Search Results

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.

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.

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.

Notoriously, the Poor Law Amendment Act of 1834 moved beyond monetary relief to establish precise dietaries for the poor ‘relieved’ in union workhouses, out relief now something only to be given in absolute emergencies. By dictating what the poor ate, as opposed to what they might eat, workhouse dietaries established an absolute biological minimum for bodily survival decided by individual poor law unions within perimeters set by the central state through the Poor Law Commission. While the implications of workhouse dietaries have been subject to careful study, this chapter takes a broader perspective. It examines the makings of the idea of the dietary, analysing debates and discussion concerning both the physiological and practical science of pauper diet, as well as earlier examining antecedent, before going on to explore the implementation of workhouse dietaries in the new centrally-controlled but still locally operated system What emerges is a highly uneven system, patterned by varying ideological, practical, economic and political imperatives. The chapter also analyses the critiques of the system, exploring both the centrality of critiques to the politicking of radical politicians and to the rise of a particular type of humanitarianism, a concern with the bodily welfare of the poor.

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.

This chapter addresses the manner in which the International Law Commission sees its own output in relation to custom. While in the Conclusions and Commentary on the Identification of Customary International Law it dedicates specific sections to ‘teachings of publicists’ and judgments, the Commission chose not to dedicate a sub-heading to its own work, instead mentioning it in passing in the commentary preceding the ‘Significance of certain materials for the identification of customary international law’ section. This chapter argues that the Commission did not appropriately grapple with its own role in relation to custom: despite the peripheral participation of States in its work, the International Law Commission’s output has at times fundamentally shaped customary rules, and this is not reflected in the Conclusions and Commentary. The chapter concludes that the problematic position of the International Law Commission on this subject is the triumph of pragmatism over accuracy. This is symptomatic of deeper problems with the project as a whole – the artificiality of the two-element approach, the excessive emphasis on State practice, and the impossibility of extricating ‘identification’ from ‘formation’ of custom. A closer look at the Commission’s purported mirror-image reveals distortions more akin to a looking-glass.

This chapter explores Law Commission’s consultation paper, published in September 2020, which proposed a transformation the law on how people get married. The chapter falls into three parts. The first part introduces the Law Commission’s approach, it looks at what was excluded from its terms of reference and the main changes to how people get married that are proposed. The second part then discusses the most radical change proposed by the Law Commission: the move from the Marriage Act 1949’s focus on registering buildings towards what the Law Commission has styled an officiant system and how this would accommodate non-religious marriages. The final part looks at how the scoping paper discussed the issue of unregistered religious marriages and the extent to which the reforms suggested would help to mitigate that issue, including an examination of what the Law Commission suggests in terms of the law on validity and on criminal offences concerning the solemnisation of marriage. Taken together, the proposals do not provide a magic bullet solution but they do provide important steps forward. There are points of contention but overall the proposals if enacted would provide a great deal of improvement.

Against the backdrop of the inconclusiveness of Conclusion 4(2) regarding the role of international organisations in the formation of custom, this chapter elaborates on the reasons behind this lack of consensus and how this has affected the end-product of the International Law Commission’s work; that is the Conclusions incorporated in the International Law Commission’s 2018 Report. Such an enquiry is, according to this chapter, the key to addressing the shortcomings of the International Law Commission’s approach and to understanding whether the relevant Conclusion bears a strong normative claim to hardening into lex lata.

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.

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 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.

The chapter presents and critically assesses the view on non-State actors expressed in the Conclusions on Identification of Customary International Law adopted by the United Nations International Law Commission in 2018. Conclusion 4(3), setting the requirement of practice, stipulates that ‘conduct of other actors is not practice that contributes to the formation, or expression, of rules of customary international law, but may be relevant when assessing the practice referred to in paragraphs 1 and 2’ (i.e. practice of States and international organizations). Conclusion 9, dealing with the requirement of opinio juris, does not mention non-State actors at all. The chapter first traces the history of the conclusions in the International Law Commission work and then casts some doubt on the position that the International Law Commission has adopted in light of the views of other actors. It shows that the International Law Commission fails to do justice to the complex relationship that nowadays exists between non-State actors and customary international law.

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.