Showing papers in "International and Comparative Law Quarterly in 2000"
TL;DR: The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) as mentioned in this paper is the earliest of these modern international texts and was developed in great part in response to the destruction and looting of monuments and works of art during the Second World War.
Abstract: Examples can be found from ancient times of concern for the protection of cultural artefacts
1
and early legislation to protect monuments and works of art first appeared in Europe in the 15th century.
2
Cultural heritage was first addressed in international law in 1907
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and a body of international treaties and texts for its protection has been developed by Unesco and other intergovernmental organisations since the 1950’s. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
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of Unesco (henceforth the “Hague Convention”) is the earliest of these modern international texts and was developed in great part in response to the destruction and looting of monuments and works of art during the Second World War. It grew out of a feeling that action to prevent their deterioration or destruction was one responsibility of the emerging international world order and an element in reconciliation and the prevention of future conflicts. International law relating to the protection of cultural heritage thus began with comparatively narrow objectives, the protection of cultural property in time of war.
228 citations
TL;DR: In this article, the authors examine the response of international environmental law to these two, potentially opposing, trends, viz., the need for universalism, on the one hand, and sensitivity to the needs of developing States, and discuss the various means of operationalising it.
Abstract: The protection of the global environment has become one of the central objectives of the international community in recent decades. Issues such as climate change, the depletion of the ozone layer, and the loss of the biological diversity has resulted in a growing international awareness of the problems facing the planet. Moreover, there is also recognition that States will need to act more collaboratively at the international level if effective solutions are to be found to these problems. However, concurrently there is also recognition that many States have pressing socio-economic concerns of their own, and that they have neither the resources nor the capabilities with which to devote to such global issues—so called “developing” States. This article examines the response of international environmental law to these two, potentially opposing, trends, viz., the need for universalism, on the one hand, and sensitivity to the needs of developing States, on the other. In particular, the article will examine the emerging legal principle of “common but differentiated responsibilities”, as well as discussing the various means of operationalising it. Nevertheless, as will be discussed below, there is still much debate as to the conceptual basis of this principle—leading one to question its real aim. Is it to contribute to a fairer world system in which developed States recognise their historical responsibility for past environmental damage, or is it simply an expedient means of ensuring the participation of developing States in what are primarily Northern concerns?
67 citations
TL;DR: In the fifth week of NATO's 78-day aerial intervention in the Federal Republic of Yugoslavia (FRY), the FRY initiated proceedings in the International Court of Justice against ten of its member States which it accused of violating the principles of international law in relation to the jus ad bellum and the Jus in bello as discussed by the authors.
Abstract: In the fifth week of NATO's 78–day aerial intervention in the Federal Republic of Yugoslavia (FRY), the FRY initiated proceedings in the International Court of Justice against ten of its member States which it accused of violating the principles of international law in relation to the jus ad bellum and the jus in bello.1 NATO's action, known as Operation Allied Force, had commenced on the night of 24 March 1999 when cruise missiles were directed on Serbian targets located in the Kosovan capital of Pristina and in the Republic's capital of Belgrade.2 This robust application of armed force came on the eve of the 50th anniversary of NATO, an organisation which was established after the Second World War for the collective defence of its member States, and constituted the first offensive launched against another sovereign State in the organisation's entire history.
62 citations
TL;DR: In response to a request from the Foreign Affairs Committee in connection with its hearings on the NATO intervention in Kosovo in March 1999, the following issues of international law were addressed: 1) Was the resort to force by NATO consistent with international law? and 2) Were the means employed by NATO, once the decision to use force had been taken, consistent with International Law?
Abstract: This memorandum is submitted in response to a request from the Foreign Affairs Committee in connection with its hearings on the NATO intervention in Kosovo in March 1999. The memorandum addresses the following issues of international law:(1) Was the resort to force by NATO consistent with international law? and(2) Were the means employed by NATO, once the decision to use force had been taken, consistent with international law?
51 citations
TL;DR: Christakis as discussed by the authors concludes that no right of self-determination exists outside the colonial context or situations of massive violations of fundamental human rights, and concludes that secession is rather a question of facts rather than of rights, while international law, applying a presumption against secession to be successful, nevertheless accepts the state of affairs created, once the process of separation has been completed.
Abstract: secession of non-State entities. Consequently foreign assistance for the secessionist movement is not admitted. In that respect ChrUtakis confirms the traditional international doctrine against a right to secession. Thus international law, applying a presumption against secession to be successful, nevertheless accepts the state of affairs thereby created, once the process of separation has been completed. Those observations, based on the principle of effectiveness and corroborated by a careful analysis of State practice, are central to the author's argument. Christakis concludes that secession is rather a question of facts than of rights. The new existing State enjoys the protection of international law. Only if originating from aggression must the result of secession not be accepted. In those situations the new State has to be denied any kind of protection. The principle ex iniuria ius non oritur obtains validity. In the second part of his analysis Christakis deals with internal self-determination. Under this topic he extensively covers not only the position of minorities and indigenous populations within existing States, but also a potential right of the population as a whole to live within a democratic system. With regard to special rights of minorities or indigenous populations living within existing States, the author uses practice in order to show that States are more and more inclined to consider autonomy as a meins of solving inter-State conflicts. However, at least in relation to minorities, the acting States make it quite clear that they do not intend to incur international obligations of any kind, but solely use it as a political method of internal conflict management. In regard to indigenous populations, States seem less restrictive. However, a general right to autonomy cannot yet be established, neither in favour of minorities nor in favour of indigenous populations. In fact, according to Christakis, those groups are hardly accepted to be supporters of international rights. Subsequently, Christakis elaborates on democracy as a potential means to realising internal self-determination. Consideration of State practice, expressions by State organs and instruments of international organisations lead him to conclude that at least in Europe and North America the whole population of a State has a right to democratic government. Although coups are condemned in other parts of the world, too, they still occur regularly, thus preventing a legal right to democracy from coming into existence. Concluding that no right of secession exists outside the colonial context or situations of massive violations of fundamental human rights, Christakis confirms the traditional position of international law. With regard to internal self-determination the author seems to be more progressive. Although denying a right to autonomy in favour of minorities or indigenous populations, he proves a right of the population as a whole to be governed by a democratically elected government, but limited to Europe and North America. Summarising the outcome international law still seems to limit itself to the State as its original subject One outstanding feature of the book is the presentation and analysis of an enormous amount of material on self-determination. The comprehensive collection of State practice as well as conventions and organisation practice constitutes a major achievement. However, Christakis does not limit himself only to presenting a comprehensive overview but continues with a sharp and precise analysis of the modem law of self-determination, in its external as well as in its internal aspects. Christakis essentially contributes to clarification of the current state of the law. A comprehensive and at the same time objective analysis of selfdetermination outside the colonial context seems to be necessary in order to better understand and eventually seek to solve the numerous ethnic conflicts currently existing.
47 citations
TL;DR: The distinction between the legal and the equitable estate has been identified as an English peculiarity logically detachable from the trust as discussed by the authors, and it has been criticised as an obstacle to the acceptance of the trust.
Abstract: “Perhaps the greatest difficulty the civilians have in accepting the trust is caused by what I have come to regard as an English peculiarity logically detachable from the trust, namely, the distinction between the legal and the equitable estate. In Scots law, which, even if it did not invent and develop the trust for itself but took it over from England—the point is doubtful—has accepted it without inhibitions or reservations, no such distinction has ever been known. There the trustee becomes owner and the beneficiary acquires a contractual right against him.”1
39 citations
TL;DR: The legal version of post-modernism has not failed to challenge comparative law as discussed by the authors, pointing out that traditionally, comparatists have participated in a project of objectivity, universalism and neutrality of law, of which the "new" approach to comparative law is altogether sceptical.
Abstract: The legal version of post-modernism has not failed to challenge comparative law. It points out that, traditionally, comparatists have participated in a project of objectivity, universalism and neutrality of law, of which the “new” approach to comparative law is altogether sceptical.1 In the era of globalisation, both the discipline and its critique have gained relevance. What the transition of post-socialist countries and the unification of Europe have effected regionally, globalisation now accomplishes on a global scale: it creates desires for harmonisation and, as a pre-requisite, legal comparison. However, not only the technical function of comparative law is needed, but also its critical potential. In the process of globalisation, different legal systems and different cultures are confronted with each other and must interact. This provokes new questions about the options and limits of comparative law and legal unification, regarding, for instance, the applicability of specific moral and legal standards to other cultures by comparatists and law-makers. These questions are all the more pressing as we begin to realise that governing globalisation, in particular economic globalisation, with the help of global law perhaps requires a concept of a global legal order which is based on a “global legal pluralism”.2
33 citations
TL;DR: The role of legal systems as determinants of the location of foreign direct investment (FDI) is discussed in this article, where the authors argue that the manner in which laws are implemented in a State can act as a deterrent or an attraction to potential foreign investors.
Abstract: What do we know about the role of legal systems as determinants of the location of foreign direct investment (FDI)? The short answer to this question is: not enough.1 In recent decades, most governments have come to believe that FDI is an important source of the capital and technology necessary for economic development, and to seek new ways to induce foreign investors to locate within their jurisdiction.2 Commentators and development agencies regularly argue or imply that FDI flows are to some extent determined by the effectiveness of the host State's legal system.3 That is, it is suggested that the manner in which laws are implemented in a State can act as a deterrent or an attraction to potential foreign investors.4
31 citations
TL;DR: In this paper, it is stated that one subject missing from contemporary studies on the function and work of the ICJ is a pragmatic examination of the manner in which certain contentious cases presented to the International Court of Justice have disappeared from view and of whether a judgment, once handed down, has actually been complied with by the parties to the dispute.
Abstract: It is my intention to appeal to scholars of a younger generation to undertake research on the thesis which, on the basis of my experience at the International Court of Justice–and I have been a serving Member for almost a quarter of a century–I shall be presenting in this paper. In my view, one subject missing from contemporary studies on the function and work of the International Court of Justice is a pragmatic examination of the manner in which certain contentious cases presented to the International Court of Justice have disappeared from view and of whether a judgment, once handed down, has actually been complied with by the parties to the dispute.
30 citations
TL;DR: In 1999, the House of Commons Foreign Affairs Committee invited a number of international lawyers to submit papers on the legal aspects of the Kosovo crisis as discussed by the authors, including Professor Ian Brownlie, Professor Christine Chinkin, Professor Christopher Greenwood QC, Professor Vaughan Lowe, and Mark Littman QC.
Abstract: [In 1999, the House of Commons Foreign Affairs Committee invited a number of international lawyers to submit papers on the legal aspects of the Kosovo crisis. Papers were submitted by Professor Ian Brownlie QC, Professor Christine Chinkin, Professor Christopher Greenwood QC, Professor Vaughan Lowe, and Mark Littman QC. The three last-named answered questions on the issue at a session of the Committee held in February 2000.
28 citations
TL;DR: In the case of as mentioned in this paper, the author has worked as legal adviser and/or advocate for at least 35 States and acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia.
Abstract: 1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum “on the area of international law“. 1 In the course of his career as a member of the English Bar, specialising in international disputes, the writer has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.
TL;DR: In this paper, the authors describe the development of events and assess the status of the 14 Member States' actions under international law, in particular in the light of any developing norms concerning nonintervention, respect for human rights and the right to democratic governance.
Abstract: The participation of the Freedom Party in the Austrian government has given rise to exceptional reactions both in Austria and internationally. The imposition of a freeze in bilateral diplomatic relations by Austria's European Union partners has been particularly notable, amounting to an unprecedented response to the election of a new government in another Member State. This note seeks to describe the development of events and assess the status of the 14 Member States' actions under international law, in particular in the light of any developing norms concerning non-intervention, respect for human rights and the right to democratic governance.
TL;DR: The meaning of the term "habitual residence" has been extensively studied in the last few years as mentioned in this paper, and it has been proposed as a replacement for domicile in the new Convention on the Jurisdiction and Enforcement of Judgments in Civil Matters.
Abstract: There have been several cases reported over the last few years on the meaning of “habitual residence”. This comparatively new phrase is much in use not only in domestic legislation but also in various Hague Conventions on the reform of private international law and it is in widespread use by the European Commission. Habitual residence is the basis for allocating jurisdiction to that State's court, especially in relation to matrimonial causes and child custody. For example, it has been proposed by the European Commission as a replacement for domicile in the new Convention on the Jurisdiction and Enforcement of Judgments in Civil Matters. Habitual residence is also extremely important in connection with tax matters and social security. It is additionally used in the Immigration Act 1971. Other than its purpose in allocating jurisdiction, habitual residence is beginning to be adopted as a connecting factor for choice of law, for instance the Rome Convention on Choice of Law in Contract.
TL;DR: The two codes for transboundary movement of genetically modified organisms beg the question whether they co-exist happily, or provide for incoherence, and a framework for a focus on the respective codes, as well as their relationship to each other, from a legal perspective is provided.
Abstract: The beginning of the new millennium spawned a biosafety protocol1 for the transboundary movement of genetically modified organisms,2 against the background of an existing WTO code3 concerned mainly with liberal trade. The co-existence of the two codes, and their almost separate development, reflects the fact that the international movement of GMOs raises concerns both of biosafety and liberal trade. However, their co-existence also invites a number of questions—viz., the level to which they complement each other, the level of duplication, and the levels to which they are adequate qua normative frameworks for biotechnology products. In short, the two systems beg the question whether they co-exist happily, or provide for incoherence. This article is not intended as an exhaustive analysis of the codes, but rather as a framework for a focus on the respective codes, as well as their relationship to each other, from a legal perspective.
TL;DR: The permanence of the genocide definition over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948 as mentioned in this paper, and the existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity.
Abstract: The permanence of the genocide definition1 over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948.2 The existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity. However, the genocide definition is also characterised by a number of problematic aspects and unresolved interpretative questions, some of which have been addressed in the decisions of the ad hoc Tribunals for the Former Yugoslavia and for Rwanda.3 Divergent approaches to the mens rea requirement, to the definition of the four protected groups against whom genocide can be committed, or to the identification of acts that constitute genocide had been confined to an exclusively academic ambit until not long ago, but can now be determinative of an acquittal or conviction. With the exception of one decision by the ICTY,4 all other judgments on genocide have come from the ICTR, in whose custody are some of the most prominent members of the interim government and of the militias accused of having organised and carried out the 1994 Rwandan genocide.5
TL;DR: In this paper, the Amsterdam Treaty has entered into force on 1 May 1999, leading to a number of important developments in the legal system governing EU Justice and Home Affairs (JHA) law.
Abstract: Since the last note on Current Developments in this area, the Amsterdam Treaty has entered into force on 1 May 1999, leading to a number of important developments in the legal system governing EU Justice and Home Affairs (JHA) law. In addition, the Court of Justice has clarified several aspects of the relationship between the first and third pillars.
TL;DR: Ghai et al. as mentioned in this paper argued that the primary concern in establishing the special administrative regions is less the automony for the people of Hong Kong or Macau as finding a framework for managing different economic systems from those on the mainland.
Abstract: With China's resumption of sovereignty over Macau on 20th December 1999, another step was taken towards the reunification of Greater China. The reunification of Macau as of Hong Kong is based on the principle of “one country, two systems’, under which the socialist systems of the People's Republic of China are not applied in these territories. Instead most constituents of their previous economic, legal and social systems are preserved. In either case China negotiated what are called Joint Declarations for the resumption of sovereignty with the colonial power, under which the terms of “one country, two systems’ were spelled out. China undertook to give effect to the Declarations in Basic Laws, passed by its National People's Congress. Except for defence and foreign affairs, most matters are vested in the new entities, called Special Administrative Regions. The Basic Laws describe the constitutional system established for the regions as being characterised by a “high degree of autonomy’. As such they are an interesting addition to autonomy systems which are increasingly being applied as solutions to problems of divided societies. But the institutional support for the autonomy is particularly weak, and a closer examination of the articulation of the regions with the central authorities suggests that the primary concern in establishing the special administrative regions is less the automony for the people of Hong Kong or Macau as finding a framework for managing different economic systems from those on the mainland (I have developed these arguments in Ghai 1999).
TL;DR: The economic co-operation within ASEAN can be said to have seriously begun only at the beginning of the nineties as mentioned in this paper, and it was well known that, as a co-operative grouping, had existed mainly with a political and strategic focus.
Abstract: Economic co-operation within ASEAN1 can be said to have seriously begun only at the beginning of the nineties. Prior to that, it was well known that, ASEAN as a co-operative grouping, had existed mainly with a political and strategic focus. It is with this focus that ASEAN managed to establish and maintain cohesiveness through the years despite the shaky beginnings of what has been described as a “brittle alliance” borne of a common fear of communism.2 And it is with this focus that ASEAN, as a regional grouping, has generally been hailed as a success.
TL;DR: The decision of the International Court of Justice of 13 December 1999 in the dispute between Botswana and Namibia concerning the island known to the former as Sedudu and the latter as Kasikili is the latest in a line of cases dealing with the identification of colonial boundaries,1 including the two Eritrea/Yemen arbitration awards, the second of which (on Maritime Delimitation) was delivered four days after the Kasikkili/Sedudu Island judgment itself as mentioned in this paper.
Abstract: The decision of the International Court of Justice of 13 December 1999 in the dispute between Botswana and Namibia concerning the island known to the former as Sedudu and the latter as Kasikili is the latest in a line of cases dealing with the identification of colonial boundaries,1 including the two Eritrea/Yemen arbitration awards, the second of which (on Maritime Delimitation) was delivered four days after the Kasikili/Sedudu Island judgment itself.2 While not as wide-ranging in either the geographical or legal senses as some of the preceding decisions on territorial issues, the decision of the Court in this case nevertheless raises some interesting and important questions.
TL;DR: The use of force has been prohibited in international relations since at least the United Nations Charter, 1945 as mentioned in this paper, which states that all members shall refrain in their international relations from the threat or use of forces against the territorial integrity or political independence of any state, or in any other manner inconsistent with United Nations.
Abstract: The use of force has been prohibited in international relations since at least the United Nations Charter, 1945. Article 2 (4) of the Charter states:All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the United Nations.
TL;DR: In the case of the International Court of Justice, the International Tribunal for the Law of the Sea (ITLOS), an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitration tribunal constituted by the United Nations General Assembly (UNGA).
Abstract: Under Part XV of the 1982 United Nations Convention on the Law of the Sea, any dispute concerning the interpretation or application of the Convention which cannot be settled by the consensual means set out in section 1 of that Part, may be referred by any party to the dispute for compulsory settlement under section 2. There are four possible fora for such settlement—the International Court of Justice, the International Tribunal for the Law of the Sea (hereafter ITLOS), an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII. If the parties to a dispute have made a declaration under Article 287 (which is optional) specifying their choice of forum, and their choices coincide, that body will be the forum for the settlement of the dispute. If their choices do not coincide or if not all parties have made a declaration, the forum for settlement will be an Annex VII arbitral tribunal.
TL;DR: In this paper, the authors argue that the amount of intellectual energy spent on emancipating unjust enrichment from the categories of contract, tort, and equity seems to bear little relation to the actual social benefits detectable in the restitution decisions themselves.
Abstract: One might, by way of introduction, return to the general question. What is one to make of the debate between Professor Birks and the apparent schematic disorder of the common law? One immediate response is to consign this whole debate to a past age. Those who believe that meaningful legal reform can be achieved through classification risk being ridiculed.7 Such a view is understandable. The amount of intellectual energy spent on emancipating unjust enrichment from the categories of contract, tort and equity seems to bear little relation to the actual social benefits detectable in the restitution decisions themselves.8 And the experimentation with the public and private law dichotomy appears to have proved of little worth in the face of such social horrors as child abuse.9
TL;DR: In this article, the authors highlight the importance of recognising the particular relationship between executive and legislature which characterises the British Constitution when considering the likely impact of proposals for its reform.
Abstract: The process of constitutional reform in the United Kingdom instituted by the present Labour government has been considerable but it has proceeded on a piecemeal basis. Its aim is to reinforce accountability for the exercise of public power but, in the absence of a comprehensive scheme of reform, the achievement of this ambition has the same lack of coherence as the reform programme itself. Some matters remain untouched by the process, centrally and crucially the domination of the House of Commons and therefore effectively the legislature, by the Executive, a condition exaggerated by the massive majority enjoyed by the government.1 The justification for this arrangement, which so infringes the separation of powers, lies in the claim that it produces effective, stable and accountable government. This is not the place to assess the accuracy of these claims but to note the importance of recognising the particular relationship between executive and legislature which characterises the British Constitution when considering the likely impact of proposals for its reform.
TL;DR: The very policies that supposedly define the concept of national sovereignty are no longer the exclusive domain of national governments as mentioned in this paper, but have been transferred to the European level in most European Union member States.
Abstract: There is a question mark over the future of the nation-state in Europe. National monetary policy has been transferred to the European level in most European Union member States. Over the next ten years the EU will have a stronger role in defence and foreign policy, immigration and law enforcement. The very policies that supposedly define the concept of national sovereignty are no longer the exclusive domain of national governments.
TL;DR: In the case of the Lockerbie affair, the real story is how international action, and in particular the ingenious use of international law, was successful in achieving the appearance of the accused for trial before a Scottish court sitting in the Netherlands as discussed by the authors.
Abstract: To public international lawyers “Lockerbie” is more than likely to evoke the cases which Libya brought in the International Court of Justice in 1992 against the United Kingdom1 and the United States under the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971.2 The issues raised by the cases have spawned a huge literature. But, in truth, the ICJ proceedings have never been at the centre of, what might be called, the Lockerbie affair. Although they raise important constitutional issues for the United Nations, in terms of the crime committed—the sabotage of the Boeing 747 airliner on flight PA103 which exploded over Lockerbie in Scotland on 21 December 1988 killing 270 people—the ICJ proceedings have never been more than a sideshow; or as that word was once, aptly for the present case, denned in The Times crossword, an incidental skirmish. The real story is how international action, and in particular the ingenious use of international law, was successful in achieving the appearance of the accused for trial before a Scottish court sitting in the Netherlands. This example of what can be achieved in the cause of justice by legal inventiveness, imaginative diplomacy and sheer persistence, should be properly recorded.
TL;DR: The authors consider the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages whose formal validity is beyond question and whose essential validity is probably also satisfied, and make a number of familiar criticisms of the opacity of such broad terms as "common sense", "good manners" and "a reasonable degree of tolerance".
Abstract: This article considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages1 whose formal validity2 is beyond question and whose essential validity3 is probably also satisfied.4 It has been widely stated that this discretionary veto is to be wielded in accordance with the dictates of “public policy”. As far back as 1945, Lord Greene MR said that such matters were to be resolved “with due regard to common sense and some attention to reasonable policy”.5 Nearly 40 years later, Lord Simon, similarly minded and speaking in the House of Lords, was a good deal more emphatic. He said: “[t]here is abundant authority that an English court will decline to recognise or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy”.6 Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention.7 It is my intention to address that anomaly. It is wholly inadequate, as is sometimes done, both by the courts (as we have seen) and academics, simply to refer glibly to “public policy” as though its contents were somehow self-evident and its meaning plain.8 It is also signally unenlightening merely to state, as Jaffey has done, that “[t]he premise should be that an invalidating rule of a domestic system, whether English or foreign, should only be applied to a given international marriage if there is a good reason for its application”.9 So doing merely recasts one nebulous term, “public policy”, as another, “a good reason”. Judicial synonyms have been scarcely any more illuminating. Take for example Lord Simon's famous enjoinder to have recourse to “common sense, good manners and a reasonable degree of tolerance”.10 A number of familiar criticisms can be made of the opacity of such broad terms as “common sense”, “good manners” and “a reasonable degree of tolerance”: they deny the common law the clarity, consistency and objectivity that are frequently (and correctly, in my view) thought to be necessary in order to legitimate and constrain the adjudicative function.11 But beyond these objections, two further, more particular criticisms can be made in respect of the invocation of “public policy” to deny recognition to “offensive” foreign marriages.
TL;DR: The Treaty of Amsterdam as discussed by the authors enforces in Article 2 (formerly Article B) of the Treaty on European Union under the new Title I called “Common Provisions” (which contains, with some amendments, the provisions of the former Articles A to F) a new objective for the Union, namely:“to maintain and develop the Union as an area of freedom, security and justice in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
Abstract: The Treaty of Amsterdam enshrines in Article 2 (formerly Article B) of the Treaty on European Union under the new Title I called “Common Provisions” (which contains, with some amendments, the provisions of the former Articles A to F) a new objective for the Union, namely:“to maintain and develop the Union as an area of freedom, security and justice in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”
TL;DR: Following NATO's intervention in Kosovo in 1999, the United Kingdom House of Commons Foreign Affairs Committee commenced an inquiry with the following terms of reference: "To inquire into the foreign policy lessons of the Kosovo crisis and how the Foreign and Commonwealth Office might best promote peace and stability in the region" as discussed by the authors.
Abstract: Following NATO's intervention in Kosovo in 1999, the United Kingdom House of Commons Foreign Affairs Committee commenced an inquiry with the following terms of reference: “To inquire into the foreign policy lessons of the Kosovo crisis and how the Foreign and Commonwealth Office might best promote peace and stability in the region” The Committee heard oral evidence from government ministers, diplomats, FCO staff, journalists, academics, and lawyers It also received written memoranda The President of Montenegro and the Foreign Minister of Albania were interviewed in private, and the Committee visited Kosovo, Macedonia and Montenegro The Committee's Report was published on 7 June 2000 as the 4th Report of The House of Commons Foreign Affairs Committee (HC28-II, ISBN 010 2331006) together with the evidence and appendices (HC28-II, ISBN 010 2333009)
TL;DR: In this paper, the dynamics and direction of the interactions which the Conseil d'Etat has had with other legal systems has been discussed, with the focus on the relationship between the French legal system and the British legal system.
Abstract: Meeting British lawyers and participating in a comparative reflection on our legal systems has for me a history that goes back to 1966 In 1966 I participated, in London, in the first meeting of British and French administrative lawyers Among the participants were Nicole Questiaux and Neville Brown; there was also the late President Letourneur, who was a forerunner in the development of the relations of French Administrative lawyers with British lawyers, at a time where these relations were very far from being as extensive as they are today If I look back to this long period, I think that important progress has been made towards a better mutual understanding of our legal systems My concern in this paper is with the dynamics and direction of the interactions which the Conseil d'Etat has had with other legal systems