This chapter discusses the sources of international law. International law’s authority is generally regarded as deriving from the consent of States. As such, it is only pursuant to State consent that international legal rules can be developed. This is not to say that all international law is made by States; States frequently delegate law-making authority to specific bodies or organs, and they may acquiesce or consent to a legal rule which originated in a non-State institution. The chapter then considers Article 38 of the Statute of the International Court of Justice. Technically, Article 38 of the ICJ Statute only lays out the categories of sources to be applied by the ICJ: its lex arbitri or applicable law. Yet, in practice, Article 38 has long been regarded as an authoritative, complete statement as to the sources of international law.
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This chapter discusses the primary and secondary laws of the European Union (EU). Treaties are the primary law of the EU. In addition to the treaties that originally established the three European Communities, a number of other treaties have subsequently been made. These include the Treaty on European Union (the Maastricht Treaty), the Treaty of Amsterdam, the Treaty of Nice, and the Lisbon Treaty, all of which have made important amendments to the foundation treaties. Article 288 of the Treaty on the Functioning of the European Union (TFEU) confers legislative power on the Union’s institutions to make secondary legislation in accordance with the provisions of the Treaty. This secondary legislation may take different forms: regulations, directives, decisions, recommendations, and opinions. The chapter also discusses the concepts of direct applicability and direct effect, and the relationship between EU law and the English courts, and concludes by considering the likely enduring impact of EU law even after the UK has ceased to be a member state.
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Herwig C.H. Hofmann
This chapter examines the steps which take place after legislation has been passed. It also looks at the principles and rules that exist to ensure the legality and legitimacy of administrative action implementing EU law. It begins with an overview of the key institutions and agencies of the EU and what they do. It then discusses the applicable law which is key to developing notions of accountability and the protection of rights in this field.
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Jonathan Hill
This chapter deals with contract disputes which have foreign elements that come before the English court: one or both of the parties may be foreign; the making or performance of the contract may be connected with a number of foreign countries. In this type of case which law is the court to apply? The general principle is that every international contract has a governing law — known at common law as the ‘proper law’and under EU law as the ‘applicable law’. Subject to certain limitations, parties to a contract are free to choose the applicable law; if the parties fail to make a choice, the governing law is, as a general rule, the law of the country with which the contract is most closely connected. The remainder of the chapter focuses on the Rome I Regulation, including its scope and interpretation; determining the applicable law; the limits of the applicable law; articles 5 to 8; and choice of law aspects of various contractual issues.
Chapter
This chapter discusses the primary and secondary laws of the European Union (EU). Treaties are the primary law of the EU. In addition to the treaties that originally established the three European Communities, a number of other treaties have subsequently been made. These include the Treaty on European Union (the Maastricht Treaty), the Treaty of Amsterdam, the Treaty of Nice, and the Lisbon Treaty, all of which have made important amendments to the foundation treaties. Article 288 of the Treaty on the Functioning of the European Union (TFEU) confers legislative power on the Union’s institutions to make secondary legislation in accordance with the provisions of the Treaty. This secondary legislation may take different forms: regulations, directives, decisions, recommendations, and opinions. The chapter also discusses the concepts of direct applicability and direct effect, and concludes by considering the likely enduring impact of EU law following Brexit, as well as the Northern Ireland Protocol.
Chapter
This chapter discusses the sources of international law. International law’s authority is generally regarded as deriving from the consent of States. As such, it is only pursuant to State consent that international legal rules can be developed. This is not to say that all international law is made by States; States frequently delegate lawmaking authority to specific bodies or organs, and they may acquiesce or consent to a legal rule which originated in a non-State institution. The chapter then considers Article 38 of the Statute of the International Court of Justice. Technically, Article 38 of the ICJ Statute only lays out the categories of sources to be applied by the ICJ: its lex arbitri or applicable law. Yet, in practice, Article 38 has long been regarded as an authoritative, complete statement as to the sources of international law.
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This chapter examines the remedies developed by the Court of Justice (CJEU) for member states who violate European Union (EU) laws. It considers the concept of direct applicability and reviews the development of the doctrine of direct effects through an analysis of case law. The chapter proposes ways for overcoming the lack of horizontal effect for EU Directives to avoid the result of the ‘Marshall’ ruling and discusses state liability in the CJEU cases C-6 and 9/90 Francovich. These remedies are known as the enforcement from below as a part of the dual system of vigilance of EU law. It also considers national procedural law and the system of remedies developed by the CoJ.
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This chapter brings together a number of related issues that are indirectly linked to the preliminary ruling procedure under Art 267 of the Treaty on the Functioning of the EU (TFEU)—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission, or other institutions, or member states in direct actions before the CJEU. The discussions cover Art 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.
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N V Lowe, G Douglas, E Hitchings, and R Taylor
Many relationships are now transnational ones between parties from different cultures and countries. The breakdown of these relationships means that increasing numbers of children are caught up in cross-border disputes. Such disputes raise a variety of issues, including which court should hear any question concerning the children’s upbringing, what happens if each parent brings separate proceedings at the same time, and about the enforceability of orders, for example that a parent living in one country should see their child in another country. Now that the UK has left the European Union the key international instrument for dealing with these issues is the 1996 Hague Convention on the Protection of Children which provides basic rules of jurisdiction for hearing cases concerning children and a consequential system of recognition and enforcement of decisions concerning parental responsibility. This chapter discusses the following aspects of the 1996 Convention: its aims, scope, the jurisdictional rules, applicable law with regard to parental responsibility, recognition and enforcement, the placement of children abroad and safeguarding rights of access.
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Martin Scheinin
This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
Chapter
Martin Scheinin
This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
