This article focuses on a number of recent decisions of English courts addressing issues of international law. The starting point is the House of Lords decision in Kuwait Airways v. Iraqi Airways (2002) that effect would not be given in English law to a decree of the Iraqi state which breached international law. Subsequent decisions exploring the role of international law in the context of the justiciability of UK state action have failed to follow Kuwait Airways' lead unless required to apply international law by statute, usually the Human Rights Act 1998. Cases involving terrorism and human rights and attacks on the UK's stance and involvement in Iraq have revealed further questions about the role of international law in English courts and elsewhere. The article examines how subtle movement is taking place in the approach taken by English judges to matters of international law particularly in the context of human rights but that executive action in foreign affairs remains largely immune from judicial scrutiny.

There is a substantial body of norms of international human rights law, both in international conventions and customs. However, the international mechanism to enforce human rights world wide is rather weak. On the other hand, domestic courts have remained largely unutilized as concerns enforcing international human rights law. This is primarily owing to different state perceptions concerning the interrelation between international law and municipal law, and the resultant diverging views they take to implement norms of international law in the state territories. This tends to weaken the international human rights enforcement regime. There is a need to emphasize the legal and binding nature of international obligations and to involve domestic courts to ensure compliance. The importance of and contemporary movement for the protection and promotion of human rights has further underlined this need. The increasing recognition of individuals as subjects of international law, especially international human rights law, has added new dimension. Invoking international human rights law in domestic courts, therefore, merits special consideration. Factors of state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation, appear to be impediments for direct application of international human rights law, for it is argued that as long as treaty-making is primarily executive prerogative, the legislature ought not to be by-passed in implementing treaties. However, to overcome these impediments, it is suggested that legislative approval precede ratification of treaties, or legislature effectively participate in the process of ratification. This will benefit the so-called ‘democratic deficit’ of the process of treaty-making, and facilitate direct application of international human rights law by domestic courts. Many countries of the world, especially in Continental Europe and Latin America, which hold a monistic view, are increasingly opting for this model of human rights compliance. This would greatly enhance the protection and promotion of human rights.

Is a Dutch court able to vary the terms of an English trust by applying English trust law if a Dutch court does not normally have such a wide discretionary power? Is a Dutch court able to apply a rule from Moroccan family law that designates the court itself as custodian if Dutch law does not confer such a task on a court? Is a Dutch court able, when it is asked to pronounce a divorce on the basis of Jewish law, to act in a religious capacity? These questions show possible limits of the judicial function in private international law matters. Private international law doctrine knows several theories that are intended to provide guidelines for answering these questions. After having explored those theories, the author concludes that at least three limits of the judicial function can be distinguished. If a Dutch court concludes that in applying the foreign law that has been designated by the Dutch conflict rules it would encounter one of these limits, then the court is not competent from a constitutional point of view to apply that foreign law, in conformity with the purpose intended by the foreign legislature. However, this does not mean that the court has no competence to give a decision at all. The author stresses that it is desirable, and sometimes even compulsory, that the court looks for an alternative decision to prevent parties from being sent home ‘empty-handed’.

On 21 October 2005 the EC Regulation on European Enforcement Order for uncontested claims became applicable. According to this Regulation a judgment of a court of a Member State can be certified as a European Enforcement Order in the Member State of origin. A certified judgment is to be enforced in another Member State without any need of an intermediate procedure for recognition and enforcement. The exequatur procedure from the Brussels I Regulation is abolished in certain cases. In the Member State of enforcement there are only very limited possibilities of refusal of enforcement of a certified judgment. In this article the Regulation is discussed, as well as the further possibilities of simplification of cross border enforcement of civil judgments in the European Union. It is argued that for a further simplification of cross border enforcement a harmonization of the procedural laws of the Member States is necessary.