International law is unlike the law of national legal systems in that the persons or entities to which it applies are not always immediately apparent. National law applies to natural or legal persons within the territorial borders and to ‘nationals’ of the home State. In a general way, the ‘subjects’ of national law, being the persons to whom the legal system is addressed, are reasonably well defined geographically and legally. International law has no territorial boundaries in the same sense and no comparable concept of ‘nationals’. Consequently, its ‘subjects’ are harder to define and even to identify. This chapter discusses the types of international legal personality and recognition in international and national legal systems.
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5. Personality and Recognition
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5. Hart’s Theory of Law
J. E. Penner and E. Melissaris
This chapter explores Hart’s construction of a better theory, in particular in contrast to the theory set out by Austin. The discussions cover the importance of rules; obligation and the internal aspect of rules; the union of primary and secondary rules; the rule of recognition; legal systems and the importance of officials; public international law in Hart’s theory; and the significance of Hart’s theory.
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9. Collective labour law
Ian Smith, Owen Warnock, and Gemma Mitchell
This chapter considers the laws that affect trade unions and employment relations at a collective level, with the exception of strikes and other industrial action, which are examined in Chapter 10. The chapter begins by considering the legal status of a trade union and the statutory concept of trade union independence. The applicability of trade union law to workers in the gig economy is also considered. The focus then shifts to the ways in which the law seeks to secure freedom of association, by provisions which protect and support union membership and activities including giving protection against discrimination and providing rights to time off for union duties and activities. The chapter then turns to the concept of recognition of unions for collective bargaining, and the legal rights that come with recognition. It also examines the statutory system for securing recognition. The relevance of the European Convention on Human Rights is considered throughout, as are the changes made by the Trade Union Act 2016. The law relating to domestic and European works councils is also considered.
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5. Legal Personality and Recognition
International law is unlike the law of national legal systems in that the persons or entities to which it applies are not always immediately apparent. National law applies to natural or legal persons within the territorial borders and to ‘nationals’ of the home State, In contrast, international law has no territorial boundaries in the same sense and no comparable concept of ‘nationals’. Consequently, international law’s ‘subjects’ or ‘participants’ are harder to define and even to identify. This chapter discusses the types of international legal personality and recognition in international and national legal systems.
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7. Statehood, Self-determination, and Recognition
Matthew Craven and Rose Parfitt
This chapter, which examines various theoretical arguments about recognition, statehood, or sovereignty, discusses the elusiveness of the actual place occupied by the State in legal international thought and practice. In one direction, the existence of a society of independent States appears to be a necessary presupposition for the discipline—something that has to precede the identification of those rules or principles which might be regarded as forming the substance of international law. In another direction, however, statehood is something that appears to be produced through international law following from a need to determine which political communities can rightfully claim to enjoy the prerogatives of sovereignty.
Chapter
9. Collective labour law
This chapter considers the laws that affect trade unions and employment relations at a collective level, with the exception of strikes and other industrial action, which are examined in Chapter 10. The chapter begins by considering the legal status of a trade union and the statutory concept of trade union independence. The applicability of trade union law to workers in the gig economy is also considered. The focus then shifts to the ways in which the law seeks to secure freedom of association, by provisions which protect and support union membership and activities including giving protection against discrimination and providing rights to time off for union duties and activities. The chapter then turns to the concept of recognition of unions for collective bargaining, and the legal rights that come with recognition. It also examines the statutory system for securing recognition. The relevance of the European Convention on Human Rights is considered throughout, as are the changes made by the Trade Union Act 2016. The law relating to domestic and European works councils is also considered.
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4. States as the Primary Subjects of International Law
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
This chapter focuses on the State as the primary subject of international law. It begins with a discussion of the continuing pre-eminence of States as pivotal subjects of the international legal system and then analyses the processes through which States are created; the role of recognition of States, particularly in the context of contested Statehood; the legal rules governing the continuity, succession, and extinction of States; and the evolving concept of sovereignty, which is a notion at the very core of what a State is. The chapter is intended to introduce the main legal aspects of ‘Statehood’, as a first step in the discussion of more advanced concepts in subsequent chapters, such as the State’s spatial dimensions, its immunities and those of State officials, and the many limitations imposed by international law on State action.
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8. Statehood, Self-Determination, and Recognition
Matthew Craven and Rose Parfitt
This chapter, which examines various theoretical arguments about recognition, statehood, and sovereignty, discusses the elusiveness of the actual place occupied by the State in legal international thought and practice. In one direction, the existence of a society of independent States appears to be a necessary presupposition for the discipline—something that has to precede the identification of those rules or principles which might be regarded as forming the substance of international law. In another direction, however, statehood is something that appears to be produced through international law following from a need to determine which political communities can rightfully claim to enjoy the prerogatives of sovereignty.
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21. The 1996 Hague Convention on the Protection of Children
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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3. Foreign judgments
Jonathan Hill
This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.
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4. States
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines three concepts of State: first, that of the territory of the State, which is an area; second, that of the border of the State, which is a line having adjacent to it a vaguer ‘frontier’ zone; and third, that of the State itself, which is a legal concept that denotes the political society that is based in the territory. It begins with a discussion of how we know that a piece of territory belongs to one State rather than to another. It then considers the requirements that states must meet as a person of international law: a permanent population; a defined territory; government; and the capacity to enter into relations with the other states. Next, the chapter deals with the requirement of ‘legitimacy’ that must be satisfied by candidates for Statehood, focusing on the issues of recognition in domestic law and state succession.
