The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.

North Carolina has, like most American states, played its (not always positive) part in the struggle against what Clinton, back in 1997 when the U.S. had more domestic concerns on its mind, called “America's constant curse”. But racial discrimination is not, of course, simply America's curse. Europe, for all its self-righteousness of late, has certainly not escaped it. Despite the prevalence of racial discrimination right across the geographic expression of Europe, this paper shall concentrate on a particular set of countries – those termed Central and Eastern Europe – and on a particular group – the Roma, widely acknowledged as the most marginalised and discriminated in Europe today.

That the Law is never frozen in time and space is quite a trivial insight – but one, however, that is nonetheless particularly true for the area of international human rights law and the jurisdiction to see human rights norms respected and enforced. No less is it true for international criminal law and European law. It is, of course, true at the intersection of these three fields of the law as well, exactly the place I intend to explore in this paper. And, as we shall see, poetry, that rarely unveiled subtext of the law, is never steady in its foundations.

Almost 60 years after the surviving Nazi-leaders were tried in the first ever international criminal tribunal for mass atrocities during World War II in Nuremberg, criminal responsibility for genocide, crimes against humanity, and war crimes is perceived of as somewhat normal. Even if it is not yet an everyday event that human rights abusers are tried on an international level, the reality of the possibility of such a trial is present in the minds of the attentive public. This change was achieved over the last ten years. The establishing of the Yugoslavia-tribunal in 1993 was the turning point. Since then a number of both national and international trials held against human rights criminals has given the topic high priority. Finally the International Criminal Court (ICC) was founded and after a comparatively short time actually established and put in a position to operate. Sierra Leone relies on criminal prosecution in order to rebuild its society after a distracted and bloody civil war and a trial against Saddam Hussein seems a necessity. Many expectations are connected to criminal law and the working of the ICC. The dream of a world-wide justice, i.e. to attribute “just desert” to the offenders and to do justice to the victims, seems to have become reality. At the same time the establishing of an international criminal court is understood as a signal that will deter future offenders from committing human rights atrocities. The paper of Alexandra Kemmerer gives proof of how optimistically the EU promotes the idea of international criminal justice.

In the early Nineties the Hague Conference on International Private Law on initiative of the United States started negotiations on a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Hague Convention“). In October 1999 the Special Commission on duty presented a preliminary text, which was drafted quite closely to the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the “Brussels Convention“). The latter was concluded between the then 6 Member States of the EEC in Brussels in 1968 and amended several times on occasion of the entry of new Member States. In 2000, after the Treaty of Amsterdam altered the legal basis for judicial co-operation in civil matters in Europe, it was transformed into an EC Regulation (the “Brussels I Regulation”).

On 14 October 2004, the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) voided a decision by the Oberlandesgericht (Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by the Grundgesetz (German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductory aperçu contained in the holdings of the case. One of them reads as follows: