International Review of Law - Volume 2013, Issue 2

The article addresses the question of whether the changing roles of “public actor” states and “private actor” corporations should impact the legal liability of corporations in international law. The classical paradigm viewed international law as the interactions between sovereign nations and thus was viewed as encompassing the rights and duties of states who were the exclusive subjects of international law. However, does this historical distinction remain relevant in our world today? The context of Alien Tort Statute (“ATS”) litigation provides an excellent vehicle to examine the issue. The objection to corporate liability under the ATS stems from the dichotomy between public state and private actors. Corporate liability opponents argue that international law involves the relationships between states, or between states and individuals, as opposed to the relationship between juridical entities such as corporations and individuals. Prior academic commentary (as well as some judicial rulings) attempted to bridge the “liability gap” by arguing that since private individuals may have liability for certain jus cogens violations, corporations as exemplars of “individuals”, should also have liability. Rather than comparing corporations to private individuals, this Article argues that global corporations can and should be compared to public actor states. Several developments militate strongly in favor of corporate liability. One, the financial power and influence global corporations wield over an individual rivals that of states. Large global corporations now have the ability to cause widespread damage, a power traditionally held only by states, thus eviscerating the distinction between global corporations and states. Two, the line of demarcation between states and corporations has been greatly reduced in recent years as the role and functions of states and private actors have become interchangeable. In recent years private actors have increasingly assumed public roles as states have outsourced public functions and services to private parties. Moreover, the line is further blurred because in a parallel development, state actors are now engaged as private actors through the operation of sovereign wealth funds and state-owned enterprises. The Article discusses these developments and argues that any objection to corporate liability based upon the distinction between states and corporations should be updated to reflect the blurring of the distinction between “public” and “private” actors. If large global corporations can be treated as actors similar to sovereigns, corporations should have similar duties and responsibilities towards the public as a state government.

Admiralty law, one of the oldest fields of law, has developed distinctive and unique features that distinguish it from other fields. One of these characteristics originates from the commencement of litigation, where a claim can be initiated through two different routes. On the one hand, by the action in personam, where a claim is issued and served on the person/company liable for the damages suffered. On the other hand, the action in rem is a unique action only obtainable under the Admiralty Jurisdiction of the High Court and it is an action against the “res”, ship or ships of named or unnamed defendants. Before the decision of the House of Lords in the Indian Grace (No. 2), it was clear that the action in rem was an action with a number of particular features and that it was separate from an action in personam. Nevertheless, in the case of the Indian grace No. 2, Lord Steyn states that an action in rem and an action in personam are the same thing from the beginning of the litigation. It is submitted that Lord Steyn's controversial statement, especially in not considering the maritime lien relevant to the matter, has radically reformulated the nature of the action in rem and that – “for some”–its reasons for so doing do not justify the reformulation.

Power transmission networks are crucial. Every country requires the means to transport and deliver energy, whether produced locally or in foreign countries. The paper deals with transnational power-transmission networks, those aimed at delivering energy across borders. It considers the challenges posed by transposing to the legal and regulatory fields the unique features of power grids in order to foster transnational network interconnections and unrestrained power transit under international law. The European Union 2020 Energy Policy and the European Transmission System, though still unsuccessful in achieving the creation of a single electricity market, serve as a case study for an enhanced model of regulation, with emphasis on the enforceability of power trading and transit across national borders. The research advances that a well-framed, technically-based, dedicated scope for transnational power grid interconnections and energy transit, at regional level, into ongoing international trading schemes such as the WTO or an improved Energy Charter Treaty, would further international power trading and synchronisation of energy matrices as drivers for international law to achieve greater legitimacy and enforceability.

Advanced life-sustaining technologies can now prolong indeterminately the lives of patients in a persistent vegetative state (PVS). However, where the assistance rendered is not expected to restore consciousness, they are considered futile from a medical perspective. English law, in such a scenario, has taken the view that it is not in the best interests of the patient to continue to receive medical intervention. This makes it lawful to discontinue all life-sustaining treatment and medical support measures including the termination of clinically assisted nutrition and hydration (CANH). The withdrawal of such apparatus, which is classified as medical treatment, is deemed as an omission rather than negligence or an act which causes death. In light of this, the law holds that doctors are merely allowing such patients to die a natural death rather than bringing about their death. The medical debate on the matter, which is underpinned by a series of intertwined medico-legal concepts which justify the English Law position, is often considered as settled. The UK Court of Protection was nevertheless recently asked to resolve a conflict between the family of a Muslim PVS patient who objected to his doctors' intention to withhold resuscitation or ventilation should there be a life-threatening event on the grounds that such measures would be futile and thereby not in the patient's best interests. The family instead insisted that all steps should be taken to preserve the patient's life until such time that God takes it away. This paper seeks to discuss how such medical futility or at least the semantic conceptual landscape (which also includes best interests, omissions and medical treatment) that determines the legal position is dealt with under Islamic Law with a view to assess its compatibility with English Law. Some of the key questions that the article will consider as part of the above will be: does Islam allow all medical interventions, including CANH to be withdrawn when these are not expected, by medics, to bring any medical benefit? Or does it instead deem their withdrawal from such patients, who may still be able to breathe naturally, as an activity which is tantamount to killing? The work concludes by emphasizing the need for more religiously and culturally sensitive discussions to take place among medical, legal and religious representatives.

The right to privacy is a complex and controversial issue. Concerns pertaining to the ‘Right to Privacy’ have often become a stumbling block when preparing draft laws on telecommunication, specifically those that relate to governmental interception and access, and can prompt governments to cancel the drafting of the law. Governments attempting to defend the right to invade citizens' privacy in communication, whilst at the same time adhering to international obligations, habitually have to face opposition. Recently though, the dual concerns of national security and public security have repeatedly been used as tools to shift away from privacy protection toward allowing telecommunications interception and access by governments when needed.

Some Arab states have enacted interception and access laws, but only in an intermittent fashion, making it difficult to refer to it as a complete template for implementing an interception and access law. It is accepted that new, hi-tech systems are required to regulate the use of telecommunication tools so as to be in line with developed countries. The Arab states seem to be behind in introducing telecommunication legislations, or at least have not amended their laws to comprise interception and access in telecommunication. These states should be directed to securing a balanced approach between the rights of citizens and the necessary security needs.

This paper seeks to outline the gaps in existing legislative order in Arab countries. It also attempts to draw some guidelines towards introducing effective regulatory systems for telecommunications interception and access law in the Arab world.