Family law may not be an area one immediately associates with the European Community but in recent years it has rapidly emerged as an important element of the ever-expanding portfolio of the Justice and Home Affairs Directorate General.1 Facilitating the circulation of family law orders through the harmonization of private international law rules is viewed in Community circles as essential if the free movement of persons is to be guaranteed within the European Union.2 The merits of this policy and the manner in which the transformation of the Brussels II Convention3 into a Council Regulation4 was used to acquire wider competence in respect of family law matters have both previously been considered.5 In the present paper such policy considerations are left aside to allow for a detailed analysis of those rules which deal with divorce and their effect on English and Scottish law.

Since the resumption of China's sovereignty over Hong Kong in 1997, academic and policy interest in its unique status has largely subsided. This may be attributed to the fact that the issue has formally been settled and the absence of effective mechanisms for monitoring and enforcement of compliance with the bilateral accord underpinning the new legal order. The marginalization of the subject has arguably left an analytical vacuum as several dimensions of the post-1997 picture merit attention on the part of international lawyers. One topic that continues to be of both practical and theoretical importance—the unconstrained pursuit, within the ‘One Country, Two Systems’ framework, of key strategic goals in the external arena—is addressed in this paper.

The Treaty of Amsterdam enshrines in Article 2 (formerly Article B) of the Treaty on European Union under the new Title I called “Common Provisions” (which contains, with some amendments, the provisions of the former Articles A to F) a new objective for the Union, namely:

“to maintain and develop the Union as an area of freedom, security and justice in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”

Although there is a broadly similar core of human rights law and courts in different jurisdictions face strikingly similar questions, the use of comparative law in the human rights context remains controversial. Reference to foreign human rights materials is regarded as undemocratic, selective and misleading. Rather than searching for a single ‘right answer’, or expecting convergence, this article addresses these challenges from a deliberative perspective. A deliberative approach requires decisions to be taken on the basis of reasons which are thorough and persuasive. Even where outcomes diverge, there need to be good reasons, whether textual, institutional, or cultural. Comparative materials constitute an important contribution to this process. Part I critically assesses various alternative potential functions of comparative law. Part II develops the deliberative model while Part III addresses the main critiques of comparative law. Part IV tests the deliberative approach against a selection of cases dealing with two particularly challenging issues confronted by courts in different jurisdictions, namely the use of substantive principles such as dignity, and the application of justification or limitation clauses in the context of prisoners' right to vote. Case law is drawn from countries which already cite each other and which have broadly similar institutional frameworks: the USA, Canada, South Africa, India, Australia, the UK, New Zealand and the European Court of Human Rights to the extent that it too considers comparative law.

In June 1992 the UN Conference on Environment and Development (UNCED) took place in Rio de Janeiro; 1993 was the year of the World Conference on Human Rights, 1994 the year of the Cairo International Conference on Population and Development, and in March 1995 it was the turn of the World Summit for Social Development in Copenhagen.

The death of Diana, Princess of Wales, following a car accident in Paris on 31 August 1997, received worldwide media attention. The place of the accident as well as the circumstances thereof raise a number of legal questions. Of particular interest from a comparative tort law perspective are those aspects of the French enquiry that concern the civil implications of the criminal offence of failing to assist accident victims.2

The role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

The Procedural guarantees laid down in Article 6, European Convention on Human Rights in relation to the fairness and expedition of legal proceedings would be meaningless if the Convention did not protect the right of access to the courts which is a precondition to the enjoyment of those guarantees. As a result, the European Court of Human Rights has laid down the principle that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court. The right of access to the courts is not absolute. The Strasbourg case law acknowledges that it may be subject to limitations. Contracting States enjoy a margin of appreciation in this regard. However, national courts must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Moreover a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.