Category Archives: 3

A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

by Arvind Pillai, Raghav Kohli

(2017) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

Privacy as a concept has been hotly debated with regard to its role in an individual’s personal sphere since antiquity. The inception of international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, along with institutions such as the United Nations, the Inter-American Commission on Human Rights and the Council of Europe, have made the codification of privacy a global concern. However, despite the inception of these institutions, several states have refused to codify and respect privacy as a fundamental right guaranteed to an individual. Thus, the need arises to highlight the development of a right to privacy as a customary right with the help of widespread state practice around the world. The most recent country to address the question of what status privacy holds in the legislative framework of that state is India. Here a unique identifying number is provided to each citizen based on biometric and demographic information. Known as the ‘Aadhaar’ scheme, this is giving rise to grave concerns about bodily integrity, informational self-determination, and decisional freedom. Indeed, a nine-judge Constitution Bench has just unanimously affirmed that the right to privacy is a fundamental right under the Constitution of India (Justice K S Puttaswamy (Retd.), and Anr v Union of India and Ors (2017) 10 SCC 1)
This article traces the evolution of the right to privacy in India, starting with an exploration of its conception in the Constituent Assembly Debates of the longest Constitution in the world. It attempts to ascertain the intent behind the exclusion of the right to privacy as a fundamental right from the Constitution, and analyses the contemporary position developed by the inconsistent jurisprudence of the Courts in India. Finally, by scrutinizing the practices of states from around the world, it argues that the right to privacy, and in particular data privacy, can be considered a binding principle of customary international law.

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Canada’s Statutory Privacy Torts in Commonwealth Perspective

by Chris D. L. Hunt* and Nikta Shirazian**

(2016) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

In the last decade common law privacy torts have emerged in Ontario, England and New Zealand, and three recent law reform commissions in Australia have issued reports recommending similar actions in that country. Four Canadian common law provinces have had statutory privacy torts for decades (British Columbia, Manitoba, Saskatchewan and Newfoundland). These statutes offer little guidance as to when a privacy interest will arise and the case law does little to illuminate. Despite dozens of decisions, few are at the appellate level, and none have engaged in a detailed assessment of the factors relevant to assessing privacy claims in the tort context. In this paper, the authors undertake a thorough analysis of the Canadian case law, uncovering the principles latent in the existing jurisprudence, and critically examine them in light of the dynamic developments occurring in other parts of the Commonwealth. After exploring the structure and scope of these statutory torts in Part One, the authors propose that courts employ a reasonable expectation of privacy test, turning on the existence of 10 contextual factors that are elucidated in Part Two. The authors recommend that these factors be analyzed from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. While the recommendations in this paper are often directed at a Canadian audience, they are informed by the comparative experience abroad and hence could be of real interest to jurists throughout the Commonwealth concerned with the principled operation of privacy torts.
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Private Ordering in Sovereign Debt Restructuring: Reforming the London Club

by Christian Kirchner* and David Ehmke**

(2012) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

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Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany

Tobias Schrank*

(2011) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

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Britain’s Emerging Constitution?

Lord Mance1

(2008) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article this article

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The Role of Reasonable and Unreasonable Mistake in Justified Defences A Comparative and Analytical Study

Khalid Ghanayim*

(2007) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

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“Equality of Arms”: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System

Elise Groulx*

(2006) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

Abstract

The protection of the rule of law requires that the international criminal justice system focus on two key elements: (i) the substantive objective of ending impunity by bringing war criminals to justice, and (ii) the procedural objective of ensuring a fair trial. The prosecutorial bias inherent in the institutional designs of the international criminal tribunals for the former Yugoslavia and for Rwanda, and the International Criminal Court (ICC), poses a serious challenge to the individual’s right to a fair trial. In addition to an independent judiciary and prosecution, the international criminal justice system requires an independent legal profession (including both defence and victims’ counsel). The incorporation of a “third pillar” will help to legitimize the new justice system and strengthen the rule of law by providing a formal voice for lawyers and enabling the protection of individual rights. In the same vein, the international community’s commitment to democracy in post-conflict states should include strong measures to protect the institutional, legal and political independence of lawyers.

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