This chapter explores the relationship between international and national law, discussing both the common law tradition and the civil law tradition. It suggests that each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally? The second factor is the difficulty of proving particular rules of international law. Third, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters.
Chapter
3. The relations of international and national law
Chapter
2. The principle of legality
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of how national legal systems tend to embrace and ground their criminal law lies on, with respecct to either the doctrine of substantive justice or that of strict legality. It then covers the principle of legality in civil law and in common law countries; the principle of legality in international criminal law; articulations of the principle of legality; and the principle of legality of penalties.
Chapter
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.
Chapter
4. Contractual obligations
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.
Book
Antonio Cassese and Paola Gaeta
This third edition of Cassese’s International Criminal Law provides an account of the main substantive and procedural aspects of international criminal law. Adopting a combination of the classic common law and more theoretical approaches to the subject, it discusses: the historical evolution of international criminal law; the legal definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus aggression, torture and terrorism; the forms and modes of criminal responsibility; and the main issues related to the prosecution and punishment of international crimes at the national and international level, including amnesties, statutes of limitations and immunities. The book guides the reader through a vast array of cases and materials from a number of jurisdictions, providing analysis that brings the political and human contexts to the fore. The International Criminal Court and all the other modern international criminal courts are fully covered, both as regards their structure, functioning and proceedings, and as far as their case law is concerned.
Chapter
21. Appeals and enforcement
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
The right of defendants to appeal against conviction or sentence is normally regarded as a fundamental human right. At present this right is laid down in numerous international treaties on human rights, as well as in the Statutes of international courts. The notion and purpose of appellate proceedings vary in national systems. Subject to a number of specifications and exceptions, in civil law countries, that is countries of Romano-Germanic legal tradition, these proceedings amount largely to a retrial by a court of appeal. In contrast, in most common law countries appellate proceedings do not lead to a retrial. Appeals courts, which do not have any jury, do not review facts, but decide on the basis of the trial record. In international criminal proceedings neither the common law system nor the civil law model have been upheld. Rather, a mixed system has been accepted, which is discussed in this chapter.
