'Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.'

The hegemonic position of the United States, and its implication for international law, are rapidly emerging as sites of intense scholarly interest.1 It is a truism that the fall of the Berlin wall has been followed by a period of unprecedented American predominance in the military, economic, and political spheres. Replacing the bi-polar certainties of the Cold War is a world in flux, dominated, to a significant extent, by one remaining superpower, or, in the words of the former French Foreign Minister, Hubert Vedrine, by a ‘hyperpower’. 2 Some though, have emphasised the continuing importance of other loci of (lesser) power in a ‘uni-multipolar’ world.3 That this domination posed critical questions for international law was obvious well before the 9/11 atrocities, as the debate over NATO's use of force in Kosovo illustrated. Since the invasions of Afghanistan and Iraq, and with the global ‘war on terror’ reaching into ever-increasing spheres, the debate has intensified significantly.

Every State in the modern world has a prison system, established and purportedly administered in terms of formal legal rules. Most such systems house both sentenced and unsentenced prisoners and have minimum standards and rules that are common to all prisoners. Although there is now a considerable body of international law that aims to provide a human rights framework for the recognition of the rights of all prisoners, the universality of the prison and the ubiquity of international human rights law have not meant that there is international consensus about what imprisonment should be used for and how prisons should be administered. The prison as a penal institution has remained firmly rooted in the nation State and in national legal systems. In this respect penal institutions are different from other detention facilities, most particularly those for prisoners of war, which have long been governed by the rules ofinternational humanitarian law.

In the period between 1980 and 1995, both Europe and the US made huge investments in Latin America. The process of democratization in Latin America, especially in the countries marked by a tradition of military dictatorship, has reinforced the belief in political and economic stability. The economy has displayed considerable growth and, partly stimulated by the IMF and the World Bank, several countries are embarking on privatization on a grand scale.2 Political and economic cooperation between the countries is taking the place of political and military rivalry. The time is ripe for a new attempt at integration on this continent. The overtures between Argentina and Brazil led to the establishment of Mercosur. Its economic (Mercosur is the fourth largest trade bloc in the world after the US, the EU, and Japan) and political importance have been recognized, especially by the EU. As early as 1996,3 an Interinstitutional Cooperation Agreement was concluded, an interregional framework agreement for cooperation between the EU Member States and Mercosur States parties.4 Since then, the EU-Mercosur Bi-regional Negotiations Committee (BNC)5 has already had ten meetings at which topics such as the free movement of goods, public procurement, investments, services, e-commerce, and conflict resolution were discussed. The US has never appreciated the attempts at integration in Latin America and has always striven to conclude separate free trade agreements with each individual country. The recent free trade agreement with Chile is a clear example.6

No place is safe-no place is at peace. There is no place where a woman and her daughter can hide and be at peace. The war comes through the air, bombs drop in the night. Quiet people go out in the morning, and see air-fleets passing overhead-dripping death-dripping death!1

Trafficking of human beings is a widespread practice in the modern world. It has been estimated that up to 800,000 people, especially women and children, are trafficked all around the world each year.1 Virtually all States are affected,2 and traffickers are believed to make between $7 and $10 billion annually from the trafficking business.3 In order to combat trafficking, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in December 2000, within the framework of the United Nations Convention against Transnational Organized Crime (Organized Crime Convention).4

The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2 dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3 This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.

The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.

A. The area of freedom, security and justice and the role of the Court of Justice

One of the subjects which has aroused particular interest in the study of the ‘area of freedom, security and justice’ introduced by the Treaty of Amsterdam as an objective of the European Union (EU) inherent in the principle of the free movement of persons (see the preamble to, and Article 2, the Treaty on EU) is the role of the European Court of Justice (Court). The interest is both theoretical and practical, because one of the main issues is the Court's jurisdiction to give preliminary rulings and thus relations between national and Community courts and the protection of the interests of individuals before national courts wherever there is a conflict between national and Community law and thus a question of interpretation of Community law arises in national proceedings. The Treaty of Nice, which came into force on 1 February 2003, altered the jurisdiction and organisation of the Community judicature and therefore affected the ‘area of freedom, security and justice’.1

Last year saw the 200th anniversary of one of the most influential national codes,1 the French Code civil of 1804. The celebration of this Napoleonic achievement has led in turn to renewed discussions on the understanding, purpose and contemporary form of codification.2 At the same time 2004 saw Belgium adopt its very first Code of private international law.3 Codification is so closely associated with continental Europe4 that it may be startling to read that civilian legal systems are not entirely codified. In fact despite the arguable closeness of domestic substantive rules and conflict of law rules, this area of law largely escaped the codification process of the 19th century. What is more remarkable is the fact that the new Code de droit international privé appears to be a codification in the classical form. It represents not simply a compendium of existing statutes but a detailed reform of the entire area.5 It is certainly true that in contemporary Europe the elaboration of classical codes, once viewed as the expression of affirmed political power,6 has become a rather exceptional occurrence. This is not to say that codification is no longer a fundamental constant of the civilian tradition. Civil law systems are still essentially founded on the precedence of enacted and in principle codified7 general rules on the basis of which solutions are to be deduced. However, codification is polymorphic,8 and codes, which ideally display a number of attributes— coherence, logical structure, absence of contradiction, conformity of codified and applied law, completeness, clarity, ease of use and publicity9—may seek to achieve the general purpose of the formal simplification or systematization of the law in different ways. Indeed in Europe the aspiration of creating ‘perfect laws’10 that prevailed throughout the golden age of classical codification in the 19th century, has largely given way to less demanding forms of codification.11 Recent years have concurrently seen movements of decodification12 as well as recodification,13 and witnessed the creation of generally less ambitious codification-compilations14 which gather and order existing rules in specific areas without engaging in reform.15 This final development ought not to be regarded as surprising as the combination of reform and codification is far from simple:

experience shows that it is very difficult truly to do both at the same time […] The reform shall precede the codification process so that the latter may integrate the former, or the codification shall precede the reform in order to facilitate its realisation: it is more opportune and more intelligible to reform in view of the legal state clearly revealed by codification.16