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Showing papers in "International and Comparative Law Quarterly in 2002"


Journal ArticleDOI
Michael Byers1
TL;DR: The United States response to the terrorist attacks of 11 September 2001 was encouraging for those who worry about a tendency towards unilateralism on the part of the single super power as mentioned in this paper, and the US deliberately engaged a number of international organisations and built an extensive coalition of supporting States before engaging in military action.
Abstract: The United States response to the terrorist attacks of 11 September 2001 was encouraging for those who worry about a tendency towards unilateralism on the part of the single super-power. The US deliberately engaged a number of international organisations and built an extensive coalition of supporting States before engaging in military action.

70 citations


Journal ArticleDOI
TL;DR: In this paper, the authors discuss the appropriateness of the phenomenon of legal transplants as the predominant explanation of law reform, arguing that since a transplanted institution continues to live on in its old habitat as well as having been moved to a new one, the choice of the word "transplant" is inappropriate.
Abstract: Legal scholars approach law in many ways. They are dedicated to various trends such as ‘law as rules’, ‘law as system’, ‘law as culture’, ‘law as tradition’, ‘law as social fact’, ‘law in context’, ‘law and history’, ‘law and economics’, and ‘law and legal theory’. Most comparative lawyers also are aligned to these trends. Some of the trends share belief in the reality of mobility of law, seeing law reform to be partly related to choice from pools of models supplied from a number of legal systems. There is, however, disquiet as to the appropriateness of the phenomenon of ‘legal transplants’ as the predominant explanation of law reform. The disquiet is related both to this mode of law reform and to the conceptual frame suggested by the terminology. It is said that law reform should be from within, and that since a transplanted institution continues to live on in its old habitat as well as having been moved to a new one, the choice of the word ‘transplant’ is inappropriate.1

70 citations


Journal ArticleDOI
TL;DR: In seven years of WTO dispute settlement (1995-2001), six panels appointed scientific experts, two panels requested expert advice from other international organisations, and one panel nominated a linguistic expert.
Abstract: In seven years of WTO dispute settlement (1995–2001), six panels appointed scientific experts,2 two panels requested expert advice from other international organisations3 and one panel nominated a linguistic expert.4 Under GATT 1947, in contrast, only one panel saw the need to seek expert advice.5 Very often also the parties to a WTO dispute nominate experts on their delegation, be they lawyers, economists, scientists or linguists. In addition, an increasing number of ‘outsiders’ or amici curiae, such as NGOs, but also industry and academics, have pressed their (expert) opinion on WTO panels and the Appellate Body.

62 citations


Journal ArticleDOI
TL;DR: The use of amnesties presuppose a breach of law and provide immunity or protection from punishment as discussed by the authors, which is not the case in the case of war criminal trials.
Abstract: Amnesties presuppose a breach of law and provide immunity or protection from punishment. Historically amnesties were invoked in relation to breaches of the laws of war and were reciprocally implemented by opposing sides in an international armed conflict. The impact of the two world wars in the first half of the twentieth century, however, had considerable implications not only for the use of amnesties, but also for their legality under international law. The scale of the First World War precipitated a new phase of unilateral amnesty for the victors and prosecutions of war criminals for the defeated aggressor states.1 This precedent was followed after the Second World War,2 with the establishment of the first ‘international’3 criminal court, the International Military Tribunal at Nuremberg. However, the horrors perpetrated during the Second World War also prompted the development of a branch of international law aimed at recognising and protecting human rights in an attempt to prevent such atrocities being repeated.

62 citations


Journal ArticleDOI
TL;DR: The pre-colonial Nigeria comprised of over 250 nation states embracing over 500 ethnic and linguistic groups as mentioned in this paper and these ethnic groups spread across the three main geographical units in the country, namely, the north, the west, and the east.
Abstract: Pluralism is a main feature of Nigeria as a country. There is ethnic pluralism.1 The pre-colonial Nigeria comprised of over 250 nation states embracing over 500 ethnic and linguistic groups.2 These ethnic groups spread across the three main geographical units in the country, namely, the north, the west, and the east. The north was dominated by the Hausa-Fulani and the Kanuri peoples, the west by the Yoruba speaking tribes, and the east by the Igbos.

49 citations


Journal ArticleDOI
TL;DR: The African Union (Union) as mentioned in this paper is a pan-African body that was created by the African Heads of State and Government of the Organisation of African Unity (OAU) meeting in extraordinary session in Sirte, Libya.
Abstract: In March 2001 the Assembly of Heads of State and Government of the Organisation of African Unity (OAU), meeting in extraordinary session in Sirte, Libya declared the establishment of a new pan-African body, the African Union (Union).1 The Constitutive Act (Act) of the Union entered into force on 26 May 20012 and in due course this new institution will replace the OAU.3 The Union, the brainchild of Libyan President Qaddafi, and modeled on the European Union, is the culmination of the OAU's piecemeal process of political cooperation and economic integration. It is designed to provide Africa with the legal and institutional framework to confront the twin challenges of the post-Cold War age and globalisation.

48 citations


Journal ArticleDOI
TL;DR: For lawyers in general, and international lawyers in particular, democracy is a neglected concept as mentioned in this paper and there must exist an implied assumption that democracy is, by itself, not capable of protecting the interests of vulnerable minorities.
Abstract: For lawyers in general, and international lawyers in particular, democracy is a neglected concept. Discourse is dominated by the ideas of human rights for individuals and minority or self-determination rights for groups. Those who seek greater protection for vulnerable members of a community argue for the recognition of new rights, or the more effective implementation of existing rights. They do not argue for more democracy. Indeed, given that claims for human and minority rights are not made only against authoritarian governments, but also democratic ones, there must exist an implied assumption that democracy is, by itself, not capable of protecting the interests of vulnerable minorities. Moreover, as the form of government which apparently venerates the will of the majority, democracy might be considered by some as being downright hostile to the interests of individuals and minorities.

45 citations


Journal ArticleDOI
TL;DR: In this article, the relationship between the global and the local in the context of law in South East Asia is investigated, in a somewhat narrative fashion, and the approach adopted will provide some kind of a frame of reference for regarding, studying, and hopefully improving, the law in the South East Asian region; and will perhaps focus a pencil of light on the problems of the local and the global in this particular regional context.
Abstract: The relationship between the global and the local is one of critical importance to all regions of the world. In the resolution of the tension between the irresistible surge of globalisation and the undeniable facts of society as it actually exists in the various localities which together comprise the very world which is presumably the object or the subject-matter of globalisation, law lies at the forefront. It is, one might say, the very intellectual battlefield which we have selected for the resolution of the major problem facing human society at the turn of the century. The purpose of this article is therefore to investigate, in a somewhat narrative fashion the relationship between the global and the local in the context of law in South East Asia. The topic is clearly too large to be dealt with in a short space with the rigour and articulation it really deserves, but it is hoped that the approach adopted will provide some kind of a frame of reference for regarding, studying, and hopefully improving, the law in the South East Asian region; and will perhaps focus a pencil of light on the problems of the global and the local in this particular regional context.

41 citations


Journal ArticleDOI
TL;DR: In 2000, an informal working group of the United Nations Commission on Human Rights met to discuss the latest drafts of an Optional Protocol to the 1984 United Nations Convention against Torture as discussed by the authors.
Abstract: In October 2000 an informal working group of the United Nations Commission on Human Rights met to discuss the latest drafts of an Optional Protocol to the 1984 United Nations Convention against Torture. The Working Group itself met for its 9th session in February 2001 and its 10th session was held in January 2002.2 The primary purpose of this Optional Protocol is to create a new international mechanism that will have a preventive role and which would operate by conducting visits to states and to places of detention within states and, in the light of such visits, enter into a ‘dialogue’ with the state concerned in order to help them ensure that torture does not occur. The origins of this initiative lie in a proposal formally tabled in the early 1980s during the negotiations that led up to the adoption of the UNCAT itself but at that time it was clear that so radical a move as the establishment of an international body with an automatic right of entry into any place of detention would be unacceptable within the broader international community.3 However, the idea was taken up on a regional level within Europe and in 1987 the Council of Europe adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which established the European Committee of the same name (known as the CPT), very much by way of an example to the rest of the world, or so it was thought.4

39 citations


Journal ArticleDOI
TL;DR: The question of the scope of the immunity from jurisdiction of international organisations is the subject of some debate, as the multiplication of disputes involving international organisations has led courts to address this topic with increasing frequency as discussed by the authors.
Abstract: The development of international organisations and the increasing significance of their role in a wide range of fields, has put at issue the adequacy of the rules governing their operation, with regard to the needs of modern justice. In particular, the question of the scope of the immunity from jurisdiction of international organisations is the subject of some debate, as the multiplication of disputes involving international organisations has led courts to address this topic with increasing frequency.1

37 citations


Journal ArticleDOI
TL;DR: The UK ratified the Rome Statute for the International Criminal Court (ICC) on 4 October 2001, fulfilling its aim of being amongst the first sixty States to do so as mentioned in this paper, and the Act has two major purposes, to ensure that the UK is able to co-operate fully with the ICC and to enact into domestic law the substantive offences the ICC may assert jurisdiction over when it comes into being.
Abstract: Although a few States ratified the Rome Statute for the International Criminal Court1 soon after it was promulgated, the UK decided to prepare and pass implementing legislation prior to submitting its ratification. In England and Wales (and Northern Ireland),2 the ICC Statute is implemented by the International Criminal Court Act 2001,3 which came fully into force on 1 September 2001.4 The UK ratified the ICC Statute on 4 October 2001, fulfilling its aim of being amongst the first sixty States to do so.5 The Act has two major purposes, to ensure that the UK is able to co-operate fully with the International Criminal Court (ICC), and to enact into domestic law the substantive offences the ICC may assert jurisdiction over when it comes into being.6 It is the purpose of this note to introduce the Act and point to some interesting issues that may arise in the future.

Journal ArticleDOI
TL;DR: In 2001, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) added a new weapon to the arsenal used to protect and preserve the world's cultural heritage, in the form of the Convention on the Protection of the Underwater Cultural Heritage as discussed by the authors.
Abstract: In November 2001, a new weapon was added to the United Nations Educational, Scientific and Cultural Organisation's2 arsenal used to protect and preserve the world's cultural heritage, in the form of the Convention on the Protection of the Underwater Cultural Heritage.3 This Convention, while not yet in force, will complement UNESCO's three other heritage conventions, the 1954 Hague Convention on the Protection of Cultural Heritage in the Event of Armed Conflict,4 the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1971)5 and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.6

Journal ArticleDOI
TL;DR: The International Court of Justice gave judgment in what was then its most longrunning case as discussed by the authors, which concerned the disputed title to, and status of, a number of islands, maritime features and a portion of the Qatar peninsula and the course of the maritime boundaries between them.
Abstract: On 16 March 2001 the International Court of Justice gave judgment in what was then its most longrunning case. It was in 1987 that Qatar and Bahrain had begun a process of attempting to agree upon the submission of their differences to the Court, but although they were able to agree upon the subject matter in dispute, they could not agree upon its legal characterization and the manner in which the dispute should be placed before the Court. That notwithstanding, and basing itself upon the agreed minutes of a meeting held at Doha in December 1990, Qatar unilaterally instituted proceedings against Bahrain on 8 July 1991. Bahrain raised preliminary objections to the jurisdiction of the Court and the admissibility of the case which were first addressed by the Court in its judgment of July 19941 and, following a reformulation of elements of the Qatari application in November 1994, the application was declared admissible in February 1995.2 During the course of the subsequent written pleadings a further dispute arose concerning the authenticity of 82 documents annexed to the Qatar Memorial and, following exchanges on the matter, Qatar announced that it would not rely on the disputed documents.3 Oral hearings were held in May 2000 and judgment given some ten months later. The two principal elements of the case concern, first, the disputed title to, and status of, a number of islands, maritime features and a portion of the Qatar peninsula and, secondly, the course of the maritime boundaries between them. The case was extremely complex, with disputed characterizations of the physical and legal

Journal ArticleDOI
John Gillespie1
TL;DR: Following the doi moi (renovation) market reforms in 1986, the Vietnamese government urgently required commercial laws capable of regulating the rapidly emerging private sector as mentioned in this paper, and they considered company law essential for a market-based legal framework.
Abstract: Following doi moi (renovation) market reforms in 1986, the Vietnamese government urgently required commercial laws capable of regulating the rapidly emerging private sector. Along with contract and property laws, lawmakers considered company law essential for a market-based legal framework. Since reforms could not wait the decades required to distil normative standards from local commercial practices, lawmakers turned to Western laws for inspiration.1

Journal ArticleDOI
TL;DR: In international transactions, the law of the parties' choice replaces the law that would otherwise have governed the contract, including the mandatory rules (ius cogens) of the latter law as discussed by the authors.
Abstract: Party autonomy is the basic principle for international contracts. By making a ‘choice of law’, the parties to a contract can agree amongst themselves which law is to regulate their contractual relationship. In international transactions, the law of the parties' choice replaces the law that would otherwise have governed the contract, including the mandatory rules (ius cogens) of the latter law. Article 3 of the 1980 Convention on the Law Applicable to Contractual Obligations (hereafter: the ‘Rome Convention’) fully recognises this principle of party autonomy. Under Article 3 the parties are free to choose whichever law they deem appropriate to govern their contractual relationship. It is not even necessary for the transaction to display some connection with the chosen law.

Journal ArticleDOI
TL;DR: In this paper, the European Court of Human Rights has been very active in developing a number of duties of investigation, under various substantive Articles of the Convention, which member States are obliged to comply with.
Abstract: In recent times the European Court of Human Rights has been very active in developing a number of duties of investigation, under various substantive Articles of the Convention,1 which member States are obliged to comply with. Therefore, this paper seeks to analyse the nature and scope of these important duties, together with the interrelationships between them.2

Journal ArticleDOI
TL;DR: The United States found themselves for the second time within three years before the International Court of Justice dealing with the death penalty imposed on foreign nationals in the United States in the LaGrand case as discussed by the authors.
Abstract: In the LaGrand case, the United States found themselves for the second time within three years before the International Court of Justice dealing with the death penalty imposed on foreign nationals in the United States1 In contrast to the earlier case filed by Paraguay, the German-sponsored LaGrand case survived the provisional measures phase and went on to the merits stage In its judgment of 27 June 2001, the Court largely affirmed all four German submissions and ruled that the United States had violated international law

Journal ArticleDOI
TL;DR: In this article, it is argued that the case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.
Abstract: In September 2000 the European Commission published its long-awaited proposed replacement for Regulation 17, the Proposal for a Council Regulation on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate on the draft regulation has focused on the abolition of the notification system, the role of the national courts, and the role of the national competition authorities (hereafter the NCAs). However, there is one significant overlooked issue, namely the extent to which the investigation provisions of the draft regulation comply with the case law of the European Court of Human Rights (hereafter ECtHR).2 Given the paucity of the ECtHR's case law in 1961 it is understandable that the implications of the European Convention of Human Rights (hereafter ECHR) for the investigative provisions of what was to become Regulation 17 were not at that time given any great consideration by the European Parliament and the Council of Ministers. However, there is now an extensive human rights case law, developed by the Strasbourg authorities which, it is argued, casts a major shadow over the Commission's existing and proposed investigative powers. It is further argued that the case law of the European Court of Justice (hereafter ECJ) and the Court of First Instance (hereafter CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.

Journal ArticleDOI
TL;DR: The issue of international criminal law concerning the gravity of the offences listed in the Statutes of the International Tribunals has been discussed in this article, where the same act when charged as a crime against humanity or genocide is punished more severely than when charged by a war crime.
Abstract: An issue has recently arisen in international criminal law concerning the gravity of the offences listed in the Statutes of the International Tribunals: Should offences be ranked according to their seriousness and, hence, as entailing heavier or lighter punishment? Should the same act when charged as a crime against humanity or genocide be punished more severely than when charged as a war crime?

Journal ArticleDOI
TL;DR: Brussels II as mentioned in this paper is the first in a series of instruments dealing with family law issues in the European Community, which was introduced by the Council Regulation No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses.
Abstract: On 1 March 2001 Council Regulation (EC) No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses (Brussels II) entered into force.1 In the United Kingdom at least this significant step went relatively unnoticed. Nevertheless, the Regulation marks a new departure for the European Community and is likely to be but the first in a series of instruments dealing with family law issues. This article will use an analysis of the evolution of the Brussels II initiative to explore how and why the European Community has been able to move into an area not innately associated with traditional European goals.2 It will then reflect on the wider impact of the Regulation and any future initiatives for private international law and family law in Europe.

Journal ArticleDOI
TL;DR: The Loi of 15 June 2000 as discussed by the authors has been adopted by the French Parliament to strengthen the rights of the accused and the safeguards designed to ensure her proper treatment at all stages of the criminal process.
Abstract: The recent reform adopted by the French Parliament, the Loi of 15 June 2000, touches upon a wide range of matters from investigation and detention through to trial and appeal, all within a project designed to ‘reinforce the presumption of innocence and the rights of victims’.1 It is part of a broader reform package which originally included strengthening the independence of the procureur2 from the hierarchical control of the Minister of Justice and changing the way in which magistrats3 are selected,4 together with the measures already enacted in June of 1999 to simplify and clarify aspects of criminal procedure and to reduce delay.5 A large part of the June 2000 reform seeks to strengthen the rights of the accused and the safeguards designed to ensure her proper treatment at all stages of the criminal process. Such rhetoric and aspirations stand in contrast to the Home Office and government discourse to which we have become accustomed on this side of the Channel, a discourse dominated by macho language expressing a desire to ‘get tough’ and ‘crackdown’ on crime and presumed criminals.6 Against the backdrop of almost mandatory defence disclosure and the curtailment of the right to silence in this jurisdiction, provisions which strengthen the rights of the accused and provide her with more information about the case against her together with greater opportunities to influence the pre-trial investigation, will make English criminal justice scholars nostalgic for a time when the rights of the accused were seen as something other than ‘a criminal's charter’.

Journal ArticleDOI
TL;DR: In the Six Day War in June 1967, East Jerusalem, the West Bank and the Gaza Strip came under Israeli military occupation, as well as the Sinai Peninsula and the Golan Heights as mentioned in this paper.
Abstract: In the Six Day War in June 1967, East Jerusalem, the West Bank and the Gaza Strip came under Israeli military occupation, as well as the Sinai Peninsula and the Golan Heights. On 22 November that year, the UN Security Council unanimously passed Resolution 242, which it was hoped would provide a route to a permanent peace. It seems clear that Resolution 242 now has binding force 1 and that it is accepted by all parties today that Resolution 242 sets out the principles which must be applied in order to reach a settlement. The Resolution is recited in the preambles to the Oslo Accords. 2 This means that, in addition, it is binding on Israel and the PLO by agreement. 3

Journal ArticleDOI
TL;DR: The use of economic sanctions in order to influence the actions of states and other parties, with varied levels of actual effectiveness, has a long and chequered history as discussed by the authors, and despite the frequency with which naval forces are used to implement maritime sanctions, or perhaps because of the long but erratic history of naval embargo and blockade, the regime as a whole remains haunted by some uncertainties as to its conceptual basis.
Abstract: The practice of imposing economic sanctions in order to influence the actions of states and other parties—historically with varied levels of actual effectiveness—has a long and chequered history.2 Given, however, that more than 90 per cent of the world's trade is carried by sea,3 it is one particular form of sanction management—the ‘so called economic weapon’ of naval blockade— which tends to dominate the implementation of sanctions regimes.4 Yet despite the frequency with which naval forces are used to implement maritime sanctions—or perhaps because of the long but erratic history of naval embargo and blockade—the regime as a whole remains haunted by some uncertainties as to its conceptual basis. As WL Martin observes, ‘some measures such as “pacific blockade”, have at times acquired a technical meaning’ which has left them ill-equipped to deal with and adjust to new developments in blockade practice.5 Even prior to 1914, the notion of ‘blockade’ was a dualist concept. On one hand, it was clearly a weapon of war.6

Journal ArticleDOI
Uta Kohl1
TL;DR: Kohl, U. (2002). Eggs, Jurisdiction and the Internet', International and Comparative Law Quarterly, 51 (3), 556-582 as discussed by the authors, 556.
Abstract: Kohl, U. (2002). Eggs, Jurisdiction and the Internet', International and Comparative Law Quarterly, 51 (3), 556-582. RAE2008

Journal ArticleDOI
TL;DR: In this paper, a new ambassador appointed by the State of Israel, taking up his appointment as head of the Israeli diplomatic mission in Copenhagen, on the ground of his implication in war crimes was made, though not by the Danish Government.
Abstract: A pressing issue of the day requiring authoritative resolution is whether public officials when in office carrying out their official functions may be prosecuted by the courts of other countries for alleged international crimes. Objection has been made, though not by the Danish Government, to a new ambassador appointed by the State of Israel, taking up his appointment as head of the Israeli diplomatic mission in Copenhagen, on the ground of his implication in war crimes. Recently, criminal proceedings were brought in the French courts against Colonel Ghadaffi as the serving Head of the State of Libya for complicity in acts of terrorism resulting in the destruction of a French civil aircraft and death of all its passengers. Writing critically of the Lords' decision in the Pinochet case, Henry Kissinger talks of the tyranny of judges replacing that of government, of prosecutorial discretion without accountability and warns that ‘historically the dictatorship of the virtuous has often led to inquisitions and witch hunts’.

Journal ArticleDOI
TL;DR: The protection offered to individuals by remedies in public law and tort law is developing in all jurisdictions as mentioned in this paper, and the past few years have witnessed an increasingly important European dimension to the tort liability of public authorities.
Abstract: The protection offered to individuals by remedies in public law and tort law is developing in all jurisdictions. The past few years have witnessed an increasingly important European dimension to the tort liability of public authorities. European Union law and European Human Rights law have added to the constitutional protection of tort claims against public authorities already established as a matter of domestic law in many European countries.

Journal ArticleDOI
TL;DR: The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities as discussed by the authors, in which the arguments of the applicants were much the same.
Abstract: The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities.1 Although the facts differed, the arguments of the applicants were much the same. They contended that allowing a foreign State or an international organisation to claim immunity in a civil action in proceedings in the defendant State violated the applicants' rights to access to a court for the determination of a civil right.2 The European Court accepted the claims in principle but concluded in each case that the limitation imposed on the right of access was for a legitimate reason (the protection of State or international immunities, a condition for effective co-operation between States or with international organisations) and was proportionate to this aim, because in each case, the grant of immunity was required by international law and that in each case there was the possibility of the applicant using another procedure to try to assert his rights, action in the courts of the foreign State or under the special staff regime of the international organisation.

Journal ArticleDOI
TL;DR: In this article, the authors pointed out that one of the asserted advantages and goals of the unification of substantive law lies in the prevention of "forum shopping", i.e., the lawyer's act of seeking the forum that is most beneficial to his client's interest.
Abstract: One of the asserted advantages and goals of the unification of substantive law lies in the prevention of ‘forum shopping’,1 ie the lawyer's act of seeking the forum that is most beneficial to his client's interest.2 This has been pointed out not only in discussions on unification of law in general,3 but also in discussions on specific international uniform contract law conventions, such as the United Nations Convention on Contracts for the International Sale of Goods4 (hereinafter CISG),5 the Geneva Convention on the Contract for the International Carriage of Goods by Road6 (hereinafter CMR)7 and the UNIDROIT Convention on International Factoring8 (hereinafter IFC).9


Journal ArticleDOI
TL;DR: In this article, the authors argue that norms play a very different part in negotiations to that which they play in legal processes, and they may be used to stake out negotiating positions as a starting point from which to proceed or as a sounding board as to the correct procedure in the cultural and symbolic sense, but they cannot be cited as rules or conditions that will be imposed.
Abstract: [I]t is the transformation of custom into customary law—into something that State courts will recognize, enforce and require—that disrupts the continuity of the indigenous systems. In pre-colonial times … [the settlement of disputes] … depended … on the mutual processes of negotiation and compromise. There is no need to romanticize these processes…. But the important point in this context is that norms play a very different part in negotiations to that which they play in legal processes. They may be used to stake out negotiating positions as a starting point from which to proceed or as a sounding board as to the correct procedure in the cultural and symbolic sense, but they cannot be cited as rules or conditions that will be imposed.1