We are indebted to Professor Brian Simpson, in his brilliant work on executive detension in wartime Britain,1 for giving greater prominence to a very characteristic and memorable Churchillian utterance:

Much ink has been spilled over the question of the legality of the invasion of Iraq and of the extraordinary claims to a right to override ‘unreasonable’ uses of veto in the Security Council. That invasion has taken place, and as the United States and the United Kingdom withdrew from the Security Council the draft resoluation that would have expressly authorised that invasion, there was no occasion to override any veto that might have been cast against such a resolution had it been put to the Council. Writing while fighting in Iraq is still processding, it is both too late and too early to consider those questions of legality in great detail: too late to have any practical value; and perhaps too early for the measured appraisal of the situation that will be needed in due course. I want instead to address a slightly different question.

Even if an external observer who takes an interest in the case-law of the Court of Justice of the European Communities and of the Court of First Instance of the European Communities may not have such an impression at first sight, comparative law plays a central role in the activities of these courts. It means much more than simply looking at solutions given to certain problems in the legal orders of the Member States. As a former president of the Court of Justice rightly observed, recourse to comparative law is for the Court of Justice essentially a method of interpretation of Community law itself.1 For the Court of Justice and the CFI (below often referred to as ‘Community judge’ or ‘Community courts’), it is one method amongst other methods of interpretation of the law (such as literal, exegetic, historical, systematic interpretation) and it constitutes a tool for establishing the law.2

In December 2000 the European heads of government, gathered at Nice, took several important steps in the constitutional development of the European Union. Chief among them are the various provisions in the Treaty of Nice1 disposing of the so-called ‘Amsterdam leftovers’, ie, those issues of institutional reform left unresolved by the Treaty of Amsterdam. The central focus of IGC 2000, and of the publicity surrounding its negotiations, was reform of the political institutions, notably the Commission and the Council, in preparation for enlargement. Reform of the Community courts was a less conspicuous but, ultimately, no less important item on the agenda. In the case of the judicial branch, the new provisions are inspired in large part by the well-publicised need to remedy overburdened dockets and the attendant inefficiencies in the administration of justice in Luxembourg.2

At the 2002 conference of ICCA (International Commercial Congress of Arbitration), the conference participants debated the following proposition: ‘the parties, not the arbitrators, control the arbitration.’ Thus, the proposition permitted only two answers—either the parties or the arbitrators control the arbitral process. Both answers were consistent with the contractualist theory of arbitration:

The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4

In the Commission's White Paper on European Governance1 and the subsequent Laeken2 Declaration, the participation of civil society in the Community method of decision-making was viewed as the primary way of engaging directly with EU citizens. The White Paper accepts that participatory democracy is created from the bottom up by ‘groups of people dedicated to the disinterested search for the public interest in society’.3 This statement recognises that participation goes beyond the pre-legislative lobbying process. It suggests that the representation and protection of citizens' interests requires ex post judicial protection in circumstances where the legislative measure breaches fundamental rights or if its application infringes principles of procedural propriety. The only vehicle for such judicial protection at the Community level is paragraph 4 of Article 230 EC, which already provides recourse to individuals who are ‘directly and individually concerned’ by an act of the institutions. Direct actions under Article 230 EC are preferable to the indirect protection available in national courts when a preliminary reference can be made under Article 234 EC. This is because national courts cannot declare a Community measure as being invalid or provide a remedy against the Commission. Despite these deficiencies with domestic enforcement actions, the Court's judgments have been consistently of the view that the granting of locus standi under Article 230 EC should be narrowly construed and most significantly does not extend to judicial review actions by representative groups. This is in stark contrast to the practice within the domestic courts of Member States where proxy actions have, in recent years, been encouraged.

The Barcelona Summit of March 2002 provided the catalyst for further coordination and synchronisation between the social and economic dimensions of the Lisbon Strategy framework. The definition of the ‘European Social Model’ as ‘good economic performance, a high level of social protection and education and social dialogue’ has become a working definition underpinning the direction of social policy in official publications.1 The Barcelona Presidency also led to the adoption of a streamlined set of Employment Guidelines, Recommendations to the Member States and Broad Economic Policy Guidelines on the same day, heralded as an ‘instrument for economic governance’ by the Commission.2 The reform of the European Employment Strategy (EES) concentrates upon the problems and weaknesses of the EES identified in the evaluation of the first 5 years of the Strategy.3 The Commission identified four central issues for reform, focusing upon the need to set clear objectives (which include priorities and targets), the need to simplify the policy guidelines, the need to improve governance and ensure greater consistency and complementarity with other EU processes. A new development on the eve of the Spring Council (the Brussels Summit) on 20–21 March 2003 was a ‘Social Summit’ attended by a troika of the Heads of State/Government of the past, current and future Presidencies, the Commission and the Social Partners. One outcome of this Summit was the creation of a new eight-member task force, chaired by Wim Kok.4 The aim of the European Employment Task Force is to investigate practical steps to prompt the Member States to implement the new revised EES endorsed at the Spring Summit. The Task Force will report to the Commission in time to draft the Joint Employment Report for the annual Spring Summits.

The Commission has spent time in 2003 celebrating the tenth anniversary of the establishment of the internal market. In this context the use of deadlines is misleading. The building of an internal market is more process than event. Many significant pieces of legislation entered into force at the end of 1992, but many pre-dated that moment and others again havebeen agreed subsequently. And the Court's interpretation of relevant provisions of the Treaty was not fossilised at the end 1992, but rather its dynamic evolution continues to exert influence over the process of market-building. The Commissionsperfectly well aware of this. It admits that the Internal Market will never be ‘completed’.1 The core mission is to promote and sustain improved economic performance, not to hit crude targets. Nonetheless dissemination of propaganda possessesbase appeal in all political systems and the Commission has taken the trouble to emphasise the gainsthat have accrued from the process of integration, while also devoting attention both to remaining gaps and strategies forplugging them. In making its case the Commission is confronted by the unavoidable absence of reliable data on what would have occurred had the internal market not been pursued in the chosen manner. Sector by sector, it is difficult to demarcateadvantages accruing from the ‘1992’ initiative from those that would have occurred in any event or which are attributable to other factors such as global trade liberalisation. Moreover, the essence of the internal market programme is that benefits will be felt not only in the short term, but also in the long term, and accordingly, in line with Chairman Mao's reported refusal to assess the importance of the French Revolution on the basis that it was too soon to tell, measurement of the impact of the internal market project cannot yet be decisive. However, in its report The Internal Market—Ten Years without Frontiers the Commission insisted on demonstrably favourable macroeconomic consequences.2 It highlighted price reductions and improved productivity. Its simulation results suggest that real Gross Domestic Product would have been 1.4 per cent lower in 2002 without the internal market programme. The level of employment would have been 0.86 per cent lower. Moreover further gains are expected of the former, though not the latter, type in future.

Since the last review in 2000, there have been dynamic developments in European Community agricultural law. This might appear surprising in that the Berlin Special European Council of March 1999 (‘Berlin Summit’) had seen agreement on major reforms to the common organisations of the market, including consolidation of existing legislation, and the drawing up of financial perspectives for the period 2000–2006. Accordingly, a degree of stability might have been expected. However, not long after agreement was reached at the Berlin Summit, Commissioner Fischler could emphasise that: ‘Reforming farm policy is an ongoing process.’1

Belgium has now become the second jurisdiction worldwide, after the Netherlands,1 to allow same-sex marriages. The bill opening marriage to persons of the same-sex and modifying certain provisions of the Civil Code2 was adopted by a large majority and without modification by the Belgian parliament on 30 January 2003. While the new law was promulgated by King Albert II on 13 February 2003 and published in the third edition of the Moniteur beige on 28 Febuary3, it did not enter into force until 1 June 2003. This somewhat unusual time delay was required to ensure that all officials with competence to celebrate marriages (officiers de I' état civil) had sufficient time to become familiar with the scope of the new rules.4

The decision by the High Court of Australia in Dow Jones & Co Inc v Gutnick,1 one of the first decisions by a final court of appeal on transnational online defamation, handed down on 10 Dec 2002, deals with the contentious issue of whether and, if so, when online publishers have to comply with the defamation laws of foreign States. The decision has been labelled a ‘dangerous precedent’ and an ‘extraordinary judgment’2 by the British press. But is it indeed either?

As the legal basis for the military action against Iraq references are made to Security Council resolutions 678 (1990), 687 (1991), 1441 (2002).

In our view the above-mentioned resolutions considered in their entirety and in combination with other resolutions on Iraq, official statements of States on their interpretation and provisions of the UN Charter which were the basis for their adoption, show that the Security Council did not authorise Member States in this case to use force against Iraq.