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7719 results in Intersentia

Page 133 of 386

  • Combatting Child Smuggling and Trafficking: A Comparative Study of the Situation in Nine European States

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 103-132

  • Summary

    INTRODUCTION

    Child smuggling and trafficking had hardly been discussed before and during the 1990s, despite it having always existed. The fact that, in the last few years, the issue of child smuggling and trafficking has been brought into the public arena of national and international bodies is a significant accomplishment. It can also be considered that there has been some progress towards the elimination of criminal activities related to child smuggling and trafficking. At the same time, academics consider that these achievements are far from satisfactory.

    There is a correlation between the phenomenon of migration and child trafficking. Children who are recruited and transported for the purpose of exploitation are considered as trafficked no matter whether or not they consented to the move. The reason for this is that the questions about choice, consent and agency are irrelevant when children are concerned. The correlation between child migration and child trafficking has been noticed by the Special Rapporteur on the sale and sexual exploitation of children and the Special Rapporteur on trafficking in persons, especially women and children, and they have published a joint study on this subject. More particularly, they have found that:

    ‘As one of the main destinations for children on the move who are fleeing violence, conflict and humanitarian crisis, Europe is at the heart of the sale of, trafficking in and other forms of exploitation of children. In Europe, child trafficking has increased sharply owing to the migration crisis..’

    This chapter aims to determine how the existing international legal framework, in particular the Council of Europe Convention on Action against Trafficking in Human Beings, protects migrants – often unaccompanied children – against child smuggling and trafficking. In accordance with the UN Convention against Transnational Organized Crime Trafficking Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, the key elements of human trafficking are: recruitment and facilitated movement of a person within or across national frontiers by means of coercion, threats or deception for the purpose of exploitation.

    Human smuggling, under the UN Convention against Transnational Organized Crime, Protocol against the Smuggling of Migrants by Land, Sea and Air, is the illegal movement of persons across international borders in order to obtain a financial benefit. Smuggling finishes when the person arrives at a destination while trafficking results in exploitation.

  • Protection of Minors in European Migration Law

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 1-16

  • Summary

    INTRODUCTION

    ‘As children in migration are exposed to high risks of violence, trafficking or exploitation along migration routes or may go missing, or become separated from their families, they require a specific protection. Children have the right to be protected, in line with relevant provisions of EU law, including the EU Charter of Fundamental Rights, and with international law on the rights of the child. The child's best interests must be the primary consideration in all actions or decisions concerning children..’

    This is a statement of the European Commission in the press release of its communication on the protection of children in migration in April 2017. Swift protection upon arrival and adequate reception conditions for children are proposed along with alternatives to administrative detention and speeding up family tracing and reunification procedures. Similar targets are formulated in the Council of Europe Action Plan on Protecting Refugee and Migrant Children in Europe, which runs from 2017 to 2019. It proposes concrete support to Member States at all stages of the migration process, with a special focus on unaccompanied children. Nevertheless, the UNHCR reported that hundreds of unaccompanied girls and boys, newborn babies and pregnant women were particularly at risk due to the extremely poor reception conditions at the hotspots on the Greek islands. EU Member States return unaccompanied minors to Afghanistan even though children's rights organisations have reported that this country is not safe, especially for minors. The Fundamental Rights Agency (FRA) published a report on the immigration detention of children which concludes that detaining children for migration management or asylum reasons is difficult to justify, practically very challenging to implement in line with fundamental rights and clearly not in the child's best interests. However, it is still common practice in most Member States. The content of the Communication of the EC and the Action Plan of the Council of Europe are positive but demonstrate that progress in changes to immigration policy is slow.

    This contribution will analyse the protection of minors in European migration law and will contradict the opinion that strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents.

  • The Rights of Minor Siblings in Migration: Why Migration Policies should Stop Systematically Separating Siblings

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 67-84

  • Summary

    INTRODUCTION

    While the peak in the number of asylum seekers was reached in 2015, recent years have continued to present high numbers of asylum requests. In 2016, UNICEF estimated that one in every 200 children in the world today is a refugee. In 2017, over 31,000 unaccompanied minors registered in the EU. The number of child refugees and beneficiaries of subsidiary protection is large, but an anticipated threat to states is that these numbers are bound to increase when children apply for family reunification. In order to ensure states are able to care for the children in their territory, they call for strict migration policies that ensure that no one is able to groundlessly reunify with third-country nationals (TCNs) seeking protection in the EU. By law, EU Member States are granted a wide margin of discretion to identify who falls within or outside the scope of family reunification of TCNs.

    The Council of Europe Commissioner for Human Rights wrote in 2017 that

    ‘[i]n most states, the right to family reunification of unaccompanied minor refugees only extends to their parents. Where it does not extend to other family members, this often leads to great hardship and family separation, as parents must choose to leave behind other children if they wish to avail themselves of the right to reunification with an unaccompanied minor’.

    While the Commissioner endorses the tough position that parents of multiple children are in, the fact that the bond between siblings is permanently disrupted as a result of migration policies, as described above, seems neglected or at the least overlooked. Currently, it is up to the discretion of states whether non-parental family relationships of the unaccompanied minor will be eligible for reunification in the host state. Also, it will be up to the discretion of states whether they will strive to keep siblings together and reunite siblings in cases of their separation as a result of migration.

    In contrast to strict family reunification policies on a national or regional level, international children's rights law puts its focus on the best interests of children. This general principle is put forth in Article 3 of the UN Convention on the Rights of the Child (UNCRC) and states that in all actions concerning a child, the best interests of the child (BIC) should be a primary consideration.4

  • How Protective is Custody for Unaccompanied Minors in Greece? Protecting Children’s Rights within Detention

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 179-194

  • Summary

    INTRODUCTION

    Protecting the human rights of children under the scope of the UN Convention on the Rights of the Child (UNCRC) and embodying them in the domestic policy of the ratifying Member States, has always been a goal to be achieved. In the meantime, due to the massive migration flows arriving in the area of the Mediterranean, literature and research have excessively focused upon Greece for being a stepping-stone to safety for the majority of those in quest of refuge in Europe. Among those asylum-seeking individuals arriving in Greece, unaccompanied minors (UAM) are particularly in need of certain UNCRC rights to be granted to them at arrival, given their youth and their unique socio- legal status. Currently, the situation UAM experience in Greece is particularly complex, as all migrant minors, regardless of whether or not they apply for international protection, are, by law, to be immediately apprehended for entering the country in an irregular manner and consequently to be placed under what is known as protective custody, in specially designed short-term hosting facilities provided by the state, where they are also to be provided with sufficient care and assistance until referred to appropriate hosting units.

    However, due to the state's inability to adequately and promptly cover the accommodation needs of all UAM arriving in the country, this procedure is often replaced by administrative detention, until these minors are further referred to suitable long-term accommodation structures. Hence, in the meantime, UAM are most commonly placed in detention facilities, usually under police administration, where they are often subjected to highly inappropriate and clearly problematic conditions, thus raising crucial questions in the area of protecting children's rights under the scope of the UNCRC provisions. In addition to the above, this form of detention often exacerbates existing medical, psychological and social needs arising from being an asylum seeker in the first place, eventually corroborating the country's failure to provide ample and suitable refuge to UAM at arrival, leading to a custody regime euphemistically considered to be protective, while in reality UAM are simply placed under procedures of detention. The question therefore still lies on whether or not protective custody for UAM successfully manages to protect children's rights as enshrined in the UNCRC.

  • Is Immigration Detention Out of the Question? A Child-Based Approach to Immigration Detention and Family Unity

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 133-158

  • Summary

    INTRODUCTION

    Child immigration detention remains a disconcerting reality of our times. This chapter focuses on the detention of asylum-seeking children accompanied by their family, in light of their right to liberty, family unity and the best interests of the child (BIC). It considers the extent to which these three rights support the extension of non-custodial alternatives not only to children, but to their entire family.

    The right to liberty is safeguarded by all international and regional human rights instruments and also by child-specific norms, most notably, the United Nations Convention on the Rights of the Child (UNCRC). When people are arbitrarily deprived of their liberty, they can also be deprived of other rights, depending on the conditions of detention. Moreover, the negative effects of detention are solidly recognised, with the effects exacerbated when children are involved. Tens of thousands of asylum-seeking children worldwide are ‘captive’ in different forms of detention, with or without their families, and are effectively stripped of their childhood.

    Against this backdrop, it becomes imperative that the contours of the obligations of states vis-à-vis asylum-seeking children are elucidated. The focus of this chapter is specifically on accompanied asylum-seeking children, although the analysis pertaining to the right to liberty is equally relevant for unaccompanied minors. However, in contrast with unaccompanied children, human rights law has not yet definitively rejected the use of detention for accompanied children. It is still widely used, often in the pretext of maintaining family unity, with the legal status of the child often being subsumed into their parents’ migratory status.

    This chapter evaluates the increased significance that the BIC has come to acquire in the international and European arenas, and how this has contributed to a shift in approach regarding child immigration detention. The main proposition of this chapter is that immigration detention can no longer be an option for children, and that, because all children's rights are inextricably linked, including the rights to liberty and family unity, non-custodial alternatives should be extended to the children's entire family.

    THE BEST INTERESTS OF THE CHILD: FROM ‘PRIMARY’ TO ‘PARAMOUNT’ CONSIDERATION

    The significance of the following analysis lies in the fact that the BIC is closely connected with all other children's rights and always remains a relevant consideration that can inform immigration decision-making.

  • The (Limited) Role of Children’s Rights in EU Family Reunification Law for Beneficiaries of International Protection

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 85-102

  • Summary

    INTRODUCTION

    The 1951 Convention on the Status of Refugees does not contain a state obligation to allow for family reunification of refugees. In the Final Act of the Conference of Plenipotentiaries states are recommended to take the necessary measures to protect the family life of refugees. The right to family reunification has been discussed a lot ever since, but this has never resulted in a binding legal obligation to allow for family reunification in international law. The Human Rights Committee has held based on the International Covenant on Civil and Political Rights (ICCPR) that states should take the appropriate measures ‘to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons’. The Convention of the Rights of the Child (UNCRC) does contain an explicit reference to the importance of family reunification. In Article 10(1) it is stated that states shall deal with applications for family reunification by a child or his or her parents in a positive, humane and expeditious manner. In European human rights law, Article 8 European Convention on Human Rights (ECHR) protects the right to respect for private and family life. Even though no right to family reunification is provided for in the ECHR, the European Court of Human Rights (ECtHR) has laid down specific safeguards for the exercise of the right to family reunification in the context of Article 8.

    In European Union (EU) law, a substantive right to family reunification is laid down in the EU Family Reunification Directive (FRD). The Directive was adopted in 2003 and entered into force in 2005. It harmonises the right to family reunification in the EU and is applicable in all EU Member States, except Denmark, Ireland and the United Kingdom. It lays down that third-country national family members of third-country national sponsors residing lawfully on the territory of the Member States shall be granted family reunification if they comply with the substantive requirements that the Member States are allowed to impose in accordance with the Directive. The FRD includes a separate regime for persons who have been recognised as a refugee in the Member State concerned. The FRD is the only instrument in supranational law which grants a substantive right to family reunification to refugees.

Safeguarding Children's Rights in Immigration Law
  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020
  • Millions of children are on the move worldwide. Children are fleeing conflicts and wars. They move with or without their parents to attain a better future. Children on the move is not a new phenomenon, but its scale is without precedent. UN reports suggests that there are almost 50 million children who have migrated or who have been forcibly displaced. It is also reported that children form half the global refugee population and that many flee from violence, conflict and insecurity. Children who are migrants or refugees often find themselves in a particular vulnerable position, despite rather strong entitlements to human rights protection, as laid down in international and regional legal instruments including the United Nations Convention on the Rights of the Child, adopted 30 years ago. This book presents a collection of scientific papers presented at the conference 'Safeguarding Children's Rights in Immigration Law', organised by the Institute of Immigration Law and the Department of Child Law of Leiden Law School, at Leiden University in November 2018. It reflects the growing concern for children and children's rights in immigration in academia and practice. It also shows the diversity of issues related to immigration and children, including family reunification, detention, participation, human trafficking and the rights of siblings in the context of migration, as well as the significance of regional legal systems and infrastructures for the protection of children on the move. The book targets at academics, legal and other professionals and (advanced) students.

  • Unaccompanied Asylum-Seeking Children as Rights Holders: Theory and Reality in the EU Legal System

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 41-66

  • Summary

    INTRODUCTION

    In the past, the understanding of children being ‘rights holders’ has been widely criticised. The recognition that children have rights on their own, and that they should have the opportunity to – at least, partially – exercise them, was far from obvious. Indeed, children have long been treated as objects of protection rather than as subjects of rights. In the meantime, the idea of children as rights holders has been incorporated into the European legal order, following the example of the 1989 United Nations Convention on the Rights of the Child (UNCRC). Especially the right to be heard is one of the pivotal components of the idea of the child as a rights holder.

    However, the practical implementation of this principle is open to criticism. Children are frequently not asked for their views or their consent in the performance of crucial acts and the taking of fundamental decisions affecting their lives. Migrant children – especially if unaccompanied – are particularly affected in this regard. To illustrate this by means of examples: in almost half of the Member States of the European Union medical examinations for age assessment may be carried out without asking the child to consent. Moreover, 14 states do not allow children to lodge an asylum application in their own right, requesting the child's legal representative to provide for it. However, legal representatives are often not appointed in a timely manner, while important deadlines are linked to the moment of the lodging of the asylum application. As a result, the child's access to crucial services such as the education system is gravely postponed.

    This contribution deals with the practical implementation of the principle of children as rights holders in the field of migration. It will especially draw on the two mentioned aspects: the child's consent in the framework of medical tests for age assessment, as well as the subject(s) in charge of lodging the asylum application. While both topics are of critical relevance for most child applicants, the European acquis leaves a certain margin of appreciation to the Member States in this regard. After a brief exposition of the legal framework in which the principle of children as rights holders is enshrined (section 2) and of the relevant EU provisions affecting child migrants in this connection (section 3), this chapter will take a closer look at the migrant child's right to be heard (section 4).

  • The Detention of Unaccompanied Minors in EU Asylum Law: What is Left of Children’s Rights?

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 159-178

  • Summary

    INTRODUCTION

    Child migrants are not a phenomenon specific to the EU, nor is detention the only issue that unaccompanied children face. But in 2017, minors still accounted for a third of all asylum seekers in the EU; among them, almost 15 per cent were unaccompanied, for a total of more than 30,000 asylum applications from unaccompanied minors in the EU. This number has only just started to decrease, following the general trend of first-time asylum applications in the EU, but had been rising constantly ever since the 1990s. Unaccompanied children are becoming a population which therefore must be factored into the EU asylum system, and their vulnerability must be considered. Moreover, asylum laws and policies can no longer be considered purely from a national, domestic perspective, as these competences have started to be transferred by Member States to the EU ever since the Amsterdam Treaty and the communautarisation of the 1985 Schengen Agreements and their 1990 Implementing Convention. Regarding the focus on detention of this chapter, it appears to be one of the most pressing issues for unaccompanied minors seeking asylum: detention is a total deprivation of liberty, here inflicted on one of the most vulnerable parts of the population. It seems to have been normalised in the context of immigration laws and policies in the EU since the 1990s, but any authority which wishes to use this mechanism outside of a punitive context needs to tread very carefully, or risk violating the fundamental rights of a very vulnerable population.

    In this chapter, it will be examined whether or not the EU does tread carefully when it comes to allowing or demanding the placement of unaccompanied minors in detention by national authorities. Does the Common European Asylum System (CEAS) properly uphold international human rights and children's rights standards in its detention system for unaccompanied minors?

    To begin with, the CEAS is made up of multiple instruments, and most of them were recast in 2013.

  • Child Asylum Seekers in Botswana: A Critique of the Ngezi and Iragi Decisions

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 217-234

  • Summary

    INTRODUCTION

    The purpose of this chapter is to assess the role of children's rights in decision- making with special focus on asylum-seeking children in Botswana. This topic is significant because in 2017, the Court of Appeal considered two applications brought by men and women, who had been detained along with their minor children, following failed applications for asylum. The first of these decisions was Marie Iragi and 2 others v. The Attorney General. This case concerned two women who sought asylum in Botswana accompanied by three minor children. The second case was Egama Ngezi and 165 others v. The Attorney General. This case concerned 166 adult asylum seekers and 195 children who were also under detention pending status determination or removal following rejection of their claims for asylum.

    In each case, the asylum seekers brought an application for habeas corpus. They alleged that they had been subjected to lengthy and indefinite detention, with their children, following their failed applications for asylum. The particular focus of this chapter is the Court's approach to protecting the rights of the child asylum seekers who were detained along with their parents.

    The chapter begins with a discussion of the rights of child asylum seekers in light of the Convention on the Rights of the Child which Botswana has ratified and domesticated followed by a discussion on Botswana's children's rights framework in the context of refugees and asylum-seeking children. The chapter then considers the Court of Appeal decision in the consolidated appeal in the Iragi and Ngezi cases with particular focus on the Court's posture towards asylum-seeking children. The chapter ends with a discussion of the salient points that the Court should have considered in deciding the cases and some recommendations on law and policy reform.

    THE OPERATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD IN BOTSWANA

    Botswana acceded to the Convention on the Rights of the Child (UNCRC) in 1995 and the African Charter on the Rights and Welfare of the Child (ACRWC) in 2001. A further 14 years would pass before the UNCRC was incorporated into Botswana law. In 2009, Botswana amended the Children's Act 1981 and promulgated the new Children's Act 2009 (the Act) ostensibly to implement the UNCRC.

  • Appellate Asylum and Migration Proceedings in Belgium: Challenges for the Best Interests of the Child Principle and Unity of Jurisprudence

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp 195-216

  • Summary

    INTRODUCTION

    This chapter analyses two strands of case law of the Council for Alien Law Litigation (CALL or Council) in Belgium from the perspective of children's rights and the need to ensure unity of jurisprudence. On the one hand, it looks into appeals against decisions of the Commissioner General for Refugees and Stateless Persons (CGRS) denying a minor or his/her parent(s) the refugee and/or subsidiary protection status, in which the CALL undertakes a full judicial review. On the other, it scrutinises appeals against return orders delivered by the Immigration Office in the context of the durable solution procedure to the guardian of an unaccompanied minor (UNAM), for which the CALL only has an annulment competence.

    First, in a quantitative analysis, the relationship between the outcome of the case (accepting or rejecting the appeal) and the language of the proceedings (French or Dutch) is analysed. Even though the necessary caution is warranted, the findings do reveal a different approach between the French-speaking and the Dutch-speaking Chambers, especially in the asylum case law. The second part of the chapter concerns a qualitative analysis, assessing the legal weight attached to the principle of the best interests of the child in both strands of case law. It is demonstrated, among others, that the legal weight attached to the best interests principle in the asylum case law of the CALL varies on a continuum from non-applicable/non-relevant, to a procedural application and (exceptionally) a substantive application. In the annulment cases under review, there seems more coherence in how the best interests principle is interpreted, which may be related to its incorporation in the relevant national legal provisions. These quantitative and qualitative findings of divergence within the Belgian asylum and migration case law involving (unaccompanied) minors raise questions from a children’s rights perspective, as well as from the perspective of legal certainty and unity of jurisprudence. This is an exploratory research, however: the research design does not allow formulation of definitive explanations of the findings. Only correlations are identified, no causal explanations are given. Where possible and relevant, hypotheses are formulated as to the interpretation of certain findings.

    After a short presentation of the Council for Alien Law Litigation, the methodology adopted is discussed.

  • Preface: Children on the Move are Children in the First Place

  • Edited by Mark Klaassen, Stephanie Rap, Peter Rodrigues, Ton Liefaard
  • Book:
    Safeguarding Children's Rights in Immigration Law
    Published by:
    Intersentia
    Published online:
    30 April 2020
    Print publication:
    01 January 2020, pp v-xii

  • Summary

    30 YEARS OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD

    With the adoption of the UN Convention on the Rights of the Child (UNCRC), on 20 November 1989, and its almost universal ratification 30 years later, the international community sends out a clear message to the world, which has fundamentally challenged – and continues to challenge – the way children are looked at in legal systems across the globe: each child must, first and foremost, be recognised as a human being with human rights and fundamental freedoms. This message has had far-reaching implications for domestic legal systems and the way children are treated, in theory and practice. It has resulted in the development of new legislation or the adjustment of existing law and practices, also under the influence of an emerging body of case law, internationally and nationally. A growing number of studies, more general and specific ones, confirm that the UNCRC and related international and regional standards have had a significant impact on legislation, jurisprudence and policy at the domestic level. The UNCRC has also generated additional standard-setting in different regions in the world, which has contributed to the development of a comprehensive, multi-level, dynamic and also complex legal framework.

    Over the past 30 years, there have been serious efforts made to further develop and tailor the children's rights framework to specific contexts in which children live and develop, such as child protection, juvenile justice, health & biomedicine and migration; to specific themes, including violence against children, sexual exploitation and trafficking of children, children in armed conflict and children and digital technologies; and to specific groups of children, including children in conflict with the law, children as victims and witnesses and children in alternative care. As part of these efforts, the UNCRC's core notions have been upheld and elaborated upon. This is particularly true for the principle that the best interests of the child have to be a primary consideration ‘[i]n all actions concerning children’ (Art. 3(1) UNCRC), which in the view of the UN Committee on the Rights of the Child means that these interests have ‘high priority’ and assumes an unconditional respect for children's rights and freedoms as a baseline.

  • Chapter 2 - Specific Rules of Interpretation

  • Ayse Nihan Karadayi Yalim
  • Book:
    Interpretation and Gap Filling in International Commercial Contracts
    Published by:
    Intersentia
    Published online:
    23 January 2020
    Print publication:
    22 November 2019, pp 79-96

  • Summary

    Besides the general rules of interpretation, the Convention on Contracts for the International Sale of Goods (CISG), Principles of European Contract Law (PECL), Principles of International Commercial Contracts (PICC) and Draft Common Frame of Reference (DCFR) also contain some specific rules which need to be examined.

    CONTRA PROFERENTEM RULE

    The contra proferentem rule is a widely recognized interpretation rule which also found its place in the PECL, the UNIDROIT Principles and the DCFR. The CISG does not contain an express article on contra proferentem, which created a discussion about the application of the rule to contracts governed by this instrument.

    DEFINING THE RULE

    The contra proferentem rule is an interpretation rule which holds that ambiguities in the language of a contract should be construed against the drafter of the unclear contract clause. It is an interpretative maxim of ius commune which found its place in continental jurisdictions “ under the guise of judge-made rules developed alongside the codifications ”.

    It is expressed by the ancient formula verba cartarum fortius accipiuntur contra proferentem in Bacon's Maxims of the Law. Bacon states that “this rule, that a man's deeds and his words shall be taken strongliest against himself, though it be one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason”. He acknowledges that “the force of this rule is in three things, in ambiguity of words, in implication of matter, and reducing and qualifying the exposition of such grants as were against the law, if they were taken according to their words”.

    Four grounds have been given in the literature for the application of the contra proferentem rule. Accordingly,

  • Nobody should benefit from his own wrong and it is wrong to formulate a defective clause;

  • A party who drafted or otherwise supplied a contractual term may be responsible for its formulation and should bear the risk of the ambiguity of that particular term;

  • The ambiguity might have misled the other party and induced him to conclude the contract; and

  • The bargaining power between the parties is unequal.

    • It is the second rationale which is adopted in the comments of the PECL Article 5.103 and the Article 4.6 UNIDROIT Principles on contra proferentem rule that we will examine below.

  • Chapter 3 - Good Faith and Fair Dealing and Contract Interpretation

  • Ayse Nihan Karadayi Yalim
  • Book:
    Interpretation and Gap Filling in International Commercial Contracts
    Published by:
    Intersentia
    Published online:
    23 January 2020
    Print publication:
    22 November 2019, pp 97-130

  • Summary

    PARTY AUTONOMY AS AN UNDERLYING PRINCIPLE OF CISG, PECL, PICC AND DCFR

    The principle of freedom of contract, which applies as a general rule in all European legal systems, is also expressed in the CISG, PECL, PICC and DCFR. Article 1:102 PECL provides that:

    Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles (§ 1). The parties may exclude the application of any of the Principles or derogate from or vary their effects, except as otherwise provided by these Principles (§ 2).

    In the DCFR also freedom of contract is the starting point. It is submitted in the section on underlying principles that as a rule, natural and legal persons should be free to decide whether or not to contract and with whom to contract, to agree on the terms of their contract and to agree at any time to modify the terms of their contract or to put an end to their relationship. This freedom is of course subject to the application of mandatory rules.

    The UNIDROIT Principles on International Commercial Contracts contain a similar rule in the Article 1.1. According to this article, “The parties are free to enter into a contract and to determine its content.” Moreover, in Article 1.5, the PICC provide that “The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles”. In the comments on the PICC Article 1.1., it is emphasized that the principle of freedom of contract is of paramount importance in the context of international trade:

    The right of business people to decide with whom they will offer their goods or services and by whom they wish to be supplied, as well as the possibility for them freely to agree on the terms of individual transactions are the cornerstones of an open, market-oriented and competitive international economic order.

    Similarly, Article 6 of the UN Convention on Contracts for the International Sale of Goods (CISG), states that the parties may exclude the application of this Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.

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