TRANSCRIPTS
important, particularly in the context of today’s multinational and global environment.
Now, let’s turn to another aspect of international law: ‘conflict of laws’, as it is mainly known under common law jurisdictions, or ‘private international law’. Unlike public international law, it deals with conflicts involving private persons rather than states or other important international bodies. The plaintiff in a case usually petitions for where the case should be heard. The court then decides whether, in fact, it has the jurisdiction to hear the case. If it has, it will then decide what characterization of law, such as family law, tort or contract, the case should be heard under.
Let’s take as an example an area of family law: the question of polygamous marriage. In many countries, it is legal under strict conditions to marry more than one person. If the family then moves to another country where polygamous marriage is illegal, then what is the legal position of the family in the event of a dispute? The Private International Law (Miscellaneous Provisions) Act 1995 states in part II section 5, validity in English law of potentially polygamous marriages, that: ‘A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.’ So English law still does not allow bigamy. It simply accepts that a first marriage in a country that allows polygamy is legal in England and Wales.
Some countries go further in their interpretation. In the legal systems of many states, polygamous marriage is recognized provided it was entered into validly and the ceremony was performed according to the law of the country in which the marriage took place. This is the so-called lex loci rule. However, in the United States, for example, it is illegal to enter into a polygamous marriage. Courts have also held that where people cohabit in a polygamous marriage made in a country where it is valid, this will not be recognized.
Unit 11, Lesson 2, Exercise F 2.10
Some people say that international agreements have done nothing to change the actual behaviour of some nation states. The evidence shows that this is especially true with respect to the United States. In my view, the refusal of the US to sign up to the Kyoto Protocol is a case in point. This failure set a very bad role model. A very good article by Jana von Stein called The International Law and
Politics of Climate Change has some interesting ideas on how the creators of international environment agreements can design mechanisms that deter defection without deterring participation. In other words, how the lawmakers can create international agreements which people actually sign up to, rather than run away from because their conditions are too harsh.
Unit 11, Lesson 2, Exercise G 2.11
1 I’m going to try and explain some of the external pressures on national legal systems, that is to say, I shall mainly be looking at international law and the way in which it can affect a country’s domestic laws.
2 Don’t misunderstand me, I don’t want to imply that these external pressures totally determine the way a country’s internal legal system operates.
3 I wouldn’t go as far as Lord Denning, who, when talking about the influence of the European Union on the United Kingdom, said that European Union law is ‘like a tidal wave, bringing down our sea walls and flowing inland over our fields and houses.’
4 It is fair to say that, nowadays, domestic courts in most countries keep an eye on decisions that are made at an international level.
5 However, to some degree, the same laws will be interpreted differently in different countries.
6 International law exerts an influence on domestic law, then, and, not only that, but it also influences internal government policies at the same time.
7 To the extent that disputes between states fall outside a unified legal framework, this raises issues of the enforceability of standard practices.
8 The evidence shows that this is especially true with respect to the United States.
9 In my view, the refusal of the US to sign up to the Kyoto Protocol is a case in point.
10 A very good article by Jana von Stein called The International Law and Politics of Climate Change has some interesting ideas on how the creators of international environment agreements can design mechanisms that deter defection without deterring participation.
133
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139
