Let’s Say Goodbye To Vanity Laws

Once upon a time, in countries far and wide, rulers such as kings and emperors created laws that all subjects living within their realms were forced to obey. If the king or emperor was a fair and just person, the laws they made served the people they ruled and everyone, for the most part, was happy. But inevitably, there came to the thrones within these lands kings and emperors who were not fair and not just. And the laws that these monarchs made caused suffering to their people.

And so it came to pass that people arose in defiance of these monarchs and demanded change. Chief among the demands of the people was that the law be placed above all men – including kings and emperors. They also demanded that laws would not arbitrarily change and that new laws would not be enacted without the consent of the people.

In other words, instead of the King being the law, the law would be King. And those governed by the “Rule of Law” would have an equal voice in the creation and administration of such laws.

Revolutions were brought and many people gave their lives to bring about such change.

This is why we in the United States don’t have things like “King James Law” or “Queen Anne’s Law”. We have public laws, enacted by our elected officials through consent of the people. We live under the Rule of Law and not under the rule of someone making up laws by which we must live. At least, that’s the way it’s suppose to work.

Lately however, we seem to have embraced some sort of macabre fad that ushers in new laws named after people who were victims of one calamity or another. This new law fad has been happening so fast and so frequently that some people have come to call these new laws, “vanity laws”.

You know what I am talking about. I’m talking about Adam’s Law and Mary’s Law and Scott’s Law and God-Only-Knows Law. They are popping up everywhere, in every state, and even on the federal level.

Unfortunately, no one is given a pass in life. Bad things can and do happen to good people. And it is understandable that friends and relatives of people who suffered calamity would want to honor them. When John Lennon was shot out front of the Dakota in New York, people showed up and placed flowers on the ground where he was slain.

Since then, flowers and crosses and pictures and signs and all sorts of memorabilia have shown up on curb sides and fences and everywhere someone perished in an automobile accident or some other tragic event. It has become so prolific that ordinances have been passed to remove these makeshift memorials from the pedestrian way in many cities. While the public seems to have said enough is enough to these roadside shrines, unfortunately the public hasn’t done enough to say enough is enough with vanity laws.

So, I have decided to start. ENOUGH ALREADY WITH VANITY LAWS!

In a democracy, no law should bear the name of anyone. Remember, we are supposed to live under the rule of law through the consent of the people. We are not supposed to live under Joe’s law at the whim of Joe’s weeping relatives.

I know that sounds harsh. But bear with me for a moment longer and I will explain why I am being harsh.

Let’s start with “Katie’s Law”. If you enter the search term, “Katie’s Law” in Google or some other search engine, you are going to find several different Katie’s Laws. That’s because this craze has gotten so big we are starting to run out of names. But in this case, I am referring to Katie’s Law that originated in New Mexico.

In 2003, a young woman by the name of Katie Sepich was brutally attacked and murdered in New Mexico. Although police had little clues to go on, they did find DNA evidence under the fingernails of the victim. The police entered the DNA into the national DNA database and waited to find a match.

Katie’s parents found out that in most states, a person is only required to register their DNA in the national database if they are convicted of a felony. They reasoned that if the law was changed to require anyone arrested on a felony charge to give their DNA to authorities, then the perpetrator of the crime against their daughter might be more quickly found. And so they started the effort to create “Katie’s Law”, which requires just that. In January 2007, Katie’s Law was enacted in New Mexico. Since then, anyone arrested on a felony charge in that state, must register his or her DNA in the national DNA database.

At present, 11 states have laws similar to Katie’s Law and 26 states are considering enacting the law.

Katie’s parents are correct. If people arrested on felony charges are forced to submit to DNA testing, then some cases will be solved that otherwise would not. The actions on the part of Katie’s parents are also understandable. What happened to their daughter was beyond evil and their determination to find the person responsible was and is admirable.

What is not understandable nor admirable however, is the actions of elected officials who put common sense aside and for political gain, seize upon these passionate issues and usher them into law. When they do this, they do not serve the people. They also do not serve the victim in whose name the law will be enacted.

Katie’s Law is a bad law. And I say that for four reasons. First, there is the presumption of innocence that we subscribe to under the laws of this land. You and everyone else in this country is presumed innocent until proven guilty. This being true, how can we force people who have not been convicted of a crime to give up their DNA? I can see no difference in demanding that an accused register their DNA and demanding that every person in the U.S. register their DNA.

Now mind you, I am not talking about requiring someone who is arrested for a specific crime being required to give DNA to compare to other DNA found at that particular crime scene. What Katie’s Law requires is that anyone – for any reason – who is arrested on a felony charge, must submit his or her DNA to the national DNA registry – where it will forever be kept on file.

Secondly, our laws are supposed to preclude authorities from forcing any person to incriminate himself or herself. Every time a person is arrested, police are required to read them their rights. They are told that they have a right to keep silent. They have a right not to incriminate themselves. But how can we tell someone he has a right to keep his mouth shut but no right to protect himself from genetic testing? What Katie’s Law means is that for any reason what-so-ever, police can submit an arrestee’s DNA into the national database to see if they find a match somewhere for some reason. It’s like trolling for a criminal charge.

Once your DNA is registered in the national database, it will remain there for the rest of your life – regardless if you are innocent. Regardless if the charges are dropped. Regardless if you were falsely accused or falsely arrested. You are in the database – forever.

Thirdly, DNA is shared. Two or more people can have the exact same DNA. Identical twins for example, will not have the same fingerprints, but they do have the same DNA. So while DNA evidence is useful for excluding someone from having perpetrated a particular crime, it is not conclusive evidence that someone actually committed a crime.

And finally, there is the simple fact that in a democracy, we should respect law enforcement, but we should never unconditionally trust law enforcement. Contrary to what most people think, when the police arrive at a crime scene they do not start looking at clues that lead them to a suspect. What police generally do is decide on a suspect and then build a case against him or her. If, during the case building phase of the investigation, the police find they cannot obtain sufficient evidence for an arrest, ideally they will look for another suspect and start the whole case building phase again. But in some cases, too often in fact, some police don’t stop when they hit a wall.

Instead they coerce confessions and they resort to torture. That is how innocent people go to prison. With Katie’s Law, we have given these police officials another avenue to build cases. And because of this, one day, a police officer will decide that someone is probably guilty of a crime. And the police officer will reason that if he can just get a sample of that persons DNA then he can tie them to the crime he is investigating. And so that hapless person may find himself stopped by some cop for a simple traffic violation and during the course of that traffic stop the officer will just happen to find a bag of suspicious white powder in that person’s car. Enough white powder to warrant a felony arrest and the requirement that the person submit to DNA sampling.

It is unfortunate; but this will happen. Katie’s Law will be abused by law enforcement to obtain DNA results.

It will make the task of law enforcement easier and faster. And if some poor schmuck has to battle a phony felony charge because of a cop’s shortcut, well, to some cops’ thinking, that’s just collateral damage. Take a look at all the people that are presently being freed because DNA evidence has exonerated them. Then ask yourself the big question that no one seems willing to ask. Ask yourself how all these guys wound up in prison in the first place? The sad, sad, truth is that there are bad cops out there. And Katie’s Law hands these bad cops a new tool in which to do bad things.

Katie’s Law isn’t the only bad law going on the books these days. Vanity laws are being enacted nearly every day in various states. At a minimum, vanity laws are confusing to the public. In their extreme, vanity laws fly in the face of a democratic republic, built upon the rule of law. In our society, laws should never be personal. All laws should be impersonal. They should not be created out of emotion – they should only be enacted out of reason. Katie’s Law is a bad law and vanity laws are a bad idea. We should put a stop to this nonsense before people get hurt and our republic falters.

Often humorous and always politically incorrect, journalist and author John Fanning tackles commentary on subjects that affect every American but never seem to get the media attention they deserve. America’s Street Guide column bellows from the heartland and into the beltways of America with insightful and informative commentary that every American should read. To access past columns by this author go to: [http://www.chiefengineer.org/content/archive_list.cfm/datakey/25.htm]

Article Source: http://EzineArticles.com/expert/John_Fanning/138492

 

International Law And The Right To A Healthy Environment As A Jus Cogens Human Right

I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES

To date, traditional international law does not consider human environmental rights to a clean and healthy environment to be a jus cogens human right. Jus cogens (“compelling law”) refers to preemptory legal principles and norms that are binding on all international States, regardless of their consent. They are non-derogable in the sense that States cannot make a reservation to a treaty or make domestic or international laws that are in conflict with any international agreement that they have ratified and thus to which they are a party. They “prevail over and invalidate international agreements and other rules of international law in conflict with them… [and are] subject to modification only by a subsequent norm… having the same character.” (1) Thus, they are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations). For example, some U.N. Charter provisions and conventions against slavery or torture are considered jus cogens rules of international law that are nonderogable by parties to any international convention.

While the international legal system has evolved to embrace and even codify basic, non-derogable human rights (2), the evolution of environmental legal regimes have not advanced as far. While the former have found a place at the highest level of universally recognized legal rights, the latter have only recently and over much opposition, reached a modest level of recognition as a legally regulated activity within the economics and politics of sustainable development.

1. The international legal community recognizes the same sources of international law as does the United States’ legal system. The three sources of international law are stated and defined in the Restatement (Third) of the Foreign Relations Law of the United States (R3dFRLUS), Section 102. The first source is Customary International Law (CIL), defined as the “general and consistent practice of states followed out of a sense of legal obligation” (3) (opinio juris sive necessitatus), rather than out of moral obligation. Furthermore, CIL is violated whenever a State, “as a matter of state policy,… practices, encourages or condones (a) genocide, (b) slavery… (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman or degrading treatment… or (g) a consistent pattern of gross violations of internationally recognized human rights.” (4) To what extent such human rights need to be “internationally recognized” is not clear, but surely a majority of the world’s nations must recognize such rights before a “consistent pattern of gross violations” results in a violation of CIL. CIL is analogous to “course of dealing” or “usage of trade” in the domestic commercial legal system.

Evidence of CIL includes “constitutional, legislative, and executive promulgations of states, proclamations, judicial decisions, arbitral awards, writings of specialists on international law, international agreements, and resolutions and recommendations of international conferences and organizations.” (5) It follows that such evidence is sufficient to make “internationally recognized human rights” protected under universally recognized international law. Thus, CIL can be created by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes “internationally recognized human rights.”

2. The next level of binding international law is that of international agreements (treaties), or Conventional International Law. Just as jus cogens rights and rules of law, as well as CIL, are primary and universally binding legal precepts, so do international treaties form binding international law for the Party Members that have ratified that treaty. The same way that some States’ domestic constitutional law declares the basic human rights of each State’s citizens, so do international treaties create binding law regarding the rights delineated therein, according to the customary international jus gentium principle of pacta sunt servanda (agreements are to be respected). Treaties are in turn internalized by the domestic legal system as a matter of law. Thus, for example, the U.N Charter’s provision against the use of force is binding international law on all States and it, in turn, is binding law in the United States, for example, and on its citizens. (6) Treaties are analogous to “contracts” in the domestic legal system.

Evidence of Conventional International Law includes treaties, of course, as well as related material, interpreted under the usual canons of construction of relying on the text itself and the words’ ordinary meanings. (7) Often, conventional law has to be interpreted within the context of CIL. (8) As a practical matter, treaties are often modified by amendments, protocols and (usually technical) annexes. Mechanisms exist for “circumventing strict application of consent” by the party states. Generally, these mechanisms include “framework or umbrella conventions that merely state general obligations and establish the machinery for further norm-formulating devices… individual protocols establishing particular substantive obligations… [and] technical annexes.” (9) Most of these new instruments “do no require ratification but enter into force in some simplified way.” (10) For example, they may require only signatures, or they enter into force for all original parties when a minimum number of States ratify the modification or unless a minimum number of States object within a certain time frame, or goes into force for all except those that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications for them to go into effect. “[I]n a sense these are instances of an IGO [(international governmental organization)] organ ‘legislating’ directly for [S]tates.” (12)

3. Finally, rules of international law are also derived from universal General Principles of Law “common to the major legal systems of the world.” (13) These “general principles of law” are principles of law as such, not of international law per se. While many consider these general principles to be a secondary source of international law that “may be invoked as supplementary rules… where appropriate” (14), some consider them on an “footing of formal equality with the two positivist elements of custom and treaty”. (15) Examples are the principles of res judicata, equity, justice, and estoppel. Frequently, these rules are inferred by “analogy to domestic law concerning rules of procedure, evidence and jurisdiction.” (16) However, “while shared concepts of of internal law can be used as a fall-back, there are sever limits because of the characteristic differences between international law and internal law.” (17) Evidence of General Principles of Law includes “municipal laws, doctrine and judicial decisions.” (18)

Treaty provisions and their inherent obligations can create binding CIL if they are “of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.” (19) A basic premise of this article is that the “relatively exclusive ways (of lawmaking) of the past are not suitable for contemporary circumstances.” (20) Jonathan Charney maintains that today’s CIL is more and more being created by consensual multilateral forums, as opposed to State practice and opinio juris, and that “[consensus, defined as the lack of expressed objections to the rule by any participant, may often be sufficient… In theory, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could be sufficient to establish new international law.” (21) This process should be distinguished conceptually as “general international law”, rather than CIL, as the International Court of Justice (ICJ) has often done.

In like vein, Professor Gunther Handl argues that all multilateral environmental agreements (MEAs) of “global applicability” create “general international law”:

“A multilateral treaty that addresses fundamental concerns of the international community at large, and that as such is strongly supported by the vast majority of states, by international organizations and other transnational actors,– and this is, of course, precisely the case with the biodiversity, climate, and ozone regimes, among others-may indeed create expectations of general compliance, in short such a treaty may come to be seen as reflecting legal standards of general applicability… and as such must be deemed capable of creating rights and obligations both for third states and third organizations.” (22)

Notwithstanding, Daniel Bodansky argues that CIL is so rarely supported by State action, that it is not customary law at all. “International environmental norms reflect not how states regularly behave, but how states speak to each other.” (23) Calling such law “declarative law” that is part of a “myth system” representing the collective ideals and the “verbal practice” of States, he concludes that “our time and efforts would be better spent attempting to translate the general norms of international environmental relations into concrete treaties and actions.” (24)

However, a review of the current status of international human rights and environmental law may reveal the mechanisms for raising environmental rights to the level of jus cogens rights. For example, the U.N. Convention on the Law of the Seas (UNCLOS), whose negotiation was initiated in 1972 and signed in 1982, was considered by most countries to be CIL by the time it came into force in 1994. (25)

II. CURRENT STATUS OF THE RIGHT TO A HEALTHY ENVIRONMENT No State today will publicly state that it is within its sovereign rights to damage their domestic environment, much less that of the international community, however most States do not guarantee environmental protection as a basic human right. Currently, environmental law is composed of mostly Conventional International Law and some CIL. The former relies on express consent and the latter on implied consent, unless a State avails itself of the Persistent Objector principle, which precludes it from being bound by even most CIL. Unlike for human rights and international crimes, there is no general environmental rights court in existence today. While the Law of the Sea Tribunal and other U.N. forums (e.g., the ICJ) exist for trying cases of treaty violations, non-treaty specific violations have no international venue at present. Italian Supreme Court Justice Amedeo Postiglione states that

“[T]he human right to the environment, must have, at the international level, a specific organ of protection for a fundamental legal and political reason: the environment is not a right of States but of individuals and cannot be effectively protected by the International Court of Justice in the Hague because the predominantly economic interests of the States and existing institutions are often at loggerheads with the human right to the environment.” (26)

Domestic remedies would have to be pursued first, of course, but standing would be granted to NGOs, individuals, and States when such remedies proved futile or “the dispute raises issues of international importance.” (27) For example, although the ICJ has an “environmental chamber” and U.S. courts often appoint “special masters” to handle these types of disputes, it is clear that the recognition of the human right to the environment needs an international court of its own in order to recognize such a right and remedy international violations in an efficient and equitable manner. (28)

III. THE JUS COGENS NATURE OF ENVIRONMENTAL RIGHTS Irrespective of specific treaty obligations and domestic environmental legislation, do States, or the international community as a whole, have a duty to take measures to prevent and safeguard against environmental hazards?

Human rights are “claims of entitlement” that arise “as of right” (31) and are independent of external justification; they are “self evident” and fundamental to any human being living a dignified, healthy and productive and rewarding life. As Louis Henkin points out:

“Human rights are not some abstract, inchoate ‘good’; they are defined, particular claims listed in international instruments such as the [U.N.’s] Universal Declaration of Human Rights and the major covenants and conventions. They are those benefits deemed essential for individual well-being [sic], dignity, and fulfillment, and that reflect a common sense of justice, fairness, and decency. [No longer are human rights regarded as grounded in or justified by utilitarianism,] natural law,… social contract, or any other political theory…[but] are derived from accepted principles, or are required by accepted ends-societal ends such as peace and justice; individual ends such as human dignity, happiness, fulfillment. [Like the fundamental rights guaranteed by the U.S. Constitution, these rights are] inalienable and imprescriptible; they cannot be transferred, forfeited, or waived; they cannot be lost by having been usurped, or by one’s failure to exercise or assert them.” (32)

Henkin distinguishes between “immunity claims” (such as ‘the State cannot do X to me’; the hallmark of the U.S. constitutional jurisprudential system) and “resource claims” (such as ‘I have a right to Y’) such that the individual has the right to, for example, free speech, “food, housing, and other basic human needs.” (33) In today’s “global village”, the Right to a Healthy Environment is clearly a “resource claim” and a basic human need that transcends national boundaries.

According to R.G. Ramcharan, there is “a strict duty… to take effective measures” by States and the international community as a whole to protect the environment from the potential hazards of economic development. (34) His position is that the Human Right to Life is a. jus cogens, non-derogable peremptory norm that by its very nature includes the right to a clean environment. This duty is clearly spelled out in such multilateral treaties as the UN Convention on Desertification, the UN Framework Convention on Climate Change, and the Convention on Biological Diversity. (35) It is expounded in the Stockholm, Rio and Copenhagen Declarations as a core component of the principle of Sustainable Development. It forms the basis of NAFTA’s, the WTO’s and the European Union’s economic development agreements, and the European Convention and the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by most countries in the world, including the United States.

The Human Right to a Healthy Environment is explicitly contained in the Inter-American and African Charters, as well as in the constitution of over 50 countries worldwide. Whether it is based on treaties, CIL, or “basic principles”, the obligation of the international community to the environment is today clearly spelled out and enforceable through international tribunals. For example, the Lhaka Honhat Amid Curiae Brief recognized the rights of the indigenous peoples of Argentina to “an environment that supports physical and spiritual well being and development.” (36) Similarly, in a separate decision, the Inter-American Human Rights Commission upheld the right of the Yanomani in Brazil to a healthy and clean environment. (37) On a global level, the UN Human Rights Committee has indicated that environmental damage is “a violation of the right to life contained in Article 6(1) of the [ICCPR]”. (38)

Thus, today, the erga omnes obligation of States to take effective steps to safeguard the environment is a duty that no State can shirk or ignore. If it does, it runs the risk of prosecution by international courts and having to institute measures commensurate with its responsibility to protect its share of the “global commons”. Interestingly, the concept of jus cogens emerged after World War II as a response to the commonly held view that the sovereignty of States excused them from violating any of the then so-called CILs. According to Black’s Law Dictionary, “there is a close connection between jus cogens and the recognition of a ‘public order of the international community’… Without expressly using the notion of jus cogens, the [ICJ] implied its existence when it referred to obligations erga omnes in its judgment… in the Barcelona Traction Case.” (39)

IV. THIRD GENERATION HUMAN RIGHTS AND THE ENVIRONMENT Is environmental protection is an erga omnes obligation, that is, one owed to the international community as a whole as a jus cogens human right?

In a separate opinion to the Case Concerning the Gebecikovo-Nagymaros Project (Hungary v. Slovakia), Judge Weeramantry, the Vice President of the ICJ, expounded on the legal basis for sustainable development as a general principle of international law. In the process, he concludes that environmental protection is a universal erga omnes legal norm that is both CIL as well as a general principle of law per se. In Gebecikovo, ostensibly to have been decided upon the merits of the treaty governing the building of power plants along the Danube, as well as by international customary law, the ICJ held that the right to development must be balanced with the right to environmental protection by the principle of sustainable development. Even in the absence of a specific treaty provision, the concept of sustainable development has become a legal principle that is “an integral principle of modem international law”. (40)

Sustainable development is also recognized in State practice, such as the Dublin Declaration by the European Council on the Environmental Imperative. (41) As such, sustainable development has in effect been raised to the level of CIL.

For example, the Martens Clause of the 1899 Hague Convention Respecting the Laws and Customs of War on Land has been interpreted in 1996 by Judge Shahabudeen of the ICJ as providing a legal basis for inferring that general principles rise above custom and treaty, having their basis in “principles of humanity and the dictates of public conscience”. (42) According to Weeramantry, “when a duty such as the duty to protect the environment is so well accepted that all citizens act upon it, that duty is part of the legal system in question… as general principles of law recognized by civilized of nations.” (43)

Sustainable development acts as a reconciling principle between economic development and environmental protection. Just as economic development is an inalienable right of States’ self-determination, environmental protection is an erga omnes obligation of all States for the benefit of the global commons that all share. “The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community”, and not just by developing countries. (44)

Drawing upon the rich history of diverse cultures’ legal systems and what he calls “living law”, Judge Weeramantry points out that traditional respect for nature has been a guiding moral and legal principle for economic development throughout history. The ICJ has also recognized these principles in such previous decisions as Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) in 1972. (45) Judge Weeramantry concludes that the “ingrained values of any civilization are the source from which its legal concepts derive… [and that environmental protection is] among those pristine and universal values which command international recognition.” (46)

The first generation of Human Rights were those declared by the “soft law” of the Universal Declaration of Human Rights: “Everyone has the right to life liberty and security of person.” Art. 3. It was modeled on the U.S. Bill of Rights and the American Declaration of Independence. This was echoed in the binding ICCPR (“Every human being has the inherent right to life.”, ICCPR, Art. 6(1) (1966)), which the U.S. has ratified, and the American Convention on Political and Civil Rights of the Inter-American System (which draws direct connections between human rights and environmental rights).

The second generation of human rights emerged with the Economic, Social and Cultural (ECOSOC) Rights developed in such treaties as the International Covenant on Economic, Social and Cultural Rights (ICESCR; which the U.S. has not ratified), and many foreign State’s Constitutions (e.g., Germany, Mexico, and Costa Rica). These include the right to free choice of work, to (usually free) education, to rest, leisure, etc. Highly complied with in Europe, these rights have additionally been expanded by the EU in their European Social Charter (1961) creating much legislation for the protection of workers, women, and children.

The third and current generation of human rights has emerged from the Eco-Peace-Feminist Movement. These include the Right to Development, the Right to A Safe Environment and the Right to Peace. In essence, this third generation of rights addresses the problem of poverty as a social (and hence legally redressable) ill that lies at the core of environmental problems and violations. The “environmental justice” movement considers cases that demonstrate that environmental pollution is disproportionately prevalent in minority communities, whether at a local or international level. Authors John Cronin & Robert F. Kennedy, Jr., have explicitly entitled their study of environmental pollution along the Hudson River The Riverkeepers: Two Activists Fight to Reclaim Our Environment as a Basic Human Right. (47) This predominantly U.S. movement focuses on “environmental racism” as a means for seeking remedies or the disproportionate pollution of minority communities as violations of current civil rights legislation by “exploring] the use of the nations’ environmental laws to protect the rights of the poor.” (48)

V. RECOGNITION, COMMITMENT AND ENFORCEMENT OF A RIGHT: THE MONTREAL PROTOCOL AS A MODEL FOR CONSENSUS BUILDING The key mechanisms for establishing binding international law are recognition of an obligation or right, commitment to its protection, and effective enforcement methods. The Montreal Protocol on Substances that Deplete the Ozone Layer is the “most important precedent in international law for the management of global environmental harms.” (49) It serves as a model for many other environmental concerns that require decision-making in the face of scientific uncertainty, global non-consensus, and high harm-avoidance costs. It was the first international “precautionary” treaty to address a global environmental concern when not even “measurable evidence of environmental damage existed.” (50) Although ozone depletion by chloro-fluorocarbons (CFCs) and other ozone depleting substances (ODSs), and the attendant harms of overexposure to harmful ultraviolet radiation, had been suspected by scientists in the early 1970s, it was not until 1985 and the Vienna Convention for the Protection of the Ozone Layer that international action was taken to address the problem.

THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER At the time of the Vienna Convention, the U.S. represented over 50% of the global consumption of CFCs in a $3 billion market for aerosol propellants alone. Overall, CFC products represented a $20 billion market and about a quarter of a million jobs in America alone. (51) The Clean Air Amendments of 1977 and the 1978 EPA ban on all “non-essential” uses of CFC in aerosol propellants was quickly followed internationally by similar bans by Sweden, Canada and Norway. (52) These actions were a direct response to consumer pressure and market demands by newly environmentally-conscious consumers.(53) Incentives were also provided to the developing countries so that they could “ramp up” at reasonable levels of reductions. (54)

Creative ratification incentives included requiring only 11 of the top two-thirds of CFC producing countries to ratify and bring the treaty into force. (55) As a result of such flexibility, innovation, consensus and cooperation, the Montreal Protocol has been hailed as a major success in international diplomacy and international environmental law. Today almost every nation in the world is a member (over 175 States).

THE LONDON ADJUSTMENTS AND AMENDMENTS OF 1990 By 1990 scientific confirmation of global warming and the depletion of the ozone layer led to the London Adjustments and Amendments. Again, U.S. companies such as Dupont, IBM and Motorola reacted to massive negative media attention and promised to halt complete production by 2000.

Non-compliance procedures were made even more user friendly and no sanction for non-compliance was initiated against a country that was failing to reach quotas while acting in good faith. Technology transfer was made in a “fair and favorable way”, with developed countries taking the lead in assisting developing countries reach compliance. (56) The U.S. instituted “ozone depletion taxes” which did much to get more comprehensive compliance, as well as promoting research into CFC alternatives. (57) To emphasize the vast enforcement mechanisms employed, consider that by early 1998 the U.S. Justice Department had prosecuted 62 individuals and 7 corporations for the illegal smuggling into the emergent CFC black markets. Despite an international crackdown by the FBI, EPA, CIA, and Interpol in the global police effort Operation Breeze, 5 to 10 thousand tons are smuggled annually into Miami alone, second only to cocaine smuggling. (58) In 1992 the Copenhagen Amendments required every State party (practically the whole world) to institute “procedures and institutional mechanisms” to determine non-compliance and enforcement. (59)

VI. CONCLUSION: CRITICAL WEAKNESS OF THE CURRENT SYSTEM AND THE LEGAL CONSEQUENCES OF THE RIGHT TO A HEALTHY ENVIRONMENT AS A BASIC HUMAN RIGHT

The critical weaknesses of the existing system include self-serving pronouncements by non-complying States, lack of effective enforcement mechanisms, political limitations such as State sovereignty and the “margin of appreciation”, and the lack of universal consensus on basic human rights terminology and their enforcement. As long as States can ignore commonplace violations of human rights (sporadic instances of torture, occasional “disappearances”) and shun the edicts of human rights judicial decisions, there can be no effective system of international human rights enforcement. Currently, unless a State commits such outrageous acts on a mass scale that affects world peace, such as in Yugoslavia and Rwanda, it can often evade its responsibilities under international human rights treaties.

There are few international agreements that admit of universal jurisdiction for their violation by any State in the world. All CIL, however, is by its very nature prosecutable under universal jurisdiction. “Crimes against humanity” (e.g., War Crimes, genocide, and State-supported torture) are universally held to be under universal jurisdiction, typically in the International Court of Justice, ad hoc war crime tribunals, and the new International Criminal Court.

While interpretive gaps exist, it is not inconceivable that the right to a healthy environment can be extrapolated from current international environmental treaties and CIL. At the treaty level, the protection of the environment appears to be of paramount importance to the international community. At the level of CIL, there is much evidence that the right to a healthy environment is already an internationally protected right, at least as far as trans-boundary pollution is concerned. In any case, it seems to be universally held that it should be protected as a right. The impression is that there is an unmistakable consensus in this regard. “Soft law” over time becomes CIL.

The U.N. World Commission on Environment and Development released the Earth Charter in 1987. It has yet to be fully implemented on a global scale. Its broad themes include respect and care for the environment, ecological integrity, social and economic justice and democracy, nonviolence and peace. (60) The argument can be made that by now, protection of the environment has reached the threshold of Customary International Law. Whether the nations of the world choose to thereafter recognize the right to a healthy environment as a jus cogens human right will depend on the near universal consensus and political will of most of the nations of the world. Until then, as long as human life continues to be destroyed by “human rights ratifying” nations, how much enforcement will be employed against violators of environmental laws when the right to a healthy environment is not upheld as a basic human right remains to be seen. It will take the cooperation of all nations to ensure that this becomes a non-derogable, unalienable right and recognizing it as essential to the Right to Life.

1. Restatement (Third) of the Foreign Relations Law of the United States, § 102 cmt. k (1987).
The elements can also be found in the Vienna Convention, Article 53.
2. For example, the Right to Life, to be Free from Torture, Genocide, and Murder.
3. R(3d)FRLUS § 102(l)(a) and cmt. h.
4. Id., § 702 (my emphasis).
5. Mark W. Janis, An Introduction to International Law 6 (3d. ed, Aspen Law & Business 1999).
6. R3dFRLUS § 102(2).
7. Janis, supra.
8. David Hunter, et al., International Environmental Law and Policy, p. 306 (2d. ed., Foundation Press 2002).
9. Paul Szasz, International Norm Making, in Edith Brown Weiss, Ed., ENVIRONMENTAL CHANGE IN INTERNATIONAL LAW (1995), as quoted in Id, p. 307.
10. Id.
11. Id.
12. Id.
13. R3dFRLUS § 102(l)(c), as presented in Donoho, supra.
14. Supra, R3dFRLUS §102(4).
15. Shabtai Rosenne, Practice and Methods of International Law 69 (1984), as quoted in Hunter, Id, p. 317.
16. Hunter, supra, p. 316 (Foundation Press 2002).
17. Id, p. 316.
18. Janis, supra, p. 29.
19. Id, p. 312.
20. Jonathan Charney, Universal International Law, 87 Am.J.Int’l.L. 529, at 543-48 (1993), as quoted in Hunter, supra, p. 322.
21. Id.
22. Gunther Handl, The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development, 92 Am.J.Int’l.L. 642, at 660-62 (1998), as quoted in Hunter, supra, p. 324.
23. Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 110-119 (1995), as quoted in Hunter, Id.
24. Id.
25. Id, p. 659.
26. Amedeo Postiglione, The Global Environmental Crisis: The Need for and International Court of the Environment, ICEF INTERNATIONAL REPORT at 33-36 (1996), quoted in Hunter, supra, p. 495.
27. Id., p. 496.
28. Id.
29. Id, p. 1298.
30. Id, p. 1299.
31. L. Henkin, “The Human Rights Idea”, The Age of Rights (reprinted in Henkin, et al., Human Rights, 1999), as presented in Donoho, supra, p. 14-16.
32. Id.
33. Id.
34. The Right to Life, p. 310 (The Hague, 1983), quoted in Hunter, supra, p. 1297.
35. Hunter, supra, p. 341.
36. Id, p. 1299.
37. Id, p. 1294.
38. Id, p. 1295.
39. Black’s Law Dictionary, p. 864. (West 1999).
40. Hunter, supra, p. 339-341.
41. Id, footnotes 1 through 6, pp. 341-342.
42. Id, pp. 317-318.
43. Id, p. 345.
44. Id, p. 342.
45. Id, p. 315.
46. Id, p. 344.
47. In particular, see pages 35, 38, 159, 162, 177-199 and 221 (Scribner 1997).
48. New York Law Journal, January 1993, Friday, ENVIRONMENTAL LAW, p. 3. See also, DISCUSSION: REFLECTIONS ON ENVIRONMENTAL JUSTICE, 65 Alb. L. Rev. 357, 2001.
49. Hunter, supra, p. 526.
50. Id, p. 527, quoting Richard Benedick, Ozone Diplomacy 2 (1998)
51. Id, p. 532.
52. Id, p. 535.
53. Id, p. 542.
54. Id, p. 545.
55. Id.
56. Id, p. 550-54.
57. Id, p. 562.
58. Id, p. 559.
59. Id, p. 566-67.
60. Roland Huber, International Environmental Law Seminar: Human Rights and the Environment, p. 24, in Donoho, Douglas L., INTERNATIONAL HUMAN RIGHTS (printed by the Shepard Brad Law Center, Nova Southeastern University, 2002).

Manuel Pérez-Leiva, J.D., LL.L./M.
Miami Beach, Florida
August, 2002

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Comparison of the Traditional English Laws & European Community (EC) Laws on Jurisdictional Values

Introduction: This paper endeavours to compare the traditional English law and the European Community (EC) law on jurisdictional values, in that, it seeks to understand and elucidate why the former set of jurisdictional rules value flexibility and justice while the latter values certainty and predictability vis-à-vis the other. It shall analyse their historical or political background, their objectives and bases for assuming jurisdiction. It shall highlight the areas of differences between these jurisdictional regimes with the assistance of authorities like significant Court cases and books that have besides explaining or simplifying the law have also helped its evolution.

Definition: The word ‘Jurisdiction’ can have several meanings, but if understood in context with the Court of law it generally means the ability or authority of a particular Court to determine the issues before it on which a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court’s ability to address the issues in a given matter.

Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is certainly an area of concern not only for the international trade or business (who may be put in an invidious position where they are unaware of the extent of their liability) but also the sovereign states that seek to trade with each other without having to spoil their amicable relationship.

The English Law: The English legal system (having the common law at its core) has had and still continues to have a formidable place in expounding the law on several issues, mostly due to the availability of intellectuals and experts that have helped it in doing so.

Traditional English law (the common law) is basically the case laws that have over period of time become an authority with regard to the matter determined therein. Prior to entering the European Union (EU) by signing the document of accession in 1978, in the U.K, along with the judge made laws, even legislations played a significant role though it may have been more or less remedial in nature. However, it seems logical to allow the judge made law to test the legislation whenever it is so required by the change in circumstances which can be given effect to with relative ease as in comparison with the legislation process.

Before the advent of the Brussels/Lugano system and the Modified Regulation the traditional rules were applied in all cases, and it is their historical roots that make it appropriate to refer to them as the traditional English law/rules.

The jurisdiction of English courts is determined by different regimes:
1. The Brussels I Regulation (hereinafter the ‘Regulation’) (an amended version of the Brussels Convention but notwithstanding the amendments it applies a similar system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.

There are other sets of rules on jurisdiction like the EC/Denmark Agreement on jurisdiction and the those contained in the Lugano Convention; but their ambit is restricted in application to the cases where the defendant is domiciled in Denmark in case of the former and in an EFTA member state in case of the latter. There is also the Brussels Convention which applies to Denmark alone.

The EC law: In contrast to the traditional English law, the European Community seems to place more importance on the legislative work than the judge made laws. Apparently, for the EC, it is more important that the basic edifice of their legal system should be based in a codified structure which it defends on the grounds of ease of understanding amongst other reasons. Whereas, English laws seem to put more emphasis on having a common law or judge made law background. On this anvil, one begins to understand the differences that exist between the respective legal systems and their values, that is, a basic difference in the manner of approaching the issues even in cases where their objectives may be same.

The EC law on jurisdiction is more inclined towards the importance of predictability and certainty in the rules than towards matters like justice and flexibility as can be understood upon reading the 11th recital of the Regulation that states: ‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction must generally be based on defendants domicile and jurisdiction must always be available on this ground save in few defined situations…’

Whereas, the only mention of flexibility in the Regulation is contained in the 26th recital wherein it provides that the rules in the regulation may be flexible only to the extent of allowing specific procedural rules of member states.

According to the EC law on jurisdiction, it seems that this particular requirement of predictability is necessary for parties to a dispute to know exactly within which jurisdiction(s) they can sue and be sued. The EC law gives priority to the primary objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore makes it mandatory to uphold the strict accuracy to its principle while giving secondary status to the objective of justice for the parties. The EC law as well as the traditional English law may very well have their own justifications and reasons for following a particular system; but it is submitted that this seems to be not only a matter of difference in manner of approach or attitude but also a matter of prioritization of the objectives by both the EC law and traditional English law on jurisdiction. The list of cases mentioned hereinafter for the benefit of elucidating the topic under discussion are, as shall be evident, decided under the Brussels Convention which can be used for interpreting the rules under the Regulation.

Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The most significant difference that exists between the traditional English laws and the EC law on jurisdiction is the element of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Under the Regulation the assumption of jurisdiction is largely mandatory with the court not being free to decline jurisdiction; whereas under the English traditional rules the assumption of jurisdiction is discretionary.

The Regulation applies only to matters that are civil and commercial in nature and not to those that have been explicitly excluded from its application (for e.g. Cases pertaining to arbitration, succession, wills and bankruptcy have been excluded from the application of the Regulation). Whereas, the traditional English rules apply not only to cases that fall outside the scope of Art.1 of the Regulation but also to those that fall within its scope where the defendant is not domiciled in any member state and the jurisdiction is not allocated by any of the rules which apply, regardless of domicile.

A. In the traditional English rules the court has jurisdiction in three situations:
i. If the defendant is present in England (though the court may stay the proceedings on the ground that another court is a more appropriate forum). Jurisdiction under this situation is dependent on the presence of the defendant in the country whereby the claim form may be served to him.
ii. If the defendant submits to the court’s jurisdiction: wherein the defendant submits by not contesting jurisdiction or by arguing the case on its merits.
iii. If the claim falls within Practice Direction: (CPR PD 6B) (which is dependent on the court giving permission to serve process out of its jurisdiction) where the court considering England to be the most appropriate forum (despite of absence of reasons under i. or ii. on the basis of some connection between England and the defendant. There seems on a perusal of this provision, a functional similarity with Arts.5 & 6 of the Regulation.

B. Jurisdiction under the EC Law: Except for certain instances where the applicability of the EC law on jurisdiction does not depend on the defendants domicile (Art.22 Exclusive Jurisdiction and Art.23 Prorogation of Jurisdiction) the EC law on jurisdiction rests on the domicile of the defendant, and makes it mandatory for the court of a member state to determine the jurisdictional issues and other issues where the defendant is domiciled in its jurisdiction.

The Brussels Regulation does provide for instances where the defendant can be sued in another member state though he is not domiciled in that particular state; but these cases have been very explicitly outlined in the regulation leaving little or no scope for the exercise of discretion by the judge. However, Art.4 of the Regulation provides that a member state can (subject to the provisions in Articles 22 and 23 of the Regulation) exercise its traditional laws on jurisdiction in cases where the defendant is not domiciled in any of the member states. This provision while giving scope for the applicability of the traditional rules has at the same time also given rise to the idea that there is now only one source of jurisdictional rules, namely the Brussels Regulation.

C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing an action in England, the claimant has to prove that it is the forum conveniens, that is, the matter can be tired therein in the interest of justice; and the relevant factors in considering this are the same as under forum non conveniens. Forum conveniens is determined in two stages, namely:
i. Where in the 1st stage the claimant should show that England is an appropriate forum (considering, among other things, the nature of dispute, issues involved and in cases where relevant, the availability of witnesses.
ii. At the 2nd stage the claimant must establish that even if there is another forum, justice will not be done there, showing thereby that England is the more appropriate forum.

However, England may not be the appropriate forum where the claimant will only be deprived of some legitimate personal or juridical advantage like a higher compensation award.

Mandatory rules under EC law: Unlike the Traditional English rules, under the Regulation, if the court has jurisdiction under any of the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the grounds that some other court is best suited to determine the matter, showing the mandatory nature of the rules.

In case of lis pendens (Art.27) or proceedings in 2 or more states (Art.28) the Regulation gives precedence to the court first seized (Art.29 & 30) regardless of the actual jurisdiction being in the court 2nd seized.

These rules are mandatory in so far as they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the grounds of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the reason for such mandatory compliance is the promotion of legal certainty and predictability and the free flow of judgments amongst the member states on the basis of the codified rules in the Regulation which are not dependent on any judge’s discretion.

2. Forum non conveniens and lis pendens:

A. Forum non conveniens: Jurisdiction under the traditional rules also depends on whether the court shall decline jurisdiction or stay the proceedings. An English court shall in determining jurisdiction under its traditional rules try to ascertain which is the more appropriate forum and may even stay its proceedings in cases where it thinks that another forum is best suited for the case and in doing so it employs what may be called the basic test i.e. whether it is in the interest of the parties and would meet the interest of justice.

However, it was the Spiliada Case which promulgated another test i.e. ‘the two stage test’ for deciding the more appropriate forum for determining the case before the court. Where the court considers, in the 1st stage which is prima facie the most appropriate forum (burden being on the defendant) on the basis of connecting factors like: (territorial connection) place where the parties reside, the law applicable, the availability of witnesses (if any), balance of convenience (applied in Spiliada itself) and where proceedings between the same parties arising out of the same dispute are pending before a foreign court, show how long the trial has been in existence which would be a strong argument in favour of forum non conveniens where such case is on the verge of resolution one (unlike Art. 27 of the Brussels Regulation, the traditional rules do not endorse a simple ‘first come, first serve’ approach) and whereas in the 2nd stage (burden shifting on the claimant) upon considering the relevant connecting factors it thinks that the dispute is more closely connected with a foreign court.

B. Lis alibi pendens: The doctrine of Lis Pendens under Art.27 of the Brussels Regulation makes it mandatory for the court which is second seized (in proceedings having same cause of action and same parties and the dispute is before the courts of two or more member states) to stay its proceedings in favour of the court first seized until such time till the latter has not established its jurisdiction notwithstanding that the court second seized may actually have prima facie grounds for the exercise of its jurisdiction (For example: Arts. 22 and 23).

In contrast to the traditional English law, the Brussels Regulation gives absolutely no discretion to the judge to stay its own proceedings and grant jurisdiction in favour of another court on grounds of availability of a more appropriate forum. For instance, in the Owusu case wherein the European Court of Justice held that Brussels Convention precludes a Court of a contracting state from declining jurisdiction conferred on it by Art.2 on the ground that a court of a non-contracting state would be more appropriate forum for the trial of the action even if the jurisdiction of no other state is in issue or the proceedings have no connecting factors to any other contracting state. This regardless of the fact that the person putting up a plea of forum non conveniens is able to prove that he may not be able to secure justice in a foreign court or that he is in fact devoid of any access to effective justice.

The doctrine of Lis Pendens may seem like a simplified manner of approaching simultaneous proceedings in different courts vis-à-vis the doctrine of forum non conveniens which is dependent on the judges discretion; and also seems logical in cases where there could be a possibility of having two conflicting decisions as may happen under the traditional rules. At the same time it also seems arbitrary in that it makes mandatory for the court first seized to decide upon its jurisdiction before the court second seized, regardless of any pressing evidence adduced that places jurisdiction elsewhere.

The doctrine of lis pendens seeks to support the object of the drafters of the Brussels Regulation which is to promote confidence in the internal market, to reduce disparities between national laws on the jurisdictional front; and to strengthen the belief of persons domiciled in the member states under the present jurisdictional set-up, so as to safeguard their legal and large monetary interests and this in turn leads to the creation of legal certainty which view or observation is supported by several bearers of intellect in the concerned field of study.

Art. 27 of the Regulation requires the court second seized to stay its proceedings until the court first seized has established its jurisdiction. This provision seems to give ample room for parties to commercial matters in particular to take advantage of the loopholes available in the legal framework established under the Brussels Regulation which is best explained by explanation of the term ‘Italian Torpedo’.

Art. 27 while intending certainty has ended up providing an avenue for a rat race of sorts to the court house for the parties having a dispute in civil and commercial matters as well as those that wish to obstruct the course of justice. A party seeking to prolong the outcome of the dispute can approach the court of a member state which otherwise on the merits of the case may not have the requisite jurisdiction to hear it (e.g. Italy); and where the hearing and official determination of only the jurisdictional issues may possibly take long enough to frustrate the objectives of the party seeking an early resolution or remedy for the mischief of the other party.

In the Transporti Castelletti case where a Danish shipping company had to contest a jurisdictional issue before the Italian court for eight years when the receiver of the cargo under its Bill of Lading brought proceedings in Italy this notwithstanding the fact that the Bill of Lading which it delivered to an Argentinean shipper for voyage from Argentina to Italy had explicitly mentioned a ‘choice of court clause’ favouring England. This outcome does beg the question if there are any provisions that guarantee a fair and speedy delivery of justice. This requirement seems to have been overlooked even by the European Court of Justice, specially, with regard to the lack of efficiency which the Italian courts have shown in dispensing speedy remedies.

This issue was once again put to test in the Erich Gasser GmbH v MISAT Srl which was pertaining to patent rights and also involved a ‘choice of court agreement’ (Art.17 of the Brussels Convention) whereby the parties are free to choose which court shall have exclusive jurisdiction or if the parties require they may even make it a non-exclusive jurisdiction clause by stating the courts that shall have jurisdiction.

Gasser an Austrian firm and MISRAT an Italian Company had submitted to the exclusive jurisdiction of an Austrian court by virtue of statement granting jurisdiction to the Austrian court contained in all invoices transacted under by the parties. But knowing that there was a possibility that Gasser may file a suit under the choice of court agreement, Misat with the intent to prolong the proceedings and the outcome of the case sought to invoke the jurisdiction of the Italian court and filed a suit there thereby making it the court first seized of the matter.

The case was pending before the Italian court for a period of eight years simply to have its jurisdiction established though it could be seen from the invoices transacted between the parties to the dispute that there was an explicit clause which was as per the provisions of Art.23 namely, i. the agreement was in writing; ii. in form with accords with practices which the parties have established between themselves; or iii. in international trade or commerce in a form which accords with a usage of which the parties are ought to have been aware and which is in widely known in such trade or commerce or regularly observed by the parties to the contract of the type involved in the particular trade or commerce.

3. Preclusion of jurisdiction under the English Law and EC law: Under the traditional English law, when the court finds itself to be the more appropriate forum it may grant an anti-suit injunction i.e. an injunction restraining a party from instituting or pursuing proceedings in another court, which is generally sought by defendants in foreign proceedings praying that the matter be decided in England where the grounds for injunction can include: unconscionable behavior, ends of justice and contractual reasons i.e. arbitration agreement.

In contrast to the English law under the Brussels Regulation the court 1st seized will determine its jurisdiction first and the courts 2nd seized shall (despite having jurisdiction over the matter on all relevant grounds) stay its own proceedings and not be permitted to issue any anti-suit injunction and will have to await the determination of jurisdiction by the court first seized. This despite the fact that the proceedings in the court first seized might be brought in bad fait and to frustrate the proceedings of the court second seized. (Based on the view of the ECJ that the states must trust each other, which seems like allowing the interest of justice in favour of an individual, as in Turner v Grovit to be overlain by the interest of the state)

Scope of jurisdiction in recognition and enforcement of judgments: A court cannot recognize or enforce a judgment without the requisite jurisdiction. The set of rules applicable would depend primarily on the country where the judgment was given. Recognition under the traditional law operates without impediments as regards judgments from many countries including many of the Middle Eastern countries, the non-common wealth countries including therein the US, Asia and Africa. Enforcement under the common law is dependent on bringing ordinary proceedings, whereas, the statutory regimes require specific procedures i.e. Registration.

In contrast to the English law, under the EC law on recognition and enforcement contained in Chapter III of the Regulation, jurisdiction is available only in civil and commercial matters; where the judgment is given by the court of a member state, the EC law will only give recognition and enforce those judgments that are given under the Regulation. Where unlike the common law there is no special procedure for recognition and enforcement; yet the number of defenses, are limited.

Critical Analysis: One critical aspect in favour of forum non conveniens is the noble and paramount objective namely, the interest of justice, which would have rightly served the need of cases like Gasser and Turner v Grovit had the objective of the EC law been so. In that, the requirement of maintaining comity amongst nations is given preference over doing justice to the parties, a codified structure and interpretation thereof seems to overrule the requirement of practicality and logic.

Due to cases like Gasser, there is a possibility that the reasoning of the European Court of Justice may be able to change the meaning behind the maxim pacta sunt servanda giving rise to instances where the terms contained in the express contracts like, jurisdiction agreement may be ignored or subverted in pursuance of sinister objectives like causing delays; frustration of commercial enterprise and cause heavy losses.

There are certain provisions in the Regulation (for instance Art.22 (4)) that run contrary to the objective of the EC law as stated hereinbefore, while leaving many questions unanswered. It may also be argued that the definition of lis pendens in Art.27 is quite technical and mechanical, being hinged on the 1st seized rule implying a first come first serve basis of justice, whereas in the traditional English laws there is no requirement of a definition; can deal with most problems with the help of discretionary rules. But matters like anti-suit injunctions under the traditional rules run contrary to modern objectives like comity of nations

The Regulation excoriates the application of the domestic laws on jurisdiction by member states under circumstances where the Regulation is applicable. Though the intention is to help parties to civil and commercial matters discern their rights and liabilities lie; but in doing so the EC law has in fact taken away much of the English Court’s discretionary power, as is evident from the outcome of the Owusu case.

Conclusion: It is submitted that it is not only the difference of attitudes or manner of approach that differentiates the traditional English law and the EC law on jurisdiction; but also the nature of these rules which as regards the EC law on jurisdiction is mandatory unlike- the traditional English law which is discretionary.

There have been instances wherein, on the basis of the traditional rules on jurisdiction, the English Courts have assumed jurisdiction in cases where it was clearly not the most appropriate court as per its two stage test promulgated in the Spiliada case; yet for the purpose of doing justice to the parties therein it has even given legal aid to the South African citizens on the English tax payers account, which in itself goes to show the extent to which the English court can be flexible.

The objective of the traditional rules is clear i.e. achieving justice for the parties to a dispute regardless of any set parameters; but this very factor makes a party to a commercial dispute uncertain of the jurisdictions it may or may not get sued in, which contingency the Regulation endeavours to clarify for the purpose of achieving its objective of building confidence in the European commercial market.

In light of the foregoing observations, it is submitted, that the traditional English laws do in fact prefer or value flexibility and justice over certainty and predictability, whilst the EC law on jurisdiction prefers or values certainty and predictability over flexibility and justice to the parties which is predominantly due to the inclination it has towards their respective objectives which mandates the said preference or prioritization.

The author practices primarily at Mumbai; after some litigation work and private practice, is presently working with ICICI Bank (CLG- GTSU) as their Legal Manager. He has a LL.M in Int. Commercial Law from Nottingham University, U.K. The author also has other published articles to his credit i.e. “Treatment and Protection of Witnesses in India” “Sexual Harassment and Rape Laws in India” and “Suicide and Euthanasia – An Overview”.
Contact Details: dhruv_d_desai@rediffmail.com.

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Why Fear Laws When You Can Make Them Your Friend?

It is a universal truth that human civilization always needs a ruler. Without a ruler, no civilization can exist. Even the greatest civilization breaks, when the ruler becomes weak. The human beings had been ruled by every possible being in the past. They have been ruled by kings, queens, dictators, Bishops, Priests, Prophets, dacoits, thugs, communists or elected representatives. Yet all the rulers had been human beings whom we could know and identify.

The modern world is ruled by Laws instead of human beings. Most civilized nations take pride in claiming that they have the rule of law instead of the rule of any individual. Laws have become so supreme that even the real rulers like Presidents and Prime Ministers are supposed to be subordinate to it. Thomas Fuller, an English churchman and historian rightly expressed the ethos of rule of law in the following words

“Be you ever so high, the law is above you”.

Law is considered to be impersonal as it can be written in words and codified in the law books. It gives a feeling to the citizen that everyone is equal before the law, be it the President/ Prime Minister of a country or an ordinary person. Good people respect laws as they believe that the laws are made for the benefit of the society while the criminals break the laws to make fortune for themselves.

Yet everyone suffers in the hands of law which cannot be seen or heard. Laws have become like a prison that is suffocating the modern man. There is hardly any act of joy or happiness which is not prohibited by one law or other. Hence the law abiders lose happiness as they have nothing to enjoy by following the law while the law breakers lose happiness since they always fear that the long hand of laws can catch them and punish them.

It is a great ignorance of human beings to treat laws like an innate object that lacks human qualities. In reality, laws are like any other human being and your relationships with law would depend upon your understanding of the law. Let us discuss the human attributes of laws.

Law is a Friend

Most people abide the laws particularly in developed countries as they find laws friendly and useful to the society. They know that if everyone follows the law, the society would become much better and happy. If you abide laws, you shall find law as your friend which shall always help you in having a happy life.

Law is an Enemy

Often we find that the laws work like our enemy as it conflicts with our aspiration. If you are a poor man and you are not entitled to any right by the law, you may find laws as enemy as they do not allow to live you a respectable life. If you try to steal or try to earn a living by illegal method, you are branded as criminal and put behind the bars.

Law is a Guide

For many people, law acts as guide since laws tell them the difference between the right and wrong path. If they follow the legal path, they generally end up becoming good citizens and good human beings while following the illegal path make them evil before the world and before the Lord.

Law is a Philosopher

There may be hundreds and even thousands of laws in a country on different topics. Yet all laws have a common philosophy and spirit. If you know the laws of a country you know the philosophy of its people. For example, the countries who give death sentence for murder have a different philosophy than those who do not have capital punishment. Thus laws can be treated like philosophers of the nation and one who wishes to live a happy life must understand the philosophy of laws of his country.

Law is a Master

You can see law as a master who enjoys the tremendous power in every civilized society. After all, law is considered to be even superior to the Kings and Presidents. Yet the implementation of laws is not the same in all counties. In many countries laws are implemented strictly and we may find law as a cruel and heartless master while in other countries laws are taken for ride by the citizens and here you can see the law as a weak master.

Law is a Slave

If you are intelligent, you can also use laws as a slave who is always willing to serve you. It is a fact that all riches of the world goes to a person who can make the law as his slave. All kings, politician and wealthy people have enslaved the law. The difference between the king and subject, winner and ruler, rich and poor, powerful and powerless lies in enslaving the law for personal gain.

Know Law as a Human Being

We, therefore, find that laws are just like any other human being. They are different for different people. A kind father can be a ruthless ruler and loving husband. When law is supreme, it is always better to understand laws fully so that we can take the best advantage from the ruler. Knowing the ruler completely shall also remove the fear of law from our mind and we shall become the master of law and not the slave of law.

Life is a mystery which can not be explained either by science or by scriptures. Truth has a body and a soul which we call science and religion. Contrary to popular perception, they are not opposed to each other but complement each other like body and soul. In fact, they can not exist without each other.

I am the founding member of The Science of Soul Foundation in India which works for the synthesis of the diverse disciplines of knowledge like science, religion, philosophy and arts. The website of the foundation is [http://www.scienceofsoul.com]

I am working for the creation of a synthesis between science and religion through my articles. I believe that everyone can understand this Truth by the use of intuition and reason. You can contact me at aksinghirs [a] yahoo.com if you wish to know more about the mystery which we call life.

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The Laws of Life

The Mystery of Life’s Purpose

At some point in each individual’s life on Earth they undoubtedly and eventually come around to question their purpose for existing. The basis of this profound question usually begins with thoughts centered around- the reason why am I here, and my purpose in what appears as an experiential journey through this mystery we call life.

Many of us have experienced these seemingly bizarre moments of life in which we find ourselves reaching for answers to help solidify our existence permitting us to feel as though we are not building our lives on sifting sand. Although these moments in life allow for a conscious awakening that demands our attention, they are often masked or shrouded throughout our lives as momentous events.

It does not always happen this way because many apparently mundane moments within our lives carry the seed of questions yet unanswered- and if we look closely, profound answers are lovingly contained in those special moments of time. Having exposed in a previous article, Timewave Zero the premise that our universe and all within it is being sourced continuously from the same fountain of life through cycles, it surely makes plausible sense to conclude certain natural laws of life govern our existence and could very well offer solace in a turbulent sea of life’s questions. It is through the proper understanding and personal application of these “Laws of Life” that enable us to live life fully in the moment appreciating the journey of life right where we find ourselves at any given moment, in the Now. However, it must be added, we still live in a delicate world that requires of us to plan for a future while co-existing in the moment.

Could these well defined universal Laws of Life help us better understand life’s mysteries while at the same time provide a solid foundation upon which we can receive direction and answers? In short, the answer is yes! By applying a level of understanding and reliance upon these laws of unwavering reliability we may soon find ourselves aligned with powerful forces which conspire to lift our lives higher up the ladder of joy.

If we could accept that all possibilities exist in the present moment and remain focused in the Now of life, consciously allowing the Laws of Life to freely operate through us, we would soon recognize that we are in a co-created world which we have personal responsibility for bringing into existence. It is through these simple Laws that we are building a new Earth as we become receptive to our ultimate purpose for life itself. We are powerful co-creators and life is our school and playground too.

The Power of the Four Laws of Life

I would concede there are many Laws of Life; however in this post we will turn our focus only upon four important master laws that birth all the others. Given that all life within the universe of creation is encapsulated within the boundaries established by certain laws, some known and some of these we are just starting to unravel and comprehend.There are four basic, universal laws of utmost value for human life and these are the one we shall address.

It is through our understanding and application of the wisdom contained within these four Laws of Life that will determine our experiences we will entertain throughout or lives. During our lives many of our questions arise through the awareness of the very contrasts that exist having been created by the choices we made. Some of these experiences are on an individual basis while others can be experienced by the entirety of those on Earth.

Our collective (or individual) reaction to events which create our life experience are needed thus enabling us by way of contrast between various experiences to question what it is we then want to experience. Combine life’s cyclic movement and how we experience it with understanding the four Laws of Life- The Law of Love, The Law of Gratitude, The Law of Cause & Effect and The Law of Attraction you find many of life’s poised questions and formerly out-of-reach answers become vividly obvious.

Before we get into each of the Laws, it would be good to know that these laws are immutable and one cannot “break” them in the process of life here as we operate within the parameters of Free-Will. You may by choice either consciously or unconsciously turn against any of these fundamental Laws of Life and your life experience would reveal that something was “amiss”, essentially out of balanced alignment. If your course in life was not adjusted through the questioning/answer process we all go through, your subsequent experiences would become more amplified while the essence of your life experience would remain the same.

We have all heard the question phrased this way: “Why does this always happen to me?” Read on to discover the nature of these four Laws of Life and how to recognize their individual signatures in your life. Upon gaining a more thorough understanding of how they permeate all facets of our lives, we become internally empowered to co-create our own lives, and indeed our world at the same time through the infinite power residing in these Laws of Life.

The Law of Love

It is often said and conceptualized that “God is Love”. In the scale of humanities expression of this concept, for now it, falls dismally short and understandably so. Our human reflection of this first Law of Life- The Law of Love can be a very difficult one to express in such a way to foster a genuine flow of this all encompassing power. Generally, human expression of Love is often limited and in the worst case, conditional. I’m not trying to convey human love in all its beauty and shortcomings but rather the first source of the Law of Love that empowers us by attempting to express love through a filtered, human perspective.

While we may feel like love is a by-product created by something that is precipitated by an external influence, in truth, we embody the Law of Love by allowing Unconditional Love to forever flow through us. This powerful Law is never removed from our access, only by not allowing does it appear lost. It is only through this understanding or at least recognizing this limitless source of Unconditional Love is the originating source of our human expression of Love.

“Unconditional Love is the Law of Love”

Like all the Laws, Unconditional Love is pure energy and is present throughout the entire universe from the greatest to the least of creation. The Law of Love is the building block which binds all of creation together and we in human form can either allow or disallow it to be active in our lives. When you allow the Law of Love to govern your actions you have become unattached to preconceived or forced outcomes having released your will and allowed acceptance of what already is. The Law of Love binds all of us together by unifying opposites into one; and when we apply this truth the false human condition of perceiving everything as separate from us falls away opening our hearts allowing the Law of Love to freely operate.

By practicing an open heart especially in situations needing resolution that seem utterly impossible to overcome, all of a sudden they are transformed by the Law of Love. The Law of Love teaches us we cannot experience utter joy while holding onto resistance through non-acceptance of our experiences. Letting go allows the Law of Love to flow and offers answers to those difficult questions of life. The Law of Love- Its part magic and part energy science.

“Unconditional Love is the only truth everything else is an illusion”

The Law of Gratitude

Much like the Law of Love, the Law of Gratitude exists as a by-product of having an open heart. This Law is the key to unlock greater well-being and abundance in your life. One great reason for allowing the Law of Gratitude to flow in your life is because it will promotes endorphin chemicals to be released within the body affecting every cell promoting feelings of optimism, relaxation and happiness. By your body releasing endorphins, simultaneously stress hormones called cortisol and norepinephrine decrease rapidly.

That alone could be reason enough to daily apply the Law of Gratitude; feel great and automatically become healthier! Further abundance comes from the assurance of knowing you are an important part of expressing gratitude, so have compassion on yourself and acknowledge your greatness. If you focus on the personal gifts you have been given along with other points of gratitude, you cannot help but notice that it’s impossible to contemplate negative emotions at the same time.

To understand gratitude is to comprehend opposites since this is how the most powerful, beneficial effects are experienced. This Law is often expressed as an “attitude of the mind” and that is true to a degree. Actually, the Law of Gratitude is initiated from the heart then our mind follows adding imagery to the momentum reminding us of more to be grateful for if we will allow the process to unfold. We sometimes misunderstand the real meaning of gratitude and its expression simply because we again need an opposite or opposing viewpoint to posses the ability to identify that which we are grateful for. It is commonplace for most of the population to identify what is absent in their lives rather than go deliberately in the opposite direction into a treasure chest full objects worthy of appreciation, thankfulness and ultimately reflect gratitude for each.

For example, by recognizing the absence of something you appreciate, you bring a defining clarity that easily produces gratefulness for its existence- no matter what or where the object is, physical or non-physical. Even thoughts can remind us of the Law of Gratitude at work in addition to the more common sources- those outward, visible objects of appreciation or thankfulness. By a conscious and deliberate daily practice of the Law of Gratitude brings us into a renewed optimism and appreciation for all of life while banishing the power robbing opposites of fear, anger and other negative emotions. Every acknowledgment of gratitude for what you have is rewarded by awareness of more to be grateful for and anything you want in your life originates by the law of Gratitude. Your choice should be clear, allow the Law of Gratitude to flow more abundance of joy into your life.

The Law of Cause & Effect

This is one of the most misunderstood Laws of Life due to the belief that all events are predestined to transpire as a result of some previous action. It is true from the standpoint of action-reaction that expectations of future events should come to fruition if no alternative adjustments are made, simply because the root cause was set in motion. A belief that even if root causes are altered by a future event, they cannot alter one’s destiny can lead to fatalism whereby you resign that all is predestined and alteration is impossible. This is an error and is to be avoided in the mind as it has no basis in how this law operates.

The Law of Cause and Effect also known in the Buddhist doctrine as karma, ascribes that an individual’s present condition is a reflection previous life choices and these decisions could even encompass many past lifetimes of accumulation. In Hebrew doctrine this is expressed as a generational curse and in some way is related to parental DNA inheritance. It important to note regardless of doctrine, we have the power to override any possible predispositions through our current actions and emotional/mental state. Therein lays the beauty of the Law of Cause and Effect.

One of the best ways to allow this powerful trans-formative law to flow through your life is to apply the Golden Rule seeded into your heart. Doing so from the perspective that not only will you personally benefit greatly, but also the world around you will as well. Karma or, the Law of Cause and Effect can carry a bit of foreboding if ignored because if abused, time will take its toll surfacing into events and the scales of life will become balanced. Again, the accumulation of past deeds only instigates the flow of this energy and it is malleable. This forceful energy exists in both polarities and is experienced as what could be deemed as positive or negative actions-reactions.

“As you sow, so shall you reap”

This law’s application is easily practiced when we deliberately aspire to give away that which we seek for ourselves. Whatever form of energy we radiate regardless whether they consist of thought-forms or physical actions, the Universe responds accordingly. This is because- that which is like unto itself is drawn forth into existence. So, consider your thoughts and following actions. Much in the same way the Law of Gratitude operates, if you want more of anything like love, friendship, good health etc. give these away from an open heart and watch as the Universe responds in kind.

When this law is firmly rooted into your being through you heart you need not be concerned to police your thoughts as this process soon becomes automatic just like breathing. As most of us primarily exist in the 3rd dimensional Universe, we need not overly concern ourselves that the Law of Cause and Effect response time is immediate. Fortunately for now, there is a delayed response; however, you may begin to notice as you set this law into motion that your awareness can jump quickly and you begin to notice its effects are sometimes near instantaneously occurring in your life as well as others. When this is observed, know that you are receiving information from the 4th dimensional realm.

To experiment with this law at an observational level, pay close attention to events that are now transpiring on Earth. Pick any category- politics, economics, social changes, geophysical changes etc. all these are exponentially unfolding at an ever increasing repetitive pace. These action-reaction events can in many ways be associated with cyclic action playing out through the Law of Cause and Effect. For the purpose of life’s direction regarding the power and influence of the Law of Cause and Effect, one should come into agreement that we are through our willpower, are an active, interconnected participant and what we do in fact causes a ripple in the pond of life and the lives of others. As you build your own experiential evidence you become acutely aware of this law’s power because whatever you believe becomes your truth and that sets in motion elements of your life displayed and played out through the Law of Cause and Effect.

The Law of Attraction

I suspect that nearly anyone who has a passing interest in self improvement or is driven in the hope to find the magic “potion” or “spell” to live a specific life, has encountered the basic idea of the Law of Attraction. It is no shock that a whole industry has arisen attempting to cash-in financially with the ever expanding popularity of this subject. If this is what it takes to help some of us come to the realization that we each are endowed with the power to transform and actually co-create or world, then this is a great beginning.

This Law of Attraction states that whatever you focus your attention on with a higher degree of emotional energy and do not have a conflicting opposite thought on the subject, that energy will amass to the point where the essence of the desire will establish itself in your life. It could also be summarize as- That which is like unto itself is drawn.

There is an ever expanding knowledge-base derived from quantum theory that affirms the validity in the fundamental aspects of this law. While this law is by far nothing new, because the Universe is the designer and it has been in operation since the dawning of creation. We are seeing on a global scale, the infinite power contained within this law and I suspect, it has and is being used to direct the thoughts of those who are unconscious of its ability to deliver whatever one focuses their thought on (given the correct application) into a world that is of their design and desire.

There is also very good evidence to suggest that a large portion of the “2012 shift” relates to our awakening into a scientifically based realization that we are fully able on a global scale, to transform this planet into one that the majority of the Earth’s inhabitants would call heaven. The amazing point in the Law of Attraction is that all physical manifestations are first birthed by emotions, then thought. This does make sense as emotions are really energy-in motion. In the purest way, when thought is intensely and passionately focused its essence coalesces into our reality.

“Ask and ye shall receive”

What many do not understand while attempting to apply this law, it that your conscious AND subconscious thoughts each play a significant role in the speed at which the desired outcome appears. The Law of Cause and Effect are not far removed from the Law of Attraction. Both are similar laws, just like the two conscious and subconscious minds are involved, both laws operate in harmony with each other. You can apply the creation power encapsulated in this law by the very act of become a deliberate thinker. Emotions that surround thoughts are the primary indicator of what you’re beginning to create and will eventually show up in your life. This emotional component is a wonderful tool that is indispensable in knowing the direction and eventual outcome of what you are inviting into your life.

There is responsibility associated with wielding this law in unnatural, manipulative ways. The universe does not judge nor filter end results of what is delivered. In time, you will always receive the essence of your thoughts. And just like the non-instantaneous manifestation of thought-forms in operation within the Law of Cause and Effect, the Law of Attraction provides a built-in, indisputable guidance system in the form of emotions. Be aware of how your thoughts make you feel when focusing on that which you want to create. When those thoughts feel good, you are in agreement with your desire and intentions; when feelings do not feel so good, re-direct your thought back into a better feeling thought. In doing so, emotional energy remains amplified in the direction of your desire.

Finally, the speed at which thoughts physically are transformed into existence in our reality is determined by the level of agreement without doubts or conflicting beliefs to the contrary, and the proportionate level of emotional energy present. All these elements must be a match with each other and flow effortlessly in your life to have full effect.

Yes, it can be a fine balance to effectively and knowingly use the Law of Attraction and it presently requires our physical interaction to follow through with a higher level of active intuition to move things forward in their proper direction. This is never done in a forceful manner. In fact, the true full power is all in the balancing of our thoughts, emotions, and burning desire without any internal conflict for that which we want to create. The Law of Attraction is always at work, so be a deliberate creator and manage and choose thoughts wisely- thoughts eventually become things.

Conclusion

In the end, we are all willful creators in the world we personally experience and create on both an individual and collective level. There is great life-affirming power contained in these four Laws of Life and when you apply them or rather let them guide you life, those unanswered questions are diminished.

It would be wise to remember that now upon Earth there are many co-creative partners all bringing into creation their diversity of beliefs and desires. Soon we will hit a tipping point where as partners we will agree on key provisions that promote life on earth equitably rather than destroy life while maintaining an ever expanding universe governed by free-will.

Tim’s writing expertise and intuition for understanding arcane, non-mainstream subject matter including esoteric topics begun at the age of 14. It is through his expansive career in finance which affords Tim a unique ability to apply a professional, down-to-earth approach when writing about the science of spirituality.

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(c) Copyright 2010- Timothy Connolly, All Rights Reserved Worldwide.

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