Law
This chapter considers three important questions of principle raised by Article 1: the relationship between the European Convention and internal law; the beneficiaries of the Convention; and restrictive character of the list of rights guaranteed. Article 2 supplies another illustration of the difference between enumeration and definition. Because Article 2 includes a positive obligation, the right to life will be violated if someone is killed and there is no investigation to find the person responsible, or if the authorities themselves use force and create unreasonable risks for innocent bystanders. Article 3 states: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.' Article 4 provides: no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour.
The European Convention, which protects the right to life in Article 2, deals with liberty and security of person in Article 5. To decide whether someone has been deprived of his rights under Article 5(1) it is necessary to begin by establishing that he has been 'deprived of his liberty'. Article 5(2) requires a person to be informed about the reasons for an arrest and is intended to enable someone who is arrested to admit or deny the alleged offence and make effective use of the judicial safeguards of Articles 5(3) and 5(4). Article 5(4) provides that when a person is deprived of his liberty by arrest or detention he 'shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'.
Article 6, like Article 5, is one of the longest and most important provisions of the European Convention on Human Rights. It guarantees the right to a fair trial. In the Golder case in 1975 the Court had to decide a point of fundamental importance relating to the scope of Article 6(1): whether this provision is concerned only with the way legal proceedings are conducted, or whether, in addition, it confers a right of access to the courts. The right guaranteed by Article 6(1) is to a fair and public hearing 'by an independent and impartial tribunal established by law'. Like the provisions of Article 6(3), the presumption of innocence is a specific aspect of the right to a fair trial, and for obvious reasons applies only in criminal cases.
Article 7 is one of the provisions not subject to derogation under Article 15 which is an indication of its importance. However, although Article 7 deals with a fundamental aspect of the principle of legality, it is subject to certain limitations. The scope of Article 7 is limited to the criminal law where judicial legislation is now uncommon. A great many different issues have arisen in relation to Article 8 which can conveniently be considered under the four headings of privacy, family life, home and correspondence. Article 9(1) makes a distinction between the right to freedom of thought, conscience and religion on the one hand, and the manifestation of religion or belief on the other. Freedom of religion includes, as Article 9(1) indicates, freedom to change one's religion, as well as the freedom to teach and practise it.
Freedom of expression in Article 10(1) has been given an appropriately broad interpretation when the scope of the concept has had to be considered. In its Recommendation 38 of September 1949 the Consultative Assembly listed freedom of assembly and freedom of association as two separate rights. They are grouped together in Article 11 of the Convention. The right to marry and to found a family is to be exercised 'according to the national laws governing the exercise of this right'. Article 13 provides: 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.' Making out a case under Article 13 involves demonstrating that the rights of action and other means of redress available under domestic law are inadequate, which may be difficult.
Articles 14 to 18 of the European Convention on Human Rights relate to the scope and exercise of the rights guaranteed. Article 14 establishes the principle of non-discriminatory application, Article 15 allows for the exercise of emergency powers, and Article 17 is intended to prevent abuse of the Convention's freedoms. Article 16 is very short and provides: 'Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.' Article 18 provides: 'The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.' The inclusion of a separate reference to authorised limitations should be thought of as no more than a drafting technique used to indicate. Article 57 of the Convention deals with the important question of reservations.
Selected extracts from The Final Act Embodying the Results of the Uruguay Round of Trade Negotiations; Marrakesh Agreement Establishing the WTO; GATT 1994; GATS; Understanding on Rules and Procedures Governing the Settlement of Disputes
The collective security system and the unilateral or joint use of force are not sealed compartments. Their interaction is manifest in Art. 51 of the UN Charter, which temporally limits the right to self-defence until the Security Council discharges its responsibilities. This chapter deals preliminarily with two general questions, namely the relationship between the rules on the use of force embodied in the Charter and those existing under customary law, and the alleged dependence of the ban on the use of force on the effective functioning of the collective security system. It deals with the relationship between the rules on this field existing under the Charter and under customary international law. The rest of the chapter is dedicated to three exceptions to the general ban on the use of force that have been the object of controversy: armed reprisals, rescue operations of national abroad, and intervention on humanitarian grounds.
Much of the history of international law relating to foreign investment concerns the efforts of developed states to set and encapsulate in binding legal norms minimum standards of treatment for foreign investment, and the efforts of developed states to resist the imposition of these standards, at least in part. This chapter outlines early efforts to set standards for the treatment and protection of foreign investment. In particular, it examines the phenomenon of Bilateral Investment Treaties and the Code Movements. As Sornarajah notes, the various attempts to regulate foreign investment can be divided into two categories: the attempts (principally) by developed countries to limit and otherwise regulate the scope of host state action vis-Ã -vis foreign investment, thus producing a more secure and advantageous investment climate, and attempts by developing countries to regulate the activities and power of Multinational Enterprises.
In 1907, at the Second Hague Peace Conference, was a major effort made to codify the entire law of neutrality. A provision on submarine cables was placed in the Hague Rules on War, barring belligerent occupiers of enemy territory from seizing or destroying cables connecting the occupied territory with a neutral state except in cases of 'absolute necessity'. In December 1911, the House of Lords voted against the draft legislation which would have enabled Britain to ratify both the Hague Convention on Neutrality at Sea and the Declaration of London. That was the death knell of the Declaration as a legally binding instrument. Without Britain's adherence, no other state troubled to ratify it. The Declaration of London, and indeed much of the traditional law of neutrality along with it, was soon to be subjected to a very much greater test.