Showing papers in "International and Comparative Law Quarterly in 2007"
TL;DR: In this article, the authors examine the impact of the European Convention on Human Rights (ECH) provision on private international law and propose a new approach that takes human rights more seriously, using human rights law to identify problems and to solve them.
Abstract: An increasing trend in private international law cases decided by courts in the United Kingdom has been to refer to the European Convention on Human Rights and, in particular, to Article 6. This article will examine the impact of this provision on private international law. The article will go on to examine why the impact has been so limited and will put forward a new approach that takes human rights more seriously, using human rights law to identify problems and the flexibility inherent in private international law concepts to solve them.
83 citations
TL;DR: The International Court of Justice's decision in DRC v Uganda as mentioned in this paper does not address the circumstances under which a State has a right to use force in self-defence against non-State actors.
Abstract: The International Court of Justice's decision in DRC v Uganda touches on, but fails to address, the circumstances under which a State has a right to use force in self-defence against non-State actors.1 In particular, the Court holds that, because the attacks carried out by anti-Ugandan rebels operating from the Democratic Republic of Congo's (DRC) territory are not attributable to the DRC, Uganda has no right to use force in self-defence against the DRC.2 The separate opinions in DRC v Uganda lament the Court's failure to take the opportunity to address the right to act in self-defence against non-State actors3–an issue of such obvious importance to the international community in an age of terrorism. As will be examined below, there are arguably good reasons–on the facts of the case–for the Court's refusal to pronounce itself on the matter. Furthermore, its decision need not be read as absolutely precluding a use of force in foreign territory in response to armed attacks by non-State actors.
56 citations
TL;DR: In this article, the authors examine the evolution of the EU anti-money laundering legislative framework (which in recent years has also included measures to counter terrorist finance), by focusing in particular on recent legislation such as the third money laundering Directive and the Regulation on controls of cash entering the EU, both adopted in 2005.
Abstract: This article examines the evolution of the EU anti-money laundering legislative framework (which in recent years has also included measures to counter terrorist finance), by focusing in particular on recent legislation such as the third money laundering Directive and the Regulation on controls of cash entering the EU, both adopted in 2005. The analysis highlights the relationship between these instruments and international initiatives in the field (in particular FATF standards), and addresses the challenges posed to the European Union legislative and constitutional framework when attempting to accommodate global standards.
52 citations
TL;DR: In this paper, the authors present a case where the World Trade Organization (WTO) has been used to enforce the importation of genetically modified (GM) products by the European Commission (EC).
Abstract: The relationship between trade and other areas of international law is highly contested. Some observers suggest that the enforceability of World Trade Organization (WTO) obligations should be harnessed to further other goals such as environmental protection or human rights. Others argue that imposing conditions of this kind can allow protectionist States to subvert their agreed trade commitments. Still others respond that the kind of ‘self-contained regime’ that is necessary to keep ‘non-trade’ issues outside of the WTO is antithetical to the idea of an ‘international legal system’. This debate has been played out in many locations. The International Law Commission, for example, recently emphasized the systemic nature of international law, in which fragmented norms are resolvable through treaty interpretation and other rules.1 In EC–Measures Affecting the Approval and Marketing of Biotech Products a WTO Panel had to determine whether and how it could take into account sources of international law extrinsic to the WTO covered agreements.2 The dispute was brought by the United States, Canada and Argentina about the WTO consistency of the EC’s importation of genetically modified (GM) products. The policy issues arising from ‘GM’ (or ‘biotechnology’, as the complaining parties preferred to call it)3 have been considered in many international fora, including under the auspices of multilateral environmental agreements (MEAs) like the Cartagena Protocol on Biosafety4 (Biosafety Protocol) and in standard-setting bodies like the Codex Alimentarius and in international organizations like the Food and Agricultural Organization (FAO). One issue for the Panel, then, was how to take account of this international legal context in resolving the dispute. This issue was made more difficult because some of the disputing parties were not parties to the treaties that formed this international context—the EC, for example, was the only disputing party that had signed and ratified the Biosafety Protocol. Varying degrees of State consent therefore accompanied the relevant norms. The Panel responded by distinguishing strictly between binding applicable law and non-binding ‘informative’ law that could be taken into account in interpreting the relevant WTO agreements.5 In doing so, the Panel construed Article 31(1) and Article Current Developments 907
46 citations
TL;DR: The relationship between International Humanitarian Law and International Human Rights Law (IHRL) has been considered for a number of years as discussed by the authors, and the International Court of Justice famously or infamously considered their relationship in its Nuclear Weapons Advisory Opinion in 1996.
Abstract: International tribunals and legal scholars have been considering the relationship between International Humanitarian Law (‘IHL’) and International Human Rights Law (‘IHRL’) for a number of years.1 The International Court of Justice famously or infamously (depending on your perspective) considered their relationship in its Nuclear Weapons Advisory Opinion in 1996.2 The Court concluded that while IHRL did apply in times of armed conflict, when it came to the prohibition of arbitrarily taking human life in Article 6 of the International Covenant on Civil and Political Rights 1966, the content of that prohibition had to be found in the lex specialis of IHL.
35 citations
TL;DR: In this article, the authors examined how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation and how the common law doctrine builds a bridge between past events and contemporary land claims.
Abstract: Within common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.
34 citations
TL;DR: The European Court's case law as mentioned in this paper confirms that the European Convention, despite its special character as a human rights treaty, is indeed part of public international law and concludes that the Convention and international law find themselves in a kind of interactive mutual relationship.
Abstract: This article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.
34 citations
TL;DR: The fact that the International Criminal Court has not been granted universal jurisdiction exercisable proprio motu has often been criticised on the basis that it will leave some offences beyond its power to prosecute.
Abstract: The fact that the International Criminal Court has not been granted universal jurisdiction exercisable proprio motu has often been criticized on the basis that it will leave some offences beyond its power to prosecute. This article investigates whether the drafters of the Rome Statute were necessarily wrong in deciding not to grant the court such jurisdiction. It concludes that to have given the Court universal jurisdiction would have been lawful under current international law, and would have provided a welcome reaffirmation of the concept. Still, the nature of the cooperation regime and of the Prosecutor's investigatory remit, would mean that such jurisdiction would be difficult, if not impossible, for the Court to use. As the Court has to operate in a world of sovereign States, not all of whom are sympathetic to it, the drafters' choice was a prudent one.
31 citations
TL;DR: In the Netherlands the Dutch Parliament voted to ban the burka in public places and in five Belgian towns its wearing has been banned on pain of a fine as discussed by the authors, and in France the banning of headscarves in State schools has provoked major controversy.
Abstract: The issue of religious dress, specifically female Muslim religious dress, has been the subject of intense controversy within Europe over recent years. In the United Kingdom comments by Jack Straw MP, Leader of the House of Commons and a former Home and Foreign Secretary, that he felt uncomfortable talking to women at his constituency surgery who wore the Muslim veil sparked a storm of intense and, at times, acrimonious debate. In France the banning of headscarves in State schools has provoked major controversy. In the Netherlands the Dutch Parliament voted to ban the burka in public places and in five Belgian towns its wearing has been banned on pain of a fine.
31 citations
TL;DR: In this article, the authors compare and contrast Chapter 11 of the US Bankruptcy Code with the UK administration procedure under the Insolvency and Enterprise Acts and suggest that the divergence cannot be reduced to a single factor but instead implicates a complex web of circumstances.
Abstract: This article compares and contrasts Chapter 11 of the US Bankruptcy Code with the UK administration procedure under the Insolvency and Enterprise Acts. It focuses in particular on who runs a company during the restructuring process—debtor-in-possession or management displacement in favour of an outside administrator. Various reasons have been given to explain the US/UK divergence in this respect including differences in entrepreneurial culture and differences in the lending markets in the two countries. The article suggests that the divergence cannot be reduced to a single factor but instead implicates a complex web of circumstances.
29 citations
TL;DR: In this article, it is argued that the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere, and that the grey area within it, demonstrates that the importance of international arbitrations is not limited to the private sphere of the State's activity, but rather to a comprehensive jurisdiction over public law.
Abstract: Does the rise of international arbitration signify a retreat of the State from classical adjudication? In examining this question, it is important to distinguish contract-based arbitration of individual claims against the State from arbitration pursuant to investment treaties. The former is broadly limited to the private sphere of the State's activity, whereas the latter gives arbitrators a comprehensive jurisdiction over public law. An elaboration of this distinction, and the grey area within it, demonstrates that the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere.
TL;DR: The role of the UN and the legitimacy of its collective security system have been seriously challenged in recent years as discussed by the authors, mainly because of the Security Council's failure to act in cases of genocide or other humanitarian disasters.
Abstract: The role of the UN and the legitimacy of its collective security system have been seriously challenged in recent years. First, because of the Security Council.s failure to act in cases of genocide or other humanitarian disaster. There has been much criticism of the limited and delayed response of the Security Council to events in Bosnia-Herzegovina and Rwanda, somewhat unfairly in so far as it was the lack of political will on the part of the Member States rather than any institutional failure that was responsible for the failure to act. Secondly, the UN's central role in collective security has been undermined by unilateral use of force by States. After the terrorist attacks of 11 September 2001 the UN was sidelined with regard to the forcible response against Afghanistan: in Operation Enduring Freedom the USA preferred not to act through the UN or even through NATO. Subsequently, the US National Security Strategy (September 2002) famously made no mention of the UN as a means of addressing perceived new threats from global terrorists. Most seriously, the US Operation Iraqi Freedom in 2003 was undertaken unilaterally, that is, without express Security Council authorization.1 This was often portrayed as a crisis of legitimacy for the UN as much as for the USA and the States which participated in the invasion. As the Deputy Secretary-General put it recently:
TL;DR: In this article, the significance of the UK Takeover Code's non-frustration prohibition on post-bid, board-controlled defences is investigated. But the authors conclude that no persuasive rationale is available and that the prohibition is unnecessary and without justification.
Abstract: This article considers the significance of the UK Takeover Code's non-frustration prohibition. It asks to what extent the prohibition actually prevents post-bid, director-controlled defences that would not have been, in any event, either formally prohibited by UK company law without share-holder approval or practically ineffective as a result of the basic UK company law rule set. It finds that there would be minimal scope for director-deployed defences in the absence of the non-frustration prohibition, and that, in the context of UK company law, such defences have limited scope to be deployed for entrenchment purposes. Furthermore, this minimal scope for board defensive action would, in order to be compliant with a director's duties, require a pre-bid, shareholder-approved alteration to the UK's default constitutional balance of power between the board and the shareholder body to allow corporate powers to be used for defensive effect. In light of this conclusion the article looks for a rationale to justify denying shareholders the right to make this limited and potentially beneficial defensive election. It concludes that no persuasive rationale is available and that the prohibition is unnecessary and without justification.
TL;DR: Somalia has been without government since 1991 and a transitional government was established in 2004 under the presidency of Abdullahi Yusuf, with the backing of the United Nations, the African Union (AU), the Arab League and the Inter-governmental Agency for Development (IGAD).
Abstract: Somalia has been without government since 1991. A transitional government was established in 2004 under the presidency of Abdullahi Yusuf, with the backing of the United Nations, the African Union (AU), the Arab League and the Inter-governmental Agency for Development (IGAD). The Government sat in Baidoa in southern Somalia from June 2005 until December 2006. In June 2006 the Union of Islamic Courts (UIC) took control of much of southern and central Somalia, including the capital, Mogadishu, but not Puntland and Somaliland. They declared and tried to establish an Islamic State. Somalis were told to comply with stringent Islamic rules or face harsh punishment. In the meantime, efforts to achieve national reconciliation were ongoing under the auspices of IGAD, though without much success. It was reported that on 20 July 2006 Ethiopian troops crossed into Somalia. Ethiopia only admitted to having military trainers to help the Somali Government (estimated to be 400 military personnel). On 21 July, the UIC declared a ‘holy war’ against Ethiopia. In September 2006 the Somali interim President survived an assassination attempt in Baidoa. On 25 October 2006 Ethiopia said that it was ‘technically at war’ with the Islamic Courts. After few days the UIC claimed to have ambushed and killed Ethiopian troops near the Ethiopian border.1
TL;DR: In this article, the authors argue that while such conduct may breach obligations protecting the common interest, unilaterally boarding and arresting a vessel involved would constitute an illegal use of force and cannot be justified as a countermeasure.
Abstract: Can the law of countermeasures be used to police the high seas? The freedom of the high seas is guaranteed by the immunity of a State's flag vessels from interference by the public vessels of other States, subject to limited exceptions. However, this rule of non-interference may shield those engaged in unregulated or illegal fishing or transporting weapons of mass destruction and their precursors. This article argues that while such conduct may breach obligations protecting the common interest, unilaterally boarding and arresting a vessel involved would constitute an illegal use of force and cannot be justified as a countermeasure.
TL;DR: In this article, the case law of the International Court of Justice (ICJ) is analyzed in this light and the author is of the view that the Court, as the principal judicial organ of the United Nations should, wherever possible, by a careful judicial policy, give guidance and provide clarification on a number of questions which are of primordial importance in present-day international society but still are largely obscure from a legal point of view.
Abstract: A court of law can take various approaches when dealing with a case before it: judicial restraint, judicial activism or a proactive policy. In the present article the recent case law of the International Court of Justice is analysed in this light. The author is of the view that the Court, as the principal judicial organ of the United Nations should, wherever possible, by a careful judicial policy, apart from deciding the case in hand, give guidance and provide clarification on a number of questions which are of primordial importance in present-day international society but still are largely obscure from a legal point of view.
TL;DR: In this article, the establishment and work of the Eritrea-Ethiopia Boundary Commission with regard to its decision of 13 April 2002 concerning the delimitation of the border between Eritrea and Ethiopia and subsequent events are examined.
Abstract: This article examines the establishment and work of the Eritrea–Ethiopia Boundary Commission with regard to its decision of 13 April 2002 concerning the delimitation of the border between Eritrea and Ethiopia and subsequent events. Apart from an examination of the substantive decision of the Commission in the light of the law relating to territory, the article will discuss certain unusual features of the process, including mandating the Commission both to delimit and demarcate the boundary and the involvement of third parties. The delimitation decision is significant in a number of ways, including its views as to the applicable law, treaty interpretation and the subsequent conduct of the parties in relation to title. The long-running and difficult process of demarcation is noted, together with the important role played by the UN and other international actors.
TL;DR: In this article, the authors examine the legal framework for free trade in the post-Soviet space and discuss its role in fostering effective regional cooperation, focusing on the multiplication of regimes at the bilateral and multilateral level, a particular blend of "a; la carte multilateralism" and multiple bilateralism.
Abstract: Whether through the framework of the Commonwealth of Independent States (CIS) or outside of it, the former Soviet republics continue to seek and depend on economic cooperation with each other, particularly in the area of trade in goods. This article examines the legal framework for free trade in the post-Soviet space and discusses its role in fostering effective regional cooperation. The focus is on the multiplication of regimes at the bilateral and multilateral (CIS) level—a particular blend of ‘a; la carte multilateralism’ and multiple bilateralism—and their respective features in terms of legal nature, substantive scope, and disciplining mechanisms, as well as the implications of their overlap. We find that both the bilateral and the multilateral regimes have undergone significant (often underestimated) development, and that the multilateral regime has generally sought to be more ambitious both in its substantive and institutional reach. Yet, both regimes can be described as ultimately weak and their overlap confusing. While a higher juridicization and comprehensive consolidation at the multilateral level of the CIS free trade regime may be recommended, we remain sceptical about its likelihood in the short and medium term.
TL;DR: In this article, the authors address the latter question of the hermeneutics of Security Council Resolutions, and propound a coherent thesis in this respect, which would be applicable not only in the Iraqi conflict but even beyond.
Abstract: The ‘Operation Iraqi Freedom’ in 2003 raised many international legal questions, which all have been more or less addressed in the academic literature since then. However, the thrust of the relevant legal etiology pertained to the implementation of a series of UN Security Council Resolutions, whose hermeneutics, ie the rules of interpretation, in contrast to other issues, have been scarcely explored and elucidated. Accordingly, the purpose of this article is to address the latter question of the hermeneutics of Security Council Resolutions, and propound a coherent thesis in this respect, which would be applicable not only in the Iraqi conflict but even beyond. It will examine, first, whether the provisions of Articles 31–33 of VCLT are applicable either ipso jure or mutatis mutandis in this respect and then having deprecated both of these options, it will turn its focus to the question of which theoretical framework in relation to the hermeneutics in international law could better serve its purposes. Drawing insights from, amongst others, Stanley Fish, Ian Johnstone and Aharon Barak, it will be possible to propound the thesis that any relevant regulatio interpretations should pay due regard to the institutional setting of the ‘community’ of the Council, which in turn qualifies the ‘inter-subjective’ approach or the collective will of the Council in light of the object and purpose of the Charter, ie the maintenance of peace and security, as the most pertinent hermeneutic paradigm. Premised upon the latter, the article proceeds and articulates a rubric of interpretive principles and presumptions to be applied in this regard, which, at the end, will be tested in the case of ‘Operation Iraqi Freedom’.
TL;DR: In this article, the authors analyse the principle of mutual recognition as developed by the European Court of Justice and draw a distinction between the judicially created principle and the principle applied by the EC legislator, and look at the question of why mutual recognition has not succeeded as a regulatory mechanism of financial services market integration.
Abstract: In Europe part of the rule-making and the whole enforcement of financial services regulation still take place at national level. For this reason, mutual recognition of national financial laws remains an element of central importance in the creation and regulation of a European market in this field. This article seeks to contribute to the analysis of such legal instrument, as several aspects of its functioning often appear unclear. The article starts by analysing the principle of mutual recognition as developed by the European Court of Justice. An important distinction is drawn between such judicially created principle and the principle of mutual recognition applied by the EC legislator. The article then looks at the question of why mutual recognition has not succeeded as a regulatory mechanism of financial services market integration, and at the role of mutual recognition after the introduction of the so-called ‘Lamfalussy’ law-making process to the financial services sector.
TL;DR: In this paper, the authors compare the approach of the Court of Justice in the area of taxation with its general case law on restrictions on free movement, arguing that the Court, while sometimes referring to the same concepts as in the field of regulatory barriers, is in practice employing a narrower test.
Abstract: This article compares the approach of the Court of Justice in the area of taxation with its general case law on restrictions on free movement. It is argued that the Court, while sometimes referring to the same concepts as in the field of regulatory barriers, is in practice employing a narrower test. The possible reasons for the comparatively cautious approach are analysed and the issue of double taxation is examined, with reference also to the US case law. Finally, the connections to larger questions concerning the nature of the single market and the roles of the Community institutions are noted.
TL;DR: The European Union offers the hope of transcending the sovereign State rather than simply replicating it in some new superstate as mentioned in this paper, and it may prove to be a model and an inspiration.
Abstract: The concept of sovereignty plays too large a part in contemporary discussion. No nation is sovereign in the sense that it is free to do what it wants within its own borders and not subject to influences from outside. It is not self evident either that political systems have to be hierarchically organized or that there should be one final arbiter of law for all decisions. There are advantages in having different centres of power for decisions affecting differing matters. There is a case for the co-existence of overlapping power centres and for sharing in decision-making and being prepared to live with a decision which does not in itself reflect the wishes of your State. There are advantages in being part of a larger conglomerate. The State can then have some influence and control over what goes on outside its boundaries. There is no reason why that conglomerate should itself be a large sovereign State. The European Union offers the hope of transcending the sovereign State rather than simply replicating it in some new superstate. It may prove to be a model and an inspiration.
TL;DR: In this article, the authors argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim, and that the essential distinction is to be found in the legal interest in the claim and the nature of the claim, whereas the traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection are not applicable to invocation of responsibility erga omnes.
Abstract: International law recognizes two mechanisms for the protection of individuals in case of violations of peremptory norms affecting individuals: invocation of State responsibility erga omnes and diplomatic protection. While they share some fields of applications and are both based on some measure of indirect injury, there are important differences between these two mechanisms. This paper analyses and discusses these differences and similarities, and concludes by demonstrating that the essential distinction is to be found in the legal interest in the claim and the nature of the claim. The traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection (exhaustion of local remedies and nationality of claims) are not applicable to invocation of responsibility erga omnes. This paper will argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim. In the interest of enhancing protection of individuals against violations of peremptory norms, the simultaneous existence of these two mechanisms should be welcomed.
TL;DR: The outcome of the litigation before the International Court of Justice can be seriously affected by the treatment of the parties' submissions, not just because the Court's disregard of the submission of the party can affect the legal rights of that party, but also because the final decision can end up being substantially different from what most people would expect as mentioned in this paper.
Abstract: The outcome of the litigation before the International Court of Justice can be seriously affected by the Court's treatment of the parties' submissions, not just because the Court's disregard of the submission of the party can affect the legal rights of that party. The final decision can end up being substantially different from what most people would expect. This happened, for instance, in some cases in which much was at stake, such as Arrest Warrant, Oil Platforms or Legality of the Use of Force. The reasoning and outcome of these cases, involving the issues of the use of force and the account-ability for serious violations of human rights and humanitarian law, was important not merely for the parties' rights and interests, but also had a wider dimension of clarifying the applicable law on the important questions that very frequently arises within the international legal system and affects its operation and efficiency. It is therefore crucial to ascertain what the Court's powers are in dealing with the parties' submissions and if such powers are subject to certain limits.
TL;DR: The judgment in the case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide case?) was handed down on 26 February 2007.
Abstract: The judgment in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (`Genocide case?) was handed down on 26 February 2007.1 Broadcast live across Bosnia and Herzegovina and Serbia and making front-page news,2 it is a landmark opinion of considerable substance that contains a whole host of interesting international legal issues. The judgment and individual opinions attached thereto contain many important points on evidence, the law on genocide and state responsibility. This comment will touch upon only some of the many issues raised. In order to do so, though, it is first necessary to recall the history of the case.
TL;DR: In this article, the authors argue that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes and explore the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference.
Abstract: This article argues that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes. Judicial power is a more accurate measure because it assesses whether courts have sufficient jurisdiction, discretionary authority and enforcement powers to make decisions over socially meaningful commercial problems. In fact, judicial independence may reduce the power of newly emerging commercial courts in socialist-transforming Asia, which need politics to protect them from interference by powerful governments and private investors. This article explores the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference. It also investigates the conditions in which judges are most likely to acquire or arrogate discretionary powers to understand politics on their terms. Finally, this article analyses the highly polarized views in this region about what constitutes valid judicial determinations. The message for international agencies contemplating judicial reforms is that reducing political influence and promoting law-based decisions will not uniformly generate popular support and legitimacy for courts.
TL;DR: In this article, the authors consider the possible impact on those rights of the decision of the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber to take judicial notice of the genocide in Rwanda as a notorious fact against the backdrop of the legal requirements for judicial notice as a fact of common knowledge and as an adjudicated fact.
Abstract: Judicial notice has become a widely used tool in the practice of international criminal tribunals but its use has always been constrained by the fair trial rights of the accused. This article considers the possible impact on those rights of the decision of the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber to take judicial notice of the genocide in Rwanda as a notorious fact against the backdrop of the legal requirements for judicial notice as a fact of common knowledge and as an adjudicated fact. The question whether it would have been more appropriate to notice the Rwandan genocide as an adjudicated fact is addressed in the context of the implications for other instances of genocide, for example Srebrenica.
TL;DR: The European Community (EC) became the 66th1 Member of the Hague Conference on Private International Law (HCCH) on 3 April 2007, marking the beginning of a new third phase in the 114-year-long history of the HCCH and a new era in the cooperation between the two organizations as mentioned in this paper.
Abstract: On 3 April 2007, the European Community (EC) became the 66th1 Member of the Hague Conference on Private International Law (HCCH). This event marks the beginning of a new third phase in the 114-year-long history of the HCCH and a new era in the cooperation between the two organizations. This article gives an overview of the developments that led to the EC’s request for accession and discusses the legal and political issues that had to be resolved.
TL;DR: The first defendant to appear before the ICC was Thomas Lubanga Dyilo as mentioned in this paper, who was charged with genocide, crimes against humanity, murder, illegal detention and torture in relation to crimes alleged committed between May 2003 and February 2005.
Abstract: On 29 January 2007, Pre-Trial Chamber I of the International Criminal Court (the ICC) handed down its decision confirming the charges brought against Thomas Lubanga Dyilo, the first defendant to appear before the Court. In this and earlier decisions in the case, the Chamber has said a number of interesting things about the admissibility of cases before the Court, the elements of the war crime of child recruitment and the modes of liability under the Rome Statute of the International Criminal Court (the Rome Statute).140 More generally, however, the Chamber's actions also say much about the role the judges of the ICC see themselves as undertaking in the Court's proceedings.Thomas Lubanga is a national of the Democratic Republic of Congo (the DRC). He describes himself as a politician. It is alleged that from its foundation in 2000 he has been the leader of the Union des patriots congolais (the UPC) and commander-in-chief of its military wing, the Forces patriotiques pour la liberation du Congo (the FPLC). From mid-2002 to the end of 2003, the FPLC was engaged in fighting in the region of Ituri in the DRC. During the conflict, the UPC/FPLC is alleged to have committed numerous atrocities, including the widespread recruitment of children into its ranks.141The DRC had become a party to the Rome Statute on 11 April 2002 and, accordingly, the Statute entered into force for it on 1 July 2002, the date of the Court's establishment. Following strong hints from the Prosecutor,142 on 19 April 2004 the President of the DRC referrred to the Court ‘the situation of crimes within the juris- diction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute’.143 On 23 June 2004, the Prosecutor opened an investigation into the situation, the ICC's first.144 On 19 March 2005, Lubanga was arrested and detained by the DRC authorities, and charged with genocide, crimes against humanity, murder, illegal detention and torture in relation to crimes alleged committed between May 2003 and February 2005. On 17 March 2006, Lubanga was transferred from Congolese custody to that of the ICC.
TL;DR: For instance, the French highest court for private matters (the Cour de cassation) has significantly liberalized the French law of foreign judgments as mentioned in this paper by interpreting the Civil Code as preventing the recognition of judgments when the defendant was a French citizen.
Abstract: In a year the French highest court for private matters (the Cour de cassation) has significantly liberalized the French law of foreign judgments. In Prieur, it overruled a century-old precedent which had interpreted Article 15 of the Civil Code as preventing the recognition of foreign judgments when the defendant was a French citizen. In Avianca, it partly overruled a 45-year-old precedent which prohibited the recognition of foreign judgments which had not applied the law applicable pursuant to the French choice-of-law rule. This note will present this evolution. It will first sketch the development of the modern law of foreign judgments in France, and then assess what Prieur and Avianca have brought. Prior to this, it is probably useful to underline two important features of the French law-making process. First, although France is a civil law country, case law can be an important source of the law, and can sometimes even be the only one in a given field. Historically, this has been the case for the conflict of laws, which was almost entirely judge-made for two centuries. The only significant exceptions were three provisions in the Civil Code, which were given quite different meanings to what they actually provided. This is the reason why this note will primarily discuss cases and judicial interpretations and that these cases will be called precedents, which they almost are in practice, if not in French legal theory. Secondly, and most importantly, pursuant to Article 55 of the 1958 Constitution treaties and international conventions trump acts of parliament and indeed all other sources of the law except the Constitution itself and rules of constitutional value.1 It follows that when France has concluded an international convention with one or several foreign countries on foreign judgments, the convention applies irrespective of French statutes and precedents. France has concluded the most important of these international instruments with its European partners. The Brussels I Regulation and the 1988 Lugano Convention, when applicable, both trump the French ‘common’ law of foreign judgments. But France also has