Trafficking of human beings is a widespread practice in the modern world. It has been estimated that up to 800,000 people, especially women and children, are trafficked all around the world each year.1 Virtually all States are affected,2 and traffickers are believed to make between $7 and $10 billion annually from the trafficking business.3 In order to combat trafficking, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in December 2000, within the framework of the United Nations Convention against Transnational Organized Crime (Organized Crime Convention).4

An analysis of recent development in international criminal law shows the emergence of two countervailing trends: on the one hand a broadening trend, in that the various prosecutorial meansused to hold individuals accountable for violations of certain international crimes has expanded; and on the other hand a narrowing trend, in that the protection from prosecution afforded by international law to certain individuals, that once seemed to falter, has been reinstated.

The Court of Justice has ruled in Owusu v Jackson that the Brussels Convention is applicable even where a case has objective connections to only one Contracting State and to a non-Contracting State. It has also held that where the court of a Contracting State to the Brussels Convention has jurisdiction on the basis of the defendant's domicile pursuant to Article 2, it has no general discretion to stay its proceedings in favour of the court of a non-Contracting State on the basis that the latter is the natural forum for resolution of the dispute. However, the ruling leaves a number of important questions unresolved. This article considers the reasoning behind, and implications of the ruling, and the permissibility of staying proceedings in other situations falling within the scope of the Brussels regime post-Owusu.

Over the past 30 years, sub-state national societies in a number of developed liberal democracies—particularly Quebec, Catalonia, and Scotland within Canada, Spain, and the United Kingdom respectively—have both reasserted their national distinctiveness and demanded recognition of it in constitutional terms.1 This re-emergence of sub-state national sentiment within industrially advanced States, and the struggle for constitutional change which has accompanied it, are considered by many observers to be strangely incongruous at a time of economic and cultural ‘globalization’ where the power of the nation- State itself seems to be waning.2 Why do sub-state nations, the common refrain asks, seek statehood when the very concept of State sovereignty is losing its meaning? This article will argue, however, that the rise of sub-state nationalism even at a time when the resilience of State sovereignty is itself coming into question, is in fact not as paradoxical as it might at first appear, at least insofar as this process is taking place within developed democracies.3 It will be contended that the elaborate constitutional programmes which are now beingadvanced by sub-state nationalist movements for the reform of their respective host States are inmany respects informed by, and reflective of, wider transformations in the patterns of State sovereignty.

Governments, in their diplomatic and consular establishments abroad, typically employ a wide range of people apart from career diplomats and civil servants. Translators, secretaries, drivers, clerks, technical support staff, librarians and chefs are among the jobs that are commonly performed in embassies and consulates. Significantly, many of these subordinate positions are filled by nationals and residents of the forum State, that is, the country in which the embassy or consulate is located. (By contrast, diplomatic or senior policy positions in the organization will almost always be held by nationals of the sending State.) The sending State, particularly if it is a developing country, will often have little choice but to employ local residents to perform many routine tasks given the exorbitant cost of importing a labour force from abroad. From the perspective of the employee of a mission, the nature of the work to be performed may be little different from that carried out for its own government or even the private sector.

The Italian Court of Cassation has recently delivered a judgment of great interest denying State immunity to Germany for commission of crimes under customary international law on the exclusive basis of international law.

It was Oliver Wendell Holmes who used the words ‘clear and present danger’ in the judgment of the US Supreme Court in the Schenk case in 1919.1 The Court upheld the conviction of Charles Schenk, general secretary of the American Socialist Party, under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment. Schenk had distributed leaflets allegedly calculated to cause insubordination and obstruction among recruits. He argued that his conviction was incompatible with the freedom of speech guaranteed by the First Amendment.

The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2 dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3 This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.

The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.

In 1769, by a nice coincidence, Captain James Cook made landfall in New Zealand, the first British mariner to do so, and William Blackstone published the final volume of his Commentaries on the Law of England. Blackstoněs discussion of the application of the law of Englandto newly acquired colonies is not completely coherent, but it does give a strong sense that much, if not all, of the common law did come to apply to many, if not all, of them.1 The Privy Council was reminded of this, with express reference to Blackstone, in November 2003 when it was asked to determine whether the rule in Smith v Selwyn,2 a decision of the English Court of Appeal given in 1914, was part of the law of Jamaica.3

In England and Wales, as elsewhere, criminal law stands in sharp contrast to other systems of social control. Criminal offences and their related penalties are clearly distinguishable from civil wrongs and their associated (civil) sanctions. And because the term ‘civil law’ refers not only to the domain of torts, but also encompasses administrative law, criminal penalties are, in addition, distinguished from the administrative or regulatory sanctions. This ‘distinction between criminal and civil justice has been such a basic feature of the common law’1 that it shapes not only substantive law but also the organization of the courts into civil, criminal and sometimes administrative chambers or divisions. More importantly, the distinction between civil and criminal sanctions will lead to the application of different procedural rules: civil proceedings, used for the imposition of civil sanctions, are less stringent that their criminal counterpart applied when the offender faces a criminal sanction. This more gentle approach can be detected in both the burden and standard of proof.

At its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (‘the Articles’), adopted by the International Law Commission (‘ILC’) in 2001. By Resolution 59/35, adopted by consensus on 2 December 2004 on the recommendation of the Sixth Committee, the General Assembly once again resolved to defer further consideration and any decision on the final form of the Articles, postponing the matter to its 62nd session in 2007. It also asked the Secretariat to prepare a compendium of jurisprudence and State practice to assist the Assembly in its consideration of the topic at that time.

In 1996, the current President of the French Constitutional Council (the Conseil Constitutionnel), Pierre Mazeaud, wrote:

Lord Goff formulated the first stage of his classic test in the Spiliada in the following terms: ‘the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action’ (emphasis added).

A. The area of freedom, security and justice and the role of the Court of Justice

One of the subjects which has aroused particular interest in the study of the ‘area of freedom, security and justice’ introduced by the Treaty of Amsterdam as an objective of the European Union (EU) inherent in the principle of the free movement of persons (see the preamble to, and Article 2, the Treaty on EU) is the role of the European Court of Justice (Court). The interest is both theoretical and practical, because one of the main issues is the Court's jurisdiction to give preliminary rulings and thus relations between national and Community courts and the protection of the interests of individuals before national courts wherever there is a conflict between national and Community law and thus a question of interpretation of Community law arises in national proceedings. The Treaty of Nice, which came into force on 1 February 2003, altered the jurisdiction and organisation of the Community judicature and therefore affected the ‘area of freedom, security and justice’.1

On 1 March 2005 the European Court of Justice in Owusu v Jackson held that the English doctrine of forum non conveniens was inconsistent with the Brussels Convention (the ‘Convention’) when a defendant was domiciled in the United Kingdom, even if the natural forum was in a Non-Contracting State.

Last year saw the 200th anniversary of one of the most influential national codes,1 the French Code civil of 1804. The celebration of this Napoleonic achievement has led in turn to renewed discussions on the understanding, purpose and contemporary form of codification.2 At the same time 2004 saw Belgium adopt its very first Code of private international law.3 Codification is so closely associated with continental Europe4 that it may be startling to read that civilian legal systems are not entirely codified. In fact despite the arguable closeness of domestic substantive rules and conflict of law rules, this area of law largely escaped the codification process of the 19th century. What is more remarkable is the fact that the new Code de droit international privé appears to be a codification in the classical form. It represents not simply a compendium of existing statutes but a detailed reform of the entire area.5 It is certainly true that in contemporary Europe the elaboration of classical codes, once viewed as the expression of affirmed political power,6 has become a rather exceptional occurrence. This is not to say that codification is no longer a fundamental constant of the civilian tradition. Civil law systems are still essentially founded on the precedence of enacted and in principle codified7 general rules on the basis of which solutions are to be deduced. However, codification is polymorphic,8 and codes, which ideally display a number of attributes— coherence, logical structure, absence of contradiction, conformity of codified and applied law, completeness, clarity, ease of use and publicity9—may seek to achieve the general purpose of the formal simplification or systematization of the law in different ways. Indeed in Europe the aspiration of creating ‘perfect laws’10 that prevailed throughout the golden age of classical codification in the 19th century, has largely given way to less demanding forms of codification.11 Recent years have concurrently seen movements of decodification12 as well as recodification,13 and witnessed the creation of generally less ambitious codification-compilations14 which gather and order existing rules in specific areas without engaging in reform.15 This final development ought not to be regarded as surprising as the combination of reform and codification is far from simple:

experience shows that it is very difficult truly to do both at the same time […] The reform shall precede the codification process so that the latter may integrate the former, or the codification shall precede the reform in order to facilitate its realisation: it is more opportune and more intelligible to reform in view of the legal state clearly revealed by codification.16

Vaughan Lowe has recently argued that the most important task of international lawyers at times of flux is to identify claims with precision.1 In order to accomplish this task with regard to the issue of use of force in Iraq, it seems necessary to review the main American and British arguments, including the formal legal arguments presented, as well as the relevant reactions of other States over a longer period of time. This will allow us to reveal patterns of argumentation, similarities, and differences in the American and British justifications as well as in the responses of the international community.

The wide range of developments in social policy has necessitated dividing this commentary into two parts. The first part will examine discrimination law developments; the second part, published inthe next issue, will look at general employment law developments.