International Journal of Law and Legal Jurisprudence Studies

INTERNATIONAL LAW AS A LAW AND ITS RECEPTION IN MUNICIPAL COURTS :Rishi Raju Institution (O.P. Jindal Global University 2nd year B.A., LLB)

Abstract

This article considers whether International law is a law and the manner in which it is being implemented in the contemporary world. This article considers the variant sources of law and its impact in the international community. This article argues that international law was created to address issues that challenge the international community at large. It is seen that if certain states violate the rules of international law, then sanctions are laid upon them in order to render justice. This paper argues that in order to develop the rules of international law, all states require to adhere to the rules laid dowsn. The paper considers the reception of international law in municipal courts. It takes into consideration both the schools of monism, dualism and the doctrine of harmonization in order to understand the situation of use of international law in municipal courts. It argues that the doctrine of harmonization removes the hierarchy present between international and municipal laws. This article compares the variant stance taken by legal systems on the matter.

International Law is a general rule that binds the member states together to adhere to recognize international values and standards.[1] It is fundamentally created by expressed agreements between states, which are binding upon the state parties, and customary rules that are generally binding upon states due to the state practices at large and their international acceptance.[2] The reason for the creation for an international law is to bind all nation states and develop universal norms that address similar global concerns.[3] In order to respond to such issues, there have been significant developments in international law, by introduction of multilateral treaties addressed to mutual concern of states.

The nation states become a part of the international legal system on a basis of a social contract[4] in order to prosper and solve similar issues that face the international community. For example, crime of genocide, war crimes and crimes against humanity,[5] discharge of pollutants to the atmosphere,[6] and discharge of wastes in water bodies, raise similar problems to the international community.[7] Therefore, to address such problems, the international community establish rules and treaties that create obligations and rules that govern such issues.

The international legal set-up includes obligations, standards and procedures, applicable to the international community, who require complying with these norms.[8] Such a law contributes to the community and organizes international relations amongst various states on the foundation of legal principles. All such legal principles are obeyed by nation states and where states do not adhere to such principles, it is met with social disapproval.[9] There existed a theory that categorized international law as positive morality, since the definition of law based upon state sovereignty and a sanction or command of the government.[10] There may not exist a unified sanction[11] of coercion or force used in law, however there exists instances where legal force has been used in order to suppress certain conflicts. The United Nations may impose certain sanctions[12] in order to suppress matters that are a threat to international peace and security. For example, the military intervention in North Korea in 1950,[13] the intervention of NATO[14] in Kosovo due to the political tension in Yugoslavia over the status of Kosovo.[15] Such instances are rare, however, the United Nations determines for such decisive options in order to maintain peace and security in the world. Therefore, it is understood that international law follows the principles of sanctions and commands under an international community.

The international laws impose a duty on all nation states to acknowledge and abide by the principles which is legitimate and just[16] and principle of fair play[17] bind all states together in order to stable relationship amongst other states. It ensures that there exists a minimal state conflict that threatens international peace and security, and promotes welfare and stronger relation between states. The fear of sanctions by international bodies generally prevents states to act inconsistently with international norms and rules. Such laws reflect collective interests of states and ensure that all states cooperate and coordinate for welfare of the international community.

Treaties are an integral part of international law; it requires the element of consent[18] from nation states, to fulfil the obligations mentioned in the treaty. The principle of pacta sunt servanda[19], a state that is a party to the treaty is obliged to follow the duties that are established by the treaties. The principle of treaties creates obligations for all states that have ratified the treaty and states that have not consented to the treaty is not bound by the treaty and the principles that it lays down.[20] However, in certain instances a non-state part also can be under the ambit of a treaty obligation. For example, Rome Statute of International Criminal Court is a treaty-based obligation;[21] however, Sudan being a non-state party was under the jurisdiction of the Court. The matter was against the President of Sudan, Omar Al Bashir[22]; the matter had been brought before the Security Council under Chapter VII of the United Nations Charter read in accordance with Article 13(b) of the Rome Statute.[23] There had been grave violation of International Humanitarian Law and Government forces had perpetrated war crimes and crimes against humanity.[24] Such an action was taken by the Security Council to render peace and punish the perpetrator of the crimes committed in Sudan. Though the states must voluntarily assume treaty obligations, such obligations are under international law and independent from views of individual states.[25]

Customary International Law is a result of state practice and opinio juris.[26] Such practices are created by state acceptance of a custom as a law,[27] such laws do not exist as bill before legislation, and it is not clearly identified as law.[28] It is not required that all individual states accept and practice it.[29] There is no precise date that establishes an existence of a customary law; however, if a state enters into the international legal system after the creation of the customary law, it is bound by it even if it objects to the notion.[30]

A peremptory law or jus cogens is an elementary principle of international law which requires state acceptance from which cannot be violated by any state.[31] These rules are formed from Natural law principles and a creation of any rule or treaty that violates such laws is void.[32] For example, if any law or a treaty that allows torture or slavery is in violation of peremptory law.[33] Such laws are an integral part of international humanitarian law and prevent the degradation of human dignity and renders any law void that creates a scope for practice of any international crime. These laws have not been specifically codified, it depends on the political and the social scenarios that the world at large is face with; it evolves as an integral part of customary international law and generally includes the prohibition of genocide, war crimes, crimes against humanity, violation of international humanitarian law, slavery and apartheid.[34] Thus, peremptory law becomes a norm amongst all individual states and a recognized rule under international law; and all states are required to follow such rules and any treaty or any law created by individual states cannot violate or derogate such a legal principle.

A state can deviate from a customary law by creating a treaty and applying conflicting laws,[35] however, peremptory laws are an intransgressible part of public international law and no treaty or laws can violate such a law. Therefore, it is understood that individual states cannot act in a manner that opposes such a law. Such laws bind states to laws that they have not even ratified or even consented to,[36] and create obligations for every state in order to keep peace and security towards the international community. For example, the creation of the Nuremburg Trial, post the Word War II atrocities.[37] It had been seen that the International Community had brought the Nazi officials to trial for the crimes against humanity and genocide. This became one of the most radical changes in international law that paved the way for accepting peremptory laws and established the principle of universal rules that would not allow derogation or creations of any laws that would violate international rules.

International law is a law; however with the growing increase in participation of states in the international community, it is tough to implement a strict system of law. With the growth of the United Nations and other international legal systems, the international forum is well equipped to adhere to the legal principles and enforce such rules. With the widespread rise in multilateral treaties amongst various states, there has been an ardent approach towards an international law and address issues of universal concerns.[38]

The growing issue of the relationship between reception of International law and municipal law is twofold; first, the concept of sovereignty of the state[39], and the growing interest of law of introduction of international law in domestic or municipal law.[40] The introduction of international rules poses questions of legitimacy and sovereignty among domestic courts that intend to formulate its legal orders in accordance with international law.[41] In order to resolve this issue eminent scholars and judges have used variant attitudes towards.[42] The two schools of monism and dualism stand at a parallel to each other, having its own logic devised as to the primacy of either international law or municipal law.

The traditional schools of monism and dualism divide and formulate the importance of the two bodies of law in a hierarchical legal order.[43] The Monist theory deduces that international law has primacy over municipal law in both international and municipal decisions; while the dualist theory deduces that international law has primacy over municipal law in international law, and municipal law has primacy over international law in domestic matters.[44] However, it is seen that in the contemporary context a third type of approach is used that overlooks the two schools and suggests that both the rules should be respected and harmonized.[45] The third school merges both the schools of monism and dualism and creates a structure of legal order that removes the friction and uses each of them to generate a process of judicial harmonization.

The Monist approach follows a Kantian philosophy of law[46], which favours a unitary conception of law where the states derive its laws from a superior source of law and a law that contradicts international law, stands invalid.[47] The monist theory suggests that the effect of international law is incorporated in the domestic legal system and it does not require a specific law that would necessitate to explicitly mentioning its inclusion. For example, if a particular state has ratified international human rights convention and its national laws restrict a certain freedom; the person being prosecuted can include the argument that the national laws are in violation of international laws and the judge would require the national law to stand invalid.[48] This approach places international law at a higher platform in respect of municipal laws; it creates a legal order which allows municipal laws to follow the international rules. However, if any contradiction arises between both the laws, then international law would supersede the municipal laws and the national law would stand invalid.

The monist approach overemphasises the claim that a national law finds its source in international law[49] and it is one single law from which all national laws evolve. Therefore, a national law cannot contradict a law from which it has been derived. This argument in the Monist theory follows the doctrine Kelsen that the normative order must reach bedrock which is the only logical deduction, that states cannot be equal if there exists no anterior rule to that effect, making international law superior to municipal laws.[50] According to the principle of Kelsen[51] there exists a singular legal order and international law is predominant of that legal order which is an anterior set of rules to the domestic legal rules. The monist theory proposes that international law is the tree and the all the national law acts as branches, originating from the tree.[52]

According to dualist theory, international law and municipal law exists with a wide difference between its functioning.[53] The dualist approach maintains that international law cannot interfere with the municipal laws[54] as long as such rules of international law are not incorporated in the municipal laws.[55] The transformation doctrine is an integral part of the dualist approach, where international law is followed in by municipal law if the former is transformed into a national law.[56] A wider thesis of dualist approach is the adoption doctrine; where the international law cannot confer rights on municipal laws as far as the rules are not recognized as inclusive in the domestic laws that gives rise to obligation to follow such international rules.[57] This doctrine was noted in “Cristina Case[58]”, where the judge mentioned that the rule of international law is binding on the municipal courts to the extent the rule has been recognised and created precedence by the Courts.

The Dualist approach follows Hegelianism,[59] where the judicial attitude of the state is based on the act of the sovereign. Dualism suggests that international law and municipal law are distinct part of the legal world;[60] in municipal laws the rules by the sovereign is to attend to its subjects whereas in international law it attends to the sovereigns.[61] Both these laws have nothing in common and therefore there should not be a conflict that should arise from each of these laws. Therefore, both municipal law and international law are different bodies of law and has its own differences, both being branches of law, but separate braches of the tree of law.[62]

The Harmonization Doctrine manages to remove the barriers between the two schools of monism and dualism and tries to remove the conflicts of ideologies between both schools. The argue that if both international law and municipal laws were different and independent from each other, calling them a “law” would be improper.[63] This theory suggests that both the laws form one body of doctrine and the Courts should try and minimize the differences created amongst both the laws through a process of a judicial harmonization.[64] The outcome of such a doctrine would render both of these laws at an equivalent platform. Such a doctrine does not harp on the supremacy or inferiority of either of the laws and rather uses the international laws to guide the municipal legal orders by a judicial process.[65]

In Anglo-American system it is presumed that international laws should be respected and national laws should not be created that would violate international rules and norms.[66] This system presupposes that state laws should not contradict international laws. It was seen in Martin v. Renold[67], that states laws cannot derogate any international laws and in extreme instances where such legislation is passed that deviates or contradicts international law then that law would go through a judicial redrafting in order to harmonize with international law.

In the Common Law system, the issue of reception of international law and municipal law was raised in the 18th century, mainly focusing on diplomatic immunity[68]. It was accepted by many judges that the law of the nations or international law was a part of English law or law of the land.[69] The English courts had respected the international norms and accepted its legitimacy; however, in certain cases they have held that the parliament is superior on certain subject matters.[70] The deviation of municipal law from international law in England was seen in the case of R. v. Keyn[71], where the issue was if a foreign subject could be convicted in the Central Criminal Court for the crime of manslaughter, which was a resultant of a negligent navigation of a foreign ship, three miles from English territory. The Court held that it did not have jurisdiction to prosecute an alien for an offence that was committed in a territorial sea. This case resulted in the English law to restrict its legal orders in accordance with its laws and beyond the requirements of international law. This restrained the English Courts from entering into international laws and creating precedence, and apply new or modified international law.[72] This showed that English laws could diverge its path from international laws.

Indian legal system witnesses nstances where international laws and decisions of Privy Council was binding on Indian cases. In Behram Khurshid v. State of Bombay[73], it was seen that Privy Council decisions were not absolutely binding on Indian courts, the court would analyse, see the principles and facts of that case, and the extent it would be applicable. The Indian legal system would accept the International laws as long it would not override the municipal laws and would respect and adhere to the rules laid down by international laws and norms.[74] This view was in consistent with the English law and the courts would act on the general presumption that domestic laws would not directly violate international norms and rules. It is seen that no international treaties would be binding on the domestic courts if the legislation has not implemented such treaties.[75] Therefore, only those treaties would be binding on the municipal courts were enacted and enforced by the legislation of India, treaties of international laws would not be binding as long as the legislative had expressly mentioned that such treaties formulate a law of the land.

In Civil Law system, the reception of international law in municipal is widely accepted. The Constitution of France lays down that its legal system would abide by international law.[76]  The Courts have accepted the inclusion of international law in domestic matters in domestic courts as long it would be appropriate.[77] However, French courts laid that international cases were binding on domestic cases as long as the rules were universally accepted or the French had recognized such laws[78]; though they accepted that the legislation of the country was supreme but would not violate or contradict any international law. In other civil law systems like Netherlands[79] and Switzerland[80], it is seen that international law would be binding on domestic cases. Treaties and other laws would be binding on municipal directly and could override previous federal laws.[81]

International law has grown over the years and emerges as a law; the sources are variant and remain in a horizontal platform as opposed to municipal laws. In the light of the variant legal systems it is seen that Anglo-American and Civil law systems follow the harmonization doctrine. The Common Law countries differ from such a doctrine, accepting more of a dualist approach towards the inclusion of international law in municipal law. Over the years that has been a variance in ideologies in which of the schools that should be followed. The division created by monism and dualism follow a philosophical doctrine and fails to adhere to certain legal issues. The doctrine intends to annul such divisions and craft a legal order that minimizes the conflict created by the previous doctrines. The fundamental element of the doctrine is to maintain an order in the working of both national and international laws. It removes the hierarchy amongst international law and municipal law and creates interdependence amongst both these laws for a healthier judicial process.

[1] J. Bentham: see Introduction to the Principles of Morals and Legislation, London, 1780. See also Malcolm N. Shaw, International Law, 6th Edition, Cambridge Press, p. 1.

[2] Malcolm N. Shaw, International Law, 6th Edition, Cambridge Press, p. 6.

[3] Jonathan I. Charney, The American Journal of International Law, Vol. 87, No. 4 (Oct., 1993), p. 529.

[4] Thomas M. Franck & Steven W. Hawkins, Justice in the International System, 10 MICH. J. INT’L L., (1989), pp. 127-29.

[5] Jonathan I. Charney, supra note3, p. 530.

[6] Christopher D. Stone, Beyond Rio: “Insuring” against Global Warming, 86 AJIL (1992), pp. 445-47.

[7] THE NEW NATIONALISM AND THE USE OF COMMON SPACES: ISSUES IN MARINE POLLUTION AND THE EXPLOITATION OF ANTARCTICA (Jonathan I. Charney ed., 1982), Jonathan I. Charney, supra note 3, p. 529.

[8] Myres S. McDougal, Law and Peace, 18 DENVERJ. INT’L L. (1989), pp. 1, 8-10; See also Anthony D’Amato, Is International Law Really “Law”?, 79 Nw. U. L. REV., (1985), p. 1293.

[9] M. BARKUN, LAW WITHOUT SANCTION (1968); cf. Reisman, Sanctions and Enforcement, in INTERNATIONAL LAW ESSAYS (1981), pp. 381, 383-89.

[10] J. Austin, The Province of Jurisprudence Determined (ed. H. L. A. Hart), London, 1954, pp. 134–42.

[11] W. M. Reisman, ‘Sanctions and Enforcement’ in The Future of the International Legal Order (eds. C. Black and R. A. Falk), New York, 1971, p. 273. See also Malcolm N. Shaw, supra note 2, p. 4.

[12] Chapter VII of the United Nations Charter.

[13] Security Council resolutions of 25 June, 27 June and 7 July 1950. See D.W. Bowett, United Nations Forces, London, 1964.

[14] Final Report to the Prosecutor by the Committee established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, para 1 (available at: http://www.un.org/icty/pressreal/nato061300.htm).

[15] : Hilary Charlesworth, The Modern Law Review, Vol. 65, No. 3 (May, 2002), p. 378.

[16] Tony Honore, Must We Obey? Necessity as a Ground for Obligation, 67 VA. L. REV. (1981), pp. 39, 44-50.

[17] KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY, (1989), pp. 129-49.

[18] Jonathan I. Charney, supra note 3, p. 535.

[19] THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS, pp. 202, 187-88.

[20] Article 34 Vienna Convention Law of Treaties, Jonathan I. Charney, The Antarctic System and Customary International Law, in INTERNATIONAL LAW FOR ANTARCTICA, (Francesco Francioni & Tullio Scovazzi eds., 1987), pp. 55, 63-68.

[21] Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, Journal of International Criminal Justice 7 (2009), p. 339.

[22] Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution’s Application for a

Warrant of Arrest against Omar Hassan Ahmad Al Bashir.

[23] A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. Article 13(b) of the International Criminal Court Statute.

[24] Supra 21.

[25] Jonathan I. Charney, supra note 3, p. 534.

[26] North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3 (Feb. 20).  See also Article 38(1)(b) of Statute of International Court of Justice.

[27] Jonathan I. Charney, supra note 3, p. 536.

[28] Fisheries case (UK v. Nor.), 1951 ICJ REP. (Dec. 18), p. 116.

[29] RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, 102(1) (1987).

[30] Ibid at 102, See also Jonathan I. Charney, supra note 3, p. 538.

[31] Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports (2002), para. 213.

[32] Article 53 of the Vienna Conventions on the Law of Treaties.

[33] M. Cherif Bassiouni, International Crimes: jus cogens and Obligatio Erga Omnes, Law & Contemporary Problems, (1998), pp. 59, 63-74.

[34] Marc Bossuyt en Jan Wouters, Grondlijnen van internationaal recht, Intersentia, Antwerpen enz., p. 92 (2005). See also Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports (2002), para. 213.

[35] The International Criminal Court that exists as a treaty obligation does not acknowledge the Customary International Doctrine of Head of State Immunity before the Court’s jurisdiction. Article 27(2) of the Rome Statute.

[36] Jonathan I. Charney, supra note 3, p. 543.

[37] Ibid.

[38] Jonathan I. Charney, supra note 3, p. 551.

[39] Y. Shany, Regulating Jurisdictional Relations Between National and International Courts, Oxford, 2007; Malcolm N. Shaw, supra note 1, p. 129.

[40] ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS (Benedetto Conforti & Francesco Francioni eds., 1997); Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501 1999-2000, p. 501.

[41] Joseph H.H. Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 Heidelberg JIL, pp. 547, 551.

[42] Q. Wright, The Enforcement of International Law Through Municipal Law in the United States (1916), See also Daniel P. O’Connell, The Relationship between International Law and Municipal Law, The Georgetown Law Journal, Vol. 48 (1960) 3, p. 431.

[43] Cf. Armin von Bogdandy, ‘Pluralism, direct effect, and the ultimate say: On the relationship between

international and domestic constitutional law’ (2008) 6 I.CON, pp. 397-98. See also Niels Peterson, The Reception of International Law by Constitutional Courts Through the Prism of Legitimacy, Preprints of the

Max Planck Institute for Research on Collective Goods Bonn 2009/39 (2011), p. 1.

[44] Daniel P. O’Connell, The Relationship between International Law and Municipal Law, The Georgetown Law Journal, Vol. 48 (1960) 3, p. 432.

[45] Id.

[46] W. Jones, The Retroactive Effect of the Recognition of States and Governments, 16Brit. Yb. Int’l L. (1935), See also Daniel O’Connell, supra note 44, pp. 44, 432.

[47] Daniel O’Connell, supra note 44, p. 432.

[48] G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.

[49] Edwin Borchard, Relation between International Law and Municipal Law, Virginia Law Review, Vol. 27 (1940) 2, p. 139.

[50] Daniel O’Connell, supra note 44, p. 434. See also Kelsen, General Theory of Law and State, Cambridge, 1945, pp. 363–80.

[51] Id. See also Malcolm N. Shaw, Supra note 1, p. 133.

[52] Edwin Borchard, supra note 49, p. 139.

[53] Malcolm N. Shaw, supra note 1, p. 131.

[54] Edwin Borchard, supra note 49, pp. 138-39.

[55] James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London, p. 45.

[56]Daniel O’Connell, supra note 44, pp. 444-45. See also International Law Commission, U.N. Doc. No. A/CN.4/SR.14, at 6 (1949).

[57] Daniel O’Connell, supra note 44, p. 446.

[58] Compania Naviera Vascongado v. Steamship “Cristina Case”, (1938) A.C. 485, 502. See also In re Ferdinand, 19213 1 Ch. 107, 137 (1920).

[59] Holland, Studies in International Law (1898), p. 176; Oppenheim, International Law (8th ed. 1955), p. 37.

[60] Daniel O’Connell, supra note 44, p. 436.

[61] Id.

[62] OPPENHEIM, INTRODUCTION TO PiccroTro, THE RELATION OP INTERNATIONAL LAW TO THE LAW OV ENGLAND (1915), p. 10. See also Edwin Borchard, supra note 13, p. 139.

[63] Edwin Borchard, supra note 49, p. 142.

[64] Daniel O’Connell, supra note 44, p. 447.

[65] Id at p. 447-48. See also The S.S. “Lotus,” P.C.I.J., ser. A, No. 10 (1927), West Rand Cent. Gold Mining Co. v. The King, [1905] 2 K.B. para. 391.

[66] Re Noble & Wolf, 4 D.L.R. (1948), pp. 123, 139; Mortensen v. Peters, 14 Scots L.T.R. 227 (1906); Peters v. McKay, [19511 Int’l L. Rep. (No. 152), para. 474.

[67] Martin v. Renold, Bundesgericht, 1909, 35(1.) BGE 594, 596 (Swit.).

[68] Holdsworth, The Relation of English Law to International Law, 26 Minn. L. Rev. 141 (1942). See also Daniel O’Connell, supra note 44, p. 453.

[69] Buvolt v. Barbuit, Cas. T. Tab. 281, 25 Eng. Rep. 777 (Ch. 1735). See also Triquiet v. Bath, 3 Burr. 1478, 1480, 97 Eng. Rep. 936, 938 (K.B. 1764).

[70] Daniel O’Connell, supra note 44, pp. 450-57.

[71] R. v. Keyn, [1876-1877] 2 Ex. 63 (1876).

[72] City of Ottawa, 11941-19421 Ann. Dig. 337, 339 (No. 106); Reference Re Exemption of United States Forces from Canadian Criminal Law, [1943-19451 Ann. Dig. 124, 132 (No. 36)].

[73] 42 All India Rep. 123 (Sup. Ct. Sept. 24, 1954).

[74] 1 Basu, Commentary on the Constitution of India (3d ed. 1955), p. 404.

[75] 2 Basu, Commentary on the Constitution of India 55 (3d ed. 1956), p. 404.

[76] Paragraph 14(1) of the Preamble to the French Constitution of 1946.

[77] Daniel O’Connell, supra note 44, p. 468.

[78] Preuss, The Relationship of International Law to Internal Law in the French Constitutional System, 44 Am. J. Int’l L. (1950), p. 641.

[79] Article 65 and 66 of the Netherland Constitution. See also Schurmann, 30 Transact. Grot. Soc’y 34 (1944).

[80] K. k. Oesterreichisches Finanzministerium v. Dreyfus, Bundesgericht, March 13, 1918, 44(I) B.G.E. 49 (Swit.). See also Daniel O’Connell, supra note 44, pp. 480-83.

[81] Id.

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