Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2

It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

The Swedish statute incorporating the European Convention on Human Rights (hereafter “the Convention”) entered into force on 1 January 1995.1 The present article will look at what can loosely be termed the constitutional issues raised by incorporation of the Convention into Swedish law. One of the most interesting features of the Convention, like EC law, is that it is a separate, autonomous system of law which nonetheless, with incorporation, becomes a part of the national legal system. As such it cuts across national legal categorisations. But it is also an incomplete system. Convention issues can arise under national law which have not (yet) arisen in the context of the Convention system. Thus, studying the case law of other jurisdictions dealing with the Convention can be of immediate benefit to one's own system, even leaving aside the long-term, indirect benefit to be gained by studying comparative constitutional law in general. While the main focus of the article is directed at explaining the Swedish system for English-speaking readers, I will also draw some parallels with the British legislation incorporating the Convention.2 Many questions remain regarding the likely impact of the Convention on British law. In time, the courts and Parliament will provide an answer to these. In the meantime, British lawyers can usefully study other jurisdictions.

Protection of privacy is one of the areas most often claimed as having the potential for significant development as a result of incorporation of the European Convention on Human Rights (“the Convention”). As is well known, English law lacks a general remedy for infringement of privacy per se: although the courts have lamented the lack of protection for private individuals (notably from the press), they have hitherto left it to Parliament to intervene. After flirtation with introducing either a specific statutory code applicable to intrusive journalistic activities or a general statutory tort of infringement of privacy, the Conservative government abandoned the idea altogether.1 Perhaps because of the lack of legislative concern (politicians, after all, have reasons of strong self-interest not to provoke the press), the judiciary has expressed renewed interest, at least through extra-judicial pronouncements2 and broad hints in one recent House of Lords decision that the time for reconsideration may be fast approaching.3

The People's Republic of China (hereafter “PRC” or “China”) is set to attain a leading position in the world economy. Headlines such as “the giant awakes” have been in common usage for some time.1 European businesses have come to realise that China cannot be ignored. Their legal advisers should follow suit. This explains the motivation for this article.

Since 1 August 19861 the United Kingdom has been party to two international conventions on child abduction: the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and the European (Luxembourg) Convention of 20 May 1980 on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children. While differing in various respects, each Convention seeks to tackle the problem of international child abduction by expediting the return of children under the age of 16 to their country of habitual residence following a wrongful removal to or retention in another contracting State. The principal difference between the Conventions is that while the Hague Convention deals with breaches of “rights of custody” or rights of access which may arise whether or not any court order exists with regard to the child, the European Convention is concerned solely with the recognition and enforcement of orders and decisions relating to custody and access.

There are numerous publications on the interpretation of Article 30 of the EC Treaty by the European Court of Justice1 which for the last 20 years has been one of the most controversial issues in EC law. It is, however, surprising that there is much older, yet strikingly similar, case law of the US Supreme Court which has remained almost unnoticed in Europe. In this article the respective case law of the two courts will be compared. Such a comparison is not only of interest as such, but can also contribute to the discussion about the correct scope of Article 30—which has certainly not yet been exhausted.

The general principle, best articulated in the leading case of British South Africa Company v. Companhia de Mocambique,1 is that a court in the Commonwealth will not entertain an action involving the title to foreign realty. However, there are two established exceptions. First, a court of equity will not refuse jurisdiction if the plaintiff's claim is based on contract, trust or fraud affecting the foreign land, and the court has jurisdiction in personam over the defendant.2In personam jurisdiction may be established if the defendant is present within the jurisdiction, submits to the court, or the court grants leave to serve notice of the writ out of the jurisdiction under Order 11, rule 1(1) (or its equivalent) of the Rules of the Supreme Court. Second, “in the exercise of the undoubted jurisdiction of the courts it may become necessary incidentally to investigate and determine the title to foreign lands”.3 Thus, if the court has jurisdiction to administer a trust or the estate of a deceased person, and the property includes property (whether movables or immovables) situated locally, and immovables situated abroad, the court will have jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration.4 No contractual or fiduciary relationship need exist between the parties, and it seems unlikely that in personam jurisdiction is required.5

This article explores briefly the relation between aboriginal rights and sustainable development in Canada, using as a vehicle for discussion the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia.1 This case involved claims by the Houses of Gitksan and Wet'suwet'en, comprising some 6,000 to 7,000 persons, to aboriginal title over separate portions of approximately 58,000 square kilometres of land in the interior of British Columbia. The territory is a rich agricultural area with vast forests and abundant wildlife.

The International Tribunal for the Law of the Sea (ITLOS—“the Tribunal”) heard its first case at the end of 1997.1 A remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

The last contribution on this topic, which was published in the July 1997 issue of the Quarterly,1 examined the Court's remarkable ruling in CIA Security International S.A. v. Signalson SA and Securitel SPRL,2 in which the Full Court decided that where a member State neglects to notify draft national technical regulations to the Commission in breach of the obligations set out in Directive 83/189,3 it may not rely on those regulations in subsequent proceedings before national courts. The Court's ruling attaches a meaningful penalty to State failure to abide by the obligations of notification stipulated by the Directive. It thereby induces compliance with requirements of transparency on which the Commission pins great faith in its “post-1992” strategy for the management of the internal market. The case law since CIA Security has generated a sufficient number of further illuminating rulings to justify a further tour of the area in this contribution.

The last time this column appeared1 there was considerable discussion about the proposals being considered at the then ongoing intergovernmental conference (IGC). Not surprisingly the proposals of the UK government in its Memorandum on the Court of Justice were not adopted in the Treaty of Amsterdam. No institutional changes have been made in relation to the Court of Justice and the Court of First Instance. So the approval of their Rules of Procedure is still subject to the approval of the Council and their terms of office are still six years but can be renewed.

Since the last note on this subject,1 developments have focused on continuing problems: financing new infrastructure; allocation of the true costs of transport among those who generate them; and external relations. In addition, further more detailed legislative measures have been adopted for each mode of transport.