Showing papers in "International and Comparative Law Quarterly in 2012"

The durban platform for enhanced action and the future of the climate regime

Abstract: The Durban Climate Conference,1 marked by tension, high drama and sleepless nights, agreed on a set of historic decisions under the climate regime 36 hours after the scheduled end of the conference. The climate regime—comprising the 1992 Framework Convention on Climate Change2 and its 1997 Kyoto Protocol,3 and decisions taken by Parties under these instruments—has been plagued in the last few years, in particular after the debacle at Copenhagen,4 by doubt and uncertainty. Doubt over its ability to meet climate goals, and uncertainty over its future, in particular that of the Kyoto Protocol. At Durban, Parties strengthened the climate regime with decisions to implement the 2010 Cancun Agreements,5 extend the beleaguered Kyoto Protocol, for a second commitment period,6 and launch a new process to negotiate a post-2020 climate regime.7 This new process, christened the Ad-Hoc Working Group on the Durban Platform for Enhanced Action, is intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions.

Property and the definition of slavery

Abstract: Currently there is no clear understanding of the meaning of ‘slavery’ in modern international law. While generally it is accepted that the authoritative definition of slavery is provided by Article 1 of the Slavery Convention 1926, in recent times slavery has been understood in such a wide variety of ways that effectively it is a meaningless term. This paper reflects on this interpretation problem and aims to redress this balance by reclaiming the core meaning of the legal definition. It applies property law perspectives to explain the conception of ownership invoked by Article 1, to argue that it remains relevant and to explore how it might be applied in identifying modern cases of slavery.

Watered-down rights on the high seas: Hirsi Jamaa and others v Italy (2012)

Abstract: On 23 February 2012, the European Court of Human Rights (the Court), sitting as a Grand Chamber, delivered its long-anticipated judgment in the Hirsi Jamaa and Others v Italy (Hirsi) case.1 The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of 231 migrants and refugees (191 men and 40 women) that left Libya heading for the Italian coast. Halted on 6 May 2009 by three ships from the Italian Revenue Police (Guardia di Finanza) approximately 35 miles south of Lampedusa on the high seas, in the SAR zone under Maltese competence, they were summarily returned to Libya without identification and assessment of their protection claims.2

I. european court of human rights al-skeini and others v united kingdom (application no 55721/07) judgment of 7 july 2011

Abstract: States who sign the European Convention on Human Rights agree to ‘secure to everyone within their jurisdiction the rights and freedoms defined’ within the treaty (Article 1). For over fifty years the Strasbourg Bodies of the European Court and Commission of Human Rights have struggled to define the exact limitations of a State’s jurisdiction, particularly when such jurisdiction arises beyond a Contracting Party’s territorial borders. Within the past decade the European Court of Human Rights has been asked to consider the limits of jurisdiction under Article 1 on a number of occasions. Previously the Strasbourg Bodies had maintained a flexible approach in finding jurisdiction, but in the Bankovic decision of December 2001 the Court gave a restrictive interpretation of jurisdiction, defining it as ‘primarily territorial’. Since then the Court has oscillated between the restrictive Bankovic approach and its more expansive early jurisprudence, leading the Law Lords of the UK to state that the European Court’s jurisprudence on this issue does “not speak with one voice”. This piece critically comments upon July 2011 Al-Skeini and Others v United Kingdom decision where the Grand Chamber of the European Court of Human Rights had the opportunity to take a decisive stance on the understanding of jurisdiction under Article 1.

Why the french don't like the burqa : laïcité , national identity and religious freedom

Abstract: This article examines the controversies over and implications of the 2010 French ban on the covering of the face. It carries out an internal critique of the new law and, in a broader European context, questions its compatibility with the European Convention on Human Rights. It argues that the ban has strayed away from the confines of laicite (the separation of State and religion in the public sphere) by encompassing activities and people who in no way emanate from the State. Far from being a flagship of a secularism—a la francaise—or a French way of life, the ban—it is argued—goes against entrenched French legal traditions and unduly conflates the concept of national identity at the cost of individual liberties, thus forgetting the true goal of secularism: the conciliation of different beliefs and values. Assuming that the defence of secularism is nevertheless (for reasons we will explore) upheld by the European Court of Human Rights as a legitimate aim pursued by the law, the French ban, it is argued, is likely to fall foul of European requirements for lack of proportionality.

Of apples and oranges (and hormones in beef): science and the standard of review in wto disputes under the sps agreement

Abstract: The standard of review applied by WTO decision-makers in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement plays a critical role in determining the scope of SPS risk regulatory authority afforded WTO Members by governing the degree to which such measures must be science-based. The standard of review question in SPS jurisprudence finds resonances in international environmental legal adjudication of highly technical disputes, as well as in comparative law concerning judicial review of science-based risk regulation in the United States and European Union. This article considers recent case law of the WTO Appellate Body in Continued Suspension and Australia–Apples and the extent to which these decisions permit a more deferential approach on the part of WTO decision-makers in evaluating the scientific underpinnings of Members' disputed SPS measures. It is argued that the case law has failed to articulate a strong normative rationale for the current interpretation of the standard of review applied in SPS disputes. Drawing on social scientific findings regarding the limitations of science-based risk assessment in diverse risk settings, the article contends that a more coherent and principled approach to application of the standard of review would allow for its adjustment according to the nature of the risk situation under consideration.

Denial of Justice Disguised: Investment Arbitration and the Protection of Foreign Investors from Judicial Misconduct

Abstract: Prior to the rise of international investment treaties and institutionalization of investor–state arbitration, the protection of foreign investors from mistreatment in the host state courts was the preserve of customary international law, which prohibited a denial of justice and provided for diplomatic protection as a principal means of dispute settlement. In contrast, contemporary international investment law offers a whole array of legal standards that can be invoked in seeking redress for the acts of national courts before international arbitral tribunals. In addition to relying on the customary prohibition of denial of justice, investors can challenge judicial conduct under the treaty standards on expropriation, fair and equitable treatment and, in some cases, the obligation to ensure effective means of asserting claims. Although the multiplicity of standards available to aggrieved investors can be regarded as an inalienable part of an effective regime for the protection of foreign investment, it also gives rise to a number of fundamental problems relating to the application of procedural mechanisms designed to control the review of the conduct of national judiciary by international courts and tribunals. Focusing on arbitral cases in which claims of a denial of justice were brought under the rubric of ‘a judicial expropriation’ and ‘a failure to provide effective means of asserting claims’, this article seeks to ascertain when investor claims relating to the administration of justice in the host state courts become amenable to arbitral scrutiny. It argues that, by providing a variety of standards under which the acts of judiciary can be challenged, investment treaty law allows investors to circumvent procedural barriers and thus muddles the boundaries demarcating the scope of international review of national judicial conduct.

The dialogue between united kingdom courts and the european court of human rights

Abstract: In this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.

International criminal law: wielding the sword of universal criminal justice?

Abstract: Writing 62 years ago, Georg Schwarzenberger posited that international criminal law did not exist. As long as some States, those larger or more powerful, were held to a different standard, or, in fact, not held to account at all, it was premature to speak of such a thing. For Schwarzenberger, international criminal law was a misnomer without universal criminal justice. This article considers whether that same criticism can be made of international criminal law today. Indeed, it asks whether this is a realistic expectation in the first place. The recently concluded Review Conference of the International Criminal Court in Kampala, Uganda is seen as an ideal juncture at which to do so. This article analyses what is meant by the term international criminal law and then selects two models; the International Criminal Court and the exercise of universal jurisdiction, to gauge the success, or failure, of international criminal law in satisfying Schwarzenberger's criterion.

Free movement of goods

Abstract: The end of 2012 will herald the twentieth anniversary of ‘deadline 1992’, the projected date for the completion of the EU's internal market. Since the entry into force of the Lisbon Treaty in 2009 references to ‘1992’ have been deleted from the Treaties, and so it may be tempting to suppose, rather more than twenty years since the first contribution on the Free Movement of Goods to this section of the Quarterly,1 that this is old news. Isn't the law governing the internal market in general and the free movement of goods in particular now well settled?

The renaissance of non-refoulement? the othman (abu qatada) decision of the european court of human rights

Abstract: On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v United Kingdom.1 Abu Qatada, a radical Muslim cleric once described as ‘Osama bin Laden's right-hand man in Europe’, was convicted in absentia in Jordan for various terrorist offences.2 He alleges, however, that part of the evidence against him had been obtained under torture. In 1994 he was granted refugee status and permitted to remain in the United Kingdom (UK) temporarily. Qatada later applied for indefinite leave to stay. While his application was pending, he was arrested in October 2002 and detained without charge or trial under the now-repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001. In March 2005 he was released from detention and put under a ‘control order’ under the Prevention of Terrorism Act 2005. A few months later, the UK government sought to deport Qatada to his native Jordan, having first concluded a Memorandum of Understanding (MoU) with the Jordanian government that he would not be subjected to torture or ill-treatment contrary to Article 3 of the European Convention on Human Rights (ECHR). The deportation order was challenged before English courts, but ultimately upheld by the House of Lords in RB (FC) and Another v Secretary of State for the Home Department and OO v Secretary of State for the Home Department in 2009.3 In contrast, the ECtHR ruled unanimously that the UK could not lawfully deport Qatada to Jordan. The decision was criticized by Home Secretary Theresa May as ‘unacceptable’ and predictably led to several Conservative backbenchers in the House of Commons calling on the government to withdraw from the ECHR.4

Disentangling the sources and nature of indigenous rights: a critical examination of common law jurisprudence

Abstract: The ‘indigenous renaissance’ of the last few decades continues to generate copious litigation around the Commonwealth. While courts frequently invoke common principles, it would be going too far to say that a unified jurisprudence exists. Moreover, modern jurisprudence in this area is arguably inconsistent and frequently discriminatory, which means that borrowing across jurisdictions should proceed cautiously, mindful of localized nuances and limitations. This article argues that any suggestion that the common law as it has evolved in any particular jurisdiction should be emulated as a model indigenous rights theory must be rigorously scrutinized, for indiscriminate application of doctrines could lead to discordant outcomes.

Is there a Right to Detain Civilians by Foreign Armed Forces During a Non-International Armed Conflict?

Abstract: This article considers whether there is any lawful authority for foreign armed forces assisting a territorial State during a non-international armed conflict to arrest and detain civilians. Taking the backdrop of Iraq and Afghanistan it considers relevant UN Security Council resolutions including Resolution 1546 (2004) relating to Iraq which authorized the multi-national force (MNF) ‘to take all necessary measures’ and provided for the internment, for imperative reasons of security, of civilians. In respect of Afghanistan, a number of resolutions authorized the International Assistance Stabilisation Force (ISAF) to ‘take all necessary measures’. It challenges the notion that the positive rights under international humanitarian law applicable to an international armed conflict apply, mutatis mutandis, to a non-international armed conflict, where national law (including human rights law having extraterritorial effect) is of primary (although not of exclusive) significance. It also considers which body of national law, that of the sending or that of the receiving State, applies to determine the lawfulness of detention of foreign civilians. The article recognizes that the arrest and detention of civilians may be necessary during a non-international armed conflict but concludes that the lawful justification for doing so needs to be clearly established.

The evolution of shareholder and creditor protection in australia: an international comparison

Abstract: This article is part of a larger international investigation of the effects of a country's legal origins on the style of business regulation. We employ an innovative ‘leximetric’ methodology to numerically code the protective strength of Australian corporate law for both shareholder and creditor protection for the period 1970 to 2010. This leximetric methodology has been used in a prominent international debate concerning the development of legal rules and the effects of different styles of regulation on a range of economic outcomes—the legal origins debate. Drawing on similar data compiled by Armour, Deakin, Lele and Siems in five other countries (France, Germany, India, the UK and the US) for the period 1970 to 2005, we compare changes in the level of protection afforded to Australian shareholders and creditors with developments in other countries. Our analysis finds that in Australia there was a sustained upward trend in shareholder protection, but not in the case of creditor protection. Compared to the five other countries, the level of protection afforded to shareholders under Australian law was relatively high, and this was the case for the level of protection afforded to creditors as well. We also examine the extent of convergence and divergence in shareholder and creditor protection among the countries in the study. We find persistent divergence in shareholder protection, with the extent of divergence in 2005 similar to that in 1970. For creditor protection, we find increasing divergence among the countries over the period of study. Our findings are not supportive of legal origins theory.

The function of litigation in international society

Abstract: The title of this article1 is drawn from Sir Hersch Lauterpacht's famous monograph, published in 1933, entitled The Function of Law in the International Community.2 Writing in a decade when the shattering effects of the physical destruction wrought by World War I were giving way to the debilitating effects of the Great Depression, and when the invasions of Manchuria and Abyssinia would sit side-by-side with the rise of Fascism in Germany and the great Stalinist terror in Russia, Lauterpacht was, not unnaturally, seeking a better way to a peaceful future under the Rule of Law. At that time, the recently established International Court in The Hague was dealing with acutely political cases, such as the question of the compatibility of the Austro-German Customs Union with the post-war peace settlement;3 and the cool rationality of debate in the Peace Palace seemed to offer a better way.

The uk bribery act 2010 and accompanying guidance: belated implementation of the oecd anti-bribery convention

Abstract: On 1 July 2011 the UK Bribery Act 2010 and accompanying guidance finally came into force, marking the end of years of controversy about how and when the United Kingdom would implement the OECD Anti-Bribery Convention. The United Kingdom's very delayed implementation of the Convention provoked an increasingly threatening response from the OECD Working Group on Bribery, and highlighted this body's lack of binding enforcement procedures. By contrast, the OECD's reliance on non-binding guidelines has proved successful in that the UK Guidance draws heavily upon the OECD's guidance on how corporations should prevent the bribery of foreign public officials.

Mental elements under article 30 of the rome statute of the international criminal court: a comparative analysis

Abstract: The Rome Statute of the International Criminal Court is the first international instrument that includes a general provision on the mental element required before criminal responsibility for an international crime attaches (Article 30). This article analyses that provision from a comparative perspective, drawing on common law and civil law understandings of intent. It analyses the jurisprudence and commentary concerning Article 30 in detail, and attempts to draw some conclusions as to what aspects of the common law and civil law concepts of intent are covered by it.

‘seizing’ pharmaceuticals in transit: analysing the wto dispute that wasn't

Abstract: Several recent detentions of generic pharmaceutical products transiting through the European Union (EU) for suspected infringements of intellectual property rights raised serious concerns for public health advocates and threatened to expose systemic problems existing in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The detentions not only garnered international attention, but India and Brazil formally began WTO dispute settlement proceedings against the EU. The parties recently reached a mutually agreed solution to the matter and the proceedings have been halted, leaving unanswered the complex legal and technical questions raised by the detentions of pharmaceuticals in transit. Despite a solution being reached in this dispute, the matter will undoubtedly resurface in the near future for a number of reasons. For instance, the EU is attempting to export its laws to its trading partners through the negotiation of free trade agreements and in other forums such as the recently concluded Anti-Counterfeiting Trade Agreement which increases the likelihood that similar detentions will occur at some point in the future. Moreover, recent trends in international intellectual property law indicate a move towards increased protection and enforcement in at least the short and medium term. The issue therefore offers the opportunity for rich legal analysis into an underexplored, yet increasingly important, aspect of WTO law.

International Court of Justice, Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece) judgment of 5 December 2011

Abstract: The former Yugoslav Republic of Macedonia (FYROM) on 17 November 2008 filed in the Registry of the International Court of Justice an application instituting proceedings against Greece in respect of a dispute concerning the interpretation and implementation of the so-called Interim Accord of 13 September 1995 (IA). FYROM’s NATO candidacy had been considered at the Bucharest Summit on 2–3 April 2008. FYROM was, however, not invited to begin talks on accession to the organization. It sought, in particular, to establish that Greece had objected to its admission to NATO (ultimately preventing the formation of the necessary consensus for the invitation to be extended) and therefore violated Article 11(1) IA. Under the first clause of that provision, Greece agreed ‘not to object’ to FYROM’s admission to international or regional organizations of which Greece is a member. In the second clause, however, Greece reserved the right to object to such admission if and to the extent that FYROM was to be referred to in those organizations differently than in Paragraph 2 of United Nations Security Council Resolution 817 (1993). This resolution recommends that FYROM be admitted to membership in the United Nations, being ‘provisionally referred to for all purposes within the United Nations as “the former Yugoslav Republic of Macedonia” pending settlement of the difference that has arisen over the name of the State’. The IA, a modus vivendi,2 aimed precisely at keeping the discontent relating to the name dispute from tainting the international relations between the signatories, setting a comprehensive set of mutual commitments, collateral to their pledge ‘to continue negotiations under the auspices of the Secretary-General of the United Nations . . .with a view to reaching agreement on the difference [about the name]’ (Article 5(1) IA).

Explaining the legal effects of recognition

Abstract: Recognition in contemporary international law is generally seen as a declaratory act. This is indeed the only plausible explanation in situations where a new State emerges consensually and in the absence of territorial illegality. Unilateral secession and territorial illegality, however, create different legal circumstances in which the applicable rules of international law imply and even presuppose that (collective) recognition could have constitutive effects. This article therefore suggests that the interpretation of the legal nature of recognition and non-recognition should not start on the premise that recognition always merely acknowledges the fact of the emergence of a new State. This is not to say that States cannot exist without being recognized. Rather, the legal effects of recognition may depend on the mode of a certain (attempt at) State creation.

Ii. the palmer report and the legality of israel's naval blockade of gaza

Abstract: On 3 January 2009 Israel deployed a naval blockade against Gaza in order to prevent materials entering or leaving Gaza that could be used by Hamas in its ongoing armed conflict with Israel. 1 With the humanitarian crisis in Gaza worsening, on 31 May 2010 a flotilla of vessels carrying humanitarian aid expressed its intention to violate the naval blockade and deliver the aid to Gaza. Before violating the blockade and whilst still on the high seas, Israel sought to enforce its blockade and capture the vessels. This occurred largely without incident except in relation to the Mavi Marmara (a vessel sailing under the flag of the Comoros), which resisted capture by the Israeli special forces and continued to sail in the direction of Gaza. As Israel special forces boarded the Mavi violence ensued, with nine crew members of the Mavi being killed and dozens of others injured (principally Turkish nationals). Several members of Israel's special forces were also injured. Israel eventually assumed control of the ship and the crew members were detained and the vessel and its cargo confiscated.

I. African court on human and peoples’ rights, African commission on human and peoples’ rights v. Great socialist people’s Libyan Arab Jamahiriya, order for provisional measures, 25 March 2011

Abstract: Africa has been struggling for years to establish a mechanism of human rights protection comparable to other international and regional mechanisms. Illiteracy and the low standards of economic development and social welfare, especially in rural areas, as well as the absence of financial resources were certainly not the best grounds to build on. Moreover, as Nmehielle notes, the creation of a human rights mechanism in Africa was equally hinged on other questions, more controversial ones, such as the existence of the concept of ‘law’ and ‘rights’ in pre-colonial Africa.1 In this respect, a Western-style mechanism of human rights protection would be naturally perceived with suspicion, as a form of foreign intervention.

I. british policy and the national transitional council of libya

Abstract: In February 2011,2 an uprising began in Benghazi in eastern Libya against the long-established Gaddafi3 Government. After initial military success by the rebels in the east, the government responded forcefully. In the light of threats made by the government to the lives of people in Benghazi, the Security Council authorized ‘any necessary measures’ to protect civilian lives in Libya and to enforce a no-fly zone over Libya's air space.4 Acting on this authorization, NATO forces intervened to enforce the no-fly zone and to protect civilians. The resolution precluded the occupation of Libya, so the NATO action was confined to aerial and some naval bombardment of regime targets in Libya. The combined effects of operations by the irregular forces of the rebels and the bombing by NATO eventually led to the defeat of Government forces and the death of President Gaddafi on 20 October 2011. However, the overthrow of the regime was principally the work of groups in the west and south-west, not formally associated with the original insurrection in the east. This note is not concerned with matters of legality of the use of force or the way in which the campaign was conducted by any of the participants.5 It deals with the diplomatic aspects of the development of relations between the United Kingdom, the Gaddafi Government of Libya and the ‘National Transitional Council’ (NTC). It raises some speculation about the implications in domestic law of the way British policy was conducted.

Between splendid isolation and tentative imperialism: the eu's extension of its emission trading scheme to international aviation and the ecj's judgment in the ata case

Abstract: For the last 15 years the European Union (EU) has been particularly active, both internally and internationally, in the fight against global warming, and it is determined to continue to play a global leadership role in this strategic issue. Among the various market-based measures decided upon, the Emission Trading Scheme (ETS) for energy-intensive industrial sectors has been rightly described as the ‘flagship of the EU climate policy’.1 Even before proceeding to a general overhauling of Directive 2003/87 in the framework of the 2009 Climate and Energy package, the EU had decided to modify the Directive by including aviation activities in the ETS. Directive 2008/1012 provides that all flights from whichever aircraft operator taking off from or landing in the EU territory will be subjected to the ETS from 1 January 2012. For the year 2012 97 per cent of all emissions allowances will be freely assigned, from 2013 the amount will decrease to 95 per cent, whereas 15 per cent of all allowances will be auctioned. In reality the percentage of free allowances is much lower, about 60 per cent, because it takes as parameter the historical aviation emissions of the years 2004–06, when the air traffic was 40 per cent lower than it is now. The idea underlying the Directive is that aircraft operators will either purchase the necessary allowances in the market or will try to reduce their emissions by using bio-fuels (or else reducing the number of flights), with the second option becoming more economically attractive over time.

III. Australian Asylum Policy all at Sea: An analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia–Malaysia Arrangement

Abstract: On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an ‘Arrangement’ for the transfer of asylum seekers.1 Its stated aim was to deter asylum seekers from travelling by boat to Australia by providing that the next 800 asylum seekers to arrive unlawfully would be transferred to Malaysia in exchange for the resettlement of 4,000 UNHCR-approved refugees living there.2 The joint media release by the Australian Prime Minister and Minister for Immigration lauded it as a ‘groundbreaking arrangement’ that demonstrated ‘the resolve of Australia and Malaysia to break the people smugglers’ business model, stop them profiting from human misery, and stop people risking their lives at sea’.3 The success of the Arrangement relied on Malaysia being perceived as an inhospitable host country for asylum seekers, with the Australian Government emphasising that it provided ‘the best course of action to make sure that we sent the maximum message of deterrence’.4 The Government also made clear that those transferred to Malaysia would ‘go to the back of the [asylum] queue’.5

The duty to give reasons for administrative decisions in international law

Abstract: As scholars in the Global Administrative Law project have recognized, doctrines familiar from domestic administrative systems are beginning to appear, in nascent forms, in some areas of international law. This article makes a first attempt to examine the appearance of one such doctrine, the duty to give reasons for administrative decisions, in international case-law. The existence of and rationales for this duty have been contentious in many domestic jurisdictions. The article thus considers the extent to which these debates have been replicated amongst adjudicators at the international level. The focus is on cases in the areas of WTO law, investment law and human rights law. It is found that the case law is not yet extensive, and (perhaps as a result) that no coherent picture emerges. In contrast to domestic systems, the areas examined in international law demonstrate some agreement on the desirability of the duty. However, different international adjudicators have recognized different rationales for the duty, with only limited consensus even within each area of international law studied.

Effectiveness of exclusive jurisdiction clauses in the chinese courts—a pragmatic study

Abstract: Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

Party autonomy in the legal regulation of adult relationships: What place for party choice in private international law?

Abstract: This article is an examination of the merits of permitting the exercise of party autonomy in choice of court and choice of law in respect of the personal and patrimonial aspects of adult relationships. It provides a commentary on the party autonomy provisions of EU harmonization instruments, actual and proposed, in family law. The treatment considers the particular issues of drafting which arise from the specialties of family law, and ponders whether or not the refinements required render the exercise of permitting party autonomy self-defeating.

An evaluation of morocco's claims to spain's remaining territories in africa

Abstract: Ceuta, Melilla, Velez de la Gomera, Alhucemas and the Chafarinas Islands are Spanish territories that lie along Morocco's northern coastline. Morocco has claimed the territories since its independence in 1956. The sovereignty of a further territory, the islet of Perejil, remains unresolved after a military confrontation between Morocco and Spain in 2002. The author examines the arguments in the ongoing sovereignty dispute. Morocco's claim to Ceuta and Melilla is found to be weak. However, its claim to the remaining territories may be supported by the analogous case of Sao Joao Baptista de Ajuda, an unpopulated Portuguese fortress territory in Dahomey (Benin) that was singled out for ‘statutory decolonization’ by the UN.

The continuing myth of euro-scepticism? the german federal constitutional court two years after lisbon

Abstract: The German Federal Constitutional Court’s 2009 decision on the Lisbon Treaty immediately provoked passionate criticisms and revived the Court’s image of the Eurosceptic par excellence. However, if one uses Court’s general case law on the interaction between European law and German constitutional law – in particular the Mangold follow-up (Re Honeywell) and the EURO bailout – as a background for analysis, a high level of practical support becomes apparent, that is quite the opposite to the all-out war some commentators predicted. It also illustrates how the Lisbon principles can be used to exert a positive influence on the European integration process.