International law, Sixth edition
particular instances. It was the purchaser that donated the cargo to the
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International Law MALCOLM N. SHAW
particular instances. It was the purchaser that donated the cargo to the Vietnamese people. 81 In many respects, nevertheless, the minority view is the more acceptable one, in that in reality it was the Cuban government’s taking control of the ship and direction of it and its cargo that determined the issue and this was done as a deliberate matter of state policy. The fact that it was accomplished by the private law route rather than, for example, by direct governmental decree should not settle the issue conclusively. In fact, one thing that the case does show is how difficult it is in reality to distinguish public from private acts. 82 In Littrell v. United States of America (No. 2), 83 Hoffman LJ in the Court of Appeal emphasised that it would be facile in the case, which concerned medical treatment for a US serviceman on an American base in the UK, to regard the general military context as such as determinative. One needed to examine carefully all the relevant circumstances in order to decide whether a sovereign or a non-sovereign activity had been involved. Important factors to be considered included where the activity actually took place, whom it involved and what kind of act itself was involved. 84 In Holland v. Lampen-Wolfe, the House of Lords dealt with a case concerning 80 [1981] 2 All ER 1064, 1077 and 1081; 64 ILR, pp. 321, 327. 81 [1981] 2 All ER 1079–80, 1082 and 1083; 64 ILR, pp. 325, 328, 329. 82 Note that if the State Immunity Act 1978 had been in force when the cause of action arose in this case, it is likely that the claim of immunity would have completely failed: see s. 10. See also Kuwait Airways Corporation v. Iraqi Airways Co. [1995] 1 WLR 1147, where the House of Lords separated out a series of events and held that an initial sovereign act did not characterise the situation as a whole: see below, p. 714. 83 [1995] 1 WLR 82, 95; 100 ILR, p. 438. Note that the case, as it concerned foreign armed forces in the UK, fell outside the State Immunity Act 1978 and was dealt with under common law. 84 See also Hicks v. US 120 ILR, p. 606, where the Employment Appeal Tribunal held that the primary purpose of recreation facilities at an airbase was to increase the effectiveness of the central military activity of that base which was clearly a sovereign activity. 714 i n t e r nat i o na l l aw the activities of a US citizen and civilian teaching at a US military base in the UK who argued that a memorandum written by the defendant was libellous. 85 Relying upon Hoffman LJ’s approach, the House of Lords emphasised that the context in which the act concerned took place was the provision of education within a military base, an activity designed ‘as Download 7.77 Mb. Do'stlaringiz bilan baham: |
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