It is my intention to appeal to scholars of a younger generation to undertake research on the thesis which, on the basis of my experience at the International Court of Justice–and I have been a serving Member for almost a quarter of a century–I shall be presenting in this paper. In my view, one subject missing from contemporary studies on the function and work of the International Court of Justice is a pragmatic examination of the manner in which certain contentious cases presented to the International Court of Justice have disappeared from view and of whether a judgment, once handed down, has actually been complied with by the parties to the dispute.

To public international lawyers “Lockerbie” is more than likely to evoke the cases which Libya brought in the International Court of Justice in 1992 against the United Kingdom1 and the United States under the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971.2 The issues raised by the cases have spawned a huge literature. But, in truth, the ICJ proceedings have never been at the centre of, what might be called, the Lockerbie affair. Although they raise important constitutional issues for the United Nations, in terms of the crime committed—the sabotage of the Boeing 747 airliner on flight PA103 which exploded over Lockerbie in Scotland on 21 December 1988 killing 270 people—the ICJ proceedings have never been more than a sideshow; or as that word was once, aptly for the present case, denned in The Times crossword, an incidental skirmish. The real story is how international action, and in particular the ingenious use of international law, was successful in achieving the appearance of the accused for trial before a Scottish court sitting in the Netherlands. This example of what can be achieved in the cause of justice by legal inventiveness, imaginative diplomacy and sheer persistence, should be properly recorded.

One might, by way of introduction, return to the general question. What is one to make of the debate between Professor Birks and the apparent schematic disorder of the common law? One immediate response is to consign this whole debate to a past age. Those who believe that meaningful legal reform can be achieved through classification risk being ridiculed.7 Such a view is understandable. The amount of intellectual energy spent on emancipating unjust enrichment from the categories of contract, tort and equity seems to bear little relation to the actual social benefits detectable in the restitution decisions themselves.8 And the experimentation with the public and private law dichotomy appears to have proved of little worth in the face of such social horrors as child abuse.9

In the fifth week of NATO's 78–day aerial intervention in the Federal Republic of Yugoslavia (FRY), the FRY initiated proceedings in the International Court of Justice against ten of its member States which it accused of violating the principles of international law in relation to the jus ad bellum and the jus in bello.1 NATO's action, known as Operation Allied Force, had commenced on the night of 24 March 1999 when cruise missiles were directed on Serbian targets located in the Kosovan capital of Pristina and in the Republic's capital of Belgrade.2 This robust application of armed force came on the eve of the 50th anniversary of NATO, an organisation which was established after the Second World War for the collective defence of its member States, and constituted the first offensive launched against another sovereign State in the organisation's entire history.

The right of individuals to have recourse to international human rights bodies has been regarded as one of the most significant developments in securing respect for and the promotion of universal fundamental rights and freedoms.1 First, it ensures that individuals subjected to human rights violations have an alternative forum should the domestic judicial forums not be persuaded of the existence of rights violations, for whatever reason. Secondly, the availability of an individual's right of recourse affirms the fact that the individual is an actor cognisable by international law, and is not dependent on the intervention of other States for the safeguarding of his or her rights.2 This is particularly important, as many States are slow to engage complaint mechanisms against another State for fear of reprisal (be it in the form of economic or political sanctions, or the instigation of a complaint under the same mechanism by the other state), lack of interest, or otherwise.3 Thirdly, the existence of such fora, and the right of individual complaint from a variety of countries, are useful in developing a common universal standard of human rights observance.4 The combined result of these is that implementation of the goals set out in the international human rights instruments is facilitated because the means for their enforcement are not dependent upon international politics but rather are put in the hands of the rights holders. In turn, such machinery should improve State compliance.5

Economic co-operation within ASEAN1 can be said to have seriously begun only at the beginning of the nineties. Prior to that, it was well known that, ASEAN as a co-operative grouping, had existed mainly with a political and strategic focus. It is with this focus that ASEAN managed to establish and maintain cohesiveness through the years despite the shaky beginnings of what has been described as a “brittle alliance” borne of a common fear of communism.2 And it is with this focus that ASEAN, as a regional grouping, has generally been hailed as a success.

In the post-World War II international economy, with its enormous growth in transnational trade and investment, multinational legal practice has become a functional reality.1 Within the last two decades, the volume of trans-border legal practice has grown enormously in fields such as trade law, international banking and finance, international arbitration and litigation, international contractual and joint venture arrangements, transborder acquisitions and mergers, international antitrust, international tax planning, and foreign investment counselling. Domestic law firms within the leading commercial nations have not only grown substantially in size, often by merger, they have also increasingly created networks of foreign branch offices, or entered into international association or joint venture relationships with firms in other countries.2

The Supreme Court of Canada's advisory opinion in Reference re Secession of Quebec, 1998 (also known, more simply, as the “Quebec reference case”) has been the subject of much interpretation and comment, because of its obvious implications for the future of Canada.1 However, it offers an arguably wider opportunity to consider the role of the judiciary within a liberal democracy. The professional nature of the legal process and its practitioners often has made legal and judicial institutions, to most of the public, distant and alien components of the political system. The technical aspects of many areas of law (such as contracts, torts, and civil procedure) may, in fact, make this area of public concern seem unapproachable to the average citizen; indeed, some legal practitioners may prefer that the law remain that way. That mystique often is transferred to the realm of constitutional law, where the use of technical terms (including Latin words and phrases) may serve, intentionally or not, to insulate legal arguments and proceedings from public scrutiny.2

The extent to which it is appropriate to interpret constitutional provisions and in particular fundamental rights in accordance with the law and understanding current at the time of their promulgation, is a fundamental issue in any legal regime into which a Bill of Rights is introduced. This is well illustrated in a recent decision by the Judicial Committee of the Privy Council.

On 1 July 1999, the International Tribunal for the Law of the Sea rendered its first judgment on the merits in the M/V “Saiga” (No.2) case (St. Vincent and the Grenadines v. Guinea)1, thereby completing the settlement of a dispute which began with the M/V “Saiga” case (hereinafter the Saiga No.1)2 in the form of an application for prompt release under Article 292 of the 1982 United Nations Convention on the Law of the Sea (the Convention). Unlike the decision in the Saiga No.1, which evidenced a deeply split Tribunal, the judgment on the merits was by an overwhelming majority of 18 to 2 on all but two paragraphs of the dispositif.3

In 1991 the United Kingdom became a Party to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, one of the purposes of which is “to improve international co-operation in the suppression of illicit traffic by sea”.1 Article 17 of that Convention has, as its central purpose, the establishment of international standards, procedures and practices designed to facilitate the obtaining of enforcement jurisdiction whereas Article 4 addresses the closely associated issue of prescriptive jurisdiction.2 The Criminal Justice (International Co-operation) Act 1999 contains a number of provisions of relevance in this latter context. These include the taking of extraterritorial jurisdiction over certain drugs offences taking place on board the vessels of other Convention parties.3

British cases used to be widely relied upon to show that courts were entitled to hear criminal proceedings against defendants brought before them without having to enquire into the process by which custody over them had been obtained: and specifically, that there was no bar to proceeding where the allegation was made that custody had been obtained in breach of international law.1 The consistency of the doctrine was breached by Mackeson2 when the English court refused to hear the case against a defendant who, it accepted, had been brought to England by a collusive process between the English and Zimbabwean authorities, which arguably breached both national laws, even if it did not involve a breach of international law. While the previous orthodoxy soon reasserted itself in Driver,3 the edifice of authority was substantially undermined in Bennett4 when the House of Lords acceded to the claim of the applicant that proceedings against him would be an abuse of process, given the circumstances in which his presence in the United Kingdom had been achieved. Outside the United Kingdom, the practice in other States continued in different directions, sometimes confirming the old position of male captus, bene detentus,5 sometimes the reverse.6

On 27 July 1999 a UK Act was passed to “make provision for giving effect to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption concluded at the Hague on 29 May 1993” and “to make further provision in relation to adoptions with an international element”.1 At the time of writing, however, the UK had not ratified the Convention. By section. 18(3) the Act will be brought into force on a date appointed by statutory instrument.