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The Law Commission of the United Kingdom was established by the Law Commissions Act 1965 which requires it to take and keep the law under review, to see to its ‘systematic development and reform’, and to work towards the simplification and modernisation of the law. The proposal that a body of Law Commissioners be established to take charge of the planning and drafting of law reform measures had first been publicised in 1963 in a collection of essays, Law Reform NOW, edited by Gerald Gardiner. After the enactment of the Law Commissions Act 1965, there are still questions to be asked about the Commission's place in the political structure, such as the relationship between the Commission and Parliament.

In 1969, Parliament passed the Divorce Reform Act, which was supposedly based on the principle that the fact that a marriage had irretrievably broken down should be a sufficient and exhaustive ground for divorce. But the process which led to this legislation — still in force in the twenty-first century — was lengthy and complex. Firstly there was a Royal Commission (which, once again, was divided); then a group appointed by the Archbishop of Canterbury gave its backing to the principle of ‘irretrievable breakdown’ as the only grounds for divorce; then the Law Commission considered that proposal, and a ‘compromise’ was reached. Eventually, after much manoeuvring, parliamentary approval was given, and the Bill was enacted. But what did it really mean? Did ‘easier divorce’ jeopardise the financial position of vulnerable women or the welfare of children? Criticism of the working of the law led to the passing of the Family Law Act 1996, but this has never been brought into force.

This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.

This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the Waldock Reports, the relationship with the law of treaties, the question of new States, semi-sovereignty, dispositive treaties, and finally the adjustments made at the Vienna Conference. It is shown that those involved in the codification were unable to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.

This chapter makes the case for the inclusion in the Rome Statute of a distinct and inchoate crime of ‘direct and public incitement to aggression’. A similar offence was included in the International Law Commission's draft Code of Offences Against the Peace and Security of Mankind in 1954 yet omitted from the 1996 draft, a move which is herein considered. The jurisprudence of the ad hoc international criminal tribunals provide guidance on the criminalization of incitement to crimes of an international dimension, especially cases dealing with charges of hate speech, war propaganda, and incitement to genocide, war crimes, or crimes against humanity. The Rome Statute itself, and its drafting, is also discussed, particularly with regards the crime of aggression.

This chapter discusses, in the context of institutional law reform and direct social justice advocacy, why law students should become involved in law reform, arguing that law schools should do more than equip their students to be good legal technicians. Law schools should also instil in their students an understanding of, as well as a commitment to, what the law should be in a just society. In particular, the chapter consider two law reform oriented projects that adopt elements of the clinical method to inculcate in law students a broader understanding of the role practicing lawyers can play to achieve systemic justice: the internship program at the Australian Law Reform Commission, and the Social Justice Advocacy Project housed within the University of New South Wales Law Faculty.

This chapter evaluates recent proposals of the Law Commission's joint consultation paper on Partnership Reform in the United States. It begins by considering the development and introduction of the limited liability partnership (LLP) and whether it will provide effective limited liability for the professions. It then looks at three general themes in the proposals of the Law Commission's joint consultation paper on partnership law reform: (1) the introduction of automatic and continuing legal personality; (2) the continuation of the association after a change in partners; and (3) the remodeling of dissolution and winding up. The chapter examines some of the specific areas for reform, distinguishing between those that are acceptable as they stand and those that may require further consideration. It then considers two important areas for reform that are not addressed by the Law Commission: (1) the problem of agency and the undisclosed principal; and (2) partnership liability for breaches of express and constructive trusts.

This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.

The International Law Commission (ILC) was established in 1947 with the object of promoting ‘the progressive development of international law and its codification’. While ILC does not ‘make’ international law, it has become a significant part of the subtle process by which international law both changes and comes into being. However, a recent study of the Commission shows that the very subtlety of its approach may have precluded the Commission from contributing in a more overtly creative way to the development of those new and important areas of international law which have emerged since 1945. The displacement of the Commission by other law-making bodies is most evident in the development of international environmental law. The ILC has played no part in creating what might be called the architecture of this subject: sustainable development, global environmental responsibility, transboundary risk management, and environmental rights. This chapter reviews the Commission's contribution to this new and important subject and determines the lessons that can be drawn for its future evolution as a law-making body.

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.

Law reform is vital and the Law Commission plays a significant role in addressing this need. Changes or revisions within the law can become necessary as a result of technological innovation or developments in case law, but Parliament never has enough time to devote full attention to reform. Another issue is that at times case law is insufficient for addressing more recent concerns. The Law Commission intervenes as an independent body and undertakes intensive, ongoing research. This chapter gives numerous examples of Law Commission projects, including land registration, limitation of actions, fraud, mental incapacity, privity of contract, shareholder remedies, property rights of home sharers, corruption, and illegitimate children.

This chapter discusses the difficulty of choosing developments in the law of contract in the 20th century which are important enough to rank as ‘Landmarks’. It explains that the scope of the discussion is almost entirely restricted to developments in English law and to the analysis of primary sources (judicial decisions and legislation) as opposed to secondary literature. It also gives a brief account and evaluation of the project to codify the law of contract, which was initiated by the Law Commission in 1965, and of the reasons why, after considerable work on the project had been done, it was abandoned in 1973.

This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State were debated (it now rest at twelve nautical miles), and how the sovereignty of these waters, the seabed under them, and the air space above them was ensured. The Right of Innocent Passage— especially that of warships—is then discussed. The author goes on to describe problems relating to the delimitation of the territorial waters between adjacent coastal States. The most important juridical question concerning ocean navigation discussed in the Third United Nations Conference on the Law of the Sea (UNCLOS) was the nature of the Right of Innocent Passage through international straits. The Corfu Channel decision (allowing warships and merchant vessels free transit through international states during peace time) had considerable impact upon deliberations of the International Law Commission. The author also shows how India closely monitored the extent of support to the concept of Unimpeded Transit Passage. The Chapter concludes with a discussion of drawing of baselines over archpelagic waters and their control by coastal States, with a focus on India’s interests in the Andaman and Nicobar islands. The evolution and formal acceptance of the concept of archipelagic States for the first time was a distinctive achievement of the Third UNCLOS.

This chapter presents a discussion on the contiguous zone i.e. the waters contiguous to and beyond the territorial sea in which States have limited powers for the enforcement of customs, fiscal, sanitary, and immigration laws. Although the Hague Codification Conference ended in failure, the contiguous zone was not eliminated, but began to be more and more a component of international practice. India has supported a twelve-mile (i.e. 24 nautical miles from the baseline of a coastal state) contiguous zone, though it did not make any formal proposal to that effect in the 1958 Geneva Conference on the Law of the Sea. The chapter concludes by discussing contiguous zones and the Right of Hot Pursuit and other issues of general security. The creation of contiguous zones in the interests of security is also discussed.

This chapter calls for the enactment of a comprehensive, modern, and intelligible code of criminal law. Most countries in the world, including Britain's former colonies, have such a code. The criminal law was the obvious candidate for codification. So a Criminal Code team was set up, notably including Professor Sir John Smith, whom most would gladly hail as the outstanding criminal lawyer of the time. A code was produced and published in 1985; it was revised and expanded in 1989. It has very largely withstood the appraisal and criticism to which it has been properly subjected, and has in general commanded respect and support. However, the code has not been enacted, not for want of confidence in its objects or its contents, but for lack of parliamentary time, a powerful but not, surely, an insuperable obstacle. The Law Commission has tried, with indifferent success, to achieve what it can on a partial, piecemeal basis.

The high regard in which Bell is held is generally based on his Commentaries and Principles but he had an important role in the extensive programme of law reform which took place over the nineteenth century and beyond. His first involvement was with the Court of Session and the Jury Court in the 1820s but his major work was on a Commission set up in 1833 and finally expiring in 1839. Through its Reports it was ultimately responsible for a stream of legislation on diligence, the Court of Session, the Sheriff Courts and conveyancing. Investigation of its work underlines the vast material relevant to legal history to be found in Parliamentary Papers.