Recueil des cours, Collected Courses, Tome 408

Erscheinungsjahr 2020
ISBN: 978-90-04-44504-8
Verlag: Brill Academic Publishers

Buch, Englisch, Band 408, 398 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 725 g

Reihe: Collected Courses of The Hague Academy of International Law - Recueil des cours

Reflections on the Realization of Justice in the Era of Contemporary International Tribunals by Antônio Augusto CANÇADO TRINDADE:

Reflections on the realization of justice are much needed in the era of contemporary international tribunals, given the significant role they play now facing new challenges, with the recent restrictions unduly imposed upon the United Nations Organization itself. International jurisdiction has lately expanded with the operation of international tribunals, protecting vulnerable persons in distinct domains of international law, and seeking to face new needs in their jurisprudential construction. The evolving law of nations is grounded on the universal juridical conscience (recta ratio), and guided by general principles of law and human values. Despite the regrettable division of the ICJ in the three recent cases on the Universal Obligation of Nuclear Disarmament (Judgments of 05.10.2016), - to which the author appended his three Dissenting Opinions, - the U.N. General Assembly fortunately decided. (by the end of 2016) to convene a Conference, held at the first half of 2017, which drafted and adopted (on 07.07.2017) the Treaty on the Prohibition of Nuclear Weapons, to the benefit of humankind. The needs of humankind as subject of international law transcend the insufficient and misleading optics of the “will” of individual States only; there is primacy of raison d´humanité over raison d´État.

Party Autonomy in International Family Law by C. GONZÁLEZ BEILFUSS:

Party autonomy, i.e. the power of parties to select the applicable law, is increasingly used in International family law. This course follows this development and questions whether rules that have been developed in relation to commercial contracts work also for personal relationships. This involves an in- depth analysis of the functions of party autonomy in Private international law and the needs of families in contemporary society. The latter has often been neglected in Private international law theory that has uncritically assumed a normative idea of family life and failed to consider the care work families do in society and the different roles assumed by family members in accordance to gender.

Autoren/Hrsg.

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht

Inhaltsverzeichnis

Reflections on the Realization of Justice in the Era of Contemporary International Tribunals by Antônio Augusto CANÇADO TRINDADE:

Chapter I. Initial considerations.

Chapter II. The New Era of international tribunals and the expansion of advisory jurisdiction.

A. Introduction.

B. The emergence of international tribunals.

C. The contribution of expanded advisory jurisdiction.

Chapter III. The realisation of international justice beyond the strict interstate dimension.

Chapter IV. The expansion of international jurisdiction in distinct domains of international law.

A. Introduction.

B. International human rights tribunals.

C. International criminal tribunals.

Chapter V. The relevance of international jurisdiction and responsibility.

A. Introduction.

B. Protection of vulnerable persons.

C. Unity of the law in the interactions between international and domestic law.

D. The importance of the realisation of justice.

Chapter VI. The jus necessarium: the move towards compulsory jurisdiction and the contribution to the rule of law.

A. Introduction.

B. International tribunals in their move towards compulsory jurisdiction.

C. International tribunals in their contribution to the rule of law.

Chapter VII. Fundamental principles and the protection of humankind.

A. Introduction.

B. International tribunals and the relevance of general principles of law.

C. Protection of humankind in the prohibition of nuclear weapons: Primacy of “raison d’humanité” over “raison d’état”.

D. The three judgments of the ICJ of 5 October 2016.

1. My three dissenting opinions appended thereto.

2. Prompt effects at the United Nations: Negotiation and adoption of the UN Treaty on the Prohibition of Nuclear Weapons (7 July 2017).

Chapter VIII. Jurisprudential construction among contemporary international tribunals.

Chapter IX. Final considerations

Party Autonomy in International Family Law by C. GONZÁLEZ BEILFUSS:

Introduction.

I. Defining the scope of the course: the notion of party autonomy.

II. Defining the scope of the course: the notion of family.

III. Defining the geographical scope of the research.

IV. Structure of this course.

Chapter I. Party autonomy in international family law.

I. Contract.

II. Tort.

III. Property.

IV. Succession.

V. Party autonomy in international family law.

1. Horizontal family relationships.

A. Marriage.

(a) Marriage celebration.

(b) The effects of marriage.

(i) General effects of marriage.

(ii) Maintenance.

(iii) Property relations between spouses.

(c) Divorce, legal separation and annulment.

B. Registered partnership.

C. facto unions.

2. Vertical family relationships.

A. Children.

(a) Filiation.

(i) Kinship.

(ii) Adoption.

(b) Parental responsibilities.

(c) Maintenance.

(d) The name of individuals.

B. Adult protection.

Chapter II. The rationale for party autonomy in international family law.

I. Introduction.

II. The function of party autonomy.

1. Party autonomy from the perspective of the parties.

A. Party autonomy as an instrument for transaction planning.

B. Party autonomy as an instrument for dispute resolution.

C. Party motivation.

(a) The reduction of costs.

(b) The role of party autonomy in the pursuit of co-ordination.

(c) The defence of cultural identity.

D. The party autonomy rule in action.

2. The role of the State in connection with party autonomy.

A. The nature of family relationships.

(a) The autonomy myth.

(b) Bounded rationality.

(c) Gender roles.

(d) Externalities.

(e) Relational contracts.

Chapter III. The choice-of-law contract.

I. Introduction.

1. The contractual nature of the choice-of-law agreement.

2. The principle of independence.

II. The Existence and validity of the choice-of-law contract.

1. Capacity.

2. Substance.

A. The law applicable to the existence and validity of the choice-of-law contract.

B. Tacit or implied choice.

C. Procedural choice of law.

D. Rule of validation.

3. Form.

A. Special formal requirements for choice-of-law contracts.

(a) Minimum requirements.

(b) Additional requirements.

B. Legal advice.

C. Formal requirements in connection with the underlying relationship for which the choice of law is made.

4. Time.

A. Ex ante or ex post choice of the applicable law.

B. Pre-relationship agreements.

C. Agreements made during the relationship.

D. Changes in the content of the applicable law.

Chapter IV. Restrictions to party autonomy in international family law.

I. Introduction.

II. Intrinsic restrictions.

1. The international character of the underlying relationship.

A. Internationality is in the eye of the beholder: the case of dual nationality.

B. Intermittent internationality.

(a) Prospective choice of the applicable law.

(b) An international situation becomes domestic.

2. Limitations as to the laws that can be chosen.

3. The selection of non-State rules.

III. Extrinsic restrictions.

1. Fraus legis.

2. Overriding mandatory rules.

3. Public policy.

4. Substantive review.

Chapter V. Indirect party autonomy.

I. Introduction.

II. Indirect party autonomy in connection with dispute resolution.

1. Party autonomy and court proceedings.

A. Choice of court agreements.

B. Alternative fora.

2. Party autonomy and out of court proceedings.

A. Private divorce.

B. Religious courts or authorities.

C. Family mediation.

III. The recognition of legal situations created abroad.

1. Legal tourism from the perspective of the State receiving legal tourists.

2. Legal tourism from the perspective of the State of origin of the legal tourist.

A. The recognition of foreign decisions.

B. The recognition of legal situations created abroad.

Bibliography.

Über Autor(innen)

H. E. Antônio Augusto Cançado Trindade, born 17 September 1947 in Belo Horizonte, Brazil.

LLB in Law, Federal University of Minas Gerais (First Prize in Civil Law, 1969); LLM in International Law, University of Cambridge (1973); PhD in International Law, University of Cambridge (1977), with a thesis on “Developments in the Rule of Exhaustion of Local Remedies in International Law” (awarded the Yorke Prize). Judge of the International Court of Justice (since 2009, re-elected in 2018); Judge (1995-2006) and President (1999-2004) of the Inter-American Court of Human Rights.

Doctor Honoris Causa, Central University of Chile, Santiago, Chile (2003); Doctor Honoris Causa, Catholic University of Peru, Lima (2003); Doctor Honoris Causa, American University of Paraguay, Asunción (2004); Doctor Honoris Causa, National University of La Plata, Argentina (2005); Doctor Honoris Causa, University Panteion of Athens, Greece (2014); Doctor Honoris Causa, Autonomous
University of Madrid, Spain (2016); Doctor Honoris Causa, University Kiit of Bhubaneswar, India (2017); Honoris Title “Justice et Droit” Conseil de Napflio, Napflio, Greece (2018); Doctor Honoris Causa, Federal University of Minas Gerais, Belo Horizonte, Brazil (2018); Doctor Honoris Causa, National University of Tucumán, San Miguel de Tucumán, Argentina (2019).

Emeritus Professor of International Law at the University of Brasilia, Brazil (2010). Professor (Full Professor, Professeur titulaire) of Public International Law at the University of Brasilia (1978-2009) and of the Diplomatic Academy Rio Branco of Brazil (1979-2009). Between 1982 and 2019, Honorary or Visiting Professor of International Law, in several leading Universities in Latin America, Europe and Asia. International Committee of the Red Cross Lecturer in Havana, Cuba (1995-2002) and in Hong Kong and Macao (China, 1996). From 1981 to 2017, Lecturer of the annual Courses of the Organization of American States (OAS) Inter-American Juridical Committee, Rio de Janeiro and the International Institute of Human Rights, Strasbourg (1988-2019), among others. Lecturer at the European University Institute, Florence (General Course, 2007). Honours and prizes from various universities, international institutes and academic societies in several countries.

Legal Adviser to the Ministry of External Relations of Brazil (1985-1990); Delegate of Brazil to several international conferences (the United Nations, OAS and others), including the UN Conference on the Law of Treaties between States and International Organizations (Deputy Head of the Delegation, Vienna, 1986), and the Second World Conference on Human Rights (Vienna, 1993). Executive Director of the Inter-American Institute of Human Rights (1994-1996). Legal Adviser to projects of the UN Environment Programme (Nairobi, 1990-1992), the UN Development Programme (1988 and 1990), the UN High Commissioner for Refugees (1994, 2004 and 2014), International Committee of the Red Cross (1997-2000), the UN Educational, Scientific and Cultural Organisation (1997); member of the OAS Commission of Jurists for Nicaragua (1993-1994). Holder of several international and national decorations. Member of the Curatorium of the Hague Academy of International Law (since 2004); member of the Institut de Droit International (since 1997, current Vice-President); member of the Brazilian Academy of Juridical Letters; Honorary President of the Brazilian Institute of Human Rights.

Cristina González Beilfuss, born in Aschaffenburg, Germany, on 13 February 1964.

PhD in Law (University of Barcelona) (1994), Diploma of the Hague Academy in International Law (1995).

Profesora Titular (Associate Professor) of Private International Law, University of Barcelona (1997). Catedrátic a (Full Professor) of Private International Law, University of Barcelona (since 2008).

Vice-dean for International Relations and Research at the Law Faculty (University of Barcelona) (2008-2011). Director of the Research Institute TransJus (University of Barcelona) (since 2019).

From 2011 until 2017, on secondment Head of External Relations (Spanish Judicial School). Member of the International Relations Commission of the General Council for the Judiciary. During this period, co-ordinator of Training in Co-operation in Civil Matters at the European Judicial Training Network (EJTN), contact point in the European Judicial Network (Civil and Commercial) and in IberREd (judicial co-operation network at Latin American level). Co-ordinator of the REJUE – civil. Network of Spanish judges in co-operation in civil matters.

Recording Secretary at the Hague Conference on Private International Law (1994). Spanish delegate at the Hague Conference on Private International Law at various Special Commision meetings and in the Council of General Affairs and Policy in 2018 and 2019, Member of the Expert Groups on Parentage (Surrogacy) and Family Agreements at the Hague Conference on Private International Law.

Member of the Organising Committee of the Commission on European Family Law, CEFL (since 2003). As Member of the Organising Committee of the Commission on European Family Law, Nominee for the 2007 Descartes Prize for Transnational Collaborative Research (European Commission) and Member of the Editorial Board of the European Family Law Series published by Intersentia (Antwerp-Oxford-New York).

Member of the Board of Directors of the Spanish Association of Private and Public International Professors, AEPDIRI (2003-2007); Member of the Editorial Board of the Revista española de Derecho internacional (2007-2011 and again since 2018); Member of the Catalan Commission for Codification (since 2018). Fellow of the European Law Institute (since September 2011); Associate Member of the International Academy of Comparative Law (since 2012); Member of the Board of Trustees at the Academy for European Law, ERA (since 2018); Member of the European Group on Private International Law, GEDIP (since 2018) and of the Academiae Europeae (since 2018).