On 27 June 2000, the updated Guidelines for Multinational Enterprises (the Guidelines) were adopted by the 29 Member States of the Organisation for Economic Co-operation and Development (OECD) together with the observer governments of Argentina, Brazil, Chile and the Slovak Republic. The Ministerial Conference Chairman, Mr Peter Costello, described the 2000 Review as heralding the most “far reaching changes” to the Guidelines since their introduction in 1976.1 This note proposes to consider only the most noteworthy among them.2 Accordingly, it will not examine those elements that have merely been reaffirmed by the 2000 Review. However, the conclusions will be made that the Chairman's sentiments are only observable in the ongoing textual development of the Guidelines and that the all-important implementation mechanism has only been improved by half-measure

Article 6(1) of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters set out in Schedule 3C to the Civil Jurisdiction and Judgments Act 19821 provides that “[a] person domiciled in a Contracting State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled”. The House of Lords in Canada Trust Company v. Stolzenberg (No. 2)2 decided that first, in an action where jurisdiction is asserted under Article 6(1), the relevant standard of proof on the domicile issue is that of a “good arguable case” second, the correct date for determining if the anchor defendant3 is domiciled in England is the date of the issue of proceedings against the anchor defendant; and third, Article 6(1) does not require service on the anchor defendant prior to issue or service of proceedings against other defendants.

Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4

It is generally acknowledged today that comparative law plays a decisive role in the harmonisation of European private law, in particular of European contract law.1 Dölle has emphasised this strong link between comparative law and European integration as early as 1950 in his report on the refoundation of the German Association of Comparative Law:

On 31 May 1999 two matters came before the Full Federal Court of Australia, constituted by Justices Whitlam, Wilcox and Merkel. The two cases heard together were different in nature and origin, but their common feature was a claim of genocide. The primary issue was whether the international crime of genocide forms part of the law of Australia. The majority view was that, before an international crime could be prosecuted in an Australian court, specific domestic legislation needed to be enacted. The dissenting opinion was that genocide had become an offence at common law and could be prosecuted. In this case note I will analyse the opinions both in the terms of their impact on the relationship between international law and domestic law in Australia, and in light of recent trends in Australia and other common law countries.

Over the course of the last hundred and fifty years or so the general trend in the laws of Western European countries has been, first, to make provision for judicial divorce and, second, to make it easier for parties to a marriage which has broken down to obtain such a divorce. This coupled with increased mobility has added to the significance of the law relating to the recognition of foreign divorces. The law's essential task is to strike the right balance between, on the one hand, being too restrictive, thereby creating “limping” marriages (i.e., marriages which are valid in one or more countries, but not others) and, on the other, being too generous, thereby sanctioning “quickie” divorces or divorces of convenience.1

This essay assesses the significance of the United Kingdom's Human Rights Act (HRA) 1998 on legal theory and practice. Part II considers its constitutional context and significance; Part III deals with whether the European Convention on Human Rights has been ‘incorporated’. Part IV deals with its entry into force. The two principal methods used by the HRA to relate to (1) statutory interpretation and (2) a duty on public authorities or those exercising public functions. We consider these in turn. Part V analyses the interpretative obligation contained in the Act, the power for higher courts to make a ‘declaration of incompatibility’, and effects of such a declaration. Part VI explores the new statutory duty imposed by the Act. Part VII assesses the Act's remedial provisions. Part VIII notes the particular provision made for freedom of expression and freedom of religion. Part IX discusses the issues of ‘horizontal effect’ and the ‘margin of appreciation’. Part X concludes with an assessment of the significance of the HRA on legal theory and practice—just how big a difference has it made and will it make?

What is worse, watching a guilty person walk free or being denied access to a person who may die if left without your assistance? Is it more important to help bring about the wrongdoer's arrest or to help his victim? If a choice has to be made, it is never an easy one. But it is a dilemma that delegates from the International Committee of the Red Cross (ICRC) sometimes find themselves facing, and it is one that can keep you awake nights.1

Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.

On 21 September 1999 Pakistan filed an application instituting proceedings against India in respect of a dispute relating to the destruction in the previous month of a Pakistani military aircraft. According to Pakistan the aircraft, which was unarmed, was shot down by Indian fighter aircraft while in Pakistan air space and without warning. The 16 people aboard the aircraft, who were mostly naval trainees, were all killed. India denied all responsibility for the incident and rejected Pakistan's suggestion that a United Nations fact-finding mission should be sent to the area. Having unsuccessfully demanded some 60 million dollars compensation for India's allegedly illegal action, Pakistan then referred the matter to the Court.2

The Strait of Messina is a body of water in the Mediterranean Sea separating the island of Sicily to the west from mainland Italy to the east, linking the Lower Tyrrhenian Sea with the Ionian Sea. The strait is around 30 miles long and its width ranges from 13/4 miles (between Faro Point and the Rock of Scylla) to 10 miles (between Cape Alì and Cape Pellaro). At its northern end it reaches, at one point, a minimum depth of 70 metres.1

Various recent developments within and without the United Kingdom have strengthened the arguments in favour of the adoption of general nationality based criminal jurisdiction. These arise from problems in the application of territorial jurisdiction, increasingly frequent crime-specific reference to nationality based jurisdiction, the development of European Union law, the ever-greater mobility of nationals, the ability to commit crimes remotely, the incorporation of the European Convention of Human Rights and Fundamental Freedoms into United Kingdom law, an evolution in the citizen-state relationship, and the increasing internationalisation of criminal law. It is not suggested that territory should no longer find a central place in the criminal law rather that the original and present arguments in its favour have been greatly weakened and, at the same time, the arguments in favour of nationality based jurisdiction have been strengthened. This article details the present nature of criminal jurisdiction, highlights the deficiencies with territorial jurisdiction and outlines the case in favour of a general nationality based criminal jurisdiction.

Literature on the Antarctic Treaty System (ATS), particularly that written by citizens of States that are Consultative Parties to the Antarctic Treaty, has often been celebratory in character. The ATS, we have been told, is a model of international co-operation. The regime has prided itself on addressing issues ahead of crisis situations; and, since the conclusion, and subsequent entry into force, of the Environmental Protocol, with its protection of the Antarctic environment. This acclaim of the system that manages Antarctic affairs may be to a large extent warranted. Antarctica has remained peaceful and its value as a scientific laboratory has in recent years been enhanced through the contribution of Antarctic science to understanding environmental issues of global concern. But the environmental credentials of the Treaty System will be immeasurably weakened if it continues to display such a huge anomaly between its treatment of mining and that of tourism. Tourism is covered by only a very weak application of the precautionary principle while the application of the precautionary principle to the issue of mining has been ‘extreme’. The principal factor behind this anomaly appears to be political opportunism.

It might be thought an unusual or peculiar feature of international relations that, on occasion, States engaged in an armed conflict decide to appeal to international law and institutions for the provision of immediate judicial remedies.2 Yet, within the short space of 14 months, the International Court of Justice has twice found itself on the receiving end of such requests: in the first of these cases, the Federal Republic of Yugoslavia (FRY) filed an application on 29 April 1999 against 10 Member States of NATO for using armed force against the FRY in March 1999. At the same time, the FRY made a request for provisional measures, in which it asked the Court to indicate that the States involved “cease immediately [their] acts of use of force” and “refrain from any act of threat or use of force” against the FRY.3 In June 1999 the Court dismissed this request.4

The Preparatory Commission (PrepCom) was established by Resolution F of the Final Act of the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Under this resolution the PrepCom is intended to “take all possible measures to ensure the coming into operation of the International Criminal Court without undue delay”, and “to make the necessary arrangements for the commencement of [the Court's] functions”.1

As mentioned in the previous note1 the Amsterdam Treaty significantly alters the treaty structure as regards the free movement of persons. The EC treaty now has, as one of its formal activities as set out in article 3(1)(d), “measures concerning the entry and movement of persons as provided for in Title IV”. The creation of a new Title IV in the EC Treaty on establishing an area of freedom, security and justice moves a corpus of subject matter2 from the inter-governmental pillar on Justice and Home Affairs to the Treaty of Rome. The aim clearly set out is to establish, within five years, all the measures necessary to create “an area without frontiers” in accordance with Article 143 together with “flanking measures with respect to external board of controls of asylum and immigration” as well as “measures to prevent and combat crime in accordance with the provisions of Article 31 (e) of the Treaty on European Union”.4 Co-operation between the Member States is also to be strengthened and encouraged5 as well as measures in the field of police and judicial co-operation in criminal matters though the latter is in accordance with the provisions of the Treaty on the European Union.6

The human and environmental consequences of big development projects such as large dams have been a focus of increasing attention in many countries. Large-scale involuntary resettlement caused by such projects has become particularly contentious in a number of situations. In India where many large dams have been and are being built, the Sardar Sarovar dam on the Narmada river has been at the centre of a storm for over a decade. The latest development in the history of this project is the judgment given by the Supreme Court of India on 18 October 2000 adjudicating a public interest litigation petition filed by the Narmada Bachao Andolan (NBA—Save the Narmada Movement). This decision is of great significance not only for the project itself but also from a broader perspective.

Since the 1997 Amsterdam Intergovernmental Conference a sea-change in the formulation and implementation of European Union Social Law and Policy has taken place in response to the demands made by economic, political and monetary union. The evolution of EU social law is an area which has developed within a process or framework of “differentiated integration”,1 not only between the Member States, but also the regions of the EU. Since its emergence in the EU Council's Conclusions of 22 June 19842 the concept of a “European Social Area” has slowly been created by the processes of “Europeanisation”3 of social policy whereby through EU-led processes a “re-nationalisation”4 of domestic policies has taken place. The process is similar to the ideas of “re-regulation” of national law in relation to the basic economic freedoms of the EC Treaty whereby a measure of national autonomy can only be retained through European Community law standards. It is striking how the Amsterdam IGC has led to a definite shift in the paradigm of EU social policy law with distinctive aims, values, processes, new legal tools and new political actors.

The conflict in Sierra Leone began in 1991 and still continues. It has led to over 50,000 deaths. The fighting has been characterised by the use of child combatants and widespread mutilation of civilians by amputation. When the conflict began, it would have seemed improbable that any UN response would include a forum for the trial of international crimes. After all, even the high tide of international enforcement of international criminal law, the Nuremberg International Military Tribunal, had begun to be excised from mainstream treatments of international law.1 The possibility of a permanent international criminal court had recently been revived, and sent to the International Law Commission for consideration, but the record of the ILC with controversial projects would not have led to an expectation of quick progress.2 Yet, nearly 10 years on, the UN is now involved in setting up a fourth criminal court,3 the “Special Court” for Sierra Leone. Despite the selectivity inherent in ad hoc reactions, and the continuing opposition to the Rome Statute in some quarters, it is now difficult to deny that progress is being made towards a new form of international criminal order where the improbability of prosecution for international crimes can ne longer be presumed.

An initiating Application filed by the Democratic Republic of Congo (DRC) against Belgium on 17 October 20001 potentially raises similar issues to those raised by the Pinochet case,2 namely the scope of “universal” jurisdiction in relation to serious international crimes against individuals (in this case “grave breaches of the 1949 Geneva Conventions and the 1977 Protocols thereto and crimes against humanity”) and the question of immunity where State officials (in this case a Foreign Minister) are accused thereof. As such it may represent an opportunity for the Court to give an authoritative ruling on these highly controversial and sensitive issues of international law, which seem to be raised with increasingly regularity before national courts. However for now such a ruling is a matter for the future, as on 8 December 2000 the Court dismissed the DRC application for provisional measures, and thus made no comment on the substantive issues of the case. Instead it found that certain intervening factual developments had removed from the application for provisional measures the requisite elements of irreparable prejudice to the rights of the applicant and urgency, thus obviating any need for an Order to be made at this stage.