In 1967, on the occasion of the hundredth anniversary of the Confederation, the author of this paper suggested that it was about time for Canada to join the Hague Conference on Private International Law. Such a move would show to everyone that Canada's legal horizons and objectives had become world wide. The government of the day followed this suggestion and, in 1968, Canada joined the Conference. Since that time, Canada has participated actively in its work as well as that of other international organizations devoted to the unification of law especially in the area of commercial law. It is, therefore, appropriate to examine recent trends in the field of private international law in Canada on the occasion of the hundredth anniversary of the Hague Conference and to ascertain the extent to which Canadian rules have been influenced by its conventions.

The EU Bank Recovery and Resolution Directive provides tools to deal effectively with unsound or failing banks. Some provisions of this directive are designated as overriding mandatory provisions as referred to in Article 9 Rome I Regulation. The author analyses the effectiveness of the designation of a rule as an overriding mandatory provision, given the principle of private international law that parties can choose the applicable law and the competent forum. His conclusion is that in an international context overriding mandatory provisions are not always as overriding or as mandatory as they may seem at first sight. This may be acceptable with regard to 'normal' overriding mandatory provisions. However, the author argues that financial stability is so important that overriding mandatory provisions that protect financial stability need special treatment.

The Conference which met at Lancaster House, London, from March 31 to April 6, 1966, from October 17 to 28, 1966, and from March 6 to 17, 1967, and which resulted in the establishment of a new “Convention on Conduct of Fishing Operations in the North Atlantic” was made necessary by the denunciation by the British Government in 1963 of the Hague “International Convention for regulating the Police of the North Sea Fisheries” which, since 1882, had governed the conduct of fishing operations and their policing between the coastal states of the North Sea. Formally the convening of this Conference was based on a resolution, adopted by the 1963/64 European Fisheries Conference on January 17, 1964, asking the United Kingdom of Great Britain and Northern Ireland:

“To invite the Governments of all countries participating in the North-East Atlantic fisheries to send representatives to a technical conference to be held as soon as possible to prepare for the consideration of the governments concerned a draft Convention, on the general lines of the 1882 Convention for regulating the police of the North Sea Fisheries, embodying a modern code for the conduct of fishing operations and of related activities in the North-East Atlantic;

And to invite the Governments of the United States of America and Canada to send representatives to the Conference so that the extension of the provisions of any such Convention to the North-West Atlantic Fisheries may be considered.”

The humble contribution of this writer to the Festschrift in honour of Professor A.J.P. Tammes relates to a study of the status and norms of the principle of self-determination in contemporary international law. There has been a prolonged controversy on the issue: some consider that the principle now enjoys the status of a legal right with corresponding obligations while others attribute only a moral status to the principle without any binding legal effect. By way of illustration of the nature of the controversy one can refer to the views of Rosalyn Higgins on the one hand and of Leo Gross, L.C. Green and Rupert Emerson on the other. According to Rosalyn Higgins, the main question is not whether the General Assembly resolutions have any binding effect but whether the practice of States (which she finds unanimous and consistent) revealed by the cumulative effect of such resolutions indicates the emergence of new norms or rules of customary international law. Dr. Higgins considers that the conclusion is inescapable that self-determination has developed into an international legal right. To Professor Leo Gross, the practice of decolonization (which he finds neither constant nor uniform) is a matter of political expediency, not based on a sense of legal obligation. Hence, subsequent practice as an element of interpretation does not support the theory that the principle of self-determination has acquired the status of a legal right or that human rights provisions could be interpreted as rights with corresponding obligations either generally or specifically with respect to the right to self-determination. Rupert Emerson considers it a relevant factor that the colonial Powers and a number of States supporting them have not accepted the basic principle that colonization is illegitimate nor the corollary proposition that the colonial peoples are entitled to as speedy as possible an exercise of their right to self-determination. After pointing out that there is still no right of self-determination in positive international law, Professor Green has conceded that since 1966 (when by Resolution 2200 (xxi) of 16 December 1966 both the Covenants on Human Rights were adopted by the General Assembly), such a right may be one in nascendi and may mature into a legal right in future as and when such non-binding instruments come into force; such a right can never operate retroactively, particularly because no attempt has been made to clarify what is meant by the “peoples” who are supposed to enjoy the right.

Party autonomy provides certainty and predictability to the parties, reduces litigation costs, promotes the prompt assertion of jurisdiction by a court, and simplifies case management between different countries. However, the existence of an exclusive jurisdiction clause cannot completely extinguish conflicts of jurisdiction. Common law countries traditionally adopt discretionary instruments, such as forum non conveniens and anti-suit injunctions to tackle conflicts of jurisdiction. Both instruments work together in common law countries to create a balance between international comity and effective case management. The application of these two instruments, however, has been questioned in the European Union (EU). This article examines conflicts of jurisdiction in the Brussels I Regulation and particularly focuses on the effect of the European approach in cases involving a jurisdiction clause. It is submitted that the current Brussels regime in dealing with conflicts of jurisdiction and choice of court agreements demonstrates three weaknesses: procedural certainty takes priority over party autonomy; mutual trust and comity override justice in individual cases; and an artificial fragmentation of the internal and international market. It is expected that situations will be improved after the proposed amendment in the Recast Proposal and the Presidency Amendment is adopted, which provides harmonised choice of law rules to decide on the material validity of a jurisdiction clause and the negative kompetenz-kompetenz rule to decide on the preliminary issue of an exclusive choice of court agreement. Although the proposals do not accept the common law instruments to tackle conflicts of jurisdiction in cases with exclusive jurisdiction clauses, it may not be necessary to insist that forum non conveniens and anti-suit injunctions be adopted where a proper approach has been established to ensure the effectiveness of an exclusive jurisdiction clause and to provide for the priority of the courts in deciding on its validity. However, the European lawmaker should pay specific attention to the improvement of the functioning of the Regulation in the international context to tackle conflicts of jurisdiction in choice of court agreements involving a third country.

This paper focuses upon a comparatively overlooked issue with regard to the scope of self-defence in international law: whether the subjective ‘psychological’ positions of the states concerned in a dispute involving the use force have any impact upon the lawfulness of an action avowedly taken in self-defence. There exists a long standing conception that the motives of a state responding in self-defence are relevant to the lawfulness of that response. The purity (or impurity) of a state's motive forms the basis of a distinction for many writers between a lawful self-defence action and an unlawful armed reprisal. Similarly, in recent decisions of the ICJ, the implication has been that the subjective intention of the attacking state may be relevant to the question of whether the attack perpetrated by that state can trigger the right of self-defence. The conclusion is reached here that the lawfulness of an avowed self-defence action should be premised upon objective criteria alone. Moreover, this reflects the law as it is in fact applied in practice. It is argued that the subjective ‘psychological’ position of either the responding or attacking state has no place in the final analysis of whether an action in self-defence was lawful or unlawful.

In January 2000, a tailings pond operated at Baia Mare in Romania collapsed, spilling 120 tonnes of cyanide and heavy metals into the Lapus River. The pollution flowed into the Somes and Tisa, two Hungarian rivers, and into the Danube and then into the Black Sea. The pond was operated by AURUL, a joint-venture between Esmeralda Exploration of Australia and REMIN, a Romanian state-owned mining company. It had the dual responsibilities of extracting gold, silver and other minerals from an abandoned tailings pond, and also transferring the tailings from their existing site, which was close to a residential area, to a remote site. The tailings pond had collapsed only after seven months of operation. This accident, which has been described as ‘Europe’s worst environmental disaster since Chernobyl' caused extensive environmental damage in its wake. In particular, it was alleged that the pollution caused the death of over one million kilograms of fish in Hungary and seriously disrupted the livelihoods of people. It was feared that some endangered fish species might have been wiped out permanently. The accident also resulted in the destruction of a large number of plant and wildlife species in the river systems. In July of the same year, Hungary sought compensation of US$ 110 million from the Australian company which was responsible for operating the mine. Hungary also announced that it was considering taking legal action against Romania.

John Locke's Two Treatises of Government, published in 1690, exerted a profound influence upon such great instruments on human rights as: The American Declaration of Independence of 4 July 1776; The French Declaration on the Rights of Man and of the Citizen of 26 August 1789; The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948; and The International Covenants on Human Rights adopted by the General Assembly of the United Nations on 16 December 1966. The reflection of many ideas contained in the Two Treatises of Government in these Instruments on human rights is so obvious that it would be no exaggeration to say that Locke is their spiritual father, although so far this credit is not yet given to him explicitly.