and Caribbean States and Western European and Other States). Members are elected for nine years and may be re-elected; the terms of one third of the members expire every three years.
Functions
The seabed disputes chamber is competent to give advisory opinions on legal questions arising within the scope of the activities of the international seabed authority, the tribunal might may also give advisory opinions in certain cases under international agreements related to the purposes of the convention. Disputes before the tribunal are instituted by either written application or by notification of a special agreement.
Description
On 21 March 2001 an application was filed on behalf of Belize against France for the prompt release of the fishing vessel Grand Prince under article 292 of the United Nations Convention on the Law of the Sea. The case was named the “Grand Prince” Case and entered in the List of cases as case no. 8. (Republic of France v. Belize, 2001)
Legal Principles and Issues Involved
The procedure provided for under article 292 has as its sole purpose to ensure the prompt release of a vessel upon the posting of a reasonable bond, pending the completion of judicial proceedings brought against the captain or owner of the vessel before the jurisdictions of the detaining State. Thus, when the internal judicial procedures have reached their conclusion and, in particular, when they have led to the pronouncement of a sentence of confiscation of the vessel, any possible resort to the article 292 procedure loses its reason for being. In such a case, the application for prompt release is moot (dA©purvue d'objet). As from the time when a national court has pronounced confiscation of the vessel as the applicable sanction, the introduction of a prompt release proceeding before the International Tribunal for the Law of the Sea is not only no longer possible but indeed is not even conceivable. As part of a proceeding of this kind, the Tribunal decides as to the reasonableness of the bond required to order the release of the vessel. This presupposes, firstly, that simple provisional measures of an interlocutory (conservatoire) kind have been taken with respect to the vessel, and, secondly, that those measures can be revoked (rapportA©) or stayed in exchange for a guarantee of enforcement of possible debts to the State by the owner of the vessel. But a confiscation declared by a national court as a principal or secondary penalty has as its effect authoritatively and definitively to transfer to the State the property confiscated.
The owner of the vessel loses his title by virtue of the judicial decision and, if he seeks to recover his rights in the property, the remedies open to him can no longer be pursued within a proceeding for prompt release, since he can no longer be considered as the holder of title (titulaire d'un droit de propriA©tA©) to the vessel. The vessel Grand Prince was found in violation in the French Exclusive Economic Zone, was boarded and detained on 26 December 2000, and was escorted to the island of Reunion, where it arrived on 9 January 2001. The Director of Maritime Affairs of Reunion declared the provisional impoundment of the vessel, which was confirmed on 12 January by an Order of the Tribunal d'Instance of Saint Paul which, furthermore, fixed the amount of the bond to be paid to permit release from impoundment. Moreover, on 11 January, the Deputy Prosecutor of the Republic before the Tribunal de Grande Instance of Saint Denis drew up an arraignment (procA¨s-verbal d'interpellation) against the captain of the vessel and, considering that in this case the introduction of an investigative proceeding (instruction) was not necessary, decided directly to summon the accused to appear at a hearing of the criminal court on 23 January, pursuant to articles 393 et seq. of the Code of Penal Procedure. (ANNEX I) The judgment of the criminal court, handed down the same day (ANNEX II) pronounced the confiscation of the vessel Grand Prince with immediate execution notwithstanding appeal, pursuant to article 131-6-10 of the Penal Code and article 471, final paragraph, of the Code of Penal Procedure (ANNEX III). Further, the captain was sentenced to a fine and damages.
Outcome
Whereas, pursuant to article 292 of the Convention, the Tribunal shall deal with the Application without delay, Whereas, pursuant to article 112, paragraph 3, of the Rules of the Tribunal, the Tribunal, or the President if the Tribunal is not sitting, shall fix the earliest possible date, within a period of 15 days commencing with the first working day following the date on which the application is received, for a hearing. THE PRESIDENT Fixes 5 and 6 April 2001 as the dates for the hearing; Reserves the subsequent procedure for further decision. THE TRIBUNAL, By 12 votes to 9, Finds that the Tribunal has no jurisdiction under article 292 of the Convention to entertain the Application;
ITLOS 2nd Dispute
https://www.itlos.org/en/cases/list-of-cases/case-no-15/
Description
This case is made in respect of the Tomimaru, a Japanese fishing vessel detained in the Russian exclusive economic zone (hereinafter “EEZ”) by the authorities of the respondent since 2 November 2006 and currently detained in the Russian port of Petropavlovsk-Kamchatskii. The Tomimaru is a fishing vessel owned and operated by Kanai Gyogyo Co., a Japanese company registered at 6-3-25, Kushiro city, Hokkaido, Japan. The Tomimaru was flying the Japanese flag at the time of detention and retains Japanese nationality at the time of filing of this application. It is registered at Kushiro city, Hokkaido, Japan. The Tomimaru is a vessel of 279 tons. It has cargo capacity of 263.3 cubic meters for freezer and 580.6 cubic meters for cold storage and fish tank. The estimated value of the vessel and its equipment is 92,894,507 Yen. Documents that evidence the ownership and specifications of the Tomimaru and support the estimate of value are attached. The Tomimaru had 14 Japanese crew members including its Master and 7 Indonesian crew members. The Master and all other members of the crew have now left Russia. There are two sets of proceedings that have been instituted against the Master and the owner of the Tomimaru before the domestic courts of the Respondent: (a) criminal proceedings against the Master, in respect of which a bond of 8,800,000 rubles (approximately US$ 343,000) was set on 12 December 2006; (b) administrative proceedings against the owner of the Tomimaru, in respect of which no bond has been fixed.
The Tomimaru was licensed by the respondent to fight in the Respondent’s EEZ during the period between 1 October and 31 December 2006. Pursuant to that license, the Tomimaru was fishing in the respondents EEZ in the western Bering Sea with the Respondents permission. On 31 October 2006 the Tomimaru was en route from tis licensed fishing area to the port of Kushiro in Japan, when it was boarded by officials from the Respondents patrol boat No.160. According to the Master of the Tomimaru, the boarding occurred at 18:20 (Japan standard time) on 31 October 2006 and was carried out by three officials belonging to the respondent. According to the Master of the Tomimaru, the place of boarding was 52-16N 160-52E the exact coordinates, within the Respondent’s EEZ. The Tomimaru was ordered to sail to the port of Petropavlovsk-Kamchatskii, where the vessel and the crew were detained. During the voyage to that port, and official of the Respondent on board the Tomimaru indicated that the actual amount of fish being carried by the Tomimaru appeared to differ from the amount recorded in its logbook and that the difference was about five tons. On November 2006 a Note Verbal No. 018-3 2006 was issued by the representative of the ministry of Foreign Affair of the Russian Federation in Petropavlovsk-Kamchatskii. It stated that:
- A criminal case had been instituted against the Master of the Tomimaru on 8 November 2006;
- The Tomimaru had permission to engage in fishing in the Russian EEZ for up to 1,163 of Pollack and 18t of herring during the period from 1 October to 31 December 2006;
- Upon inspection on 8 November 2006, more than 20t of walleye Pollack that was not listed on the logbook was found on board the Tomimaru’
- More than 19.5t of halibut, 3.2t of ray, 4.9t cod, and more than 3t of other fish, with a total value in excess of 8,500,000 rubles ( Approximately US$ 330,000) were found on board the Tomimaru.
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_15/application_japan_eng.1.pdf
Parties Involved
Legal Principles and Issues Involved
In respect of the Master of the vessel criminal proceedings were instituted on 8 November 2006 concerning the alleged crime stipulated by Article 253 of the Criminal Code of the Russian Federation (exploitation without due permission of the natural resources in the Russian EEZ). The vessel was declared material evidence in accordance with the Article 82 of the Code of Criminal Procedure of the Russian Federation. On 23 November 2006 the Master of the vessel was accused of violation of part 2 of Article 253 of the Criminal Code of the Russian Federation. On the same day he was asked to sign a written undertaking not to leave the city of Petropavlovsk-Kamchatskii and to behave properly. By the verdict of the Petropavlovsk-Kamchatskii court of 15 Mary 2007 the Master of the vessel was found guilty for having committed crimes under paragraph 2 Article 253 and paragraph 2 Article 201 of the Criminal Code of the Russian Federation. He paid the fine in the amount of 500,000 robles, imposed by the verdict, but not damages awarded and were allowed to leave Petropavlovsk-Kamchatski for Japan on 30 May 2007. https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_15/response_russ_fed_eng.1.pdf
Outcome
- https://www.itlos.org/fileadmin/itlos/documents/basic_texts/Itlos_8_E_17_03_09.pdf
- https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Judgment.07.02.00.E.pdf
- https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Dissenting.Anderson.E.pdf
- https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm
ICJ
ICJ 1st dispute
Description
On behalf of the Government of Australia and pursuant to Article 36, paragraphs 1 and 2, and Article 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honor to submit to the Court the present Application instituting proceedings against the Government of Japan. The present Application concerns Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Pro-gram under Special Permit in the Antarctic (“JARPAII”), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (“ICRW”), as well as its other international obligations for the preservation of marine mammals and the marine environment. Australia has consistently opposed Japan’s JARPA II program, both through individual protests and demarches and through relevant international forums, including the International Whaling Commission (“IWC”). The Court has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 2, of its Statute, by virtue of the operation of the declarations of acceptance made respectively by Australia, dated 22 March 2002, and by Japan, dated 9 July 2007.
Parties involved
(Australia v. Japan: New Zealand intervening)
Legal principles and issues involved
Commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W ; thence due east to 20 degrees E ; thence due south to 55 degrees S ; thence due east to 130 degrees E ; thence due north to 40 degrees S ; thence due east to 130 degrees W ; thence due south to 60 degrees S ; thence due east to 50 degrees W ; thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Com-mission. As they have been classified as “endangered” (at a very high risk of extinction) by the International Union for the Conservation of Nature (IUCN), of the three species targeted by JARPAII, this is the one about which the least is known, but it is probable that they are still severely depleted relative to the pre-1904 population. There are limited indications of some recovery in population numbers in the Southern Hemisphere but no agreed population estimate exists. Also, the population structure of the Southern Hemisphere fin whales remains unknown. Accordingly, there is risk of the depletion of small stocks.
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The Convention on the Law of the Sea. (2017, Jun 26).
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The Crime of Rape
RAPE Introduction: Rape is one of the most serious crimes that an individual can commit. There are a variety of laws that deal with the offence of rape, giving a guideline on how investigative officers should handle victims of rape, and also suspects of rape. An example of such kind of law is the sexual offences act of 2003. This law was passed in 2003, by the parliament of the United Kingdom, and it establishes the ways and manner in which police officers ought to deal with rape and it gives a clear definition of rape (Bonnes, 2011). This act defines rape as a sexual offence that occurs when an individual intentionally penetrates the mouth, anus, or vagina of another person with his penis, and without the consent of the victim. In as much as rape is a negative phenomenon, and causes much suffering to the victims, the victims of rape are always seen in a very negative perspective. In a survey conducted in 2010, for purposes of celebrating the 10th anniversary for the Haven service on rape victims, results showed that more than a half, of the 1000 people surveyed in London denoted that rape victims should take responsibility for the attack (Messina-Dysert, 2012). In another survey, sponsored by Amnesty International in 2008, found that more than half of those surveyed believed that a woman who is raped, should be partially responsible for the attack (Suarez and Gadalla, 2010). This is if the woman engaged in a flirtatious behavior, or inappropriately dressed. This survey was conducted at the Northern Ireland University (Davies, Gilston and Rogers, 2012). For purposes of understanding why the society has negative attitudes towards victims of rape, it is important to first understand the aspect of demonization of women who are promiscuous.
Women normally live with the constant knowledge and fear of arbitrary judgment against them, when they have many sexual partners (Messina-Dysert, 2012). However, the most worrying trend, the society will always pass a negative judgment on a woman who is raped, and is believed to have so many partners, or is promiscuous. Due to these negative judgments against rape victims, the victims fear to come forward, for purposes of reporting incidences of the crime of rape (Nowrojee, 2005). This paper takes a stand that the negative perceptions and judgments against the victims of rape compound their sufferings. This paper analyzes the various perceptions of rape victims, and how these perceptions play a role in preventing rape victims from accessing justice. In order to meet the objectives of this paper, the researcher will first identify the reasons as to why some people rape women and the effects of rape against the victims. In order to understand effectively the negative perceptions that some society have against victims of rape, it is essential to understand the causes of rape, and its consequences. The effects of rape that this paper analyzes are the physical and psychological effects. After the identification of these causes and effects, this paper will analyze the various perceptions that the society has towards rape victims, and how they are affected psychologically, and physically.
This paper has a recommendation on how to help victims of rape recover from their sufferings, and a conclusion which is a summary of the major points contained in this paper. Causes of Rape and its consequences: It is important to denote that the causes of rape is not about having some sexual satisfaction, but seeking for power and total control. Most rapists are emotionally unstable men, who are insecure and are not able to approach a woman in an open manner (Davies, Gilston and Rogers, 2012). To assert a sense of control, rapists would force a woman into having sexual activity with them, as a result leading to a sense of power and control. It is important to denote that some rapists normally have a wife and they get their sexual satisfaction from their wives.
However, these rapists cannot forceful touch their wives and instill fear in them (Goodhart, 2007). Rape has two major effects that are physical, and psychological. Physical effects include urinary infections, painful penile penetrations, acquirance of sexually transmitted diseases, and unwanted pregnancies (Davies, Gilston and Rogers, 2012). Psychological effects on the other hand includes, self blame, depression, negative flashback, anger, distrust, stress, sleeping disorders, feeling of vulnerability, and withdrawing from friendship associations. It is important to denote that the society has inappropriately placed some of the causes of rape to the victim himself (Ryan, 2011). These causes of rape, that the society denotes are the responsibility of the victim on most occasions lead to the negative perception of rape victims. It is these negative perceptions that normally increase the physical and psychological suffering of rape victims. However, it is important to denote that the society will apportion blame on the rape victim, based on the traditions and culture of the society under consideration. Perceptions of rape victims and its effects on the victims: The attitudinal based characteristics of an observer play a great role in the explanation of the negative perceptions towards victims of rape. These attitudinal characteristics are shaped by the traditional stereotyping of gender roles, and sexual conservatism.
Studies give a revelation that people who normally find it okay for a male person to be drunk, as opposed to a female person normally have negative attitudes towards victims of rape (Hong, 2013). The following are some of the attitudinal characteristics that are responsible for passing negative judgment on women rape victims, the promiscuity of the woman, dressing inappropriately by the woman, drunkenness, unnecessary flirting, the respect that the victim had within the society. These people argue that a raped woman might have been either a drunkard, and as a result, she was unable to control her emotions or feelings (Withey, 2010). They further argue that most women who are raped must either be promiscuous, and as a result, they enjoyed the act of rape. On this basis, the claim that they are raped is false, and does not hold any ground (Goodhart, 2007). These people further denote that a woman might have initiated the act of rape, because she was either flirting with the man under consideration, or she was inappropriately dressed, arousing the rapists (Hong, 2013). Based on these arguments, these people claim that it is a rape victim who is to blame for the attack against them. It is important to denote that there is little study on the causes of negative perception that people have towards male rape victims (Ayinde, 2010). Studies reveal that there is an increase in the number of male rape victims, and they are always blamed for the attack, just as the female rape victims are blamed for an attack against them (Riccardi, 2010). Studies reveal that male victims are always viewed negatively by the police, and health workers, and on this basis, few cases of male rape are always reported. The negative perceptions that people have towards male rape victims emanates from the sexuality of the male individual (Ayinde, 2010). The male are always believed to be strong, and on this basis, they are supposed to be in control of their sexuality and sexual lives. On this basis, a male who is raped, is weak, and is not in control of his own sexuality. The male rape victims are also considered promiscuous, and this is because they were not able to control their sexuality (Goodhart, 2007). Due to these negative perceptions of rape victims, it would be very difficult for these people to report the crimes to law enforcement officers. This is because they would feel guilty of orchestrating the crime, they will also be shameful, and their levels of stress would increase (Gilbert, 1998). Failing to report the crime to police officers, would mean that the suspect is still on the loose, and he would attack again.
This is the kind of fear that rape victims will have, leading to an increase in their stress level. This is because they do not know if the rapist would return or not. For fear of victimization, these victims might not seek for medical attention. This might make them to contract dangerous diseases such as HIV, Syphilis, and other STDs, if not detected early (Withey, 2010). It might also make the patient to suffer from more stress, because of failure to get some psychological treatment.
Due to these negative perceptions on rape victims, these victims begin blaming themselves, accelerating further their psychological and physical health (Tavrow, Withers, Obbuyyi, Omollo and Wu, 2013). This is because their stress level will grow, leaving them vulnerable to emotional torture. Homophobia is another reason as to why people have a negative feeling towards male rape victims. Homophobia refers to a range of negative feelings that the society has against the gay people, this includes homosexuals, lesbians, the transgender, and the bi-sexual people (Koshan, 2012). Homophobia can always be expressed in the form of hatred, prejudice, antipathy, contempt, and it is always based on religious and traditional beliefs. Take for example the Buggery Act of 1533 that outlawed home sexuality in England. The consequences of being caught in a homosexuality act was death, however, such kind of laws were repelled by the 2004 civil partnership act that recognizes homosexuality (Vidal, 2011). In Uganda, the president recently signed the anti-homosexuality law that imprisoned any one found engaging in homosexual acts for life.
According to this law, anyone who fails to report an homosexual, is also vulnerable to imprisonment. It is important to denote that male rape victims are always associated with homosexuality, and this is an erroneous assumption (Goodhart, 2007). In as much as studies reveal that victims and offenders of male rape are on most occasions’ heterosexual, male rape is perceived to be associated with motives of homosexuality (Suarez and Gadalla, 2010). On this basis, observers are more likely to invoke homophobic feelings against male victims, as they will view them as homosexuals. People view homosexuality as a negative and deviant behavior that goes against the norm within the society.
Homosexuality is considered to be an evil behavior that is against the major religions of the world, which includes Christianity, Islam, Buddhism, and even Judaism (Delisi, 2013). These religions believe that sexual acts must only occur between a man and a woman, and it is for purposes of recreation. On this basis, any sexual act, that occurs between a man and a man, or a woman and a woman is evil, and must be punished. This therefore brings us to the concept of the Just World Theory in explaining the perceptions that people have towards victims of rape, more so, victims of male rape (Delisi, 2013). According to the Just World Theory, people will always get whatever they deserve in life (Withey, 2010). This theory denotes that the world is a just and a fair place, and anyone living a moral life, will be rewarded by morality, and anyone living an immoral life, will be rewarded by immorality (Dosekun, 2013). Those people who ascribe to this theory believe that when a good thing or issue happens to an individual, then it is because the same person did some good things. However, when a bad thing happens to an individual, such as rape, then that person did some bad things, i.e. that person can be immoral, or promiscuous (Suarez and Gadalla, 2010). This theory apportions blame to the victim, as opposed to the person who committed the act. On this basis, victims of rape are responsible for the attack, and this leads to an aspect of self blame (Schroeder, 2010). As discussed earlier, self-blame is not a positive effect, as it will have a psychological effect on the victim leading to an increase in their stress levels, and creating emotional imbalances. It will be very difficult for these people to access medical and psychological services because of self-blame, and fear of victimization from medical personnel (Egan and Wilson, 2011). This might make their health system to fail, and they may even be tempted to commit suicide because of high levels of stress. Male victims on the other will not report such kind of an incidence to the police, or any other authority.
This is because of the homophobia that exists because of such an attack. For instance in Uganda, it will be difficult for a male rape victim to report to the police, for fear of being mistaken as a homosexual. Recommendation on how to change the negative perceptions against rape victims: In order to help these victims, the society needs to appreciate the various character traits of people. For example, one of the contributing factors of a negative perception against rape victims is the demonization of women who are promiscuous (Delisi, 2013). The society has a negative attitude towards women viewed as promiscuous, and as a result, when they are raped, the society does not feel any pity towards them. This has to stop, and this is because it is not the business of anybody on how many people a woman sleeps with. What the society needs to do is to encourage moral behavior through education, and use of the social media (Delisi, 2013). Condemning this people to the point of accepting a breach of their rights is not prudent and good. On this basis, the society needs to have a change of attitude in regard to immoral women, and help them to achieve justice in case they are raped.
The society also needs to accept that there is the existence of the homosexuals, and the lesbians (Kavaler-Adler, 2010). In as much as these are negative aspects of the society, there is a need of initiating policies aimed at helping them live normal lives. This is as opposed to discriminating them, and passing unfair judgments against them. The British government has realized the importance of recognizing the rights of these people, and hence it has formulated various laws and legislations aimed at protecting the homosexuals, the lesbians, the transgender, against discrimination, stigma, and a breach of their human rights (Klippenstine and Schuller, 2012). Laws such as the civil partnership act of 2004, and the equality act of 2010, protects the homosexuals and the lesbians against discrimination, and stigma. It is also important for oppressive laws, such as the Ugandan anti-homosexual bill of 2014 to be abolished. This would help in instilling confidence amongst this group of people, and when stigma and discrimination in regard to homosexuals is removed, male victims of rape might get the confidence of reporting such kind of atrocities against them.
There is also a need by various governments to educate the public on the causes of rape, and the consequence of such an attack has on its victims. Through education, the government might succeed in changing the negative attitudes that people have towards rape victims. Under education, the government and other civil societies might use the television, radio stations, the internet, and newspapers to pass on their messages. Conclusion: In conclusion, rape is a very serious offence that normally has some negative impact on the victims. Victims of rape usually suffer from physical and physiological effects. These physical effects include body injuries, unwanted pregnancies, and diseases.
Physiological effects include stigma, depression and stress. In as much as rape is a negative thing, victims of rape usually suffer from stigma and discrimination. This is because they are always blamed for the attack against them.
This promotes an issue of self-blame amongst the victims of rape, leading to an increase in depression or stress. To help these people, there is a need of changing the attitudes of people against rape victims. This change in attitude will only come through education, and initiating laws that criminalizes discrimination and stigmatization. Bibliography: Ayinde, O. (2010). Psychological Techniques In Helping Rape Victims. Edo Journal of Counselling, 1(1), 15-26. Bonnes, S. (2011). Gender and Racial Stereotyping in Rape Coverage. Feminist Media Studies, 325, 1-20. Davies, M., Gilston, J., & Rogers, P. (2012). Examining the Relationship Between Male Rape Myth Acceptance, Female Rape Myth Acceptance, Victim Blame, Homophobia, Gender Roles, and Ambivalent Sexism.
Journal of Interpersonal Violence, 27(14), 2807-2823. Delisi, M. (2013). An Empirical Study of Rape in the Context of Multiple Murder. Journal of Forensic Sciences, 23, n/a-n/a. Dosekun, S. (2013). ‘Rape is a huge issue in this country’: Discursive constructions of the rape crisis in South Africa. Feminism & Psychology, 23(4), 517-535. Egan, R., & Wilson, J. C. (2011). Rape Victims Attitudes to Rape Myth Acceptance. Psychiatry, Psychology and Law, 34, 1-13. Gilbert, N. (1998). Realities and mythologies of rape. society, 35(2), 356-362. Goodhart, M. (2007). Sins of the Fathers: War Rape, Wrongful Procreation, and Children’s Human Rights . Journal of Human Rights,, 6, 307-324. Hong, Y. (2013). Teaching Rape Texts in Classical Literature. Classical World, 106(4), 669-675. Kavaler-Adler, S. (2010). Seduction, Date Rape, And Aborted Surrender.
International Forum of Psychoanalysis, 19(1), 15-26. Klippenstine, M. A., & Schuller, R. (2012). Perceptions of sexual assault: expectancies regarding the emotional response of a rape victim over time. Psychology, Crime & Law, 18(1), 79- 94. Koshan, J. (2012). Book Review: Rethinking Rape Law: International and Comparative Perspectives: International Approaches to Rape. Social & Legal Studies, 21(3), 425-430. Messina-Dysert, G. (2012). Rape and Spiritual Death. Feminist Theology, 20(2), 120-132. Nowrojee, B. (2005). Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone’s Rape Victims.
Havard Human Rights Journal, 18, 86-105. Riccardi, P. (2010). Male Rape. The Primary Care Companion to the Journal of Clinical Psychiatry, 29, 124-159. Ryan, K. M. (2011). The Relationship between Rape Myths and Sexual Scripts: The Social Construction of Rape. Sex Roles, 65(11-12), 774-782. Schroeder, J. A. (2010). With Eyes of Flesh: The Bible, Gender and Human Rights; Configurations of Rape in the Hebrew Bible: A Literary Analysis of Three Rape Narratives. Biblical Interpretation: A Journal of Contemporary Approaches, 18(4), 443- 448. Suarez, E., & Gadalla, T. M. (2010). Stop Blaming the Victim: A Meta-Analysis on Rape Myths. Journal of Interpersonal Violence, 25(11), 2010-2035. Tavrow, P., Withers, M., Obbuyyi, A., Omollo, V., & Wu, E. (2013). Rape Myth Attitudes in Rural Kenya: T oward the Development of a Culturally Relevant Attitude Scale and “Blame Index”. Journal of Inter-Personal Violence, 28(10), 2156-2178. Vidal, M. (2011). Is it Rape? On Acquaintance Rape and Taking Women’s Consent Seriously Archives of Sexual Behavior, 40(5), 1075-1076. Withey, C. (2010). Rape and Sexual Assault Education: Where is the Law?. New Criminal Law Review, 13(4), 802-825.
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The Crime of Rape. (2017, Jun 26).
Retrieved November 5, 2025 , from
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Constitutional Safeguards of the 4th, 5th and 6th Amendments to the US Constitution
Constitutional safeguards provided by US Constitution in the 4th, 5th and 6th amendments in regards to the criminal justice system are implemented to protect people against indiscriminate application of criminal laws and wanton treatment of persons suspected of violating the law. The amendments which are specifically designed to enforce constitutional rights of suspected criminals have had a significant impact in the criminal judicial sector. The workings of the courts in both juvenile and adult criminal proceedings and trials have been altered by these safeguards provided for by the amendments whereby the courts are required to conduct the proceedings or trials in a manner that is in conformity with the safeguards.
A legal aspect that contradicts or offends the constitutional safeguards is deemed inadmissible in court. The paper shall conduct identify and evaluate the constitutional safeguards by the 4th, 5th and 6th amendments in addition to providing an analytical and comparative study on the various impacts of the safeguards in the day-to- day operation of adult and juvenile courts. The 4th amendment enumerates certain safeguards in regards to unreasonable searches. The amendment gives people the right to be secure in their persons, houses and personal effects against unreasonable searches and seizures. The right is protected under the amendment which provides that it shall be not violated. Subsequently, the amendment provides that warranties shall only be issued is there is a probable cause and shall be supported by an oath or affirmation providing a detailed description of the place to be searched and persons or things to seized thereof. In essence the 4th amendment provides protection against general searches by the government. Law enforcement personnel are entrusted with the authority and power to conduct searches, investigations, make arrests and seizures.
However, this power is not absolute and is subject to limitations that require it to be exercised within the boundaries and the tenets of the law (Amar, 1994). When the police officers or law enforcement personnel exercise this power in a manner that exceeds or violates the prerequisite boundaries, the admissibility of the collected evidence is adversely jeopardized. It is the courts prerogative to ensure that the adduced evidence does not violate or offend the constitutional safeguards provided by the 4th amendment. The safeguards provided under this amendment only applies against a government action undertaken by a government employee whether state of federal or private persons working with a governmental agency. Thus under the 4th amendment, courts are not required to offer protection against bugging, or any forms of wiretapping conducted by private citizens such as private investigators even if the private investigator's evidence directly links a person to the aforesaid crime. Courts are inclined to deny the admissibility of the private investigator's evidence as it violated the safeguards provided under the 4th amendment. The private investigator's evidence can only be admissible in court if it is sufficiently shown that he or she was working with law enforcement agency at the time of the collection of the evidence which was permitted by a warrant (Amar, 1994).
However, this aspect has often had adverse impacts in the courts. The core purpose of criminal purpose of any judicial organ is to provide justice to the victims and punish the perpetrators of crimes. However, the absenteeism or failure by courts to protect evidence gathered by private persons has at times occasioned an injustice thus contradicting the core essence of the criminal justice system. A suspect maybe let off the criminal justice hooks solely based on the fact that the evidence linking them to the crime cannot be admitted in court because it was gathered by private persons. Additionally, private investigators with certain clues or knowledge purtaining some crimes are reluctant to coming forward and hand over the evidence to law enforcement agency because they are not protected by the 4th amendment safeguards (Amar, 1994). Under the 4th amendment, courts are to invalidate searches and seizures carried out under probable cause without a court warrant. However, the US Supreme Court has provided that in certain situations, warrantless searches may be deemed reasonable under present circumstances and admissible in court. The ruling according to scholars provided an exception to the constitutional muster provided by the 4th amendment in regards to searches and seizures. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 (1968) the Supreme Court ruled that the 4th amendment prohibits from detaining pedestrians and or conducting any kind of searches on person without probable cause (Amar, 1994).
This provision applies to searches conducted under traffic laws. Courts articulate that a police officer must satisfy the probable cause requirement in pursuant to searches conducted in automobiles. In providing exceptions in the 4th amendment against seizures, courts strike a balance between the practical daily workings of a police officer and the privacy and freedoms interests of the public (Amar, 1994). In juvenile courts the application of the 4th amendment has resulted in divergent and contradictory rulings. The Arizona Court of Appeals relying on the case of Terry v. Ohio 392 U.S. 1, 16 (1968) in a case whereby a police officer encountered a juvenile sitting underneath a bridge wearing a heavy jacket under warm weather and conducted a search on the minor and found drugs on the minor and proceeded to arrest him. On ruling the court held that the minor was not seized and if it were a seizure it would not amount to an unreasonable seizure. Subsequently, in another ruling in the District of Columbia, police officers were conducting consent searches in a bus. During the searches, they approached a fourteen year old in the bus and began questioning him. On conducting a search on the boy they found crack cocaine on the boy and arrested him.
In the ruling the District of Columbia court of Appeals held that to a reasonable person based on the circumstances, the boy was not seized (Amar, 1994). The exclusionary rule in the US criminal jurisprudence was introduced by the Supreme Court in the case of Weeks v. United States, 232 U.S. 383 (1914). The rule enables courts to exclude incriminating evidence against a defendant upon sufficient proof that the evidence was procured in a manner that offended the constitution (Levy, 1974). The rule gives the defendants an option to challenge the admissibility of evidence by filing of a pre-trial motion. Evidence heard or adduced at the pre-trial motion cannot be used against the defendant in the proceedings. If the evidence used in the pre-trial is not suppressed by the court, and is instead used by the jury to convict, the defendant can challenge the admissibility of that evidence on appeal.
However, the Supreme Court in the case of Lockhart v. Nelson, 488 U.S. 33 (1988), articulated that the exclusionary rule does not bar the retrial of a defendant in regards to suppressed evidence as the trial court's error does not go to the question of guilt or innocence (Levy, 1974). The 5th amendment provides various safeguards offer the defendant protection against self incrimination, double jeopardy and the right to due process. The provision of the right against self incrimination based on evidence got via a compelling confession made by coercion or deception. Under this safeguard, courts are compelled to exclude such kind of evidence as it is they were got via uncivilized manner that offended the tenets of the constitution. The self incriminatory rule includes the right to remain silent which was realized by the US Supreme Court in the case of Miranda v. Arizona, 384 U.S. 436 (1966). The court ruled that arrested persons must be explained their right to remain silent or have an attorney present during questioning (Amar & Lettow, 1995).
The ruling was meant to prevent acquiring of a confession from the suspect under pressure by police officers. This landmark ruling led to the creation of the Miranda Rights whereby police officers are required to inform an arrested person his constitutional rights to remain silent and have an attorney. If it is sufficiently proved that police officers violated a suspects Miranda Rights in obtaining evidence, courts render that evidence inadmissible as it was obtained on an illegality. Subsequently, the amendment provides a safeguard that prohibits governments from subjecting an individual to double punishment or trial of the same offence. This safeguard is called the right against double jeopardy. When conducting trials, the government has an obligation to inform the court of the previous convictions of the defendants regarding the same offence. Defendants can bring motions regarding the double jeopardy clause to challenge prosecution or overturning of a subsequent punishment (Amar & Lettow, 1995). Subsequently, the 5th amendment provides every defendant the right to due process which requires all criminal proceedings to be conducted in a fair manner that is impartial. Courts are allowed to allow accused persons the right to present fully their case and defend themselves adequately against the charged crimes. The right to due is applicable to all phases of a criminal proceeding from pre-trial to the final appellate decision. In juvenile courts, the right to due process is strictly enforced as required in adult courts. Juveniles are given the right to have an to call witnesses to appear on their behalf and remain silent. They are also accorded the right to cross-examine witnesses and obtain sub-poenas to compel witnesses to appear on their behalf. The availability of enforcing these rights in the juvenile courts has positively impacted the outcome of the court proceedings and the court cases. The juveniles have an equal and fair ability as the adults to fully and adequately exercise all their rights in the criminal trials. The awarding of these rights in the juvenile courts ensures that no miscarriage of justice is occasioned pursuant to the 5th amendment (Amar & Lettow, 1995). The 6th amendment gives defendants the right to a speedy trial which is conducted in public by a jury which is impartial. The amendment also provides the right of a defendant to have an attorney and be informed the nature and cause of the aforesaid charges. The US Supreme court has not given clear guideline or ruling that gives an exact time limit at which a trial should be deemed excessive and not speedy in consonance with the 6th amendment. Instead the court has provided a balancing test that is used in the other lower courts whereby it weighs the reasons and causes of delay against the prejudice suffered by a defendant occasioned by the delay. A delay of one year in bringing a defendant to trial can be deemed as contravening the speedy trial clause. However, defendants whose own actions have directly resulted to lengthy trials cannot claim the protection of the speedy trial clause (McCormick, Strong & Broun, 1999). Subsequently, the safeguard provided by the 6th amendment to inform the defendants to be informed the nature and cause of the charges is interpreted by courts in two distinct elements. The defendants must receive notice of any criminal complaint lodged against them and that defendants should not be tried and convicted on charges that vary from the crimes set out in the charge sheet. After the arraignment in court the written charges are read to the defendants to determine if the determine fully understands them (McCormick, Strong & Broun, 1999). Arraignment in court gives the defendants the right to be represented by a counsel. However, this right is not absolute as the defendants have a right to defend themselves in the course of the criminal proceedings in a process called appearing pro se. Courts also apply the exclusionary rule whereby any evidence obtained in a manner that offended the constitution is excluded from the trials. Subsequently, the right to have an impartial jury gives the defendant the right to a jury pool whereby the impartiality of the jury is determined via a voir dire. In juvenile proceedings courts may suspend the right to have a public trial if is of the view that it is the best interests of a child (McCormick, Strong & Broun, 1999). References Amar, A. R., & Lettow, R. B. (1995). Fifth Amendment First Principles: The Self-Incrimination Clause. Michigan Law Review, 857-928. Amar, A. R. (1994). Fourth Amendment first principles. Harvard Law Review, 757-819. Levy, L. W. (1974). Against the Law: The Nixon Court & Criminal Justice. Harper & Row. McCormick, C. T., Strong, J. W., & Broun, K. S. (1999). McCormick on evidence (Vol. 1). West Group Publishing
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Constitutional Safeguards of the 4th, 5th and 6th Amendments to the US Constitution. (2017, Jun 26).
Retrieved November 5, 2025 , from
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The Doctrine of the Immunity of the Crown in the UK and India
INTERPRETATION OF STATUTES PROJECT ABSTRACT Statutes Affecting the Crown/State The general English rule is that the “king is above the law” and all statutes are meant for the subjects only and the crown is not bound by them. The rule of Common Law ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ meaning the statutes neither control the crown nor the rights or properties of the crown, unless expressly or by necessity or by implication is named so in the statute. The only safe rule to construct necessary implication is to read the statute as a whole and to see whether it is manifest from the very terms of the statute, that it was the intention of the Legislature that the Crown should be bound.
This presumption extends not only to the crown but also to the Crown’s servants. The basis of this rule is to present an efficient and effective functioning of the ruler and his government for the welfare of the people. Historically Early authorities made attempts to lay down certain categories as to when the Crown was bound though not specifically named. These were: (i) Statutes for maintenance of religion, learning and the poor (ii) Statutes for suppression of wrongs (iii) Statutes that tend to perform the will of a founder or donor etc. This mode of construction had various flaws in it. It has been shown through many judicial decisions that without the Crown or the State being bound by a statute, the purpose of the statute would be wholly frustrated or would be meaningless. The rule in India ‘A statute applies to State as much as it does to a citizen unless it expressly or by necessary implication exempts the State from its operation.’ This rule is consistent with the rule of law based on the doctrine of equality enshrined in the Constitution.
Various exceptions have been provided through legislative practice in India and it has been established that the various legislatures provided specific exemptions in favour of the Crown whenever they intended to do so and did not rely upon any presumption. In certain circumstances the Common law rule was also applied, whereby the state was not bound as such but was made so by necessary implication. The application of the same rule wasn’t uniform. Research Question: This project attempts to analyze the laws and give examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. Introduction The common law maxim ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ means that a statute does not bind the Crown unless the Crown has, by express terms or by necessary implication, been named therein.
The rule in India has been held to be quite different, wherein general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. There is a consensus of judicial opinion that the common law rule is merely a rule of construction. It has been applied in the colonies and in the Commonwealth as the fact that unless the intention to be bound is apparent, the State or the Executive Government of the State is not bound by statute. It has also been applied in the United States as a rule of construction and the reason given by the Americans for application of the rule is that it is a policy to preserve an efficient and operational functioning of the Government for the public.
[1] The present paper attempts to analyze the existing laws and provide examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. The Common Law Rule It is the well-settled rule in England that a statute does not bind the Crown unless the Crown has been named in the statute expressly or by necessary implication. It has thus been described as the doctrine of Crown Immunity. Since the Queen in the Parliament with the purpose of regulating her subjects has made the Act, it obviously follows that unless a contrary intention is apparent, the Act will not bind the Crown itself. However, again, unless a contrary intention is made apparent, the Crown may take advantage of such an Act.
[2] In Willian v. Berkley,
[3] Lord Plowden explained that when the king gives his assent to a statute, he does not intend to prejudice himself or to bar his own liberties and privileges, but rather, he assents to that fact that the Act be a law for his subjects.
[4] This was a very old decision and hence a more modern explanation of the concept can be found in Lord Du Parcq’s opinion in the case of Bombay Province v. Bombay Municipal Corporation,
[5] wherein he stated that it is the doctrine of common law that the Crown is not bound by any statute unless the Crown has been expressly named and that this rule is subject to one exception that if it is manifest from the terms of the statute that the legislature had intended that the Crown be bound, then the result is the same as that of the Crown being expressly named i.e. the Crown shall in such circumstances be bound by the statute. This is what is meant by ‘necessary implication’. So, it can be inferred from the assent of the Crown that it agreed to be bound by the provisions of the act.
[6] In the early days, attempts were made to provide different situations where a statute would bind the Crown even though it was not expressly mentioned. In Magdalen College case,
[7] Lord Coke attempted to lay down three types, or categories, of statutes where the State was bound even though it was not named.
These included: (i) Statutes for maintenance of religion, learning and the poor, (ii) Statutes for suppression of wrong and (iii) Statutes that tend to perform the will of a founder or donor.
[8] In Bacon’s Abridgment it was stated that if an act of Parliament were made for the ‘public good’ then the King would be bound by it even if he were not named.
[9] However, there is an apparent problem with such a construction. In modern times, since all States are aiming to become ‘Welfare States’, all statutes passed by the legislature can only be said to be for the public good and if that is the case, then all statutes would bind the State and hence this would completely do away with the concept of Crown Immunity. This cannot be the case and hence a number of cases have held that the statutes, although for public good, still do not bind the State. Thus, it is the provisions of the statute in question or the Code of which the statute forms a part that will determine whether the Crown will be bound by the statute in which it has not been mentioned or not. This is the present law in England.[10] In Madras Electric Supply Corporation v. Boarland,[11] it was held that if the Crown has not been expressly named, then a term which is capable of including the Crown will be read as excluding it, unless a contrary intention manifests itself by necessary implication.[12] Thus in A.G. v. Hancock,[13] the word ‘person’ was held not to include the State even though it was capable of including it. Thus we see that the only ‘safe rule’ to determine whether the Crown can be bound by ‘necessary implication’ is by reading the statute as a whole and to check whether it is manifest from the terms of the statute that the legislature intended the Crown to be bound.[14] In Bombay Province v. Bombay Municipal Corporation,[15] the question arose as to whether the provisions of the Bombay Municipal Act 1888 that authorized the Commissioner to carry water mains and municipal drains ‘through or under any land whatsoever in the city’ would be applicable to Government land within the city? The Privy Council in deliberating how far the purpose of the statute was relevant in determining whether or not the Crown was bound by necessary implication stated as follows: “the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the Court is asked to draw this inference, it must always be remembered that, if it be the intention of the Legislature that the Crown shall be bound, nothing is easier than to say so in plain words.”[16] Thus, the presumption of immunity can only be rebutted if on reading the statute as a whole, the purpose of the statute would be wholly frustrated if the statute did not bind the Crown. The House of Lords in Lord Advocate v. Dumbarton District Council[17] fully accepted the decision of the Privy Council in the Bombay Municipal Corporation case. In this case, the House of Lords held that the Crown was not bound by the Roads (Scotland) Act 1947 and the Town and Country Planning (Scotland) Act 1972 because the Crown was not expressly or by necessary implication included in these acts and hence the claims of the local planning authority and local highway authority that work undertaken and encroachment of the Highway were in contravention the said Acts were dismissed.[18] Despite the rule, the immunity of the Crown has been affected by some other factors. For example, s.1 of the Crown Proceedings Act 1947 permits the Crown to be prosecuted directly in those circumstances where preceding the Act, a claim might have been implemented by petition of right.
Also, s.2 of the same Act authorizes actions to be brought against the Crown with regard to torts committed by its servants or agents for any breach of its duties that gives rise to tortious liability.[19] The rule though still applicable in England, has received great criticism. In his book on Crown Proceedings, Glanville L. Williams has stated that the rule had emerged in the Middle Ages, when maybe there was some justification for the rule, but it has survived merely due to vis inertiae. It is very difficult to apply the rule as well. In modern times, with the increase in State’s activities as well as the increase in the number of employees of the State, as well as the novel idea in the Crown Proceedings Act that the State should be widely held accountable to the law, it should be the presumption that the State is bound by statutes rather than it is not.[20] Position of Law in India The Supreme Court of India in the case of State of West Bengal v. Corporation of Calcutta,[21] held that the common law rule of construction with regard to statutes affecting the State was not accepted in India even prior to the Constitution. With regard to the Privy Council decision in the Bombay Municipal Corporation case, the court stated that the rule was applied as a concession made by the Council and that it was established and clear from the legislative practices in India that the Indian legislature would provide express exemptions in cases where the State was not to be bound by a statute and that in all other cases the State was bound. Therefore, the Indian legislatures did not rely on any presumption as the common law did, but rather, they relied only on express exemption. The Court further held that the Common Law rule had no application or significance to a democratic republic like India as it was based on the privilege of the Crown. It was inconsistent with the doctrine of equality as laid down in the Indian Constitution.[22] Thus, as a result of this decision, in India, general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. Whether the State has in fact been exempted by necessary implication from being bound by an Act depends on the fair construction of the Act in question. In this case, Bachawat J. observed that: “Particular care should be taken in scrutinising the provisions of a taxing or a penal Act. If the application of the Act leads to some absurdity, that may be a ground for holding that the State is excluded from its operation by necessary implication. If the only penalty for an offence is imprisonment, the State cannot be convicted of the offence, for the State cannot be locked up in prison. If the penalty for the offence is fine and the fine goes to the consolidated fund of the State, it may be presumed that the penal provision does not bind the State, for the legislature could not have intended that the State will be the payer as well as the receiver of the fine.
Presumably, the Union is not bound by the Central Income-tax Act because if it paid income-tax, it will be both the payer and the receiver. Likewise, a State is prima facie not bound by a State Agricultural Income-tax Act where the tax is receivable by it. Moreover cases may conceivably arise where express provisions in a statute binding the State in respect of certain specific matters may give rise to the necessary implication that the State is not bound in respect of other matters.”[23] In this case, the State of West Bengal was carrying out trade without a license and without paying the fee as required under s.218 of the Calcutta Municipal Act 1952. According to s.541 of the Act, these offences were punishable with a fine that was to be collected by the Corporation. The court held that the State was bound by this Act because the fine recovered would not go to the Consolidated Fund of the State but to the Corporation’s fund and hence there was no implication in the Act that the State should not be held liable for the offence.[24] In Union of India v. Jubbi,[25] the question arose as to whether s.11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 applied to cases where the Government was the landlord. The section provided the tenants with the right to procure the interests of landlord on payment of compensation. The court held that it would apply even when the Government was the landlord because there was nothing expressly or by necessary implication mentioned in s.11 that exempted the State.
Further, since the basis of the Constitution is founded on equality and absence of arbitrary discrimination, the presumption would be that the law that seeks to provide the tenant with security of tenure should bind all landlords no matter whether the landlord is the Government or not.[26] There have been a number of instances when the judiciary has stated that the State is in fact bound by certain legislations even though it is not mentioned in the Act itself. Some instances are as follows: In Samatha v. State of Andhra Pradesh,[27] the word ‘person’ in the Andhra Pradesh Scheduled Area Land Transfer Regulations 1959, that prohibits a ‘person’ from transferring land to non tribals, was held to include State and hence prohibited transfer of government land to non tribals. This is in clear distinction to the decision of the House of Lords in the case of A.G. v. Hancock as discussed earlier. In State of Bihar v. Sonabati Kumari,[28] the supreme court held that if a temporary injunction is disobeyed by the State, then property of the State is liable to be attached as under Order 39 Rule 2(3) of the Code of Civil Procedure.
Thus, it held that the State was bound by the CPC just as any other citizen. The court in the case of Municipal Corporation of Amritsar v. Senior Superintendent of Post Offices,[29] held that unless the Parliament provides otherwise, property of the Union is exempt from taxation imposed by a state law as per A.258 of the Constitution. The court in Lucknow Development Authority v. M.K. Gupta,[30] stated that the Consumer Protection Act applies to the State just as it applies to any other citizen because the Act does not expressly or impliedly indicate that the State should be excluded from the purview of the Act. In cases of Welfare Legislations, even where the act does not apply to the Government, an agent or instrumentality of the Government, which is not even a department of the Government may be bound by the Act. In Hindustan Steel Works Construction Ltd. v. State of Kerala,[31] a company that was fully owned by the Central Government was held to be bound by the Kerala Construction Workers Welfare Funds Act 1932 although the act was not applicable to the Central Government. Conclusion Through the above the discussion, the difference between the Common Law and the law in India when it comes to interpretation of statutes affecting the crown or the state, can be seen. While the common law works on a presumption of immunity of the crown, the Indian law is applicable to the State just as it would be applicable to any other citizen. The evolution of the law and principles over the years has been developmental and progressive and the rules have proved to be efficient external aids to interpretation.
[1] GP Singh, Principles of Statutory Interpretation (12th edn, Lexis Nexis Butterworths Wadhwa Nagpur 2010) 726-727.
[2] Francis Bennion, Bennion on Statutory Interpretation (5th edn, Lexis Nexis 2008) 206.
[3] [1561] 75 ER 339 (KB).
[4] Willian v. Berkley [1561] 75 ER 339 (KB) 240.
15] AIR 1947 PC 34.
[6] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 35.
[7] Magdalen College, Cambridge Case (1616) 11 Co Rep 66b.
[8] ibid. 70b, 72a, 73b.
[9] Matthew Bacon, A New Abridgment of the Law (7th edn, A Strahan 1832) 462. [10] Halsbury’s Laws of England vol 36 (3rd edn, Lexis Nexis 1952) 431. [11] (1955) 1 All ER 753. [12] Madras Electric Supply Corporation v. Boarland (1955) 1 All ER 753, 759. [13] (1940) 1 All ER 32. [14] Singh (n 1) 728. [15] AIR 1947 PC 34. [16] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 36. [17] (1990) 1 All ER 1. [18] Lord Advocate v. Dumbarton District Council (1990) 1 All ER 1, 9, 10, 15. [19] Singh (n 1) 730. [20] Ibid. 731-732. [21] AIR 1967 SC 997. [22] State of West Bengal v. Corporation of Calcutta AIR 1967 SC 997, 1008. [23] Ibid.1020. [24] ibid. [25] AIR 1968 SC 360. [26] Union of India v. Jubbi AIR 1968 SC 360. [27] AIR 1997 SC 3297. [28] AIR1961 SC 221. [29] (2004) 3 SCC 92. [30] AIR 1994 SC 787. [31] AIR 1997 SC 2275.
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The Concept of Contract in the Code Napoleon
Introduction and historical background leading to the formation of the Code Napoleon
One of the biggest dilemmas that jurist over the course of history have faced is over the question of codification of law. One school of thought believes that the best and most just application of law can be achieved only when the principles that will finally be used for dispute resolution are enunciated beforehand. These principles can then be applied to each case. A conflicting view held by proponents of the other school of thought holds the view that each problem that reaches the courts of law is sui generis[1] i.e. distinct in its own sense; therefore, it would not be apt to apply a premeditated solution to the case. The principle so laid down beforehand might not be able to anticipate the kind of problems it will be called upon to address in the normal course of working of the courts. The judges should, thus, be allowed to lay down principles in every case. This ideological difference formed a part of the intense tussle between 16th century English jurists Francis Bacon and Edward Coke. While Bacon espoused the cause of a uniform code, Coke was in favour of judges laying down the law. This aspect of the source of law, ultimately forms the biggest point of difference between the English common law and Continental Civil Law. The Code Napoleon or the Code Civil des FranA§ois was declared as the supreme law to be used for governance in the territories of France[2] . The name Code Napoleon was ascribed to it in the year 1807. After Napoleon had been forced into exile, it reverted back to its original name but again in 1852 its name was changed to Code Napoleon. The code is nowadays commonly known as the French Civil code. While studying the historical background of the Napoleonic code, it would serve us well to keep in mind the fact that the Code Napoleon was not the first extensive codification of laws under one umbrella code. The very first such code was the Roman code “corpus juris” of emperor Justinian. This code formed the basis for modern jurisprudence and largely affected the subsequent codes in various countries. The notable among such codes were the “danske lov” of Denmark established by Christian V, Sweden’s (Sverige rikes lag) of 1736 and the “Allgemeines Landrecht fA¼r die PreuAŸischen Staaten”,which was compiled on the orders of Frederick the Great in the year 1794.[3] The French civil code is more important than others because of the fact that it forms the basis of the legal systems in almost the whole world except for the common law countries like the United Kingdom, USA and India.[4] The legal system of post revolution France was, to put it mildly, in shambles. The country was plagued by multiplicity of laws operating in different parts of the country. While one section was governed by the older Roman law principles (droit A©crit), the other part was under the law of customs known as coutumes (droit coutumier). These coutumes were generally different for different territories. It was in this regard that the great philosopher Voltaire quipped that a traveller in France changed his laws as often as he changed his horse.[5] Many attempts were made at drafting a uniform civil code in France but ultimately Napoleon’s attempt was most successful culminating in the adoption of the Code Napoleon in 1804. The legacy of this code remains unscarred to this date as it forms the basis of similar codifications in large parts of the modern world and many other countries where it has been adopted almost intoto.[6]Structure of the Code
For the purpose of clarity, the French Civil code is divided into various Books. These books have further been divided into “titles” which are basically headings under which subjects like marriage, contracts and emancipation have been discussed. The code comprises of three such books. The number of articles in the code stands at 2,281. The book one of this code is titled “of persons” and contains principles for personal laws in fields like marriage, family and divorce. The book two of the code has been christened “Of property, and the Different modifications of property” and the third book which is also the most extensive is titled “Of the Different modes of Acquiring Property” and contains relevant sections regarding contracts and shall form the basis for our study into the concept of contracts laid down in the Code Napoleon.[7] The articles relevant to contracts can be found in the book three under the title IX which reads “of contracts or conventional obligations in general” and runs from article 1101 through article 1369.[8] Further conceptions and applications of the cardinal rules of contracts can be found in titles IV, V, VIII and IX. The contracts of hiring and the contract of partnership have found special mention in titles VIII and IX respectively.Basic concepts of Contracts as laid down in the Code:
The basic elements regarding contractual agreements are stated in the articles starting from article 1108 under the heading Des conditions essentielles pour la validitA© des conventions (“Of the conditions that are essential for the validity of agreements”). The article 1108 has laid down four essential ingredients for a contract[9]. These elements are:- Consent of the Binding parties
- Capacity to enter into a contract
- A certain object forming the matter of the contract; and
- Lawful cause.
- By payment
- By novation
- Voluntary remission
- Compensation
- By intermixture
- By loss of the thing
- Nullity of recission
- By the effect of conditional dissolution; and
- By prescription.
Similarities and Differences between the conception of contract in common law and in French civil law
The French civil law has been adopted almost throughout the whole continental Europe, Latin America and in many other third world countries. Therefore, the concepts of contract laid down in the Code napoleon also find resonance in many parts of the world. Since, this code has such enormous influence on modern law, it becomes, but, elementary to try and find out the points of convergence and divergence between civil law and common law while trying to understand the Code Napoleon. Before trying to get into the complexities of law, it is essential to find the difference between these two concepts by looking at their most basic tenets. For this purpose, Professor Nichols has given a lucid definition to both of them. According to him, in French law, contract is an agreement between two parties, whereas in the common law, it is a promise in return for a legal consideration.[15] A very visible difference that comes to light almost instantly is the emphasis on the intention and autonomy of parties to conclude a contract in the French law and the opposite of this in common law. In common law, if the conduct of a person points to an intention to enter into a contract although no such intention in reality exists, it will be held that such an intention did exist. Mistake will not form a ground for escaping from contractual liability, provided that such mistake was not a direct consequence of the other party’s actions.[16] Also it has been noted that the French system is averse to hold that a proposal to the public at large constitutes an offer, unlike the English courts.[17] In place of the English law concept of consideration, in the French law there exists the concept of requirement of cause and object to conclude a contract. The doctrine of cause has been extended to form the various categories of contracts like the contract of bienfeisance. The result is that this doctrine in instrumental in declaring purely gratuitous obligations valid unlike consideration in English common law. [18] aclear advantage of civil law over common law is in its recognition of an option contract. Since no consideration is paid in option contract, it will not be binding in a common law setting but since agreement is present, the French courts will recognise it. In common law, the parties might try to avoid such a situation by paying a token amount. The common law courts recognise this shortcoming of common law and have tried to address it in recent times.[19] But, the French law lacks the generality that can be made applicable to a variety of cases. In common law, when a case comes for adjudication to a court, it provides an opportunity for testing old principles in light of their relevance and developing new guidelines. The common law therefore, can boast of a law of contract that is more practical and gives greater importance to reform.[20]Conclusions
After the formation of the European Union and growing trade and commerce and cooperation between all the states in the world due to globalisation, there is a growing demand for the harmonization of different legal systems of the world. The French civil law and the English Common Law are the most important of them and a reading into the conceptions of contract held by them shows that while both of them try and solve the same problems from different perspectives with sometimes contradictory principles, they do hold similar views regarding dispute resolution. This can be amply seen from how the common law has tried to regulate option contract, a concept that has been enshrined and recognised in Napoleon’s code. Also, the French law is trying to keep pace with the changing scenarios and has been modified some times to face the challenges of its era. For instance, the original code had given parties liberty to fix any rate of interest, but later in 1807, a maximum rate of interest of 5% in civil and 6% in commercial contracts was laid down.[21] These restrictions were again lifted in 1886 when commercial contracts were excluded from the purview of maximum rate of interest. Again in 1918, the rate of interest limitation on non commercial loans was also lifted.[1] JUDGE BEVERLY D EVANS, The Code Napoleon, GEORGIA HISTORICAL QUATERLY Vol. 6, No. 1 (MARCH, 1922), pp. 28-34. [2] Ibid. [3] TOM HOLMBERG, The Civil Code: An Overview, available at (https://www.napoleon-series.org/research/government/code/c_code2.html) lastaccesed on 17th march,2014. [4] Supra, see note 1. [5] Supra, see note 3. [6] The importance and the significance of this legislation can be gauged solely from the fact that when Napoleon was asked about his achievements while he was in exile on the island of St. Helena, this is what he said "My glory is not to have won forty battles, for Waterloo's defeat will blot out the memory of as many victories. But nothing can blot out my Civil Code. That will live eternally." [7] THE FRENCH CIVIL CODE: LITERALLY TRANSLATED FROM THE ORIGINAL AND OFFICIAL EDITION, PUBLISHED AT PARIS IN 1804 BY A BARRISTER OF THE INNER TEMPLE, William Benning, Law Bookseller, 1827. (available at https://files.libertyfund.org/files/2353/CivilCode_1566_Bk.pdf) last accessed on 19th March, 2014. [8] ibid [9] Supra, see note 7, Article 1108, page 304. [10] Prof. Catherine Valcke, CONVERGENCE AND DIVERGENCE BETWEEN THE ENGLISH, FRENCH, AND GERMAN CONCEPTIONS OF CONTRACT, European Review of Private Law, vol. 16, No. 1 (2008), pp. 29-62. [11] Ibid. [12] Article- 1124, Code Napoleon. [13] Article-1130, Code Napoleon. [14] Article-1159, Code Napoleon (1804) [15] NICHOLAS, The French Law of Contract 138, Butterwoths, 1932 [16] CATHERINE VALCKE, Convergence and Divergence Between English, French and German Conceptions Of Contract, European Review of Private Law, vol. 16, No. 1 (2008), pp. 29-62. [17] ANNE DE MOOR, Contract and Agreement in English and French Law, 6 Oxford J. Legal Stud. 275 1986 [18] Ibid [19] ARTHUR VON MEHREN, The French Civil Code and Contract: A Comparative Analysis of Formation and Form, LOUISIANA LAW REVIEW, 15 (1955) available at (https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2269&context=lalrev) last accesed on 18th march, 2014. [20] Ibid. [21] MAURICE AMOS, The Code NapolA©on and the Modern World, Journal of Comparative Legislation and International Law, Third Series, Vol. 10, No. 4(1928), pp. 222-236
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The Doctrine of ‘personality Rights’ in the UK
The United Kingdom has never acknowledged a specific doctrine of ‘personality rights’; the law provides neither coherent nor consistent protection, as the courts are ‘sceptical about creating monopoly rights in nebulous concepts such as names, likeness or popularity’.[1] Therefore celebrities and other high-profile individuals rely on a combination of passing off, trademark, copyright and privacy laws for protection of the commercial value of their personality. None of these were invented to protect personality rights; however they are gradually developing to adjust to the commercial reality of the value of celebrity merchandising and endorsements. Misleading the public by giving a false impression of endorsement of a product by a celebrity has been to commit the tort of passing off for over a decade.[2] The tort of passing off was traditionally defined as ‘nobody has the right to represent his goods as the goods of someone else’.[3] The ‘classical trinity’ is necessary to succeed in passing off: ‘the goodwill or reputation must be attached to the products or services of the plaintiff, the misrepresentation must lead to the confusion as to the source of the goods and services, and this confusion must cause damage to the claimant’.
In the case of Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor,[5] high street fashion retailer Topshop licensed an image of popstar Rihanna’s face from a photographer and printed it on a t-shirt without either her permission being sought nor obtained. Rihanna then sued for passing off. Mr Justice Birss applied the doctrine to the dispute. Although on very particular facts, Birss J found in favour of Rihanna and established a general principle that arguably goes against any celebrities who might have hoped to see the creation of a doctrine of personality rights. This decision develops the tort of passing off to small degree whilst emphasising that, in each case, the facts are decisive.[6] The debate about the recognition of personality rights in the UK is gathering impetus in the wake of Fenty with academics like Walsh questioning if ‘personality rights are finally on the agenda’.[7] In the 1970s the UK courts were regularly unwilling to find false impressions relating to merchandising resulted in misrepresentation because of the need to show that they were engaged in a ‘common field of activity’.
This introduced a somewhat blunt test for confusion and there often would be no proximity between, for example, a radio broadcaster and a cereal manufacturer.[8] Until the test was discarded, at least as an absolute condition,[9] it limited attempts to expand the categories of misrepresentation to cover licensing connections.[10] Where the absence of a common field of activity was not conclusive the court for example held the use of the name of the pop group Abba on merchandise did not amount to passing off on the basis that there was no real possibility that the public would be confused into thinking that Abba had approved the goods merely because their name or photograph appeared on them.[11] Likewise the use of a photograph of the Spice Girls on the cover of a sticker collection was held not to constitute passing off.[12] An important exception came when it was held passing off had been established where cartoon characters, the Teenage Mutant Ninja Turtles, were on clothing without authorisation, since the public did expect the goods to be licensed.
This case was distinguished from the Abba scenario on the basis that it was brought in the context of the unauthorised reproduction of images of cartoons in which copyright existed, rather than the image or name of a celebrity. Yet the decision is generally viewed as opening up character merchandising law in the UK. In the seminal case of Irvine Laddie J held passing off covered cases of false endorsement, like where Talksport had altered an image of racing driver Eddie Irvine to have him hold a branded Talksport radio for advertising purposes without his permission. Laddie J considered the increasingly popular marketing practice of personality licensing, including the licensing of a personality’s name or likeness outside a celebrity’s area of expertise as a common and lucrative practice for them, to reject the ‘common Aeld of activity’ condition. Laddie J identified the inherent flexibility of passing off by saying ‘the sort of cases which come within the scope of a passing off action has not remained stationary over the years…passing off is closely connected to and dependent upon what is happening in the market place’.
Although Irvine was celebrated as a turning point in the protection of personality rights, the important limitation in the judgment was that passing off was limited to false endorsement and excluded merchandising cases. The classic celebrity-merchandising situation seems similar: the celebrity has a reputation and the public knows that it is common practice for celebrities to market their popularity by granting merchandise licenses.[15] Laddie J differentiated between cases of endorsement and merchandising, however in Fenty Birss J approved Laddie J’s reasoning but made it clear there is no difference in merchandising cases and that the legal principles apply equally well in passing off if the public had been deceived into thinking the celebrity had authorised the product. Rihanna easily established sufficient goodwill in the fashion industry, as a style icon because of her ‘cool, edgy image’.[16] This was demonstrated in her endorsement contracts with Nike and Gillette, her fashion design and promotion work with rival retailer River Island, and she had worked with H&M, Gucci and Armani to collaborate on and design clothing.
Birss J therefore stated Rihanna’s ‘identity and endorsement in the world of high street fashion was perceived…to have tangible value by an organisation well placed to know’.[17] Misrepresentation was the key issue. Topshop argued the clothing was simply a t-shirt bearing an image of Rihanna and the public had no expectation that it was authorised by her, whereas Rihanna contended that the particular facts of the case meant customers were misled into believing she had endorsed the t-shirt herself. The court considered the point in depth, addressing the various circumstances before considering the issue as a whole. Certain evidence considered was found to be neutral to finding a misrepresentation. The fact there was other unauthorised clothing bearing Rihanna’s image on sale did not imply that the public would necessarily believe that such clothing was authorised. Topshop had sold both clothing bearing authorised images and clothing, which was approved or endorsed by celebrities.
Overall, its customers were neutral: having no positive expectation either way when considering clothing bearing a celebrity’s image. Also the t-shirt was fashionable and on sale in a high street retailer. Certain factors indicated finding in Topshop’s favour. Some of Rihanna’s official merchandise included an ‘R slash’ trademark logo or her name, the t-shirt lacked both, and apart from a few days online the word ‘Rihanna’ was not used at all. There was also no genuine evidence of actual confusion. However on balance, significant factors supported RIhanna. Topshop had made considerable effort to emphasise connections in the public consciousness between the store and celebrities notably Kate Moss, and now more importantly Rihanna. This made it more likely purchasers would conclude that the t-shirt was authorised and being a fashion retailer, consumers would reasonably expect Topshop to publicise and sell products authorised by celebrities. Topshop’s prior association with Rihanna was important as Topshop ran a competition in 2010 to win a personal shopping appointment with Rihanna. Rihanna also visited Topshop in 2012 which they chose to publicise by tweeting to their 350,000 Twitter followers, just before the t-shirt went on sale – a significant commercial communication in the eyes of Birss J, to a demographic who valued social media highly.
Topshop had therefore repeatedly associated itself and it products with Rihanna in a high-profile manner and this demonstrated Topshop were looking to take advantage of Rihanna’s position as a style icon. The image on the t-shirt was taken during the video shoot of RIhanna’s single ‘We Found Love’ from her 2011 ‘Talk that Talk’ album. Importantly, it showed Rihanna with the same hairstyle and headscarf as the album cover. This meant that the image was not just recognisably Rihanna but looked like a promotional shot for the music release. The court found that it was entirely likely that, to her fans, the image might be regarded as part of the marketing campaign. This was a critical point in the decision. Although Birss J believed a ‘good number’ of purchasers would buy the t-shirt without considering the question of authorisation, he concluded that, in the circumstances, a substantial proportion of those judging the t-shirt (specifically Rihanna fans) would be encouraged to think that it was clothing authorised by the popstar.
They would have recognised that particular image of Rihanna not simply as an image of her but as a particular image of her connected with the particular context of the album. Many of these purchasers would have bought the product because they thought that Rihanna had authorised it; others would have bought it because of the value of the perceived authorisation itself. In each case, the idea that it was authorised was part of what motivated them to buy the product and in each case they would have been deceived. The test for damage was also easily satisfied. If a substantial number of purchaser’s were deceived into buying the t-shirt because of a false belief that it was authorised by Rihanna herself, then that would have damaged Rihanna’s goodwill, both by way of sales lost to her merchandising business and a loss of control over her reputation in the fashion sphere.[18] Considering the particular facts, it is not surprising Birss J found in Rihanna’s favour. The classical trinity of passing off were fulfilled, however this decision is unlikely to open the floodgates for cases to be brought every time a celebrity’s image is used without a merchandising license, as it was made clear ‘the mere sale by a trader of a t-shirt bearing an image of a famous person is not without more, an act of passing off’.[19]
Birss J was eager to emphasise that ‘there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control reproduction of their image.’[20] The judgment is useful as a confirmation of the general principles of passing off applied to unauthorised use of celebrity images.[21] If the UK is approaching the creation of a doctrine of personality rights in some form, it is necessary to analyse the justifications and gauge whether they are robust enough to validate the subsequent restraints that would be placed upon society. The justifications suggested in support of personality rights fall largely into three groups: moral, economic and consumer protection arguments. The labour-based moral justification is founded on John Locke’s theory of property.[22] Essentially, itprovidesthat an individualhasamoralrightintheobjectofvaluetransformedbecauseoftheir efforts. Nimmer supported this point by contending that the person who has ‘long and laboriously nurtured the fruit of publicity values’ and has spent ‘time, effort, skill, and even money’ in their creation, is presumably allowed to enjoy it.[23] Professor McCarthy feels personality rights are ‘a “common-sense”, self-evident right needing little intellectual rationalisation to justify its existence’.
However, Madow deconstructs these arguments by contending that fame is something ‘conferred by others’ and is not necessarily down to the efforts of the individual.[25] Moreover according to Madow the labour argument ignoresthe fundamentalrole themediaplayinthecreationofcelebrities.He uses the example of Einstein andobservesthatthemedia selectedhim becausehedidinterviews, wasquotable and hehadtheright‘look’.[26]TheimageofEinsteinthat is familiar today,what itmeanstothe pubic - themadbutpleasant scientistwith bushywhitehairandmoustache - wasa personality createdby themedia. Therefore only when the media and public take notice and attach importance to a personal image can it fully enter into the market place.[27] Thus contrary to the statement by McCarthy, it would appear a celebrity cannot justify that they solely created their public image and consequently cannot stake an indisputable moral claim to the exclusive ownership or control of the economic value that comes with it.
Personality rights can also be justified on economic arguments. Economic theory proposes persons should be economically incentivised into ‘undertaking socially, enriching activities’ such as creating a persona that benefits society culturally,[28] and this creativity can only be encouraged if the person is given exclusive right to control their creations, because this ‘provides incentive for performers to make economic investments required to produce performances appealing to the public’.[29] However Carty doubts whether personality rights would produce increases in ‘economic activity’ or ‘innovation’.[30] Following Madow’s ideas, the UK is currently without a personality right, yet celebrities still gain significant income from their publicity values and failure to introduce such a right in the future will not stop individuals profiting from the income already gained through endorsements and merchandising officially authorised by them.[31] According to Madow such protection also has ‘distributional consequences’,[32] whereby personality rights elevate the price of merchandise and advertising in general, placing more wealth in the hands of a select few, who already derive significant income, and away from the mass of consumers making up society.
Another justification for personality rights is the consumer protection argument focusing on the idea that without protection, the public will be misled about the authorisation of a celebrity’s association with a product or service. At first sight the consumer protection argument appears advisable, joining protection of the celebrity’s success with protection of the consumer, and it mirrors the traditional rationale for trademark and passing off.[34] However personality rights would allow celebrities to stop commercial uses of their personas that are not fraudulent or deceptive, and Professor Shiffrin states personality rights give celebrites power ‘to control the dissemination of truth for his or her own profit’.[35] On another level, Madow argues the degree to which personality rights would stop the consumer being misled is generally superfluous,[36] because in situations where there is a realistic chance that, consumers will be deceived or confused about a celebrity’s association or endorsement, legal mechanisms better adapted for that reason already exist, notably passing off.
In conclusion, the extent to which Fenty constitutes a creation of a doctrine of ‘personality rights’ is limited. In the words of Roberts ‘this judgment does not change the law; and it does not create an “image right”. It simply applies the existing doctrine of passing off to the evolving commercial reality of the value of celebrity endorsements’.[37] The decision is important as it improves a flaw in the Irvine verdict,[38] in the same way that Irvine marked the first time that passing off was applied to false endorsement, Fenty is the first time it has been applied to false merchandising featuring a real person, with merchandising claims having only previously succeeded in relation to fictional characters,[39] and indicates that UK courts are slowly recognising the need to protect the commercial value of celebrity merchandising. It is clear from the case that the result was carefully balanced on particular facts and that if for example Rihanna had not been a fashion icon or the image was different she would have less chance of being successful.
Fenty highlights the issue of misrepresentation is however always one of fact, and the false belief of the purchaser is key: to constitute passing off, a false belief incited in the mind of the prospective purchaser must play a role in their choice to buy. Although there are persuasive advocates of the creation of a doctrine of personality rights,[40] and there is also no definite rationale for an absolute rejection,[41] it would seem the decision in Fenty should be welcomed because there are substantial drawbacks in the moral, economic and consumer protection justifications put forward. The decision develops passing off to a small degree to keep up with modern business practice without creating personality rights, which are not necessary as celebrities are already sufficiently protected. The tort of passing off has again demonstrated its inherent flexibility and that it is ‘closely connected to and dependent upon what is happening in the market place’. To sum up, ‘without an element of consumer deception, English law in this area remains characteristically cautious’,[42] and this should be welcomed.
References
- J. Klink, ’50 years of Publicity Rights in the United States and the Never Ending Hassle with Intellectual Property and Personality Rights in Europe’, (2003), 4 IPQ 363, p.366. [2] Irvine v Talksport Ltd [2003] EWCA Civ 423 [3] Reddaway v Banham (1896) 13 RPC 218 at 244 per Lord Halsbury [4] Reckitt & Colman v Borden [1990] 1 WLR 491 at 499 per Lord Oliver [5] [2010] EWHC 2310 (Ch) [6] D. Meale, ‘Rihanna’s face on a T-shirt without a licence? No, this time it’s passing off’, (2013) 8(11) JIPLP 823, p.823. [7]
- C. Walsh, ‘Are personality rights finally on the UK agenda?’, (2013) 35(5) EIPR 253, p.253. [8] McCulloch v Lewis A May [1947] 2 All ER 845 [9] Lyngstad v Anabas Products [1977] FSR 62 at 67; [10] Wombles Ltd v Wombles Skips Ltd [1975] FSR 488 Ch D; [11] Lyngstad v Anabas Products [1977] FSR 62 [12] Halliwell & Ors v Panini & Ors (6 June, 1997, unreported) [13] Mirage Studiosv Counterfeat Clothing [1991] FSR 145 [14] [2002] FSR 60 at para 13-14 [15] J. Klink, op.cit., p.375. [16] Fenty v Topshop [2013] EWHC 2310 (Ch) at [46] [17] Ibid at [42] [18] Ibid at [72] [19] Ibid at [75] [20] Ibid at [2] [21] H. Beverley-Smith and L. Barrow, ‘Talk that tort…of passing off: RIhanna, and the scope of actionable misrepresentation: Fenty v Arcadia Group Brands Ltd (t/a Topshop), (2014), 36(1) EIPR 57, p.61. [22]
- J. Locke, The Second Treatise of Government, (New York: Liberal Arts Press, 1952) [23] M.B. Nimmer, ‘The Right of Publicity’, (1954) 19 Law and Contemporary Problems 203, p.216. [24] J.T. McCarthy, The Rights of Publicity and Privacy, (New York: C.Boardman, 1987), s.1.1[B] [2] at 1-5; s.1.11[C] at 1-46. [25] M. Madow, ‘Private Ownership of Public Image: Popular Culture and Publicity Rights’, (1993), 81 CLR 125, p.182. [26] Ibid, p.190 [27] J. Fowles, Celebrity Performers and the American Public, (Washington D.C.: Smithsonian Institute Press, 1992), p.84. [28] J.T. McCarthy, ’Melville
- B. Nimmer and the Right of Publicity: A Tribute’ (1987) 34 UCLA LR1703, p.1710. [29] D.E. Shipley, ‘Publicity Never Dies: It just Fades Away, (1981) 66 Cornell LR 673, p.681. [30] H. Carty, ‘Advertising, Publicity Rights and English Law’, (2004) 3 IPQ 209, p.251. [31] M. Madow, op.cit., p.211 [32] Ibid, p.218. [33] Ibid [34] H. Carty, op.cit., p.252. [35] S. Shiffrin, ‘The First Amendment and Economic Regulations: Away from a General Theory of the First Amendment’, (1983) 78 NW ULR 1212, p.1258. [36] M. Madow, op.cit., p.233. [37]
- J. Roberts, ‘Face off: Rihanna wins “image rights” case’, (2013), 24(8) Ent LR 283, p.285. [38] A. De Landa Barajas, ‘Personality rights in the United States and the United Kingdom – is Vanna too much? Is Irvine not enough?’, (2009) 20(7) Ent LR 253, p.258. [39] J. Roberts, op.cit., p.285. [40] S. Bains, ‘Personality rights: should the UK grant celebrities a proprietary right in their personality? Part 2’, (2013) 18(6) Ent LR 205 [41] [42] H. Beverley-Smith, op.cit., p.61.
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The Cyanamid Test
Introduction Interim (a.k.a. interlocutory) prohibitory injunction is a court order that forbids the person it is addressed to do something. It is an equitable remedy and is awarded at the discretion of the court. The famous guidelines for granting the interim injunctions by the court were introduced by Lord Diplock in the case of American Cyanamid Co v Ethicon Ltd[1] (hereinafter the Cyanamid test). The above case concerned the claimant, a US company marketing synthetic surgical sutures, which was finally granted an injunction by the House of Lords to restrain the defendant, an English company, which invented a similar product, from infringing its patent rights. This work aims to analyse the argument that the Cyanamid test is too rigid prompting the courts to create a number of exceptions. The Cyanamid test Lord Diplock introduced the following elements of the Cyanamid test to be satisfied in order for the court to grant interim prohibitory injunction[2]:
- Serious questions to be tried
Firstly, the claimant is required to show to the court that its claim has substance, i.e. that it is “an issue for which there is some supporting material and the outcome of which is uncertain”[3] rather than a frivolous claim[4].
- Adequacy of damages
If the first element is satisfied, the court will then look into whether the damages awarded to the claimant or to the defendant, if the latter wins, are adequate to do justice (Garden Cottage Foods Ltd & Milk Marketing Board[5]). Where damage is hard to quantify or in the case of irreparable harm, the injunction is likely to be granted (Allen v Jambo Holdings Ltd[6]).
- Balance of convenience
If there are any doubts regarding the adequacy of damages, the balance of convenience will be looked at by the court “balancing” all other issues specific to the case. Subsequent treatment of the Cyanamid test The decision in the Cyanamid case caused some turbulence in the subsequent court decision making. However, before proceeding with analysis of the same, it is essential to note that the Cyanamid test comes into a conflict with earlier Beecham Group Ltd & Bristol Laboratories Pty Ltd[7], where the court emphasised that for the injunction to be granted, firstly, the claimant must establish “prima facie case”, i.e. that the claimant is actually entitled to the right he is claiming and, secondly, the proof of the probability of success was required, which is overall a much tougher test to satisfy than the Cyanamid test. Subsequently, the Cyanamid test was closely followed by the courts in a number of cases, such as Alfred Dunhill Ltd v Sunoptics[8], where Browne LJ stated that Lord Diplock’s decision was binding and that the Cyanamid test should be followed. The court in Thomas Marshall (Exports) Ltd v Guinle[9] followed the Cyanamid test as well, but nonetheless noted that there are some cases where the needs of the parties and justice dictate a more comprehensive hearing with Beecham style test applied. When analyzing the Lord Diplock’s rationale behind the Cyanamid test it appears that he tried to ensure the speedy review of the injunction applications and to prevent the occurrence of unnecessary “mini-trials” burdening the court system (Series 5 Software Ltd v Clarke[10]). Some commentators argue that he went too far in setting out very precise rules on assessing the strength of parties’ cases, the potential harm to the parties despite alternative legal resorts and availability of undertakings in relation to payments of damages, which was limiting the exercise of the court’s discretion to do justice[11]. In order to ensure the equitable treatment of all cases, courts tended either to side-step the Cyanamid test or create exceptions to it. It was distinguished in Bryanston Finance Ltd v de Vries (No 2)[12] by the Court of Appeal, which decided that the Cyanamid test was inapplicable to injunction application to prevent presentation of winding up petition. Keay in his article[13] provides a number of further examples of exceptions, such as cases where fraud is involved (Alfred Dunhill Ltd v Sunoptics[14]) and those relating to the right to publish an article or the transmission of a television programme where time is of the essence (Cambridge Nutrition Ltd v BBC[15]), mandatory injunctions applications (De Falco v Crawley BC[16]) and employment and industrial disputes (Attorney-General v Punch Ltd[17]). Interestingly, one of the exceptions was introduced by Lord Diplock himself in NWL Ltd v Woods[18] where he accepted that the Cyanamid test should not be adhered to if the interim hearing was going to be decisive and final. This is a very important exception as Lord Denning M.R. in Fellowes & Son v Fisher[19] mentioned that “after a decision on an interim injunction application the matter goes no further in 99 out of 100 cases” [20]. Besides the exceptions, it appears that the courts in some cases felt that the “prima facie” test worked better and in Fellowes & Son v Fisher[21] Browne LJ was particularly concerned that it was not possible to consider the balance of convenience fairly and equitably without taking into account the merits of the case[22]. On another note, Meagher argued that it is doubtful that the damages can actually be adequate in cases where the remedy of injunction is sought[23]. Indeed, the injunction is generally applied for in specific, sometimes extreme, cases to prevent the applicant’s potential hardship, undermining of its reputation, loss of its customers’ trust or loss of its business relationships and it is hard to imagine how the damages can be adequate if any of the above happens. Again, this should all be left to the court’s discretion in order to allow it to do what is just and equitable. Recent considerations Since the introduction of the Civil Procedure Rules and the ensuing change of approach towards the case management, it is claimed that the Cyanamid test is not as critical as it once was, mainly because the Rules place, among other things, greater emphasis on identifying and resolving issues likely to go to hearing as early as possible[24]. In addition, following the implementation of the Human Rights Act 1998, the court in Cream Holdings Ltd v Chumki Bannerjee & The Liverpool Daily Post & Echo Ltd[25] held that the Cyanamid test is no longer applicable to injunction application relating to the freedom of expression[26]. Conclusion The Cyanamid test is a good example of the battle happening in the courts on the most equitable methods to be used to decide the interim injunction’s application, which are generally either on the merits of the case (the prima facie case) or on the balance of convenience (the serious question). It was argued that some bits of the Cyanamid test were considered too rigid and limiting the court’s discretion in doing justice. As a result, whilst the Cyanamid test was acknowledged and in some cases followed by the courts, it has been frequently either avoided or subject to various exceptions, altogether with ensuing criticism and academic debate. Following the introduction of the Civil Procedure Rules, the Cyanamid test seem to have lost its edge and the Human Rights Act 1998 disapplied its application to the cases involving freedom of expression. However, at the end of the day, the Cyanamid test should not be treated “as rules but only as guidelines”[27]. As such, they seek to bring more flexibility rather than limit the discretion given to the court by equity (R v Secretary of State for Transport, ex parte Factortame Ltd[28]). Bibliography Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002 McGhee J, Snell’s Equity, 31st ed., Sweet & Maxwell, London, 2005 Spry I, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 7th ed., Sweet & Maxwell, London, 2007 Cumming G, The Use of English Civil Procedure in order to Enforce European Competition Law, Civil Justice Quarterly, 25, 2006, 99-112 Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151 1
Footnotes
[1] [1975] AC 396 [2] American Cyanamid Co v Ethicon Ltd [1975] AC 396, at 408, per Lord Diplock [3] Cayne v Global Natural Resources Plc [1984] 1 All ER 225 [4] Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002, p.779 [5] [1984] AC 130 [6] [1980] 1 WLR 1252 [7] (1968) 118 CLR 618 [8] [1979] F.S.R. 337, at 365 [9] [1979] F.S.R. 208 [10] [1996] 1 All E.R. 853 [11] Spry I, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 7th ed., Sweet & Maxwell, London, 2007, p.466 [12] [1976] Ch 63 [13] Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151, p.139 [14] [1979] F.S.R. 337 at 363 [15] [1990] 3 All E.R. 523 at 534 [16] [1980] 1 Q.B. 460, CA [17] [2003] 1 A.C. 1046 [18] [1979] 1 W.L.R. 1294 at 1306 [19] [1976] Q.B. 122 [20] ibid, at 133 [21] [1976] QB 122 [22] ibid, p.139 [23] Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002, p.780 [24] Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151, p.151 [25] [2003] 2 All E.R. 318 [26] This is because s.12 of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into English law, provides that no relief, including injunction, restraining the freedom of expression “is to be granted so as to restrain the publication before trial unless the court is satisfied that the applicant is likely to establish that publication should be allowed”. In these circumstances, the Cyanamid test would be unsuitable (Cumming G, The Use of English Civil Procedure in order to Enforce European Competition Law, Civil Justice Quarterly, 25, 2006, 99-112, p.107 ). [27] Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237 [28] [1991] 1 AC 396
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The Doctrine of Ultra Vires under Malaysian Company Law
According to s18 Contract Act 1965, every company formed should have a memorandum printed and divided into paragraph and with the date stated. In s18 (b) Contract Act 1965, it shows that the requirement of the Memorandum of Association (M/A) required a statement of object clause. The object clause can be used to describe the nature of the business such as manufacturing business, merchandising business or service business. Besides, it also show the company power, its purpose and the legal capacity of the company.[1] Furthermore, the purpose of the object of M/A should be lawful as stated in s14 (1) Company Act 1965. The consequence of unlawful purpose and incompatible to peace, welfare, security, public order, good order or morality in Malaysia will be Registrar of Company will refuse for the registration of the company as followed to s16(8)(a) Company Act 1965.
As it has been stated that object of M/A function as recognize the legal capacity of the company, in the same time, it has limited the company which it require the company to act based on the statement. If the operation of the company is different with the object of M/A, ultra vires will be recognized. Ultra means “beyond” whereas vires means “power” where ultra vires happened when an act is against the object clause. Although the company want to ratify the act, the act is void at initio. This can be further explained by the common law and statue. However, if the company wants to prevent ultra vires, the company must alter the object clause. There are certain requirement as stated s28 Company Act 1965. In s28 (1) Company Act 1965, it stated that alteration can be made based on a special resolution. Besides, by holding this special resolution, members and debentures holder of the company should be given 21days of notification to the special resolution as according to s28 (2) Company Act 1965.
Common Law The doctrine of ultra vires under common law refers to the rules that company must act within their objects clause that is stated in the memorandum of association. Any activity that is outside from the company capacity is void. Neither the company nor the third party could enforce this. In other words, ultra vires act is void and the contract cannot be ratified even if the company wishes to. Under common law, the company’s contract is void due to internal or external context. Externally, when a third party contracting with a company, if the contract was not fulfill the objects of company that stated in memorandum of association, then the contract was ultra vires and void. Internally, if the company and the director enter into an ultra vires contract, the company may immediately stop the act of the director and claim damages from the director who breach his fiduciary duties by entering into the contract which is outside from the company’s capacity. If the company could not fulfill the main object in their memorandum, then they would have to be wound up. According to Ashbury Railway Carriage & Iron Company v Riche (1875) LR 7HL 653, the case stated that the company’s objects in their memorandum was to make, sell and hire railway carriages. The company entered into contract with Riche and the contract was approved by the shareholders at general meeting, then the company agreed to give Riche and his brother a loan to build a railway in Belgium. After that, the company changed their mind and refused the agreement. Riche sued the company.
The court held that the construction of a railway was ultra vires, because construct a railway was not stated in their company’s memorandum of association. Thus, the contract is void because the construction of a railway is outside from the company capacity. Furthermore, since it is outside from the company capacity, so the company could not ratify the contract. Therefore, ultra vires exist and the contract is void even if all of the shareholders approved the contract. From Ashbury Railway Carriage case, we can see that the company could not sue or be sued by the third party for not performing the contract. This is because the contract is null and void. Thus, the company could avoid for not performing the contract and could not be sued by the third party because it is outside form the company’s capacity. Although it seems unfair for the other party but the object clause of a company is available at public for inspection. The other party should have checked whether the company has the capacity to enter into contract with them or not. Need to say if company itself can sue the director and SH? Shareholders pay less concerned on the corporation on how the director corporate as long as the business generates dividend to them. However this will put the creditor in high risk. This is because if the creditors credit sales the goods and services to the particular company, and the company has insolvent in later dates, the creditor could not claim any debts. Common law stated that an ultra vires act is null and void to protect the member or the creditors of the company who has invested the money into the company and expect the investment is only used for the company’s business. According to Cotman v Brougham (1918) A.C. 514, the objects clause of company contained 30 sub clauses, however, the first sub clause stated the company to develop rubber plantations. In the fourth clause, it empowered the company to deal in any shares of any company. Besides, the memorandum also stated that each sub clauses acts as the independent objects for the company.
The company underwrote and had allotted to it shares in an oil company. After that, the oil company wound up and their company was on the list of contributories. The question arose is that whether this is intra vires the company’s objects. The court held that the 30 independent object clause in the rubber company’s memorandum was an independent. Hence, the power to deal with the share in an oil company was within the legal power. Therefore, the company is liable for the underwriting. From the Cotman case, the company did not clearly specify the main object where constitution of Memorandum are not limited by using plain business language. Companies could no longer avoid a contract based on the grounds that it was beyond the company objects which they have been done in the traditional ultra vires doctrine. This has increased a wider range of object clauses in the Memorandum as a result of each sub clause is independent which are not interrelated with the main clause. Hence, the object are not restricted to review on the main clause. This has rendered the companies to introduce a standard type of object clause to render almost all potential commercial objectives intra vires.
Position Under Companies Act 1965
According to s20 (1) of Companies Act 1965, any act or transfer of property that made by the company shall not be invalid with the reason that company don't have the power or capacity to do act. The effect for this section is transaction will become irrelevant with the fact that the company did not have the capacity to enter into it, even though a certain transaction is otherwise valid. Besides, the company can sued or be sued as acts against its object clause. In order to protect the interest of the shareholders and creditors, s20 (2) Companies Act 1965 has provided the remedies to restrain the ultra vires act. According to s20 (2) (a) Companies Act 1965, company is liable if a member of the company or the company itself has issued the debentures are available with a floating charge. The shareholders and debenture holders can sue the company for the taking any action outside the company and they can claimed the compensation from it.
Besides, it also stated that the relief of s20 Companies Act 1965, the ultra vires only apply to specific person and not an outsider as refer to Pamaron Holdings Sdn Bhd v Ganda Holdings Bhd [1988] 3 MLJ 346. According to Pamaron Holdings Sdn Bhd v Ganda Holdings Bhd case, the Plaintiff and the Defendant entered into an agreement for sale and purchase of shares in a private limited company. The Defendant defaulted in the payment of the purchase price and the plaintiff applied for summary judgment against it. In opposing the application, the defendant proclaim that among the transaction was ultra vires the plaintiff company. Allowing the application, the court held that under s.20 a person other than a debenture holder or the minister may not raise ultra vires. The defendant being an outsider and not a debenture holder or the minister had no right under the section. The Defendant was liable for not being able to settle the payment of the purchase price. The Defendant also didn't purchase any shares or debentures from the Plaintiff Company, thus it cannot raise ultra vires. Defendant should purchase the shares or debenture from the plaintiff in order for the defendant have the right to raise ultra vires. From this case, only the person that are sufficient proximate to the company can apply ultra vires.
Ultra vires is an action This act will only available to the contract that has been entered, yet to be completed as refer to the Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd ( 1969 ) 2 NSWR 786. According to Hawkesbury Development Co. Ltd v Ladmark Finance Pty Ltd case, Plaintiff holds all of the shares in the Landmark Finance Pty Ltd. Landmark Finance has issued two debentures to United Dominion Corp (UDC). A request has been sent to court by Plaintiff about declaring both debentures to be invalid due that it is a company object ultra vires. Plaintiff also request that the court to prohibit the enforcement of UDC of the debentures. However, application that request by the plaintiff is rejected and the approval of court to void the declaration of the UDC had failed to be obtained. Due that the plaintiffs are the shareholders of the Landmark Finance, the application should make to Landmark Finance instead of UDC is a third party. If the company is make the act of ultra vires by issuing the debentures to the outsiders, the shareholders or debenture holders have the right to sue the company.
However, s20 (2) (a) Companies Act 1965 does not given its protection to debentures holders that secured by float charge and creditors who did not have any charge. According to s20 (2) (b) Companies Act 1965, officers are personally liable for any action taken by member of the company or the company itself. The shareholders or the company itself can sue the officers either former or current that who committed any Ultra Vires transactions which must be completed and realized. However, if any law suit against the officer will not affect the validity as stated in s20 (1) CA 1965, the act will be valid to the ground. According to s20 (2) (c) Companies Act 1965, any petition that may conducted by the Minister to the court to wind up the company that had committed ultra vires actions. The court will conducted its discretion when the company has changed the business totally from its original business.
According to s20 (3) Companies Act, if any party has suffered any damage or loss due to the unauthorized act or transfer is yet to be performed and to be restrained under s20 (2) Companies Act 1965, the parties who have sustained the damage can be compensated. By comparing the common law and Companies Act 1965, under the doctrine of ultra vires, it is prefer to go for common law. This is because, under common law, the act of ultra vires is null and void, so the company could avoid for not performing the contract which is outside from their capacity. Besides, the company could not sue or be sued by others party just because they did not perform the contract. However, under the Companies Act 1965, it provides completed transactions remain valid as between the company and the third party and both of the party may sue each other. Let’s compare the case of Ashbury Railway Carriage & Iron Company v Riche under common law and the case of Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd under Companies Act 1965, we can see that under Ashbury case, the ultra vires are meant to protect the company by voiding the contract because it is outside the company’s capacity. The other party could not sue the company although they had entered into the contract because ultra vires exist.
Whereas, under the Hawkesbury case, the plaintiff failed to declare the debentures to the third party although it is a company object ultra vires because the plantiff are the shareholders of the Landmark Finance and it should make declaration to Landmark Finance instead of the third party. Conclusion For under the common law, the contract entered by the director of the company or the company itself is ultra vires, the contract is considered void due that it is beyond the company's capacity to perform it. If the contract made by the company with the third party is not fulfill the objects of the company that stated in memorandum of association also considered as ultra vires thus become void. When the contract has become void, the company could not sue or be sued by the third party for not performing the contract. For under the Companies Act 1965, any act that made by the company cannot be declared as invalid by using incapable to perform the act as an excuse. The transactions still remain valid between both the company and the third party that they may able to sue or be sued by each other. Thus, both companies and the third party should consider the capabilities of the company to perform the any act from the contract in order to avoid any ultra vires that may happen and cause the loss to the creditors, shareholders, debenture holders or any related parties.
[1] Pg 205 principle of business law and corporation
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The Effects of Illegal Fishing
Illegal Fishing
A A A A A A A A Fishing industries around the country goes through a thin line of fishing illegally. It happens in other foreign countries and mainly in northern part of the world. By getting caught is a big risk that you might have to take, but end up of the short side of the stick. However, there is always other way to prevent you of fishing legally by using right documents and procedure to fish the right way.Meaning
A A A A A A A A The term IUU fishing is define as illegal, unreported, and unregulated fishing as “it is known more of a wide range of irresponsible activity” (IUU, 2002). Also in the Webster dictionary” illegal” defines as” Not according to, or authorized by, law; specif., contrary to, or in violation of, human law; unlawful; illicit; hence, immoral; as, an illegal act; illegal trade; illegal love” (Illegal, 2009). Therefore, knowing the terminology of the IUU and illegal will give an insight of the main theme of the paper.History
A A A A A A A A Fishing goes back way in ancient times when fishing for food was the first step of learning how to live on your own. Also in ancient times, "The oldest known painting of an angler using a rod or staff comes from Egypt and history dates it from about 2000 BC "(History, 2010). A proof of these logical paintings gives a point of view how the early ages survived. In 1946, an English prioress Dame Juliana Berner, who wrote the book "Treatyse of fysshynge with an angle ". "The book established the basic foundations of angling knowledge" (History, 2010). Also, learning to detail how to construct fishing hooks and rod, that it was just the first stages of knowing how to fish. The first "Reel device was invented in England during the 18th century, although some speculate that the Chinese may have designed a basic reel earlier, in 3rd century CE" (History, 2010) . However, with the development with new technology equipments and a high knowledge of the behavior of species. The sport of fishing in this present day has become a popular sport across the country. Therefore, "In 1939 the international Game Fish Association was established to protect game fish and their habitats, based on the premise that maintaining stable fish populations would ensure the future of the sports" (History, 2010).Economy Effect on Fishing
A A A A A A A A During the past time of worldwide fishing, the sport became a booming success across the country. But in this present day, professional fishers trying to keep their sponsors during a tough time in the economy. In the article "Economy has chilling effect on fishing, boating" posted by J.R Absher talks about keeping the sport alive while the economy is going through some rough times. According to Mike Bolton, an outdoor writer for the Birmingham, ALA saying "Everybody is losing sponsors," pro angler Randy Howell told Bolton. "Greg Hackey and Marty Stone have lost Advance Auto parts, GE silicone has pulled out. We're keeping the lure companies, but the big, non-endemic sponsors are saying they can’t do it right now" (Economy Effect, 2009).A Looking at the outcome not only of fishing is hurting in this time of crisis. Boating and outdoor shows are canceling out the effect of the economy. "Baltimore Sun by its longtime outdoors writer Candus Thompson, who wrote that the promoters of some of the East Coast's largest fishing, boating and outdoor shows usually held this time of the year are scaling back or canceling shows altogether" (Economy Effect 2009). No matter what happens to economy, the fishing world will be back into shape.Illegal Fishing in Countries
A A A A A A A A Throughout the fishing world, illegal foreign fishing had been arising across ocean boarders. I will talk two main areas in ocean boarders that are highly alert in illegal fishing. First area is in the Australian maritime areas, that the border protection command works closely with other agencies to protect coastal region. The illegal foreign fishing is a problem in Australia, that it gives proximity to other countries with survival of communities. In the fact sheet of "Australian Government Border Protection Command" ask why is illegal foreign fishing is a problem? It is "High demand for products such as shark fin, troches shell, trepang (sea cucumber) and tropical rock lobster, some of which are considered over fished species, can make illegal foreign fishing a profitable enterprise" (Illegal fishing 2009).A There is the reason why illegal fishing is a wide known aware of protecting our seas. Indian ocean broader in Accra, Rome "A group of 50 participants from 13 countries in the Indian Ocean region are strategizing on how to toughen up controls in coastal ports in order to better combat illegal"(Illegal Fishing 2007). To have tighter controls in sea ports, that will make a hard for illegal fisherman to offload and refuel. Also they have come to deal of "Enhanced "port state measures" such as port inspection schemes and information systems, which can be effectively linked to enforcement tools such as blacklisting of A IIU fishing vessels, trade measures and requiring vessels to participate in vessel monitoring system (VMS) programs" (Illegal Fishing 2007).A This idea will bring a stop in the illegal fishing and become a warning to fishers to be aware. The IUU (Illegal, Unregulated, Unreported) fishing in the Indian Ocean always has a problem with fishers such as “Fishing without permission or out of season; harvesting prohibited species; using outlawed types of fishing gear; disregarding catch quotas; or non-reporting or underreporting catch weights” (Illegal Fishing, 2007). All these activities are all red flags in the illegal fishing world. However an article in the FAO (Food and Agriculture Organization) talks about the issues planning ways of blocking ports from ships that is fishing illegal. According to Ichiro Nomura an (FAO Assistant Director-General for fishers) says that all countries are responsible and must work together to put an ending on illegal fishing. In other areas “Catches of commercially valuable fish species may be surpassing permitted levels by over 300% due to IUU fishing, according to reports made to FAO by regional fishers bodies” (Illegal Fishing, 2004). Looking at the stats on the issue of illegal fishing, it is a big problem that we cannot put aside. The sea ports needs to have a tighter control of what is happening out there and need to keep track on what ships coming in and out of the seas ports. In the data report in the IUU fishing organization, countries lose a lot of profit from other vessels fishing illegally. In a "Reviewing the situation in 54 countries and on the high seas, the authors estimate that lower and upper estimates of the total value of current illegal and unreported fishing losses worldwide are between $10 million and 23.5 million annually, representing between 11 and 26 million tonnes" (Illegal Fishing, 2008). Looking at these results is a very shocking that fishing vessels would do anything to make their quota.Prevention
A A A A A A A A The prevention process of IUU fishing is plain and simple to all countries. There are different responsibilities that all countries need to apply. The prevention to all countries should go by the code of conduct of IPOA-IUU (International Plan of Action). The book is for "helping familiarize FAO (Food, Agriculture, and Organization) members and others with tools; suggest which tools to user in particular circumstances; and providing guidance on how to use the tools effectively"(IUU Fishing, 2002). In addition, countries should participate in international network for the cooperation and coordination of fisheries-related monitoring, control and surveillance activities across the country (IUU Fishing, 2002). Flag countries are "Countries that register fishing vessels and authorize vessels to fly their flags" (IUU Fishing, 2002). The prevention of the flag country is making sure the fishing vessel have updated registration, record, and authorization to fish in the area. Also have other responsible control fishing activities for fishing and support vessels. For example, "transport vessels that receive the catch of fishing vessels and supply vessels that bring fuel and provisions to fishing vessels" (IUU Fishing, 2002). The coastal and postal countries have different responsibility but in a way work together with a flag country. The tools for need is "Keeping a record of foreign vessels authorized to fish in its waters; requiring foreign vessels to use VMS, such that the coastal country has real time or near real time access to vessel positions and receives regular data reports by VMS, and requiring foreign vessels, or a certain percentage of them, to carry independent observers" (IUU Fishing, 2002).A However port countries are became very strict of nailing down IUU fishing. Also having similar requirements as Flag countries of vessels needed to have up dated records, permits to fish, and etc. However, if a port country has a reasonable of suspecting IUU fishing on their ports. They should "Not to allow the vessel to land or transship fish in it port; immediately report the matter to the flag country, and if the suspected IUU fishing may have taken place in another country waters or in waters regulated by a regional fishery organization, immediately report the matter to that country or organization" (Illegal Fishing, 2002).Consequences
The consequences is very harsh of getting caught of fishing illegal and might end up doing some jail time. Also fishing companies get hit up with fines and ban through couple years. In the consequences of IUU Fishing for Fishery Information and Management has a precautionary approach. The "Wide range reference in the Code of Conduct for Responsible FisheriesA and the UN Fish Stocks Agreement, and it is implicit in the FAO Compliance Agreement since this agreement forms an integral part of the Code. Article 6.2 of the Fish Stocks Agreement is explicit on information: "States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures" (Illegal Fishing, 2002). Making sure of having the right documents and being responsible with their actions, fishing companies do not have to go through the harsh consequences. In this present day, ports all over the country are having tighter control and camera surveillance around their surroundings. It is just another way, of minimize the control of illegal fishing and being a look out for those who breaks the IUU code of conduct.Conclusion
Illegal fishing is a big problem and citizen like us should be involved of what is going on in our oceans. However, "The IPOA-IUU requires countries to review their national plans of action at least every four years and to report to FAO on steps they have taken to implement their plans and the IPOA-IUU" (Illegal Fishing, 2002). This is a simple way of keeping control of all ports and a better planning of fighting against illegal fishing. Having the right resources and management I believe the fishing world can be back into the right place. Therefore, this is a good learning experience for me to learn what is going around in the fishing world. Also being born and raise from Hawai’i, this research brings a whole wide range of protecting our ocean and fishing system here in Hawai’i ne’i.References
- Economy Effect (2009). Courier Post. Retrieved May 4, 2010, From Http://www.blogs.courierpostonline/fishhead.com.
- History (2010). National Geographic. Retrieved May 4, 2010, From Http://www.nationalgeographic.com/tv/.
- Illegal (2009). Webster Dictionary U.S.A. Retrieved May 4, 2010, From Http:// www.webster-dictionary.net.
- Illegal Fishing (2009). Australian Government Border Protection Command. Retrieved May 4, 2010, From https://www.homeaffairs.gov.au/.
- Illegal Fishing (2008). Illegal Fishing information. Retrieved May 4, 2010, From Http:// www.illegal-fishing.info/item.com.
- Illegal Fishing (2007). Food and Agriculture Organization of the United States. Retrieved May 4, 2010, From Http://www.fao.org/newsroom.
- Illegal Fishing (2004). Food and Agriculture Organization of United States. Retrieved May 4, 2010, From Http://www.fao.org.
- Illegal Fishing (2002). FAO Corporate Document Depository. Retrieved May 4, 2010, From Http://www.fao.org/DOCORP.com.
- Illegal Fishing (2000). Consequences of IUU Fishing. Retrieved May 4, 2010, From Http://www.fao.org.com.
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SLSS Court Observation Report
SLSS Court Observation Report The courtroom is a ritualized space, involving costume, language, spatial organization and so on, and courts, therefore, constitute performative exercises of power. Discuss and analyse some of the ways in which courts demonstrate power and/or power relations. Introduction When it comes to the law, it is often related to social order and justice. In order to enforce the law, some people are given legal power. The courtroom is a place where the use of power is clearly demonstrated. As different courtroom actors play different roles, power is not equally distributed among them.
Besides, due to the long history of our legal system, the court is a ritualised space involving a lot of traditional elements and all these elements symbolise power. For example, the judge’s bench is always at a particularly higher level, meaning that the judge holds the ultimate authority. Behind the judge’s bench is the coat of arms of Australia, which symbolises that the judge is appointed to represent the Commonwealth. Therefore, it is not difficult to discover the presence of power disparity if we spend some time observing in a courtroom. Using participant observation as the basic method of gathering data, this article aims to analyse the operations of the court and the power relations between courtroom actors in a courtroom, and to discover whether justice is really served by the court.
The observation of court proceedings is carried out in the Local Courts on Levels 4 and 5, Sydney Downing Centre. Judges and Sentencing In accordance with Smith and Natalier (2005: 121), traditional legal concept suggests that judges’ and magistrates’ responsibility is to apply legal principles in a rational and objective way; each party tells their own story, and then the judge, or the jury (if applicable) determines which version is true, on the basis of evidence. Whilst in most of the ‘daily’ criminal cases there are no juries, such that the outcome of a case is solely the judge’s decision.
While we may think that evidences always reveal the truth, in some circumstances there are not any solid evidences such as seized exhibits and surveillance camera recordings, nor any third person individuals who have witnessed the happening of the crime. The whole case simply relies on the statements provided by parties involved, or the testimony of the victim in the crime. As a consequence, the judge has control over the outcome of the case to a very large extent. During the observation in Sydney Downing Centre Local Courts, there were quite a number of cases of this kind. In one of them, the only evidence was a self incriminating statement made to the police by the defendant, in which the defendant admitted that he had committed the crime. The defense counsel, however, claimed that the statement was made under duress and sustained pressure, and therefore he asked for the exclusion of such evidence.
The magistrate ruled in favour of the defendant after the ‘voir dire’ procedure. From the above, it is observed that while judges exercise their greatest power in deciding whether the prosecution’s or the defendant’s version is true, many factors are taken into account in order to protect the rights of the accused. On the other hand, there are exceptional cases. In another court proceeding observed, the magistrate suggested that the defendant’s statement was highly unreliable, and he pointed an accusing finger at the defendant saying that: ‘You know what you did.’ The defendant even nodded her head. But what comes as a surprise was that the defendant was found not guilty because the prosecution failed to prove its case beyond a reasonable doubt. This example illustrates the idea of presumption of innocence, and questions whether defendants’ interests can sometimes be overprotected. Knowing that the defendant must have committed a crime, the judge does not necessarily have enough power to convict him/her.
After all, the power to prove the case beyond doubt lies on the prosecution’s side, and it is the prosecution’s responsibility to make clarifications on the doubt. Otherwise, the benefit of doubt goes to the defendant. Sentencing is also a way that judges demonstrate their power. With reference to Smith and Natalier (2005: 129), judges have to consider many factors including the seriousness of the offence, previous criminal record of the defendant, the range of penalties applicable, harm caused to the victim, and recent court decisions of similar offences. As observed in the courtroom, the penalties are always similar for cases of the same nature, and magistrates often prefer to obtain assessment reports from probation and parole officers to see if community service orders would be a suitable alternative. It is also noteworthy that a 25% discount of the penalty is usually awarded for a defendant entering a guilty plea, as an incentive for the defendant to face the consequence of wrongdoing.
Thus, it is shown that judges tend to achieve restorative justice, and they decide appropriate sentences in the aim to reduce the risk of re-offending. Courtroom Languages Language is always a form of demonstrating one’s professional knowledge, while knowledge is related to power. Power relationships can be easily observed by looking into the use of language in the courtroom. The hierarchy of power is most explicitly displayed when lawyers refer to magistrates as ‘Your Honour’ or ‘Your Worship’. A magistrate in the Downing Centre courtroom seemed to notice this, and she called the defense counsel ‘mate’. However, for a defendant, the use of legal language can be distressing. They are often needed to synchronise their answers and stances, in a way far removed from the conventions of everyday communications of ordinary people (Carlen, 1976: 51). During the observation, a defendant entered a guilty plea for a minor offence, but he refused to admit the brief facts. The magistrate told him: ‘If you would like to go for a guilty plea, you must agree to the facts, as they are the essence of the charge’. The defendant explained: ‘I plead guilty just because I don’t want to cause any more trouble’. The magistrate said: ‘But if you don’t admit the facts, we will treat this as not guilty’. The defendant looked confused, said: ‘I agree’. As suggested by Carlen (1976: 54), this demonstrates the way that court proceedings proceed, regardless of the fact that many people are actually unable to understand what is going on, and to participate in what is going on. As a result, it is barely surprising that many defendants feel helpless in the court, especially when they do not have a lawyer representing them.
Power is also displayed when courtroom actors are eliciting information from witnesses. Witnesses are required to answer in response to the particular question, and they are not allowed to suggest other things which they believe to be important (Smith and Natalier, 2005: 129). During the observation, a witness was testifying and he got unamused when he was asked a series of short questions related to the identification of the defendant, such as ‘how far were you apart from the defendant when you spotted him at the scene?’. The witness asked ‘Is this important?’ and he got rebuked.
Questions are usually asked by courtroom actors in a more direct way during cross-examination, but they can be irritating when one side is putting its case to the other side’s. In the trial hearings observed, witnesses are always asked manipulative questions like ‘I put it to you that you have been lying to us, do you agree with that?’, while they are only allowed to simply answer either ‘Yes’ or ‘No’ but not to give explanations. This can be unfair as witnesses are not given any chance to further clarify on false accusations. Conclusion After the observation on court judgement and sentencing procedures, it is acknowledged that judges and magistrates try their very best to achieve justice by carefully exercising their supreme power. The principle of procedural due process is especially remarkable in promoting fairness, despite that there are some limitations in serving justice. Be that as it may, it is undeniable that uneven power distribution often exists in a courtroom. While legal representatives hold certain power, defendants and witnesses have no say.
Being unfamiliar with the complex rules and procedures, these non-legal representatives sometimes do not even understand what is going on in the courtroom. All in all, it remains questionable whether the way that court proceedings are carried out can really accommodate fair treatment for the powerless. References 1.Carlen, P. 1976. The Staging of Magistrate’s Justice. British Journal of Criminology. 16(1): 48-55. 2.Smith, P. and Natalier, K. 2005. Understanding Criminal Justice: Sociological Perspectives. London: Sage. Page 1
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Salomon V a Salomon & Co Ltd (1897) AC 22 – Case Law Analysis
This is the foundational case and precedence for the doctrine of corporate personality and the judicial guide to lifting the corporate veil. The doctrine of separate legal entity was originated from this case. The House of Lords in the Salomon case affirmed the legal principle that, upon incorporation, a company is generally considered to be a new legal entity separate from its shareholders.
The court did this in relation to what was essentially a one person Company.
A company registered under the Acts is an artificial legal entity separate and apart from the members of which it is composed. These become basic principle of company law which has several important consequences, it become helpful for the member it mitigate the liability of them.The principle from the case is very simple – a company is a separate legal entity and thus a juristic “person” in the eyes of the law. Salomon was a boot and Shoe manufacturer. His business was sound condition and there was a surplus assets over the liabilities. He incorporated a company named, Salomon & Co Ltd for the purpose of taking over and carrying on his business.
The seven subscribers to the memorandum were Salomon, his wife his daughter and his four son and they remained the only member of the company.
Salomon and his two sons make the board of director; the business of Solomon was transferred to the company for £40,000. Mr.
Solomon took his payment by shares and a debenture or debt of £10,000. Mr Salomon owned 20,000 each £1 shares, these debentures certified that the company owned Salomon £10,000 and created charge on company assets. Within one years the company went into liquidation, after paying of the debenture nothing would be left for the unsecured creditors. The unsecured creditor contended that, the company never had independent existence it was in fact Solomon under another name.
He was managing director, the other director is his son and in this way company was fully under the control of Salomon, and the company was mere sham and fraud. But it was held that Salomon & Co Ltd was a real company fulfilling all the legal requirement it must be treated as a company, as an entity consisting of certain corporater, but a distinct and independent corporation.
House of Lords observed
When the memorandum is duly signed and registered, though there be only seven shares taken, the subscribers are a body corporate “capable forthwith”, to use the words of the enactment, of exercising all the functions of an incorporated company. The company attains maturity on its birth. There is no period of minority – no interval of incapacity. I cannot understand how a body corporate thus made “capable” by statute can lose its individuality by issuing the bulk of its capital to one person, whether he be a subscriber to the memorandum or not.
The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act. That is, I think, the declared intention of the enactment. If the view of the learned judge were sound, it would follow that no common law partnership could register as a company limited by shares without remaining subject to unlimited liability.
Impact of case
Before Salomon decision in 1897, the courts have often been called upon to apply the principle of separate legal personality.
But there was uncertainty about application of these principles in some cases, the principle was upheld and in some others it was not. For centuries, there was a controversy over the applicability of the doctrine of separate legal entity and further to limit the theory of limited liability which is often metaphorically termed as lifting the corporate veil. After this case Law recognizes a corporation as a separate legal entity. This principle is referred to as the veil of incorporation. Salomon’s case established beyond doubt that in law a registered company is an entity distinct from its members, even if the person hold all the shares in the company.
There is no difference in principle between a company consisting of only two shareholders and a company consisting of two hundred members. In each case the company is a separate legal entity.
Lifting of corporate Veil Doctrine is also derivative from Separate legal personality concept. After Salomon case there are numerous case come into existence.
In Macaura v. Northern Assurance Co. Ltd.
The House of Lords decided that insurers were not liable under a contract of insurance on property that was insured by the plaintiff and owned by a company in which the plaintiff held all the fully-paid shares. In this case House of Lords also affirm the separate legal personality of the company and The House of Lords held that only the company as the separate legal owner of the property, and not the plaintiff, had the required insurable interest. The plaintiff, being a shareholder, did not have any legal or beneficial interest in that property merely because of his shareholding.
In Lee v. Lee’s Air Farming the Privy Council held that Lee, as a separate and distinct entity from the company which he controlled, could be an employee of that company so that Lee’s wife could claim workers compensation following her husband’s death. Salomon case put huge impact over Indian law as most of the provisions of Indian Law were taken from the English Law, Salomon’s case used as judicial milestone in Indian company cases.
The Supreme Court in Tata Engineering Locomotive Co.
Ltd v. State of Bihar & othrs (1964) stated: the corporation in law is equal to a natural person and has a legal entity of its own. The entity of corporation is entirely separate from that of its shareholders; it bears its own names and has seal of its own; its assets are separate and distinct from those of its members; the liability of the members of the shareholders is limited to the capital invested by them; similarly, the creditors of the members have no right to the assets of the corporation. In LIC of India v.
Escorts Ltd (1986), Justice O.Chinnapa Reddy had stressed that the corporate veil should be lifted where the associated companies are inextricably connected as to be in reality, part of one concern.
Furthermore in State of UP v. Renusagar Power Company, the Supreme court lifted the veil and held that Hindalco, the holding company and its subsidiary, Renusagar company should be treated as one concern and that the Power Plant of Renusagar must be treated as the own source of generation of Hindalco and on that basis, Hindalco would be liable to pay the electric duty. In the Bhopal Gas leak disaster case, the lifting of corporate veil has become so helpful. After the decision in Renusagar case, the doctrine has been considered in several other cases.
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Taxation on Trusts
- If the trust is a revocable trust, and the grantor is also the beneficiary, then the trust is basically ignored for tax purposes. All income generated by the trust assets is reported on the Form 1040 of the grantor/beneficiary.
- With some modifications, the taxable income of the trust is calculated in the same manner as an individual.
- The trust gets to take a tax deduction for the amount of taxable income that is distributed to the trust beneficiaries.
- The trust pays income tax on the taxable income that is left after the distribution deduction.
- The beneficiaries report income and pay tax on the distributions of taxable income they received.
- calculate trust accounting income;
- calculate the tentative taxable income before subtracting the distribution deduction, which is the amount that the trust can deduct because of the distribution;
- calculate the distributable net income (DNI) so that the distribution deduction can be calculated and so that tax-free and taxable distributions can be allocated to the beneficiaries;
- subtract the distribution deduction from the tentative taxable income to determine trust taxable income;
- calculate trust tax liability;
- Allocate DNI and the distribution deduction to the beneficiaries to determine the character and the amount of income taxed to each beneficiary.
- (Total trust income) – (deductible expenses) + (tax-exempt interest reduced by expenses not allowed in the computation of taxable income and the portion used to make charitable contributions) + (Capital gains IF: Gain is allocated to accounting income; Gain allocated to principal is required to be distributed or is consistently and repeatedly distributed by the trustee; or Gain allocated to principal is paid or set aside for charity) – capital losses if they enter the calculation of any capital gain distributed.
- In the first year, Barkers Family Trust gained $12,000 in interest on bonds, $5,000 on interest on CDs, and 10,000 on capital gains. The DNI and taxable income for the trust is $15,000 (5,000+10,000). The trusts accounting income is $17,000 (5,000+12,000). Trust is to distribute $5,000 and 25% of the principal to Paul and 25% to John, and 50 percent to Matt. Paul receives $7,500, John receives 2,500 and Matt receives $5,000. The total DNI was 15,000, which was apportioned and distributed to the beneficiaries.
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The Armed Forces (Special Powers) Act
The Armed Forces (Special Powers) Act and Jurisprudence behind the Act
THE Background OF ARMED FORCES SPECIAL POWERS ACT In November 2011, the central government extended the Armed Forces Special Powers Act in J&K for another year. The Act was first imposed in the state in 1990 and since then its term has been extended every year by the unanimous agreement of all concerned agencies. This time around, however, the decision to extend the Act met with some opposition. The Intelligence Bureau opposed its extension citing the ‘improved’ security situation in the state where as both the state government and the Ministry of Defence (MoD) strongly supported its extension. Taking the cue from the state government and the army, the central government declared the whole of Assam a ‘disturbed area’ and extended the Act for another year.[1] Similarly in March 2012, the Tripura government extended the AFSPA in the state for another six months.[2] The Act, which was imposed in 1997, is presently fully enforced in 34 police stations and partially in six police stations of the state. In the case of Tripura too the state government opted for the extension of the Act despite clear improvement in the security situation.2 Presently, the Act is in force in Assam, Nagaland, Manipur (except the Imphal municipal area); Tripura (40 police stations); the Tirap and Changlang districts of Arunachal Pradesh and a 20 km belt in the states with a common border with Assam.3 Apart from the Northeast, the AFSPA is also in force in Jammu and Kashmir, which came under its purview on July 6, 1990 as per the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990. Earlier, Punjab was also brought under the Act through the Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983. The AFSPA is imposed in areas affected by internal rebellion, insurgency or militancy. Since it is a common practice in the country to deploy the armed forces to quell such unrest, this Act provides the armed forces with an enabling environment to carry out their duties without fear of being prosecuted for their actions. Genesis of the Armed Forces (Special Powers) Act, 1958 The origins of the Armed Forces (Special Powers) Act, 1958 can be traced to the Armed Forces (Special Powers) Act of 1948. The latter in turn was enacted to replace four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance—invoked by the central government to deal with the internal security situation in the country in 1947.[3] The Armed Forces Special Powers Act of 1948, as a matter of fact, was modelled on the Armed Forces Special Powers Ordinance of 1942, promulgated by the British on August 15, 1942 to suppress the ‘Quit India’ movement. As the title itself indicates, ‘special powers’ were bestowed on ‘certain officers’ of the armed forces to deal with an ‘emergency’.[4] These ‘special powers’ included the use of force (even to cause death) on any person who does not stop when challenged by a sentry or causes damage to property or resists arrest. Most importantly, the Ordinance provided complete immunity to the officers; their acts could not be challenged by anyone in court except with the prior approval of the central government. Incidentally, the Armed Forces (Special Powers) Act of 1948 was repealed in 1957, only to be resurrected a year later in 1958. The context was the fast deteriorating internal security situation in the ‘unified Assam’. The Nagas, who inhabited the Naga Hills of Assam and Manipur, had opposed the merger of their area with that of India on the grounds that they were racially and socio-politically different from the Indians. They had even voted in favour of a referendum declaring independence in 1951 and raised the banner of revolt. They boycotted the first general election of 1952, thereby demonstrating their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state. In order to deal with this rebellion, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, in order to provide a legal framework for the paramilitary forces as well as the armed state police to combat insurgency in the region.8 The Assam Disturbed Areas Act of 1955 was a mirror image of the Armed Forces Special Powers Ordinance of 1942 as it gave ‘special powers’ to the armed forces engaged in counter insurgency. According to Sections 4 and 5 of the Act: “A magistrate or police officer not below the rank of sub-Inspector or havildar in case of the armed branch of the police or any officer of the Assam Rifles not below the rank of havildar/jamadar” had the power to arrest, shoot or kill any person on suspicion. Section 6 of the Act provided protection against any kind of prosecution without the consent of the central government.9 But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government—the Federal Government of Nagaland—on March 22, 1956. This intensified the widespread violence in the Naga Hills. The state administration found itself incapable of handling the situation and asked for central assistance. Responding to the appeal of the state government, the central government sent the army to quell the rebellion and restore normalcy in the region. The President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 to confer ‘special powers’ on the armed forces as well as provide them the legal framework to function in the ‘disturbed areas’ of Assam and the Union Territory of Manipur.10 A bill seeking to replace the ordinance was introduced in the monsoon session of the Parliament on August 18, 1958. While introducing the Armed Forces Special Powers Bill, the home minister, G. B. Pant, argued that the bill would enable the armed forces to function effectively in a situation marked by arson, looting and dacoity.[5] The bill, however, faced some opposition. Several members of Parliament argued that giving such sweeping powers to the armed forces would lead to the violation of the fundamental rights of the people; that it would allow the government to circumvent the Constitution to impose an emergency—without actually declaring it and the armed forces would usurp all the powers of the civilian government; and that it would result in the armed forces committing excesses with impunity. Laishram Achaw Singh, an MP from Manipur, described the bill as a “lawless law”.12 Nevertheless, after a discussion lasting a total of seven hours, the bill was passed by both the houses of the Parliament with retrospective effect from May 22, 1958. The bill received the President’s assent on September 11, 1958 and was printed in the Statute Book as The Armed Forces (Special Powers) Act, 1958 (28 of 1958).[6] Armed Forces Act Concept of Rights and Duties: Jurisprudential Analysis The word ‘right’ is often used broadly to cover legal relations in general has probably been at least unclearly realized by all thoughtful students of law. Thus, to take a concrete example, nearly all of us have probably noted at some time or other that the “right” (privilege) of self-defense is a different kind of “right” from the “right” not to be assaulted by another; but that legal thinking can never be truly accurate unless we constantly discriminate carefully between these different kinds of rights, few of us have sufficiently realized.[7] Speaking of the rights of the citizens; What matters is whether Utopia is entitled under the regional laws to respond to the violence through the use of armed force on the territory of the union. It is submitted that it is so entitled. In fact, a right to self-defence against the attacks of the state agency (Military or Police) exists in the present. In this and numerous additional cases it revolve out upon test that the word “right” is being used to represent first one notion and then an additional, often with resulting uncertainty of thoughts. With the clear recognition of the fact that the same term is being used to represent four distinct legal conceptions comes the conviction that if we are to be sure of our logic we must adopt and consistently use a terminology adequate to express the distinctions involved. The great merit of the four terms selected by Hohfeld for this purpose – right, privilege, power and immunity[8] – is that they are already familiar to lawyers and judges and are indeed at times used with accuracy to express precisely the concepts for which he wished always to use them. The term ‘right’, with regards go hand in hand with the present argument. Right in the constricted sense ; as the correlative of duty – Right in correlation signifies an affirmative claim against another, as differenced from ‘privilege’, one’s freedom from the right or claim of another. Privilege is a term of good repute in the law of defamation and in that relating to the duty of witnesses to testify. In defamation we say that under certain circumstances defamatory matter is “privileged”, that is, that the person publishing the same has a privilege to do so. Basic sense of this argument is that the ‘duty’ correlated with ‘right’ is more of an affirmative claim, whereas ‘privilege’ correlated with ‘duty’ is generally considered as negative inference. Rights of the citizens are not honored, when we discuss the inhuman practices done by the military or police in such states, therefore the duty is of also expected of higher paramount on state’s part. And if talk about the State like J&K, where citizens have given ‘privileged rights’, the duty also changes tits nature. Therefore the subjectivity of the matter cannot be left for any extent. By this account we are not asserting that the person having the privilege has an affirmative claim against another, for example, that other is under a duty to refrain from practicing his rights, as we are when we use “right” in the strict sense, but just the contrary. The statement is merely that under the situations there is an absence of duty on the part of the military to refrain from doing what they are supposed to do under the situations of emergency. So in reference to the duty of a witness to testify: upon some occasions we say the witness is privileged, i.e., that under the circumstances there is an absence of duty to testify, as in the case of the privilege against self-incrimination. “Privilege” therefore denotes absence of duty, and its correlative must denote absence of right. ‘Power’ and ‘Liability’: ‘Power’ and ‘Liability’ is correlative is well-established. “Suppose...that A is fee-simple owner of Blackacre. His ‘legal interest’ or property relating to the tangible object that we call land consists of a complex aggregate of rights (or claims), privileges, powers, and immunities. First, A has multital legal rights [rights in rem], or claims thatothers, respectively, shallnot enter on the land, that they shall not cause physical harm to the land, etc., such others being under respective correlative legal duties. “Second, A has an indefinite number of legalprivilegesof entering on the land,using the land, harming the land, etc., that is, within the limits fixed by law on grounds of social and economic policy, he hasprivileges of doing on or to the land what he pleases; andcorrelativeto all such legal privileges are respectivelegal no-rightsof other persons.”[9] An analysis of these statements is that the power assigned to the armed forces is correlated with the liability in terms of taking care of the weakest associate of the public. The liability on the part of the state is of greater extent as far as the welfare of the general public is concerned. This argument is based upon the fact that armed forces have given special powers and therefore their liability must also be of special concern. The non-conformation of this action could result in complete disruption from the faith. The cases like Irom Sharmila are the evident of this non-compliance of correlatives. A person holding such a “power” has the legal ability by doing certain acts to alter legal relations. Whenever a power subsists there is at least one other human being whose legal relations will be altered if the power is exercised. This situation is described by Hohfeld by saying that the one whose legal relations will be altered if the power is exercised is under a “liability”. Care must be taken to guard against misapprehension. “Liability” as commonly used is a vague term and usually suggests something disadvantageous or burdensome. Not so in Hohfeld’s system, for a “liability” may be a desirable thing.[10] For example, when armed police officer acts to stop the undesired action upon his rational, the rights of the citizen is abolished. Because armed forces are given special powers such actions can be justified but there is absolute adherence to law.[1] “Armed Forces Act term extended in State,” The Assam Tribune, Guwahati, 19 December 2011, at https://www.assamtribune.com/scripts/detailsnew.asp?id=dec2011/at06, accessed on 16 April 2014. [2] “Special Powers Act in Tripura extended,” igovernment, Agartala, 19 March 2012, at https://www.igovernment.in/site/special-powers-act-tripuraextended, accessed on 16 April 2014 [3] Report of the Committee to Review the Armed Forces (Special Powers) Act of 1958, Ministry of Home Affairs, Government of India, 2005, p 10. [4] [5] Home Minister G B Pant as quoted in The AFSPA: Lawless Law Enforcement According to the Law? (New Delhi: Asian Centre For Human Rights, 2005), p 3. [6] 13. The Armed Forces (Special Powers) Act, 1958, n 10. [7] Walter Wheeler Cook (ed.), Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays by Wesley Newcomb Hohfeld, ‘Introduction’ by W.W. Cook, pp. 1 -15 (1919), See https://archive.org/details/fundamentallegal00hohfuoft, accessed on 17 April 2014. [8] Ibid, pg.23-25. [9] Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts(1920), https://en.wikisource.org/wiki/The_Hohfeld_System_of_Fundamental_Legal_Concepts [10] Walter Wheeler Cook (ed.), Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays by Wesley Newcomb Hohfeld, ‘Introduction’ by W.W. Cook, pp. 1 -15 (1919), See https://archive.org/details/fundamentallegal00hohfuoft, accessed on 17 April 2014.
Cite this page
The Armed Forces (Special Powers) Act. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/14/
Terminating a Lease
- The tenant issuing a notice to terminate under section 27;
- The landlord issuing a notice to terminate under section 25;
- The tenant requesting a new tenancy under section 26;
- By mutual agreement between landlord and tenant for a new tenancy, which would annul the current arrangement.[1]
- Kälin, CH, International Real Estate Handbook (2005), West Sussex: John Wiley and Sons Limited.
- Stapleton, T, Estate Management Practice (1981), London: The Estates Gazette Limited.
- Landlord and Tenant Act 1954.
- Law of Property Act 1969.
Footnotes
[1] Tim Stapleton, Estate Management Practice, 97. [2] Landlord and Tenant Act 1954, s 30(1)(f). [3] Stapleton, as above n 1, 99. [4] Stapleton, as above n 3. [5] Ibid. [6] Ibid, 97.Cite this page
Terminating a lease. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/14/
Terrorism: no Easy Definition
Cite this page
Terrorism: No Easy Definition. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/14/
The Arvin Framework Measuring an Enabling Environment for Csos International Law Essay
- Chapter one
- The legal restrictions to civil society organizations- Key obstacles to free association
- Legal obstacles faced by NGOs in Act 84/2002
- Registration
- Monitoring
- Funding
- Penalties
- The effect of Act 84/2002 over the Arts NGOs in particular
- Chapter two
- Egyptian NGOs resources barriers
- Domestic funding problem
- Foreign funding problems
- The effect of the financial issues over Arts NGOs work in Egypt
CSOs have a vital role to play in promoting community development. Some of these roles are encouraging general public consensus, promoting reforms and working on poverty reduction, help building common ground for understanding, and promote cooperation between public and private sectors and helps in giving a voice to the poor and marginalized groups in society, provide ideas and innovative solutions to meet the challenges of development; provide professional expertise and services, particularly areas suffering from post-conflict situations or humanitarian crises; and many other roles. There are certain conditions must be present for CSOs to develop capacity and perform these roles. These conditions promote the growth of civil society and enhance their ability to participate in dialogue on policy and program implementation. There are many systems to measure the capability and effectiveness of CSOs. One methodological tool that achieves a high level of integration is ARVIN, a tool developed by the World Bank's Participation and Social Engagement Group, and already applied in a number of countries in Latin America, Asia, and Africa. The acronym ARVIN stands for a measurement system that looks at civil society capacity with an emphasis on civic engagement, social accountability, service delivery and the factors that influence the effectiveness and sustainability of CSOs (World Bank, 2007; Anheier, 2007). It can be applied to specific foci such as culture, and adapted to fields as arts education. This tool defines four dimensions that should be taken into consideration in assessing the environment for CSO capacity: the legal and regulatory framework, the political and governance context, the socio-cultural characteristics, and the economic conditions in a given country. Through measuring the freedom of citizens to associate, the CSO ability to mobilize resources to fulfil their objectives, their ability to formulate and express opinion, their ability to exercise voice and the existence of spaces and rules of engagement for negotiation, participation and public debate. The ARVIN framework designed to assess enabling environments for civic engagement examine and describe conditions such as policy and regulatory provisions, political processes, socio-cultural and economic factors in order to find answers for the extant of NGOs to fulfil its functions and achieve its goals as an agent in the development process, what are the different kind of conditions necessary for NGOs to work and sustain such as regulations, policies, financial resources and other institutional factors and what Actions can be taken to improve conditions for civic engagement. In this research I will use the ARVIN framework in order to measure the enabling environment for Arts NGOs working in Egypt to understand the extent of the effectiveness and usefulness Arts NGOs projects implementation in Egypt.
Chapter one
The legal restrictions to civil society organizations- Key obstacles to free association
When considering the challenges that CSOs experience as a result of government policies and regulations, it is necessary to understand the legal position of the State today. The civil society sector is identified as a State partner in development. Nevertheless, there remains an enormous gap between the intentions stated in the political discourse and the reality on the ground. The role of NGOs must be understood as part of a community Activity within the State and not as believed by many against the State. The government in Act No. 84 of 2002 dealt with NGOs as a danger of power surrounding the State and must be faced- and as a respond by many NGOs, they rejected the idea of a law regulating their work on the same basis. The government is considers an imaginary construction infused with the political system where the NGOs exist to maintain the free expression of individuals and groups. The problem then, is not the elimination of one party to another, but rather to fill the gap as well as to connect the sectors with different levels of development. Community organizations become a tool for feedback of power through the Activities of civil society and a source of information necessary for the planning of development. The Act No. 84 of 2002 is believed by many Activists viewpoints suppress the volunteer work and displays the civil society organizations to risk, as it is considered one of the most restrictive laws in Egypt. Since Act 84/2002 entered into force in mid-2003, it gave the opportunity to the government to control different level of CSOs operation. CSOs of all kinds have faced crucial issues because of this law such as gaining registration number, obtaining funding authorization, the interference by the government and security forces in the CSOs Activities. This Act affected the work of civil society organizations and considers being a restriction of fundamental rights to freedom of association. As well as the Security services role which exercises considerable influence over all operations relating to registration, funding and activities of non-governmental organizations, without a legal basis behind the provision of maintenance of public order, through a broad mandate granted to them through the application of emergency law [1] (Human Rights Watch, 2004).
Legal obstacles faced by NGOs in Act 84/2002
Registration
For an NGO to be legal, it must be registered with the state. While some NGOs try to avoid registration, many find it almost impossible to operate successfully without the government-issued NGO identification number. The many who do decide to register have to go through the MOSS , which Article 2 of Law 84 established as the government authority to approve or disapprove NGO registrations. Registration is mandatory under Law 84 for any group that has more than ten members and exists "for a purpose other than gaining physical profit." (Law 84/2002) The registration process is considered a time-consuming and subject to full discretionary of the MOSS, Act 84 allows the government to deny the legal foundations of an NGO, and allows the government to regulate not just the formal existence of NGOs but also their goals and intentions. Article 11 of Law 84 is specifically used to prevent the registration of NGOs based on what their goals are perceived to be. Also reject registration applications based on vague reasons such as the account that the objectives of the NGO constitute a "threatening national unity or violating public order or morals." Sometimes the rejection is that the NGO work includes any political Activity. The vague provisions of 'threatening' in article 11 provide generous loopholes for arbitrary interpretations as to the grounds on which an NGO or its Activities can be declared illegal. Additionally, when NGOs try to fight rejections based on Article 11 grounds, they often receive little additional justification for their rejections, or face lengthy court battles that can drain their funding. While the legal power lies with the Ministry, in practice everything considered being of political significance is automatically referred to the secret services, which exercise an extra-legal role in this regard. This, in turn, makes it impossible to take legal measures against their decisions. In order to escape the harsh limitations under Law 84, NGOs register in the legal form of a law firm, a non-profit company or a research centre, among others. Others establish themselves as branches of Europe-based paper companies. Yet others undertake a year-long struggle finally to be registered under the Associations Law.
Monitoring
If an NGO successfully navigates the challenge of registration with the Ministry, it faces additional hurdles in operation. Law 84 allows the government freedom of interference in almost all NGO Activities, with the threat of dissolution always looming in the background. According to Article 25, the Ministry entitled to assign a representative to attend the organization's meetings and even call a meeting of the general assembly." The Ministry also requires that the NGO send the Ministry a copy of the minutes from each meeting within thirty days of it taking place. Regulation of Activity is also attained through rules regarding the composition and number of board members. While the Ministry of Social Solidarity is formally in charge of NGO affairs, in practice it deals with their daily matters by permanent interference through the State Security Investigations (SSI) via demands, questions, orders etc. The SSI interferes massively in any matter of political significance and plays a central role in determining the fate of NGOs. Its interference is greatest with regard to politically significant issues such as the decision over whether to register new association nominate board members or allow foreign funding. Crucially, the massive interference by the SSI lacks any legal foundation. The SSI de fActo controls not only the registration of new groups but also implements a policy of systematic monitoring and harassment of existing NGOs. In practical terms, the influence and harassment of both the Ministry of Social Solidarity and the SSI are being felt by NGOs on a daily basis. The harassment of NGOs by secret service agents also creates additional funding problems: whenever private businessmen want to donate funds to one of those NGOs, they are systematically harassed, and on many occasions this has led them to withdraw the funds.
Funding
Another realm in which the Ministry exercises great control is the funding of NGOs. The law gives the Ministry exclusive authority to control NGOs' management of finances. This provision raises the question of credibility. Many NGOs have come to rely on foreign funding to keep their organizations running, since domestic sources of funding are often few and far between. However, according to Article 17, Associations have the right to receive donations only following the approval of the Ministry of Social Solidarity MOSS. Permission from the Ministry is required for all funding from foreign sources. Also, there are strict protocols regarding the transfer of foreign funds, one of which stipulates that all foreign funds must be deposited into designated bank accounts during the review period, none of which the NGO can access. The law also states that the Ministry must give its final decision within sixty days. However, since the NGO cannot access any of the funds during this period, the waiting period can often drive the NGO to insolvency. As to obtain funds from foreigner entity the law indicates that it cannot happen without the permission of the Minister of Social Solidarity himself. Moreover, Fund raising campaigns such as organizing fairs and public events to collect money also require prior approval and complex procedures that are controlled by the Ministry of Social Solidarity. CSOs argue that proper registration of an NGO and the Ministry's yearly financial monitoring is enough to control any misuse of donations and that the process of approval and allocation of such funds should be placed rather under the supervision of the General Federation of NGOs.
Penalties
Violation of the law can result in criminal penalties, including imprisonment, fines, and the involuntary dissolution of the association. Setting up an association whose Activities are determined to be "clandestine" is punishable by up to a year in prison and up to LE 10,000 in fines. However, Activities that are prohibited in Article 11 are not clearly defined, that many NGOs are subject to penalty without being clearly forewarned of their illegal Activity ( Agati, 2002), leaving the MOSS discretion to determine whether a violation has occurred. For example, Activities are prohibited if they are deemed to threaten national unity or violate the public order or morals, as the dissolution of associations is regulated in articles 41-47 of Law 84/2002. The decision can be taken by the Ministry of Social Solidarity and does not require a court ruling. In order to appeal the decision, the NGO may not go to court directly but must first take the case to a three person dispute committee. If the committee has not decided on the issue within sixty days, the NGO may take the issue to the Administrative Court according to article 7.
The effect of Act 84/2002 over the Arts NGOs in particular
The effect of Act 84/2002 over the Arts NGOs is deeper than the rest of organisation in this context, as there are three of the former main obstacles which have a bigger impact on Arts NGOs in particular and they are the lack of freedom which is represented in the constant interference from the SSI, the prohibiting of practice certain Activities and the restrains over the foreign funds. The Arts for development work are considered in a constant threat under the Act No. 162 of 1958 of the emergency law, where the first section of article three of this allows the government to restrict freedom of assembly, movement and residence and to hold and detain persons suspected of posing a threat to security and public order as it has the right to search individuals and places without adherence to the "Code of Criminal Procedure. It is true that this section does not affect the arts organizations particularly; however, it raise concerns to everyone exposed to this law. The impact of such a law on the culture generated through its application across more than thirty years, which created and effected an entire generation. One of the most notable consequences of this culture is the fear of assembly in a practical regulatory framework, as well as the fear of substantive exposure to religion, politics and sexual subjects. It is true that, this happens in many contexts of arts works, but requires several conditions to make this prohibited element as a minor one. The lack of substantive exposure to any of these items not only generated from the culture of the practice of law but also to verbal orders issued by the State Security Service officers, to any of those who are being interviewed for the verbal statement to either complete the registration procedures for their organization, or begin a new project for the organization. It remains to indicate that this verbal approval or rejection remain without evidence of any of them, and become easily to unalterable at any time. Thus, a comprehensive and effective area of practising freedom, which affect the development process for Arts NGOs become closed by using the emergency law, as well as the ideas of projects of this category of organizations, suffer from lacking diversity and become closer to the typical rather than effectiveness, and closer to superficial rather than depth and impact sustainability. The funding difficulties faced by Arts NGOs due to cultural and social reasons, which will be discussed in another chapter, has a remarkable distinct from those faced by other institutions, where it becomes essential to rely on foreign funders, whether governmental or nongovernmental for achieving efficiency and sustainability. Foreign funding is often appended to any unwanted NGO by the authorities as an unjustified stigma hunting of reputation of that organization, hoping to undermine its work with the organisation expected target group through the promotion of the concept that foreign funds are always contaminated with the objectives of sabotage and occupying force, and therefore, those who work in this organization are a group of traitors, agents and spies for foreign powers, and so the operational plans for any project could be jeopardize once it labelled by foreign funding, and that labelled organization does not lose just a project, but lose its credibility among the society as well as with the funders, following this failure which is difficult to be justified by documentation.
Chapter two
Egyptian NGOs resources barriers
One of the key factors that affect the effective management and sustainability of non-governmental organizations is the continuity of provision of funding from donors. The attention increased recently to the need to increase the financial resources for non-governmental organizations, in order to activate the role they can play in promoting the development process and improve the quality of services they are providing to public and to increase their ability to achieve the goals they aiming for. Funding the NGOs is one of the most influential factors worthy of study, as it is considered the main engine for their various activities, which the efficiency of the services provided by the association relies on the adequacy of funding directed to it. The purpose of funding for NGOs is to find the funds necessary for the maintenance of all administrative processes and the various Activities and programs of the organization. Funding difficulties is one of the fundamental problems that faced by non- Governmental organizations in Arab countries, consistent with the level of development of society, and political circumstances, social conditions and lack of resources available. Private sector, is supposed to be the primary source of CSOs funding, and expresses support for the social needs provided by these organizations. But the fact that this source is facing several obstacles to a sprouting: that existing legislation does not encourage such a move as existing in developed countries such as a deduction from the container and also of the scarcity of institutions involved in providing support to civil society organizations. One of these obstacles as well as the absence of this tradition as an orientation in the position to do so, and the departure of the main part of their contributions to support humanitarian activities.
Domestic funding problem
The private sector internationally is considered a major source of funding to the third sector in order to promote and support development projects; however in Egypt the situation is different, as this sector donation for serving community development is consider limited compared with what is expected due to various reasons such as the policy restrictions and interferences from the government and SSI, the absence of tax relief on funding submissions for NGOs, The existence of other forms of contribution and donation relating to religion which makes the opportunity directed to services, other than direct assistance to individuals and families impossible. The religious NGOs (Muslim and Christian) are considered in the forefront of national voluntary associations which do not suffer from the problem of funding due to their ability of mobilizing their resources such as the Zakat contributions [2] which is a religion obligation for Muslims who are considered the majority in Egypt, as this financial recourse significantly contributes in operating several charitable and religious organizations.
Foreign funding problems
It should be noted that the issue of foreign funding is a serious issue raised on the Egyptian arena for a long time, especially with limited sources of funding. This issue can be summarized in that non-governmental organizations in Egypt cannot accept funds from foreign organizations or governments under certain circumstances as it consider illegal. The government consider the foreign funding for local NGOs in a certain situation as a potential plan for achieving political reorientation of the public away from government control. Varied views on this issue were divided between supporters and opponents. The most weighty arguments in favour as follows: the world in light of globalization has become a small village, where the information available to all, where there is no longer be concealed. The funding for the service of citizens are allowed in all countries of the world, while the funding is only prohibited covert funding or targeted for political Activity. Also, recipients deal with donors on the basis of the stated purposes or objectives, so convergence of interests may be a significant reason to provide funding. Opposing views has subjected CSOs to accusations that the foreign funding is presented in order to implement hidden foreign agendas and that these CSOs representing a homogeneous bloc of Western interests seeking to dominate Egypt. This perspective in turn "creates a 'siege mentality'" among actors who believe they are acting in the government and state's national interests As was presented in the previous chapter it is considered illegal to obtain a foreign fund without the explicit authorization from the Ministry of Social Solidarity and this authorization may take up to sixty days while the fund is frozen and cannot be touched by the NGO. The government's ability to block approval of foreign funding is a powerful weapon. Many Egyptian organizations rely heavily on the support of donor organizations based outside of Egypt, a source of nationalist sensitivity. Foreign funding is an issue regularly demonized by the government and the media, even though the government itself is a major recipient of foreign aid. A significant extra-legal implementation practice relates to the involvement of security services in the foreign funding determinations. The Law clearly does not require the approval of the security services. NGO representatives, however, report that the Ministry of Social Solidarity does not approve foreign funding applications without their approval. Some also added that the process often involves coordination between the chiefs of security departments in different governorates. Many believe that the approval of security departments is a green light for the Ministry to officially approve the funding. Reportedly, reservations made by security departments in some ministries make obtaining the approval of the security department in the Ministry of Social Solidarity impossible (Sharaf, 2004). Therefore, the arbitrary procedures and laws in this context, is considered a waste of existing opportunities, funding is not required for its own, but it must contribute in solving the problem of society and be a contributing factor to the role of government in assisting the association (Nafie, 2001). As a result, Egyptian CSOs are facing serious challenges relating to financial sustainability and the continuity of their activities (Kahalil & Mourad, 2007).
The effect of the financial issues over Arts NGOs work in Egypt
As all NGOs, the arts NGOs face problems in funding,but this problem affect these NGOs better than others as for social and culture reasons Arts NGOs have a very limited access to the private sector fund. One of the main activities carried out by Arts NGOs is to hold various forms of celebrating events, perhaps the primary purpose of the holding some of these events is for developing financail resources by using diffrent ways , but remains one of the most common ways in the world is selling tickets.The fact that Act No. 84 of 2002, section 18 indicate that: "The assosiation in order to realize its purposes and reinforce its financial resources, may set up service and productive projects, celebrations, charity, exhibation, and sport games". But the law in Article 59 of its executive regulations regarding parties or celebrations gives the organization only one party a year exempt from income tax, the tax regulated by Act No. 24 of 1999, the tax is collected from the direct income resulting from the sales of the tickets and not from the profit, and this force the organizers of the ceremony to raise the prices of the ticket to compensate what will be deducted for the tax, as well as compensation for potential losses if they are not selling full tickets, Moreover, the same law states in Article seven that: "exploiters of performances and concerts from the temporary set up in places not owned by them and are not intended by nature to create presentations or parties constantly, a deposit of cash or providing a letter of guarantee or cashier's check accepted from an accredited banks equals the amount of tax due on the ticket, submitted for stamping on the basis of place full capacity to settle the due tax within three days from the date of the event. " Thus, the organization that maintains a party or celebration paying the tax of the tickets sale in advance and refund the tax on unsold tickets after the end of the ceremony which is considered a deliberately bureaucracy from the government to disrupt this work. All that is considered a heavy burden to those who want to organize a party from any Arts NGOs and Organization in this case cannot find a way other than adding a substantial portion of this burden to the public, which may be in most cases, is targeted by the ceremony, and this public in most cases, are members of the poor level of the society, where the ticket price, which has become expensive, become an economic burden on any of the members of the public to pay and thus pushes him to refrain from buying it. It should also be noted that, only one party a year exempt from tax, may be sufficient for general civil organizations, as may be the focus of the organizers of the party is on marketing it to the rich classes in society and thus get a strong source to support and maintain the activities of his organisation. As for the Arts organizations, celebrating events for them not consider exceptional activity to increase their finical resource but an essential activity of artistic and cultural service to the disadvantaged public, In other words, art events appear to the legislature just an entertainment activity and a core activity in the work of arts organizations.
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The Alteration of the Registered Trademark
- It identifies the Product and its origin.eg. ‘Brooke bond’ identifies tea originating from the company manufacturing tea or marketing it under that market.
- It guarantees the quality of the goods. eg. The quality of the tea sold in the package marked under ‘Brooke bond’ would be similar but different with the tea labeled with mark ‘Tajmahal’.
- It advertises the product.eg. LG advertise its product which distinguishes it from the other competitors in the market.
- It creates an image of the product in the mind of the people. eg. McDonald’s creates an image and reputation.
- In case the modification is such as needs a fresh search the alteration would not be permitted.
- The introduction of a new element in the trademark of a vivid character is not even allowable.
- The addition of a phrase, describing the product of an already listed trademark is considered to affect the identity of the trademark.
- In the registered trade mark “Otrivin” added a letter ‘e’ to read as “Otrivine” was not permitted.
The proprietor of the registered Trademark ‘OTRIVIN’ was applied to alter the trademark to ‘OTRIVINE’. On this appeal, the tribunal agreed with the Registrar that, the registrar will check if the altered mark will affect the scope of investigation for conflict with other register marks. It was held that, the alteration of ‘OTRIVIN’ to ‘OTRIVINE’ by adding ‘E’ might effectively change the look and the pronunciation of the word, and that the scope of investigations for conflict with other marks on “OTRIVIN” could not be observed as covering “OTRIVINE” just as well. For example: ‘OTRIVIN’ can be separate Trademark and ‘OTRIVIN X’ can be different Trademark. As per the Trademark Act, 1999 the proprietor or any person who has interest on the trademark can opt to rectify or alter the trademark. By filing an application to alter the trademark, certain entries in the register of the trademark can be altered of modified. Any person who has interest on the trademark can file an application to alter the trademark. Even if the person is not a registered proprietor of the trademark he/she can file this application. The procedure of Trademark Alteration: The submitted application for the Alteration of the Trademark should include the reasons, facts and figures to support the requested Alteration. If the request of alteration is raised by any person other than the registered proprietor, then within 60 days (+30 days) from the receipt of the copy of the application, the registered proprietor must send a counter statement to the Registrar. The below 4 fields can be rectified or altered in a registered Trademark: - Alteration of the registered address in the register.
- Correction of entry/entries in a registered trademark in the register.
- Alteration of the registered Trademark.
- Re-classification of goods under the registered Trademark.
In British Hoist & Crane Co. Ltd's Trade Mark[5]: The proprietor of the trademark shifted their works from ‘Slough’ to ‘Compton’, so they applied to alter the word “Slough” on the mark with “Compton”. The Court defended the Registrar’s denial of the alteration on the reason that “Compton” is a well-known surname and might not be understood for having any geographical significance. The Registrar held that an alteration is not essentially permissible because it is trivial in respect its relation to the trademark and that by ‘identity’ it meant the features by which the mark will be renowned in its function of identifying the proprietor’s goods from the analogous goods of other traders. He considered that the addition the common surname changed this identity. Examples of Alteration of Registered Trademark 
If there is any alteration in the name of the registered trademark or address in the mark, leave is granted for alteration of the trademark. For making a change in the name of the address in the trademark is not considered to be a critical particular of the mark. Addition of the phrase ’Limited’ in the existing name of a company is acceptable. But if the name of the company is denoted in the form of a signature, this alteration is not allowed. If the Registrar decides it practical but immoral, he may advertise the application in a Journal before making a decision. Any person may raise a notice of resistance to this application for this amendment by filling the form TM-39 giving the declaration of objection. A copy of the notice and statement is sent by the Registrar to the proprietor of the trademark. The proprietor must file the counterstatement challenging the opposition by filling the form TM-6. Subsequently the provisions of rules 50 to 57 will apply to the further proceedings. Another vital point is that only 4 types of alteration in the registered trademark is allowed and is permissible, namely alteration of the registered address in the register, correction of entry/entries in a registered trademark in the register, alteration of the registered trademark and re-classification of goods under the registered trademark. [1] Section 2(zb) of the trademark act 1999 [2] Section 59 of the trademark act 1999 [3] Section 59(1)of the trademark act1999 [4] [1967] RPC 613 [5] (1955) 72 RPC 66 (Ch.D.)
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The Breach of Human Rights in Nigeria by Police
CHAPTER ONE: INTRODUCTION
1.1BACKGROUND TO THE STUDY
Human rights loosely refer to moral principles or norms that describe certain standards of human behaviour, and are regularly protected as legal rights in national and international law.[1] In the words of Udombana[2], human rights are claims which an individual makes against or on society deliberately by virtue of his humanity. These rights are contained in various municipal and international instruments. These laws are based on certain fundamental principles relating to the promotion of human survival, prevention of harm, promotion and sustenance of human dignity, and the enhancement of human development thus giving prominence at global, regional, and national levels. These principles recognise the basic concept that peace and security of life and property are the primary conditions for progress and development of any society.[3]Consequently, the 1999 Constitution of the Federal Republic of Nigeria asserts that the security and welfare of the people shall be the primary purpose of government.[4]It can be inferred from this provision that every other purpose of government is secondary. All over the world, the principal agency given the responsibility of internal peace and security of nations is the police. The police are considered the most visible symbol of any government’s power and authority and the primary enforcer of its laws, and the instrument of social control in the hands of those who are managers of the State.[5] In relation to this, the 1999 Constitution provided that: There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section, no other police force shall be established for the Federation or any part thereof.[6] In order to maintain order and enforce the law, the police are endowed by the Constitution and laws with enormous powers of surveillance, arrest, investigation, search, seizure, interrogation, detention, bail and prosecution.[7]The operation of the Nigerian police is endowed with wide discretion in the law enforcement process. This includes, when and how much force is to be used, when to arrest, whom to search and whom not to, etc.[8] In consonance with the provisions of the Constitution, powers and duties were conferred on the Police by the enactment of the Police Act [9]which empowers the Police among other things with the duties of:- Prevention and detection of crime;
- The preservation of law and order;
- Apprehension and prosecution of offenders;
- Enforcement of all laws and regulations with which they are directly charged;
- Performance of military duties within or outside Nigeria as may be required by them or under the authority of the Act or any other Act; and
- Protection of life and property.[10]
1.2STATEMENT OF THE PROBLEM
Torture has been a subject of major concern in Nigeria. However, the rate of extra judicial killings in recent times has increased drastically. Reports have shown the wide spread disregard for human rights in the police force. Amnesty International reported that in 2010, hundreds of people were killed in police custody.[11] The Nigeria Police Force is responsible for hundreds of extrajudicial executions, unlawful killings (e.g. torture to death while in detention) and enforced disappearances each year. The families of the victims usually have no recourse to justice as many of such cases go uninvestigated and unpunished. Many do not even get to find out what happened to their loved ones as police tell the families that they were transferred to another station or released on bail without any documentation to show for it. The Chapter IV of the 1999 constitution of the Federal Republic of Nigeria sets out the fundamental human rights of the citizens of the Nigeria. The provisions of the Constitution are clearly against torture and killing and promote the right to life. Also, Nigeria has long ratified the several UN instruments on Human Rights, such as Universal Declaration on Human Rights, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since the 28th of June, 2001, but the impact is yet to be felt by the general public.1.3RESEARCH QUESTIONS
In this research work, the questions that come to mind and would have received illumination by the end of this work are;- What exactly is the role of the Nigeria police
- To what extent is torture prevalent in Nigeria
- What is the state of arrest and detention practice in Nigeria
- Whether there is in existence any form of rehabilitation scheme for torture victims
- What exactly is the state of documentation and reporting of extrajudicial killings and torture
1.4AIMS AND OBJECTIVES OF THE STUDY
The aim of this work is to create awareness to the Nigerian citizens that they have rights even when in police detention and also suggesting possible reforms that can bring about a change to the current practice by the Nigerian police. It is my aim that this project will reach out to the appropriate authorities and strike a chord for change. It is trite fact that where there is knowledge, there is an opportunity for improvement. At the end of the study, it is desired that the following issues should have to a reasonable degree received illumination:- Systematic torture in police and other centres of detention.
- Arrest and detention practices.
- State of Human Rights Training in the Nigeria Police Force and other officers in- charge of detention facilities in Nigeria.
- Internal Control of the Nigeria Police Force.
- State of Institutionalised mechanism for compulsory autopsy of all deaths in custody.
- State of rehabilitation services, care and treatment for torture victims by the State.
- State of reporting and documentation of all cases of Torture and Extra Judicial Killings
- Possible reform in the Nigeria Police Force, Prison Service and Other Law Enforcement/Detention Agencies
1.5SCOPE AND SIGNIFICANCE OF STUDY
Public confidence is an important tool for effective policing. When police commit torture, murder, and other crimes, they belittle the public confidence so essential to ensuring public safety and security. A culture of criminal policing and permeating corruption by police personnel promotes lawlessness and fosters an increased sense of insecurity. This research will be carried out using information drawn from various legislation, case law and official reports, as well as secondary materials, including newspaper articles and reports by governmental, intergovernmental, and nongovernmental organisation on the subject matter in various states within Nigeria. Spatially, this study is not limited to any particular era or point Nigeria’s in history; it studies the growing pattern of heinous practices by the Nigeria police force against the Nigerian citizens.1.6LIMITATION OF THE STUDY
In compiling this work, reference will only be made to various newspaper articles, legislations, case law and reports by governmental, intergovernmental, and nongovernmental organisations despite the fact that I would have loved to get first-hand information from torture victims or a relative of someone who has been killed extra judicially. However, this lack is funded by the well-founded fear of police reprisal in the hearts of various police torture victims and relatives with good information.1.7RESEARCH METHODOLOGY
The method of data collection employed for this research is the doctrinal method. It involves the harnessing of information from existing materials (legal and non-legal); which include reported cases, journals, reports and articles.1.8OPERATIONAL DEFINITION OF TERMS
Extrajudicial Killing Extrajudicial killing refers to any execution of person(s) by the state or other official authority via any of its agencies other those carried out in conformity with the law. Also, an extrajudicial killing can be said to be the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process.[12] Torture The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure.[13] Rights Rights are legal, social, or ethical principles of freedom or entitlement; that is, are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention or ethical theory.[14][1] Wikipedia [Internet]. c2014. [cited 2014 Nov 24]Available from: https://en.m.wikipedia.org/wiki/Human_rights. [2] Udombana, Nsogurua J, (2014)Lecture On Human Rights, 8th October. [3] Arase SE, Iwufor I, (2007) Policing Nigeria In The 21st Century. 1st Ed. (Ibadan): Spectrum Books Limited. [4] Section 14(2) (b), Constitution of the Federal Republic of Nigeria, (CFRN) 1999 [5] Lokulo-Sodipe JO, (2011) The Role of the Nigerian Police in the Protection of Citizens’ Rights to Life and Human Dignity in Nigeria. 6. U.I.J.P.B.L. p. 96-97. [6] Section 214(1) [7] Alemika EO, Chukwuma IC, editors. (2003) Police Accountability in Nigeria: Framework and Limitations, Civilian Oversight and Accountability of Police in Nigeria 47 (Abuja): University of Jos, Centre for Law Enforcement Education and Police Service Commission. [8] Alemika EO, (2010) Enhancing Police Accountability System in Nigeria: The Missing Links, Enhancing Police Accountability System in the Nigeria Police Force. 7 Abuja (AB): Cleen Foundation. [9] (Cap C38) Laws of the Federation of Nigeria, 2004 [10] Section 4 of the Police Act (Cap P. 19), Laws of the Federation of Nigeria (L.F.N.), 2004. [11] Amnesty International Report. (2011) Unlawful Killings and Enforced Disappearances; The State of the World’s Human Rights. [12] Wikipedia [Internet]. c2014. [cited 2014 Dec 27]Available from: https://en.m.wikipedia.org/wiki/Extrajudicial_killing. [13] Garner BA, editor, (2009) Black’s Law Dictionary 9th Ed. Texas (TX): Thomson West. 1528 p. [14] Wikipedia [Internet]. 2014. [cited 2014 Dec 27] Available from: https://en.m.wikipedia.org/wiki/Rights.
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The Carriage of Goods by Sea Act: a Case Study
The law relating to the carriage of goods by sea is significantly difficult to master. In general terms, it often involves overlapping jurisdictions, which can make it difficult to ascertain the governing law of the contract, unless the law has been expressly agreed by the parties to the contract. In this case, it is clear that the Hague-Visby Rules apply, given their express designation in the bills of lading relating to the crates.
Other contracts may not be as clear, and would require consideration of relevant domestic legislation in order to determine what law (and what jurisdiction) governs the terms of the agreement. This matter also presents a number of other issues, as while Cherie was a party to the contract from its formation, Tony became a party at a later stage by purchasing goods on board from Cherie, while they were in transit. All these matters will be considered in detail by this brief. This brief will firstly consider Cherie’s claim, given that this claim arose from the contract, and Cherie was a party to the contract from its initial formation.
The most prominent issue in this contract is the clause which specifies that the ship is not permitted to deviate from the course of the voyage, except as to save life. This brief will seek to determine whether or not this clause is enforceable in the scope of the contract. Additionally, this brief will also consider the provisions of the governing Hague-Visby Rules on this very same issue, which may serve to have Cherie’s claim against O substantiated should the express term in the contract fail in its enforceability for whatever reason.
This brief will also consider Tony’s claim in relation to the goods he purchased ‘afloat’. That is, Tony purchased the goods from Cherie while they were already in transit, without negotiating with another party in relation to shipment and similar. The terms of the contract between Tony and O are similar to that of Cherie and O, in the sense that they relate to the same goods arriving at the same destination. Thus, this brief will consider relevant principles in relation to Tony’s ability to rely on the indorsed bill of lading as a subsequent party to the contract (and not a party at the formation of the original contract).
In addition, this brief will also consider the relevant textual provisions of the governing Hague-Visby Rules relating to a shipper’s obligation to not deviate from the course of the voyage, except to save lives. These provisions will answer the question in relation to liability in this claim. Finally, this brief will consider the jurisdiction that these claims need to be brought.
This is important, as it is very well to have the substantive basis for a claim but if a court is not competent to hear the matter on a jurisdictional basis, then no recourse can be achieved. Thus, it is important to determine the appropriate forum in order to save the claimants’ time and resources in regards to recovering any losses they are entitled to receive as a result of O’s negligence or intent (if any). Thus, this brief will now cover these claims in order, beginning with Cherie’s claim.
Re: Cherie’s Claim
I am asked to advise Cherie in respect of the loss and/or damage incurred as a result of the alleged negligence of O in relation to the crates of gin, shipped from New York to London. In order to determine possible liability, it is firstly important to analyse the terms of both the bill of lading and the contract of carriage. In relation to the contract of carriage, it has been established in the facts that the contract contains a clause specifying that O is not permitted to deviate from the course, unless it is specifically required to save life.
However, it has also been established that the bill of lading does not contain such a clause, thus it is important to recognise which of these two documents carries legal superiority in order to determine liability.
The common law of the United Kingdom has recognised over a great period of time that the bill of lading does not necessarily constitute the contract of carriage itself, but rather merely provides evidence that such a contract exists.[1] This is displayed in the case of SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 QB 55, where Lord Goddard CJ held that: It is, I think, well settled that the bill of lading is not in itself the contract between the shipowner and the shipper of the goods, though it has been said it is excellent evidence of its terms… If one was to consider this precedent in the context of the current fact scenario, it is clear that the contract of carriage reigns supreme over the bill of lading. If this was the case, then the clause stating that O was not to deviate becomes enforceable at law, whereas the absence of any such provision in the bill of lading would make such an argument inadmissible in court.
The main issue with this argument, however, is the onus of proof it provides on Cherie to prove that the terms of the bill of lading are inconsistent with the contract of carriage. While this initially seems to be an easy task, Cherie must provide proof that the contract of carriage came into existence prior to the bill of lading in order for the contract of carriage to be afforded legal superiority. The courts will generally regard the terms of the contract on the reverse of the bill of lading as excellent evidence of the terms of the contract, unless the claimant can satisfy the burden of proof in order to suggest that the contract of carriage is both inconsistent and came into existence prior to the bill of lading.
If this evidence can be provided by Cherie, then there is every chance that the contract of carriage in enforceable in a court.
Otherwise, it would appear a court would be more likely to enforce the terms present on the reverse of the bill of lading. If Cherie is able to substantiate the claim, it would appear likely that C is able to claim damages for the loss of profit as a result of the delay caused by O. This delay caused Cherie to not receive the stock in time to sell during the peak gin-drinking season in London, due to the post-exam celebrations.
It is also important to note, however, that the contract of carriage will also be governed by the Hague-Visby Rules, given that the contract of carriage provides for a bill of lading, and that bill of lading expressly incorporates the Hague-Visby Rules.[5] Additionally, the substantive provisions of the Hague-Visby Rules do not provide a defence for O to Cherie’s claims, through excluded cargo or voyages or similar provisions.
As such, there is every likelihood that Cherie’s claim against O will succeed, due to O’s breach of contract. In summary, the situation presented in regards to Cherie’s claim indicates that such a claim against O will succeed if it is presented to a court within the limited amount of time prescribed by the Hague-Visby Rules. There is quite a significant burden of proof imposed on Cherie in order for the claim to succeed, however given that the facts clearly seem to be working in Cherie’s favour, satisfaction of this burden of proof should not be an issue.
Provided this burden of proof can be satisfied, then there is every chance that the court will see the contract of carriage (if it was enacted prior to the bill of lading) as enforceable, and thus will most likely hold O accountable for the loss incurred by Cherie as a result of the delay, which was in breach of the contract of carriage (but not the bill of lading). The Hague-Visby Rules also provide for a prohibition on deviation unless it is ‘reasonable’, which this case does not appear to be. This will be discussed in more detail below in Tony’s Claim;[7] however the facts seem to indicate that O is liable regardless of whether or not the original contract is enforceable.
Re: Tony’s Claim
I am also asked to advise Tony in relation to the loss of goods incurred as a result of the alleged negligence of O, due to their attendance at the reggae music festival in Haiti. Given that it was O who deviated from the initial course of the voyage, and it was also O responsible for the general upkeep and security of the ship, it is only reasonable that Tony seek to recover his loss from O, even though Cherie was the party who sold the goods to Tony. The common law of the UK has dealt with the concept of a third party having rights to the original contract of carriage upon the bill of lading being endorsed to them.
This raises the question then as to whether Tony can rely upon the original contract of carriage between Cherie and O which provided that O was not permitted to deviate from the course of the voyage, unless it is necessary to save life. Statutory law would suggest that this contract could be relied upon by Tony, which states that Tony has all the rights of suit against the bill of lading “as if he had been a party to that contract”.
However, this seems to be inconsistent with the common law, which states: …it may be true that the contract of carriage is made before [the bill of lading] is given because it would generally be made before the goods are sent down to the ship; but when the goods are put on board the captain has authority to reduce that contract into writing; and then the general doctrine of law is applicable by which, where the contract has been reduced into writing, which is intended to constitute the contract, parol evidence to alter or qualify the effect of such writing is not admissible, and the writing is the only evidence of the contract. This presents problems in relation to Tony’s claim, as it highlights inconsistency in the law.
Essentially, the common law suggests that any contract negotiated between the original parties is inadmissible under the parol evidence rule, which would mean that Tony would be unable to rely on the ‘not to deviate’ provision of the original contract of carriage, thus would not be able to hold O accountable for the loss incurred as a result of the delay. Yet statutory law suggests that Tony is entitled to exercise all legal rights to the contract as though he was a party to the original contract, which would mean that he in fact could hold O accountable for the loss. The resolution of this problem requires the application of common sense.
The common law presented is significantly outdated, whereas the statutory law came into effect in 1992. Thus, it must be concluded that the statutory law has more binding effect than the common law. Therefore, as a result, it can only be concluded that Tony has the right to rely upon the original contract of carriage between Cherie and O, thus is able to exercise the ‘not to deviate’ clause at law.
In summary, the substantive issues of Tony’s claim are essentially similar to that of Cherie. Due to O’s negligence; approximately 50 crates of gin were stolen. Under the Hague-Visby Rules (whether or not the ‘not to deviate’ clause was enforceable’), the carrier has an obligation to carefully “load, handle, stow, keep, care for and discharge the goods delivered”.
Thus, it is clear that O is liable for the stolen crates, and must pay damages accordingly. With regard to deviation, whether or not the original contract is enforceable, the Hague-Visby Rules expressly prohibit deviation unless it is ‘reasonable’. Thus, it would appear that O is liable for Tony’s loss in any event.
Jurisdiction of Claims
Given that the port of shipment is New York, it would be reasonable to conclude that a US court has jurisdiction to hear these claims by both Tony and Cherie. This is evidenced by the fact that the Carriage of Goods by Sea Act 1971 (UK) does not provide for the application of UK law, given that the port of shipment is not a UK port. Additionally, the US Carriage of Goods by Sea Act 1936 provides it to apply where a contract of carriage is undertaken between ports of the US and foreign ports.
This may preclude the operation of UK statutes mentioned above, but does not necessarily preclude the operation of the common law where those cases have addressed the Hague-Visby Rules.
Conclusion
In relation to this matter, it appears that both parties are able to substantiate claims against O, and thus retrieve any losses they incurred as a result of O’s conduct in delivering the goods. Both parties entered into a contractual arrangement with O to have the goods delivered to London from New York, they merely entered into this agreement in different ways. Cherie incurred significant losses as a result of the delay, which was caused by O deviating from the course of the voyage to visit Haiti, where a reggae music festival was taking place.
As a result, Cherie missed the peak season for selling the gin, which was the main rationale behind the contract in the first place.
In addition to Cherie’s loss, Tony also incurred the same loss as a result of the delay, while also having a number of crates stolen from the ship in Haiti due to the crew’s negligence to secure the load against theft while attending the festival. According to the relevant legal principles that were discussed above, it would appear that Cherie’s claim against O can be substantiated. This argument is two-pronged.
Firstly, Cherie is entitled to rely on the express contractual provision that O was not permitted to deviate from the course of the voyage, except to save life. In addition to this, the governing Hague-Visby Rules also provide that O was not permitted to do so. Thus, not only does the not-to-deviate clause form an express term of the contract, it is also implied through application of governing law. As a result, O is liable to Cherie for the loss of goods incurred as a result of the delay.
Additionally, O may also be liable for damages for loss of profit as a result of their conduct. Also based on the facts, it is clear that the substantive issues of Tony’s contract are essentially similar to Cherie’s. The case law discussed above does not appear to allow Tony to rely on the terms of the contract in the same way that Cherie was able to, thus reference must be given to other relevant legal principles, such as governing law.
In addition to this, given that it has been established that the jurisdiction of the case is the United States, there would be no scope to seek the application of the UK’s Carriage of Goods by Sea Act 1992, which would then grant Tony the same rights as Cherie to the contract. Given this fact, it is clear that Tony must rely upon any relevant provisions of the governing Hague-Visby Rules in order to substantiate a claim against O. This was already discussed in Cherie’s claim, and it was established that the Hague-Visby Rules provide for the same not-to-deviate clause that is specified in the contract, and hence Tony can rely on this in order to mount his claim.
Thus, according to the law, O would be laible to Tony not only for the profit lost as a result of missing the peak gin-drinking season, but also for the crates that were stolen from the ship as a result of the crew’s negligence while partying in Haiti.
Research Report
In preparing this report, I consulted a number of sources. I initially consulted the most up to date hard copy sources I had access to in my library, which I found was a 2007 edition of Girvan’s Carriage of Goods by Sea. This had the most up to date law, but was essentially written from a UK perspective, which made it difficult to fully gauge the international impact of this fact scenario.
As such, I then consulted an Australian book, written by Moens and Gillies, which I know by reputation provides a very broad look at issues relating to international trade. I then backed up this diverse research with another book, written by Debattista, which may serve to fill in any gaps that the other two books may have had.
Girvan’s book proved to be the most efficient, covering the main issues of deviation, as well as providing a deep insight into the operation of the Hague-Visby Rules, and the relevant domestic legislation relating to jurisdiction. It was Girvan’s book that helped me to conclude that the United States was the most appropriate forum to entertain both claims, due to the operation of its domestic law. It discusses United States law in a limited capacity by comparison to English law, however the American sources it discusses were quite valuable, and allowed me to draw reasoned legal conclusions based on the evidence presented in the book, in conjunction with research from other sources.
I also consulted LexisNexis to provide a number of cases in relation to negligence and deviation; however I was not able to find any significant cases that proved to elaborate upon the ideas presented in the books I found. This general search was performed by entering “hague visby rules” into the search dialogue box.
A number of cases appeared in the search, but no directly relevant cases were found by this approach. I did use LexisNexis to find the full text of the cases mentioned in the books, which allowed me to draw my own conclusions from the information presented in the books, free from any influence from the authors’ ideas. This was done by entering the relevant party names into an international law search or domestic law search, as was relevant at the time.
I found this to be the most efficient way of conducting my research, as the books helped to guide me in the right direction, while I still had to use my own legal research and reasoning skills to apply the law to the facts situation. Online sources are difficult to consult where one has little grounding in the jurisdictional or substantive issues of the case, thus I was determined to not use them until I grounded myself in these concepts.
I felt there was little point in clouding myself with a jumble of legal jargon which appeared to serve no value until I had an idea as to how to approach it, which is why the hard copy sources I consulted where valuable (some more so than others). Generally, I found it significantly difficult to locate a number of materials initially, given that I was unfamiliar with what legislation and case law to consult. This was predominantly due to me not knowing what jurisdiction I needed to refer to in detail (i.e.
should I consult UK sea carriage law, or should I concentrate on that of the United States?). This became a question that could only be answered as I was answering the brief itself.
Thus, I had to make a decision to get some general guidance from the UK sources, which also contained information on the international rules, such as the Hague-Visby Rules, but this information was significantly limited to how it related to the UK context, which was not necessarily appropriate to such a question which seemed to have overlapping jurisdictions. As previously mentioned, the best source for this initial guidance was the book by Girvan, as it covered all bases in regards to a basic introduction to the salient points of law. It was difficult for me to consult any online sources without first grounding myself in the relevant international law first, as I was unclear what jurisdiction I should specifically be concentrating on.
The English cases in Girvan also gave a good indication to how the domestic courts tend to interpret international provisions when they are the subject of their jurisdiction, which allowed general conclusions as the applicability of various international provisions. It does discuss the Hague-Visby Rules, but in a limited context. Thus, after consulting Girvan it was best for me to familiarise myself with the full text of the relevant sections of the Hague-Visby Rules, given their significance to the current matter.
This was in conjunction with various cases that I discovered in LexisNexis, and I will discuss my processes in more detail below. As previously mentioned, I also had to consult the full text of the Hague-Visby Rules, as the books were somewhat reluctant to provide the full text. This was beneficial, as not only did I again have to apply my legal research skills, but I also had to draw my own conclusions based upon the ‘raw’ law.
However, I was able to use LexisNexis to see what cases applied specific provisions of the law, in order to seek elaboration on points I was not completely clear about. While I did not necessarily refer to these in the text of the essay, I was able to gauge the context that the text actually meant, which ensured that I applied an approach that was consistent with the judicially-acceptable approach. Thus, overall I was able to provide a well-rounded piece which applied only the key relevant points, ensuring it adequately addressed the question, while also applying the correct law in force at this current point in time.
I would recommend this approach to others, as it gives one a good grounding in this area of law, while also ensuring that one’s own legal skills develop in the process, without having to rely solely on the ideas of others.
Bibliography Books
- Debattista, C, The Sale of Goods Carried by Sea (1998, 2nd ed), London: Butterworths
- Girvan, S, Carriage of Goods by Sea (2007), London: Oxford University Press
- Moens, G, and Gillies, P, International Trade and Business: Law, Policy and Ethics (2006, 2nd ed), Sydney: Cavendish
Legislation
- Carriage of Goods by Sea Act 1936 (US)
- Carriage of Goods by Sea Act 1971 (UK)
- Carriage of Goods by Sea Act 1992 (UK)
Cases
- Crooks v Allen (1879) 5 QBD 38 (CA)
- Leduc v Ward (1888) 20 QBD 475 (CA)
- Moss Steamship Co v Whinney [1912] AC 254
- National Jaya (Pte) Ltd v Hong Tat Marine Shipping Pte Ltd [1979] 2 MLJ 6
- Playing Cards (M) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182
- SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 QB 55
- Stag Line v Foscolo, Mango & Co Ltd [1932] AC 328
Footnotes
- See Crooks v Allen (1879) 5 QBD 38 (CA), 40; Moss Steamship Co v Whinney [1912] AC 254, 264.
- SS Ardennes (Cargo Owners) v SS Ardennes (Owners) [1951] 1 QB 55, 59-60 (Lord Goddard CJ).
- See, for example, National Jaya (Pte) Ltd v Hong Tat Marine Shipping Pte Ltd [1979] 2 MLJ 6.
- See, for example, Playing Cards (M) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182 where an attempt to overcome the burden of proof failed.
- Hague-Visby Rules, art I(b). See also Carriage of Goods by Sea Act 1971 (UK), s 1(4) relating to the application of the Rules to contracts of carriage where the contract provides for a bill of lading to be issued.
- Hague-Visby Rules, art III(8) prescribing a period of twelve months to bring a suit.
- Hague-Visby Rules, art IV(4).
- Leduc v Ward (1888) 20 QBD 475 (CA).
- Carriage of Goods by Sea Act 1992 (UK), s 2(1).
- Leduc v Ward (1888) 20 QBD 475, 479 (CA).
- Hague-Visby Rules, art III(2).
- Hague-Visby Rules, art IV(4). The general test for this rule is provided by Stag Line v Foscolo, Mango & Co Ltd [1932] AC 328, 343-4, which provides that a deviation may be reasonable in situations where it is made in the interests of the ship or the cargo, or where an emergency required the ship to deviate.
- Carriage of Goods by Sea Act 1971 (UK), s 1(3).
- Carriage of Goods by Sea Act 1971 (US), see 46 USCA 1310.
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The Bizarre Happenings on Isla De Aves International Law Essay
- Introduction
- Why is Aves Island so interesting?
- Touristic potential
- Economic incentives
- Historical background of the Isla de Aves 'story'
- Dutch settlers and miners from the United States
- 1865 - Queen Isabella II clears possession
- UNCLOS and Venezuela
- Juridical background and consequences of the conflict
- International mediation and arbitration - the solution?
- Sovereignty rights and International Court of Justice
- Political background of the Isla de Aves story
- Hugo Chavez' foreign policies
- Opponents and argumentation
- Conlusion
- Literature
Introduction
I will call this paper The Isla de Aves story due to the bizarre happenings in the last few centuries regarding this tiny island in the Caribbean. Formally it is an island under Venezuelan domain. There have been many disputes and minor conflicts, even international conflicts, around the island. All parties involved were sensible enough to keep arms and wars out of it. The problems concerning the island changed throughout the centuries, as new eras brought new headaches to the issue. In this paper the various conflicts with Aves Island shall be explored under the question of which role international arbitration has played in the conflict so far. Indeed, international aspects of Aves Island seem to be the only constant in the history of "The Isla de Aves story". The question why it's so important can be answered easily. International boarders and boundaries made an ever changing set of 'actors' in the Aves spectacle. UNCLOS proceedings brought together new neighbours, in most cases unwillingly. Exclusive economic zone is one major key phrase of this paper, as the modern quarrels are due to the extension of the EEZ after UNCLOS proceedings in the United Nations. The - with some exceptions - worldwide ratification caused already settled boarder conflicts to rise again, or let new disputes arise. Even armed conflicts were fought in the aftermath of it. Most interestingly for this paper is the fact, that Venezuela, who insist on the 200 mile exclusive economic zone around Aves Island, didn't even sign the UNCLOS treaties! With the refusal in mind a first glimpse of how confusing and furthermore absurd the argumentation in the disputes is. Thus said, it is clear that the extension of sea boarders up to 200 nautical miles brought problems in sea-demarcation, especially in island cases and additionally, when former colonial and imperial powers retreat and leave a power vacuum. In the case of the Caribbean, where Dutch, English, French and Spanish settlements can be found, the question of who would be the legitimate successor is difficult to sort. One part of this paper will examine to what extent colonial powers settled the conflict regarding Aves Island and what role international arbitration plays in the conflict until today. Compared to similar conflicts in other parts of the world, which were taken to the International Court of Justice, in the Isla de Aves story the parties involved try to sort out the conflict without applying to the International Court of Justice. Especially the island state Dominica will be examined, as it is the only remaining party questioning sovereignty rights of Venezuela, because according to the island officials, Dominica would be the legitimate successor to Spanish rule. Innumerable cases like the Aves Island are treated there since its establishment in 1945. Claims for standardized arbitration arise from time to time, but the participation in the International Court of Justice is voluntary. Opponents to such postulations fear cuttings in state sovereignty. A part of this paper will deal with the situation. Various arguments from all parties will be provided throughout the paper, starting with the historical situation and the arbitration by Queen Isabella II in 1865. All the arguments brought forward by all the parties involved now and then will be treated shortly. The paper, consisting of three parts regarding the historical background to the story, a juridical and a political, will provide an insight into the problem and will explain the role of international arbitration.
Why is Aves Island so interesting?
Why Aves Island is so interesting to all the parties might sound quite absurd to remote observers. In fact it hardly plays a role in international diplomacy. Bilateral relations are spoiled to a certain extent, especially between Dominica and Venezuela. Maritime boarders have been agreed between the major forces in the area. Former opponents like France, the Netherlands and Great Britain have agreed boarder treaties with Venezuela. Surprisingly, even the United States could negotiate a common border with Venezuela. Why this sounds surprising is the fact, that both countries have quite difficult bilateral relations since Hugo Chavez was elected president in 1999. From the very beginning, the South American leader saw his role and agenda as a liberator of Latin America out of US-imperialist policies [1] .
Touristic potential
Nonetheless, the island and its surrounding area is more than just a diplomatic dispute. Crude oil, natural gas and other natural resources, especially noticeable big fishing grounds are assumed to be in the waters around Bird Island [2] . Economics not enough, Dominica recognizes the island's touristic potential, which is yet unfulfilled. Only very few tour operators organise day trips to the island from Venezuelan mainland, naturally. The island has been protected by Venezuelan government by declaring it as a national park. Rare seabirds and green turtles use the island as a resting and breeding place [3] . The protection and preservation of the island is not enough, according to officials and politicians from Dominica. With the acceptance by the UNESCO, Venezuela is responsible for the conservation of this natural resort. However, Dominica feels it is the duty of the island state to care for the island, which has been protected by Venezuelan naval boats for several decades now [4] .
Economic incentives
Another neglected aspect of Aves Island is seafaring. Since it is a very tiny, shallow island - the highest elevation is below three metres - it is easily overseen by big ships. Many ships have been wrecked in history around the island. Here we can find the reason why the island shall be persevered and Venezuela is not just obliged, but also in their interest eager to 'fill' up the vanishing islet. As soon as the island would disappear below sea level, Venezuela's legitimation of the 200 sea mile exclusive economic zone, according to United Nations Law of the Sea Convention, would be obsolete [5] . This zone, established by Venezuela in 1978 had aroused boarder issues with several Caribbean and even European [6] states. They were solved after 1980, when Great Britain, France, the Netherlands and the United States agreed treaties with Venezuela. However, consent is missing with Dominica. For whatever reason can be chosen from one of the examples above, as the argumentation for the island changes from time to time. Interestingly, Dominica agreed preferential relations with Venezuela in the context of 'PetroCaribe', a project initiated by Hugo Chavez' government in 2005. Two Caribbean organisations play a major role throughout the conflict regarding the Isla de Aves, and shall be furthered mentioned in the course of this paper. Caribbean Community and Common Market (CARICOM) is a community compared to the European Union and is formerly known as the Caribbean Free Trade Area (CARIFTA) [7] . The second and strongly connected to CARICOM is PetroCaribe [8] , a partnership initiated by Venezuela, allowing contractual partners to buy cheap crude oil. A more detailed explanation of the agenda and the terms of contract will leave its mark throughout the paper.
Historical background of the Isla de Aves 'story'
The island has come into international attention in 1865. Back then, there was a struggle by Dutch settlers from neighbouring islands to clarify the possession of the island. Originally it must have been discovered by Avaro Sanzze in 1584 [9] , but it was neither settled nor well documented. Actually, the island has never been in Venezuelan interest before 1854. Not even the geographical 'studies' by Agustín Codazzi, financed by the Venezuelan government mapped the island [10] .
Dutch settlers and miners from the United States
Before the 1850s Aves Island was regularly visited by Dutch settlers from Eusebia and St. Kitts to collect bird and turtle eggs, as the island is a breeding area for both, birds and turtles [11] . At first, no conflicts arose, as Venezuela's interest for the island was little. The Spaniards - Venezuela's predecessors - were similarly uninterested. This hasn't changed for the following centuries until the 1850s. The famous arbitration by Queen Isabella II, which followed in 1865, provoked Venezuela's interest for the island.
1865 - Queen Isabella II clears possession
Then, the unhappy Dutch settlers bemoaned the missing legal status of the island, to whom it belonged etc. American guano exploiting triggered the discussions. As the Spaniards were the first to enter the Caribbean centuries earlier, it was obvious that the Dutch went to the Spanish queen to settle the conflict. There the sought a sentence in their favour. Instead, the island was said to be Venezuelan from now on [12] . Isabella's argumentation is easy to follow. As the island was in Spanish administrative spheres, Venezuela was the most 'natural' successor to have sovereignty rights over it. Even in 1865 her arbitration was disputed, despite being accepted by most parties [13] . Later bilateral treaties between Venezuela and surrounding European neighbours after the 1960s indicate that the arbitration, combined with minor geopolitical interests, made the island unattractive for Europe's former colonial powers. Moreover, the former colonial powers were the first to have bilateral treaties with Venezuela. If the arbitration by Isabella II is considered, the Dutch were the first to acknowledge the sovereignty of the island. In the 20th century France, the Netherlands and the United States negotiated treaties. The island attracted international attention due to the United States' seizure of the Island. Another historically important 'incident' in that period were the so called guano acts by the United States [14] . Big guano resources on the island effectively made it American. Although the American captain didn't conquer the island immediately - there was no military presence neither by Venezuela nor by Dutch settlers - the guano resources were exploited by the United States in the 19th century until the early 20th century, without insistent protests by Venezuela [15] . After the guano resources were gone, the American miners left the island. During the course of the 20th century, however, Venezuela reiterated its sovereignty over the island on several occasion. The establishment of Simon Bolivar military naval base sent out several warnings to Venezuela's Caribbean neighbours. First it was claimed to be a permanent settlement [16] . Extreme weather conditions, however, make a permanent settlement impossible. During the hurricane season the base and therefore the island is empty. Historically the island was never settled. The geographical circumstances and the weather condition make permanent settlements impossible. Its size doesn't provide enough protection against hurricanes. The Caribbean is well known for its hurricanes, but even in the hurricane-free time of the year, there is no settlement documented. Again the major issue and reason not to settle on Aves Island is its size. When it was first discovered, it was not larger than 500 metres calibre [17] .
UNCLOS and Venezuela
Despite the establishment of the 200 sea mile exclusive economic zone, Venezuela hasn't signed the contract. When the proceedings and negotiations took place, Venezuela's government refused to sign the contract. The establishment of the exclusive economic zone in 1978 was, according to Venezuela and many other states which implemented the 200 mile EEZ on their coastlines, common law, and wouldn't need further pieces of International Law [18] .
Juridical background and consequences of the conflict
International mediation and arbitration - the solution?
The quarrel about Isla de Aves has become a rather bizarre conflict, mainly taken out on media issues. Venezuela has to shrug off claims from almost half of the Western Caribbean island states. Some of them are former European colonies and still benefit from their status as former colonies, as European countries and even the European Union as a whole support the island states' claims for the island. Venezuela's refusal to take the case to the International Court of Justice is for some protagonists in the conflict hard to take, but from an International Law perspective, Venezuela only sticks to its sovereignty rights [19] . Main opponent to Venezuela's sovereignty over the island is Dominica, who claims it for the state itself. Others only deny Venezuela's stance on the definition of the island itself, which is claimed as a rock by Dominica, but has been granted the legal status of an island by UNCLOS [20] . Treaties between Venezuela, the United States, France and the Netherlands, valid since 1980 should have settled the issue. The prospect of crude oil and natural gas under the sea around a 200 exclusive economic zone would enable Venezuela to exploit it, the surrounding island states don't want to be left aside. Therefore the insistence on taking the case to the International Court of Justice is comprehensible. Venezuela's stance on refusing it is ensured by International Law and no state has to subordinate to the Court [21] . EEZ disputes aren't reduced to Venezuela and the Caribbean. The definition and relatively late establishment of the UNCLOS caused confusion and disturbances. Countries could claim up to 350 nautical miles of state territory, still without the EEZ up to date mark. Regulations from 250 nautical miles are intact. Aves Island is a mixture of several disputes. On the one hand, the classification as an island is stressed, on the other hand only the EEZ is under dispute and third, the ownership of the island in general is questioned [22] .
Sovereignty rights and International Court of Justice
UNCLOS, however, acknowledges states the right to settle conflicts arising due to the overlap of new boarders as a consequence of UNCLOS establishment. There is no question about the ownership of the Island. Despite rather weak claims by St. Kitts and Dominica, Venezuela's sovereignty over the island isn't substantially challenged. Historically the island was appointed to Venezuela as the legitimate successors of Spanish rulers [23] . Up to now, the question, if Queen Isabella was the right one to rule on the issue, is justly there. Nowadays the Spanish Queen would not be taken as a referee in such a dispute, as in 1865, when Venezuela was still a prolonged arm of Spanish colonial rule. Since all the European rivals gave up their interest in Bird Island, the Caribbean Community lost strong allies. As sovereign states they aren't obliged to subject to international arbitration [24] . It might sound unfair to the eyes of the Caribbean parties that Venezuela refuses to take the case to the International Court of Justice, as they were willing to subordinate exactly to the same methods when Queen Isabella II ruled on the issue, in favour of Venezuela [25] . The Caribbean states are supported by the United States - at least according to claims by vice president of Venezuela Jos© Vicente Rangel. There is no legal base for it, nonetheless. Only some dubious statements which just undermine the traditional diplomatic conflicts between the two countries indicate support. There hasn't been any legal assistance for the countries neither by the United States, nor the European Union. Even the remote Caribbean has strong connections to the European Union, as the Netherlands and France could help their former possessions in the area. However, there is no sign of assistance from Europe, the official strategy paper for foreign affairs doesn't include any sign of rejection of Venezuelan claims. Additionally, the prospect of better economic relations to South America makes the little island states dispensable [26] . To return to the role of International arbitration in the 'Aves story' it's important to mention that the participation in international institution is by choice. Thus said, it's clear that any recommendation by such doesn't necessarily have legitimate power. The dependence of International organisations on National Law and the participation of each state makes International arbitration difficult [27] . As indicated in the historical case with Queen Isabella II, Venezuela only subjects to it, as long as they're assured the sentence is going in their favour. Venezuela's juridical and political resilience is underlined by several bizarre spectacles. One was the construction of the scientific-military base Simon Bolivar on the island. It was set up in 1978 by the Venezuelan Navy in a military action, including several naval boats and soldiers, taking the island. Therefore the island is inhabited and fulfils the qualifications to be counted as an island. This naval base was the place for several spectacles like a speech by President Hugo Chavez, directly broadcast from the island [28] . As if such demonstrative actions wouldn't be enough, some years ago one of the highest army generals married on the island. Again international protests followed, although there is no legal background to it. As the island is Venezuelan territory, all the neighbouring islands could only watch the wedding. Provocative shows seem to be the expertise of Hugo Chavez, also in this case. Despite claims to implement standardized arbitration in similar conflicts, there is not enough power to enforce arbitration. To reject common International Laws would restrict state sovereignty substantially [29] . Furthermore, other states in history were always allowed to sort similar conflicts on their own, or with mediation. Most importantly everything was willingly so far. The International Court of Justice therefore can have massive influence. In other cases, however, it has to observe helplessly. Consequences of the conflict can't be deduced at the moment, due to the progressing negotiations in the area. Unless there are no new aspects relevant for international law, at least the legal situation is unchanged. The use to enforce UNCLOS worldwide and an 'artwork' for demarcation in similar cases are obvious if the abstruse situation in the Isla de Aves story is considered [30] .
Political background of the Isla de Aves story
Hugo Chavez' foreign policies
A quite bizarre show is 'behind the scenes' regarding political aspects of the Isla de Aves story. Above, the historical and juridical situations indicate the complexity of the issue. Political parties add fuel to the fire, especially from Venezuela's perspective. Hugo Chavez and other political and subsequently military officers are actors in this 'play'. When Hugo Chavez reign as president of Venezuela started, he stated that he would not have any resentment against others. His main priority in foreign policies would be the Caribbean and Latin America. Ironically Chavez kept his promise, but by a large in a negative way. However, Venezuela's stance in this respect explains to some extent the friction between the South American state and the United States. More or less 'traditional' frictions in the relationship between Venezuela and the United States were renewed under president Hugo Chavez. When he reiterated the sovereignty over Aves Island in his Aló Presidente speech, the United States urged the Venezuelan government to stay calm. Nonetheless, naval boats were stationed near the island to prove strength and the South American state's determination to control the island. Initial point for this show was the resentment of some Caribbean neighbours to Aves Island. The United States were the first ones the Venezuelans had bilateral boarder treaties with. Considering these treaties, the warning the Americans have issued can be seen as serving for the traditional opposition status the United States want to have. [31] In quick succession, other major world powers agreed bilateral treaties with Venezuela, but also some of the Eastern Caribbean states, former Dutch colonies [32] . Hugo Chavez wants to establish Venezuela as the leading regional power. Bird Island and the exclusive economic zone around it are therefore necessary. The economic influence Venezuela has established in the Caribbean under Hugo Chavez is huge. By bringing to life the PetroCaribe deal which allows member states to buy cheap crude oil in exchange for services or at very low credit rates [33] .
Opponents and argumentation
The main opponents to Venezuela's 200 nautical miles exclusive economic zone are, as mentioned above, its direct Caribbean neighbours. Former or still European neighbours have all closed boarder treaties with Venezuela, already in the 1970s or even earlier. The recent 'uprisings' and resentments are therefore not supported by other states than from the Caribbean. As the European Union is anxious to improve the bilateral relations with Venezuela [34] , even former colonies are left alone with their position. But not even the so called Caribbean community finds a single position against Venezuela. The South American state is really clever to undermine the CARICOM's quest for fighting off Venezuela's claims together. Strategic partnerships, like the PetroCaribe or the OECS make the Isla de Aves story even more complex [35] .
Conlusion
The manifold Isla de Aves story is yet to be solved. In the last few years, a possible solution seems to be imminent, without real progress being observed. Despite the membership request for the Organisation of Eastern Caribbean states by Venezuela, possession and sovereignty rights over the island remain unclear. International organisation have played a major role throughout the last few decades. Neutral forces were not involved in the story so far. Neither the OECS, the CARICOM or other regional economic or political entities have contributed to find a solution, which could be accepted by all arguing parties. Especially the unity of the OECS and CARICOM is permanently undermined by Venezuela. St. Kitts, Antigua and Barbuda, other comparatively small island states in the Eastern Caribbean like the fiercest opponents to Venezuela, Dominica, have changing relationships to the South American state. Also Dominica, who tried to solve the issue to their advantage by Venezuela friendly policies until 2004, when a change in government brought a change in the relationship to Venezuela, generally. This didn't hinder the country to participate in the PetroCaribe program. The PetroCaribe deal is quite astonishing for several reasons. On the one hand, Venezuela could sell their crude oil for much higher prices to the United States or somewhere on the world market, but the country wants to have cheap oil for the nearest, regional neighbours under the agenda of safe energy sources for South America have the priority for Venezuela. On the other hand, Hugo Chavez uses the agreement wrongly for his own interest, notably to force loftier position in the Aves case. Dominica's refusal to relinquish its interest on Bird Island is even more admirable under this circumstances. Nonetheless the government took over much more 'peaceful' stances. Unlike Barbados, who completely denied to sign the agreement. Speculated pressure by the United States was disclaimed, but these speculations remain. The possibility of signing at a later point in time is still there, though it seems unlikely that Barbados' stance will change soon. Venezuela's geopolitical interest for Aves Island is thus easy to understand, but the economic power it shows off under Hugo Chavez would still be prevailing without the exclusive economic zone around Aves Island. However, the 'Bolivarian' state seems to favour the idea of applying pressure with the island. Despite my description of the definitely existing touristic potential the island has, it's rather overestimating what's happening than underestimating. Of course day trips from Dominica would be a very nice adventure, but the little sand bank, as it is a bird sanctuary and natural reserve already, couldn't bear too much of it anyway, in order to have a measurable impact on a national economy. Its biodiversity is worth keeping and caring for, indeed, but to make a national case out of a few metres of sand in the enormous Caribbean sea is definitely politics and rhetoric. The historic value of the island is to be doubted, too. Queen Isabella's II arbitration was, however, the only international arbitration or mediation so far! Nowadays, the Spanish queen wouldn't be asked to rule on an issue, in which personal or national Spanish interests are included. Despite Venezuela's independence some decades earlier, Venezuela still had strong connections to their former 'colonial masters'. Regardless of her motivation to assign Isla de Aves to Venezuela, her arbitration is the starting point, though, to show the often bizarre argumentation all the parties included have used. Even the United States, a quite underrepresented power in this paper, played a big part in the story of the island so far. Until 1912, they exploited and mined guano there. US-doctrines often raise question marks on international politics, as did the guano acts from 1856. Based on this legal act, it considered the island United states territory, as big guano resources were there. The United States 'interventions' were mentioned in the paper, but are not worth calling them interventions. As explained in the text, the United States were the first to accept maritime boundaries with Venezuela in 1978 and virtually legitimating Venezuela's exclusive economic zone. I have tried to show which role the European Union played in the story. Unfortunately, they didn't really have one. Although I have found hints at the conflict in the strategic paper for relations with Venezuela, it respects all sovereignty rights and just as many jurists would argue, says it's the case of every country to take certain problems to the International court of Justice, unless they want to. Standardized international arbitration is therefore, just a theoretic construct. It's illusionary to say that one day every country would accept United Nations institutions. It seems as it will go on that everyone just accepts the peanuts of it. Just like Venezuela perfectly serves as a role model.
Literature
Charney, Jonathan and Colson, David and Smith, Robert. International maritime boundaries. Danvers: Brill Publishers, 2005 Jonathan Charney, David Colson and Robert Smith. International maritime boundaries, (Danvers: Brill, 2005) Davis, Michael Esq. "Bird Island, OECS and the potential Venezuelan Membership" thedominican.net, December 15, 2008 https://www.thedominican.net/articlesone/aves.htm (accessed December 10, 2010) European Union, 'Venezuela. Länderstrategiepapier 2007-2013' (11/04/2007) Fontaine, Thomas. "Aves Island a strategic Island in the Caribbean Sea. Should Dominica Stake a claim to the Island?" thedominican.net, October 21, 2002, https://www.thedominican.net/articles/bird-island.htm (accessed January 15, 2011) Garrisson, Scott, 'Sovereignty of Aves Island: An Argument Against Compulsory, Standardized Arbitration of Maritime Boundary Disputes Subject to Review by the International Court of Justice'; The University of Miami Inter-American Law Review 185, nr. 38 (2006) Kwiatkowska, Barbara; Dotinga, Harm, 'International Organizations and the law of the Sea Documentary Yearbook, Vol. 1, Netherlands Institute for the Law of the Sea, 1985 Welsch Friedrich; Werz, Nikolaus, 'Der Wahlsieg und der Regierungsbeginn von von Hugo Chávez Frías in Venezuela', Universität Rostock: Institut für Politik- und Verwaltungswissenschaften, 1999 Zuloaga, Guillermo, 'The Isla de Aves Story', Geographical Review 45/2 (1955): 172 - 180
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The Bizarre Happenings On Isla De Aves International Law Essay. (2017, Jun 26).
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