Unlawful Acts Research Articles

The Attribution of Acts: Towards a Principled Assessment under EU and National Private Law

Abstract: Attribution of conduct almost necessarily touches upon the essence of a person, be it a private person (a natural person or a private legal person) or a public person. The result of such attribution may substantially restructure the essence of that person. Through attribution, a court moulds the person to whom the act is attributed into a shape that fits in with the court’s understanding of justice or of what a desirable result is. To prevent the ends envisioned by the court to drive it mechanically to attribute conduct to a person as if it were that person’s own conduct, a refined and balanced approach to attribution has to be adopted. The court must balance the interests of the person to whom the act is to be attributed, the interests of society as a whole, and the protection of the legitimate and reasonable expectations of third parties. With regard to the attribution of unlawful acts, the reasoning of the Supreme Court of the Netherlands in the case of Knabbel en Babbel may be a source of inspiration: The conduct of a person will constitute an (unlawful) act of another person if it is generally held in society that the conduct must be considered to be that other person’s act. Attribution of conduct of person A to person B as if it were person B’s own conduct can follow from the nature of A’s conduct and capacity, viewed against the background of relevant acts, omissions, and circumstances within the sphere of responsibility of B. Rather than proceeding on the basis of one principle that may be upheld or rejected in favour of another principle, it is advisable to start assessing attributability on the basis of all interconnected principles and interests. The assessment of attribution, which takes place in fields such as state liability, state aid, competition law, public procurement law, and the provision of Internet services, will thus reflect a broader range of arguments. Those arguments may derive from the fields of international and supranational laws just mentioned, from the branch in which a legal person is active, from private law doctrines regarding attribution (the protection of legitimate expectations within the ambit of agency law, the attribution of acts to a state, to a company, or to an employer on the basis of authority, the attribution of unlawful acts to a state, to an enterprise, or to an employer), and from human rights law. An approach is thus called for that seeks to reconcile respect for different aspects of persons: One may act as an official who observes the applicable regulations or as a person making use of one’s freedom of expression. This will improve the level of substantive justice achieved by the judgment.

Is a crime always the most serious unlawful act?(Part I)

In the Republic of Serbia there are three kinds of unlawful acts: crimes, misdemeanours and economic offences. The Criminal Code prescribes that a crime is an act which is foreseen as such by law, which is illegal and for which guilt has been established. The legislator has, with the Misdemeanour Law, prescribed that a misdemeanour is an illegal act, prescribed by law or another act by the competent body and for which a misdemeanour sanction is prescribed. The Law on Economic Offences prescribes that an economic offence constitutes a harmful breaking of the rules of economic or financial legislation which has caused or might have caused serious consequences and which has, by an act of the competent body been prescribed as an economic offence. According to, above all, the social danger and prescribed sanctions, crimes are the most serious unlawful acts, in comparison to misdemeanours and economic offences. The author's goal in this work is to highlight that the responsibility for a crime is not necessarily the most serious form of penal liability. The responsibility for a misdemeanour, in certain cases, can be more serious for the offender, than the responsibility for a crime. In the work articles of the Criminal Code and the Misdemeanour Law are pointed out, based on which the author draws the conclusion that the responsibility for a committed crime can in certain cases be 'milder' for the offender, in comparison to the responsibility for a misdemeanour.

8. International Maritime Organization (IMO)

No new members joined the IMO in 2015. However, there were numerous accessions, acceptances, or ratifications by states of various IMO treaties or instruments. Most notable of these were the accession or acceptance of various annexes to the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL Convention) and its 1978 Protocol, including: Sudan (Annexes I/II; III; IV; and V, 21 January); Djibouti (Annex III; IV; V, 12 October); South Africa (Annex IV, 17 September); and Honduras (Annexes III and IV, 30 November). There were ratifications of the 2005 Protocols to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) by the United States on 28 August and by Portugal on 1 September. The twenty-ninth Assembly of the IMO met at the London headquarters from 23 November to 2 December. During this meeting, the Assembly elected the following states to be members of its Council for the 2016–17 biennium: ...

The In Pari Delicto Defense for Auditors in Professional Negligence Cases: Imputation of Managers’ Unlawful Acts to the Client Firm

Abstract The Enron scandal, the Sarbanes-Oxley Act and the 2008 financial crisis have resulted in new laws and regulations regarding auditor liability and an evolution of some of the old ones. One of the older laws is the in pari delicto defense: in a lawsuit brought by a corporation alleging that its auditor was negligent in failing to detect a manager’s fraud, the auditor may be able to use that defense if the manager’s fraud is imputable to the company. Since a bankruptcy trustee or a receiver steps into the shoes of the bankrupt company it represents, a similar defense (the Wagoner Rule) may also be applicable if a trustee or a receiver files a negligence lawsuit against the company’s auditor. However, in pari delicto is inapplicable when: (1) the wrongful acts of the manager are so adverse to the corporate client that the manager is deemed to have totally abandoned the corporation for its, or a third party’s, sole benefit (unless the manager is also the sole shareholder, or the company has incurred a short-term benefit because of the fraud); (2) the corporate client had at least one innocent manager or shareholder who could have prevented or stopped the fraud if he had known about it; (3) the auditor does not deal with the corporate client in good faith and engages in unlawful conduct; or (4) the plaintiffs are totally innocent shareholders (but in this case, the in pari delicto defense is still applicable with respect to culpable shareholders). The State of New York has been on the cutting edge in the evolution of the in pari delicto defense, and this defense is strongest there. Other states recognizing the defense include New Jersey, Pennsylvania, and (in dicta) Delaware (only if the company has engaged in actual wrongdoing). Finally, these are examples of recent evolution of in pari delicto: (a) the Sarbanes-Oxley Act’s prohibition of management from interfering with or deceiving the auditor; such statutory violations of management could be used by the auditor at trial in proving the applicability of the in pari delicto defense and (b) the new constraints on off-balance sheet leases, expected to be released shortly by the Financial Accounting Standards Board, may decrease management’s ability to deceive the auditor in the first place.

EVOLUTION OF TERRORISM ACT AGAINST CIVIL AIRCRAFT

Since an aircraft was invented, an aircraft is not only used for transporting person from one place to another, but also can be used in war until revenge terrorism ideology and faith against a state. Furthermore, an aircraft is a representative of state where the aircraft is registered, which is also defined by terrorist as a target to attack a state. Attacking a civil aircraft is categorized as an international crime. Hereinafter, since Tokyo Convention 1960 declared, the evolution of crimes against civil aircraft has been evolved. The main target of offences is still an aircraft, however, the offence is diverted by attacking others target such as all facilitations relating to the security in civil aviation including airport and air navigation. 9/11 accident in USA is a picture how terrorism offence is still evolving. Now, aircraft and ground navigation facilitations are not the only main object in attacking by terrorist. The aircraft now is used to attack others ground target which are represented a state. The evolving of terrorism acts, in the end, is the reason why Beijing Convention 2010 on the Suppression of Unlawful Acts Relating to International Civil Aviation was made.

Navigating the Maritime Piracy Regime Complex

Maritime piracy is one of the oldest subjects of international law and recently it has reemerged as a serious threat to commerce and security. While states have become more engaged in punishing and preventing piracy, efforts as a whole have been poorly organized, ad hoc, mostly unilateral, slow to develop, and only minimally effective. This is true despite the existence of a regime complex that supposedly promotes effective cooperation on the issue. What explains the insufficient response to this rising economic and security threat? This article argues that the regime complex itself is a major part of the problem. It examines specifically four core elemental regimes that are identifiable by their key texts or organizations: the UN Convention on the Law of the Sea, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the International Maritime Organization, and the International Maritime Bureau. This analysis adopts a perspective that emphasizes how these different...

German reference for a preliminary ruling on jurisdiction - Hi Hotel

According to Article 5(3) of Regulation 44/2001 (‘Brussels I’), a person domiciled within the sovereign territory of a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or could occur if an unlawful act is committed there. Infringements of intellectual property rights and copyrights are unlawful acts. According to the established case law of the Court of Justice of the European Union (CJEU), the term ‘unlawful act’ is the object of an autonomous interpretation. It is therefore not surprising that the courts of the Member States frequently refer questions to the CJEU regarding details of unlawful acts, the place where the unlawful act is committed, the place where the damage occurs and issues concerning perpetration and participation. Nor is it surprising that the CJEU has had to provide definitions and draw boundaries in numerous rulings. For example, in its ruling of 19 April 2012 on a question referred by the Austrian Supreme Court (OGH), the CJEU had to decide where the infringement of a trade mark registered in a Member State takes place if a party advertises on the website of a search engine operated under the top-level domain of another Member State, using a keyword identical to the trade mark. Parallel to the decision published below, the German Federal Court of Justice (BGH) submitted another question to the CJEU on the interpretation of Article 5(3) of Brussels I, also on 28 June 2012.

The SUA 2005 Protocol: A Critical Reflection

Abstract This article is a critical reflection on the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. It begins with an examination of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), including: the objectives of the regime, the manner in which these objectives are met, and where SUA has failed. The discussion then turns to the 2005 Protocol, concentrating on the reasons why it was necessary to update SUA, the provisions of the 2005 Protocol, the anti-trafficking instruments that preceded the 2005 Protocol, and an analysis of the anti-trafficking innovations that were adopted and excluded. The article concludes by examining the reasons why the 2005 Protocol has not been more widely ratified and briefly considers possible future directions for maritime anti-terrorism regimes.

Maritime piracy as a violation of human rights: a way forward for its effective prevention and suppression?

This article analyses the regulation of maritime piracy from a human rights perspective. After a brief historical development of piracy in international law, the article highlights the key weaknesses inherent in the current legal framework as represented by the United Nations Convention on the Law of the Sea 1982 and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, and explains how international human rights law can alleviate some of these problems. Finally, key obligations imposed upon states as well as a challenge posed by extraterritorial application of human rights law will be analysed.

UN peacekeeping operations: when can unlawful acts committed by peacekeeping forces be attributed to the UN?

UN peacekeeping missions operate under the authority of the UN. However, the military personnel that constitute a UN peacekeeping mission remain organs of the states from which they are contributed. Thus, whether unlawful acts committed by peacekeepers can be attributed to the UN is dependent upon whether the peacekeeping force can be regarded as being under the direction and control of the UN. This is a question of fact. According to the ICJ and the International Law Commission, unlawful acts committed by peacekeeping forces will be attributed to the UN only where the UN exercised ‘effective control’ over the commission of the unlawful act. In contrast, the ECtHR has consistently propounded a very different test, asserting that unlawful acts will be attributed to the UN only where the UN retained ‘ultimate authority and control’ over the peacekeeping mission. I argue, however, that neither of these tests provides a suitable legal framework for determining attribution of unlawful conduct in the context of UN peacekeeping missions. After outlining the deficiencies of these tests, I submit that a more suitable approach to determining attribution would be based upon the overall control test as outlined by the ICTY in Tadić.

Maritime Piracy and the Impunity Gap: Insufficient National Laws or a Lack of Political Will?

Nations are not prosecuting piracy suspects with any regularity. One reason cited for this culture of impunity is the lack of domestic legislation to facilitate the prosecution of suspected pirates. But, what exactly is lacking: legislation or the political will to prosecute pirates? After all, universal jurisdiction over piracy has existed for more than 100 years. In addition, most nations are parties to the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), both of which authorize and encourage nations to cooperate in prosecuting acts of maritime piracy. Given this legal framework, should we not expect that nations would have domestic laws criminalizing piracy and would use those laws to try the pirates they have gone to such lengths to capture? This article explores these questions by examining the domestic anti-piracy laws in about fifty states for which information is available in English. The analysis supports a conclusion that on the whole states lack the political will to share in the burden of prosecuting pirates since relatively few states have enacted comprehensive anti-piracy laws that include a framework for exercising universal jurisdiction over pirate attacks. The analysis also shows that the laws states have enacted may not be sufficient to allow for a successful prosecution for today’s pirates. Although states may have many reasons to sit back and wait for others to prosecute maritime piracy offenses, this Article concludes that all states must embrace their duty to share in the burden of prosecuting pirates, which means that all states must first pass the necessary domestic laws criminalizing maritime piracy.

The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security

Aviation is an important global business and a significant driver of the global economy. It is vital therefore that stringent measures are taken to counter acts of unlawful interference with civil aviation. Following a diplomatic conference, held in Beijing from 30 August to 10 September 2010 under the auspices of the International Civil Aviation Organization (ICAO), representatives from more than eighty States adopted two international air law instruments for the suppression of unlawful acts relating to civil aviation. The two instruments are the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (hereinafter 'Beijing Convention' or 'Beijing Treaty') and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft. The Beijing Convention serves international civil aviation well by requiring parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing, and financing acts of terrorism. These new treaties reflect the international community's shared effort to prevent acts of terrorism against civil aviation and to prosecute and punish those who would commit them. The treaties promote cooperation between States while emphasizing the human rights and fair treatment of terrorist suspects. The Beijing Convention also obligates States to criminalize the transport of biological, chemical, and nuclear (BCN) weapons and related material. Many provisions of the Beijing Convention, which is a newcomer to aviation security in the context of some new provisions it introduces, may need reflection, particularly in interpreting the intent of its founding fathers. This article discusses some aspects of the Beijing Treaty, which may need that reflection

The Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft

The Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft - Volume 50 Issue 2

The Beijing Convention of 2010 on the suppression of unlawful acts relating to international civil aviation—an interpretative study

Aviation is an important global business and a significant driver of the global economy. It is vital, therefore, that stringent measures are taken to counter acts of unlawful interference with civil aviation. Following a diplomatic conference, held in Beijing from 30 August to 10 September 2010 under the auspices of the International Civil Aviation Organization, representatives from more than 80 States adopted two international air law instruments for the suppression of unlawful acts relating to civil aviation. The two instruments are the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft. The Beijing Convention serves international civil aviation well, by requiring parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing and financing acts of terrorism. These new treaties reflect the international community’s shared effort to prevent acts of terrorism against civil aviation and to prosecute and punish those who would commit them. The treaties promote cooperation between States while emphasizing the human rights and fair treatment of terrorist suspects. The Convention also obligates States to criminalize the transport of biological, chemical, nuclear weapons and related material. However, many provisions of the Convention, which is a new comer to aviation security in the context of some new provisions it introduces, need interpretation. This article discusses the areas in the treaty which need interpretation and clarity.

Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation

Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation

From sea to land. An all-encompassing approach

Contemporary piracy is a booming criminal activity, not only because of its high profitability with an extremely positive cost-benefit balance for the perpetrators, but also due to the acute vulnerability of the targets, lack of awareness and specific countermeasures along with the highly underreported nature of the crime. Since the beginning of 2008 UNICRI started to develop the idea of a programme taking into account the Institute’s competences in crime prevention and knowledge management, and its expertise in the establishment of an effective public / private partnership to counter crime. The programme has been conceived within the framework of the UN convention on the Law of the Sea (1982) and on the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988), considering also the United Nations Security Council Resolutions 1816, 1846 and 1851 (2008), which authorize a series of decisive measures to combat the acts of piracy against vessels off the coast of Somalia.

Position of persons with mental disorders in penal law

In penal law, persons with mental disorders most often receive attention as potential perpetrators of criminal acts. Persons who commit unlawful act provided under law as a criminal offence in the state of mental incompetence are subjected to a primary sanction - security measure of compulsory psychiatric treatment and confinement in a medical institution. This measure, as well as the security measure of compulsory psychiatric treatment at liberty may be also ordered to a person who committed a criminal offence in a state of substantially impaired mental capacity. In the new Serbian Penal Code 2005 few changes has been done respecting the conditions for imposing the security measures of compulsory psychiatric treatment and confinement in a medical institution and compulsory treatment at liberty, even though these provisions needed to be brought into accord with the changed concept of guilt. Especially, these changes are not properly expressed in the new Code of Criminal Procedure (special procedure for application of security measures). It is therefore even more distinct the contradictory position of a mentally incompetent person accused of a crime. One way of solving this issue, supported by the author, includes a separate legislation on protection of persons with mental disorders (including those persons who, in the state of mental incompetence, commit unlawful acts provided under law as criminal offences). The position of persons in the state of substantially impaired mental capacity does not need necessarily to be changed, since their guilt is not excluded. The entire complexity of protection of these persons? human rights is additionally pointed out in the section referring to execution of security measure of compulsory treatment and confinement in a medical institution, which naturally includes deprivation of liberty and compulsory psychiatric treatment.

Maritime Interdiction of Weapons of Mass Destruction

This article examines current multilateral and bilateral efforts to interdict the maritime transport of weapons of mass destruction (WMD), their delivery systems and related ‘precursors’ used in their construction. The US-led Proliferation Security Initiative (PSI) has focused international attention on the proliferation of WMD, including proliferation by maritime transport. While the PSI’s Statement of Interdiction Principles focuses on existing bases of jurisdiction under domestic and international law, the interdiction framework within which it operates has now been broadened. New legal bases for maritime WMD interdiction include US bilateral shipboarding agreements, the 2005 Protocol to the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Convention and, potentially, UN Security Council Resolution 1540 if it affects the law of the territorial sea. Starting from a consideration of the existing framework of maritime jurisdiction, this article examines the history and likely effectiveness of these new measures, including the creation of new crimes of maritime proliferation.

International Terrorism at Sea as a Menace to the Civilization of the 21st Century

This article posits that the menace of terrorism at sea has traditionally been overlooked, especially since the events of September 11 in New York that were perpetrated by air. Beginning with a general discussion of what motivates a terrorist and the different kinds of terrorism, the article then moves on to maritime terrorism and piracy and their legal and practical distinctions. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988, which made great strides in detailing and codifying terrorism at sea, is discussed, as well as the role of the UN International Maritime Organization in combating terrorism at sea. Finally, the article sums up the current state of affairs and what still remains to be accomplished to effectively battle international maritime terrorism, which the author sees as the world’s next great threat.

The place of the ISPS Code in the legal international regime

The adoption of the International Ship and Port Facility Security Code (ISPS Code) is the latest response of the international shipping community to the increasing threat posed by acts of terrorism at sea. The ACHILLE LAURO incident of 1985 showed that the traditional law against piracy was not adequate to deal with new types of unlawful acts against international shipping, especially those involving acts of terrorism. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and the technical and administrative measures adopted by the Maritime Safety Committee of IMO in 1986 and 1996 attempted to develop a broader regime to deal with unlawful acts against international shipping.However, the events of September 11, 2001 showed that additional measures were still needed to prevent terrorist attacks against ships. One of the measures taken by IMO for this purpose was to adopt amendments to the SOLAS Convention to prevent ships and their cargoes from becoming the targets of terrorist activities. The International Ship and Port Facility Security Code (ISPS Code) is a supplement to the amendments, and it is intended to provide a special mechanism to safeguard security in ports and related facilities. The Code establishes co-operation between government agencies and the shipping and port industries in detecting security threats and preventing security incidents affecting ships in ports or the port facilities themselves. It introduces effective elements of prevention and deterrence into the international regime against terrorism in all its forms. As such it can play a major role in the efforts to enhance maritime security and promote safety and efficiency of international maritime transport.