This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.

Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that dawn to be alive. But to be young was very heaven.

– Justice Stephen Breyer's assessment of ‘the global legal enterprise now upon us’ before the American Society of International Law (2003)

The voluntary assignment of contractual (and non-contractual) obligations in conflict of laws is governed by article 14 of the Rome I Regulation. Under this, the validity of the assignment as between the assignor and assignee is governed by the law applicable to the contract between them (paragraph 1 of article 14). On the other hand, the assignability of the claim and the relationship between the debtor and the assignee are governed by the law applicable to the obligation assigned (paragraph 2 of article 14). Certain issues are, however, outside the scope of article 14 as it stands at present. These are the question of priorities between competing assignments (if the same obligation is assigned twice to different assignees) and the rights of third parties (mainly creditors of the assignor). This article examines the precise scope of the two existing paragraphs and considers the arguments that might be relevant in deciding what law should govern the issues at present not covered by either paragraph, a question that has become more pressing in view of the fact that negotiations will soon begin on a possible amendment of article 14 to deal with it.

Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

The appropriate role of the courts in controlling the discretion of merger authorities has become one of the key issues in European merger law and policy in recent years. This article investigates judicial review of merger decisions, taking a comparative approach by examining cases from the EU, UK and Germany. We observe an apparent increase in the willingness of the EU and UK courts to scrutinize merger decisions, and a long-standing tradition of close scrutiny in Germany. In respect of the EU and UK, we consider agency theory offers a convincing explanation—that increased scrutiny is explained by the need to enhance the credibility of merger policy. In Germany, the constitutional basis of judicial review differs significantly, and the relatively close scrutiny exercised by the court is better explained by the very different constitutional context.

The continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.

Article 21(3) of the Rome Statute of the International Criminal Court (Rome Statute)1 provides that the International Criminal Court must consider ‘internationally recognized human rights’ in its interpretation and application of applicable law. This article highlights the difficulty of meaningfully interpreting this reference to ‘internationally recognized human rights’ in accordance with the ordinary rules of treaty interpretation. These interpretative difficulties lead the article to adopt a practical focus, examining the initial jurisprudence of the Court utilizing this aspect of article 21(3), concluding that although such jurisprudence reveals a number of shortcomings, the provision's tremendous potential as a tool of evolution and innovation is evident.

This article examines a number of major developments in international law and State policy regarding nuclear weapons which have occurred over the past two years.

However, in order to understand the context and significance of these developments, I must first very briefly address what has gone on previously in this area of international relations.

I have argued elsewhere that over the course of the decade ending in 2008 the original balance of principles underlying the 1968 Nuclear Nonproliferation Treaty (NPT), which comprises the cornerstone of the nuclear non-proliferation legal regime, has been distorted, particularly by nuclear-weapon-possessing governments, led by the United States, in favor of a disproportionate prioritization of non-proliferation principles, and an unwarranted under-prioritization of peaceful use and disarmament principles.1 I also argue that this distortion of principled balance by nuclear weapon states has resulted in a number of erroneous legal interpretations of the NPT's provisions.

A new statutory right for Parliament to control the ratification of treaties for the United Kingdom has recently entered into force.1 The topic of ‘Ratification of Treaties’ may have attracted fewer headlines than some others originally proposed for inclusion in the Constitutional Reform and Governance Act 2010 (the CRaG Act),2 but reform in this area succeeded, with cross-party support, and is now in operation.3 These new statutory provisions replace the ‘Ponsonby Rule’ in the UK.

The definition and scope of indigenous peoples' human rights are usually contentious in the context of Africa.2 While in recent years indigenous peoples' human rights have expanded immensely internationally, in Africa indigenous peoples' rights are still perceived to be in their infancy.3 At the United Nations, the group of African States delayed the process that finally led to the adoption of the United Nations Declaration of the Rights of Indigenous Peoples in 2007 (UNDRIP).4 At a national level, most of the States in Africa are still reluctant to recognize the specific rights of indigenous peoples.5 Until recently, the African Commission on Human and Peoples' Rights (the Commission), the leading human rights institution for the continent,6 had kept a low profile on the issue and had ‘not always interpreted indigenous peoples’ rights favourably'.7 From this perspective Commission regarding the communication submitted by the indigenous Endorois community against Kenya casts new light on the rights of indigenous peoples in Africa.8 The decision, which has already been hailed as a ‘landmark,’9 touches on several crucial issues regarding the development of indigenous peoples' human rights in Africa. This groundbreaking decision did not materialize unexpectedly but is part of a wider evolution of the Commission regarding indigenous peoples' human rights in Africa. It echoes the work of the Commission's own Working Group of Experts on Indigenous Populations/Communities (Working Group) which was established in 2001 with the mandate to focus specifically on the promotion and protection of the rights of indigenous peoples in Africa.10 The mandate of the Working Group is to examine the concept of indigenous communities in Africa, as well as to analyse their rights under the African Charter on Human and Peoples' Rights (African Charter).11 In 2003 the Commission adopted the report of the Working Group which proposes several avenues for the recognition and promotion of indigenous rights in Africa.12 The adoption of an Advisory Opinion by the Commission to support the adoption of UNDRIP marked another step toward the affirmation of indigenous peoples' rights in Africa.13 The Advisory Opinion not only participated in unlocking the reluctance of the group of African States to adopt the UNDRIP, but also reflected developments taking place at the international level on the rights of indigenous peoples as well as their connection to the continent. Remarkably, in recent years, the Commission has started to refer to indigenous peoples' rights in its examination of States' periodic reports.14 All these factors and the recent decision of the Commission in the Endorois case indicate the emergence of a consistent jurisprudence on indigenous peoples' rights in Africa.

The technique of ‘evolutive interpretation’ is well known in public international law.2 It is particularly associated with treaty regimes like that of the European Convention on Human Rights (ECHR).3 The currency of this technique of interpretation has, however, been less evident in general public international law. It is not insignificant therefore that the International Court of Justice (ICJ), in a case about navigational and related rights has now made unambiguously clear that, where the parties have used generic terms in a treaty, aware that the meaning of the terms was likely to evolve over time, and where the treaty is one of continuing duration, the parties as a general rule must be presumed to have intended those terms to have an ‘evolving meaning’.4