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This article discusses how the Court of Justice of the European Union (CJEU) deals with international law issues. While the EU and the Court itself are often presented as being `friendly' towards international law, recent cases have shown a trend towards a more guarded approach by the Court. The article first examines recent literature on the CJEU's relationship with international law which demonstrates an oscillation between `openness' towards international law and an approach that emphasises the autonomy of the EU legal order. It then discusses what rules exist to guide the Court in determining its relationship with international law. To what extent do the EU Treaties, the legal traditions of the Member States or international law itself determine how the CJEU should deal with international law issues? The next part examines how the CJEU has dealt with international law in practice. The CJEU has progressively developed tools to limit the effect of international law, as it attempts to strike a balance between respect for international law and the need to safeguard the integrity of the EU legal order. It discusses some recent cases where the CJEU dealt with key international law issues in order to demonstrate how this relationship is shaped in practice. The final part seeks to understand why the Court seems to oscillate between an open and a closed approach to international law. It is posited that this can partly be explained by whether the Court is acting in its capacity as an international or a domestic court.

The title of this lecture plays a little with the title of the book—Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry—the publication of which we are gathered here to celebrate.1 At one level my title describes a chronological fact: that Alan Rodger's career began in the groves of academe before he moved to the realms of gold that led ultimately to the bench. I will try to explain why he made that transition, drawing on letters that he wrote at the time: not only the ones to his family much quoted in Judge and Jurist, but also some to his erstwhile doctoral supervisor David Daube now preserved in the Daube archive in Aberdeen University Library.2 The dating of the family letters, not always straightforward—in fact something of a palingenetic exercise—is, I think, significant. But I also want to discuss another point arising from one of the most striking features of Judge and Jurist: the contributions from the Supreme Court Justices on a range of aspects of Alan Rodger the judge.3 These are however only the beginnings, or so I want to suggest, of a full study of that subject. My observation is that the judge cannot be separated from the jurist. This is not just a matter of the use of Roman law in Alan's judgments.4 The intellectual discipline he developed as an academic researcher in Roman law informed the way he went about the business of judging. He himself told us as much, in a lecture he gave in Aberdeen in 2001,5 so I make no claims of a sudden, startling new insight; but I want to elaborate the nature of that intellectual discipline, and then illustrate his

The ECtHR's Grand Chamber judgment in the case of Al-Khawaja and Tahery initiated a tremendous amount of literature appertaining to the question of the extent to which the accused's right to confrontation can be limited. A large number of scholars commented on the implications for the rights of the accused, including recommendations that the Court should focus more on the underlying principles for the restriction of this right. This article will leave the latter questions aside and concentrate on a more practical issue by comparing the doctrinal nuances of Strasbourg's Grand Chamber judgment—which are regarded as a convergence of common and civil law traditions—with cases in other regional human rights jurisdictions, i.e. the UN Human Rights Committee and the Inter-American Court of Human Rights. Is the right to confrontation restricted more, or perhaps less, in other jurisdictions and is there a clear line? This article provides the reader with the necessary background information on the new doctrinal elements on the restrictions of the right to confrontation, which have been established by Strasbourg's Grand Chamber. It then uses these elements such as 'necessity' and 'counterbalance' and scrutinises cases of other human rights jurisdictions under these lenses. The results will show whether or not other human rights bodies would have decided differently if they had used the ECtHR's yardstick for their decisions.

Judge Abdulqawi Yusuf delivered the Keynote Address of the Second Annual CJICL Conference on Saturday 18 May 2013 at the Faculty of Law of the University of Cambridge. The Address was made possible due to the generous sponsorship of Brill-Martinus Nijhoff.

In the legal year 2011-12, the Supreme Court gave judgments in 18 cases which had a private law element, an increase from the number of similar judgments delivered last year. The question in Berrisford v Mexfield Housing Co-operative Ltd,1 one of the Supreme Court's most discussed judgments, was the interpretation of uncertain terms in a lease agreement. Under one such clause, the tenant had to give a one-month notice to terminate the lease while the landlord could terminate the lease by fulfilling other conditions. The Supreme Court, reversing the decisions of both lower courts, held unanimously that such an arrangement indicated an intention contrary to that of a monthly lease, even though the lease was described as being `from month to month'.2 Thus, the lease was for an uncertain term and would have been a tenancy for life,3 but for the Law of Property Act 1925 section 149(6), which converted the term to 90 years.4 Tenancy was also the subject matter in Solihull Metropolitan Borough Council v Hickin.5 The case concerned a joint secure tenancy under the Housing Act 1985 Part IV. The majority of the Supreme Court held that the law of joint tenancy mandated the conclusion that the condition of death of `a secure tenant' under section 89 of the 1985 Act was not satisfied if there remained one surviving joint tenant.6 Therefore, the daughter in this case could not succeed her mother in a joint tenancy under section 89 when her father, being the other joint tenant, was alive. In Jones v Kernott,7 another case concerning land interest, the Supreme Court, following the decision in Stack v Dowden,8 made clear that, in the absence of express declaration, the extent of interest in a matrimonial home financed jointly

It is notorious that in a common law system of adjudication, there are no categorical rules for the selection, at the appropriate level of generality, of the major premise from which there will proceed the chain of reasoning to the result. This is a significant matter, given that the result will differ if one major premise is selected rather than another. The point may be illustrated by looking back to the choice of the major premise by Dixon CJ and Williams J in their joint reasons in the Australian case of Thompson v Bankstown Corporation.1 In that case, a thirteen year old boy had sought to reach a bird's nest in a ledge in a decayed portion of a pole, erected by the respondent local government authority on a public road to carry high tension electricity wires. The boy received a severe electric shock. The Australian High Court restored a verdict in his favour which the intermediate court had set aside. The opening passage in the joint reasons reads

One wishes that the fate of war victims would be as promising as that of the scholarship on the law that ostensibly protects them, international humanitarian law (IHL). The two excellent books under review contribute significantly to the already flourishing academic IHL discourse1 in a manner that engages rather than discards that scholarship's `nemesis': state practice. The need to enrich the IHL discourse with state practice has already been suggested by Adam Roberts

Within the legal culture of the United Kingdom, despite its common law base, there is today limited room for judicial creativity, even in courts which deal only with appeals on points of law. This is partly because of the strict doctrine of precedent (the Supreme Court has vowed to follow the House of Lords' Practice Statement from 1966),1 but also because of the predictable mindset of our senior judges, who would not have reached the highest level of the judiciary if they were known to be non-conformist individuals who enjoy indulging in judicial flights of fancy. The legal changes which Supreme Court Justices advocate are always going to more evolutionary than revolutionary. The legal year 2011-12, which saw 58 sets of judgments issued by the Supreme Court, is a typical reflection of this reality. In most of the appeals, the Court's ruling took the form of the application of established principles to novel facts. Fewer than usual turned on the interpretation of legislation, but nor were there many instances of inventiveness in the application of the common law. Incrementalism was the order of the day. The Court was often required to clarify when a principle does not apply, a process which, in helping to shape existing law, still deserves to be classified as creativity of a sort.

J C Smith once asked whether English law could `really afford the House of Lords as an appellate court' in criminal matters.1 Beyond the allegedly shaky reasoning which so irked Smith and others (such as Glanville Williams),2 it was common to find the Law Lords split 3:2 on important issues such as the definition of central criminal law concepts like recklessness,3 or the limits of consent in the law of non-fatal, non-sexual offences against the person.4 Within these slim majority decisions, it was often possible to detect plain disagreement, or at least distinct lines of argument. The result of this was that the ratio decidendi of many House of Lords decisions in criminal matters was difficult to state with precision. Less charitably, it has been alleged that the law was often left `far more uncertain than it was before the appeal' to the Lords.5 There would often need to be further decisions, typically by the Criminal Division of the Court of Appeal (CA), before the full impact of a House of Lords decision became clear. This might be contrasted with decisions of the CA. There, a real effort is made to present one judgment, which represents the considered view of the judges who heard the case.6 This approach is not perfect (for the simple reason that the CA is so overworked that two differently-constituted benches might conceivably hear two cases on the same issue at the same time and reach two mutually contradictory decisions), but it does at least reduce the margin for error when working out why a particular decision was reached. It is thus easier—for

The use of comparative law by highest courts has been the subject of muchwriting among comparative lawyers in recent years. It is taken to be one of the indicators that legal systems are not self-contained but develop as a result of ideas coming from outside as well as from inside the system. In addition, it is seen as evidence of the increasing globalisation of the law. Such potentially expansive claims from the importance of comparative law as a judicialmethod of decisionmaking need to be put in context. Two recent contributions, by the late Lord Bingham and by Dr Elaine Mak, suggest a more limited role for comparative law, and this is borne out by the practice in the Supreme Court in 2010–11. In his Hamlyn Lectures of 2009, Lord Bingham said

The Supreme Court decided 13 cases involving aspects of private law in the 2010–11 legal year. Global Process Systems Inc v Syarikat Takaful Malaysia Berhad1 concerned the meaning of ‘inherent vice’, a risk typically excluded from insurance policies in the marine cargo context. The claim arose when the three legs of a 300 foot tall oil rig snapped off during shipping and sank to the bottom of the Indian Ocean. Argument centred over whether the proximate cause of themetal fatiguewas an inherent vice of the legs themselves, or the effect of wave action. The Supreme Court dismissed the appeal, adopting a narrow interpretation of inherent vice, and agreeing with the Court of Appeal that the cause of the metal fatigue was a leg breaking wave.2 Interpretation of a term was also in issue inMulti-Link Leisure Developments Ltd v North Lanarkshire Council.3 In that case, the Court unanimously dismissed the appeal and held that a clause for ‘hope value’ in the relevant lease included developmental potential. Oceanbulk Shipping & Trading SA v TMT Asia Ltd4 concerned whether an exception should be made to the inadmissibility of ‘without prejudice’ negotiations for the purpose of interpreting a contract. In a sole judgment given by Lord Clarke, seven justices agreed that such an exception should be made. Although it was recognised that the ‘without prejudice’ rule should not be lightly eroded, objective facts which emerge during pre-contract negotiations are part of the factual matrix, and as such, are admissible as an aid to construction.5 Thus, an interpretation exception has been carved out, and courts can search more widely in aiming to reflect the parties’ true intentions. In a similar vein, the Court in Autoclenz Ltd v Belcher6 confirmed that an employment tribunal should look beyond the written terms of a contract to con

This article argues that law reform is the pursuit and progressive realisation of the ideal form of law through a programme of positive and significant legal change from within the legal field. The article concludes that the Supreme Court and the Law Commissions are complementary and the only instruments of law reform operating in the United Kingdom today.

The UK Supreme Court decided four cases involving aspects of economic and safety regulation in 2012–13. In two cases, the Supreme Court dealt with issues related to product safety. Imperial Tobacco Ltd v Lord Advocate1 was the first case challenging the legislative competence of the Scottish Parliament to regulate in respect of reservations laid down by the Scotland Act 19982. The Appellant argued that the prohibition by the Tobacco and Primary Medical Services Act 2010 (the 2010 Act)3 of tobacco displays and of vending machines for the sale of tobacco products was outside the Scottish Parliament's competence. The Supreme Court applied a purposive approach to the interpretation of the 2010 Act and held that its purpose was to promote public health (which is a devolved matter) by reducing the attractiveness and availability of the products concerned and therefore did not relate to the regulation of the sale and supply of goods to consumers. The Supreme Court also established three principles which should be followedwhen determiningwhether the Scottish Parliament has exceeded its competence with regard to reserved matters,4 including `the sale and supply of goods to consumers' and `product safety'. Furthermore, Lord Hope found a wide interpretation of reserved matters inappropriate, taking into account that the Scottish Parliament had responsibility for Scots private law, which included the sale and supply of goods because they form part of the law of contractual obligations. With the same reasoning, the Supreme Court rejected the Appellant's second argument, namely that the 2010 Act sought to modify rules of Scottish criminal law through the creation of new offenses which relate to the law on reserved matters. It concluded that there was no connection between them as the 2010 Act did not amend or affect the existing regulations. For these reasons the Supreme Court unanimously dismissed the appeal.

The Supreme Court decided six cases involving local government issues in the 2011-12 legal year. In Re T (Children),1 the Supreme Court heard a case relating exclusively to costs in child care proceedings. At issue were allegations of sexual abuse made by a local authority against a number of individuals including the children's father and their grandparents. The grandparents were exonerated by the fact-finding judge and sought an award of costs against the local authority to cover the substantial cost of their defence. The SupremeCourt held that despite recent case law from the Court of Appeal to the contrary,2 the principle remained that costs were not awarded against a party in child care cases unless that party's conduct was reprehensible. This principle does not suffer exceptions in cases of separate fact-finding hearings. The local authority is under a duty in respect of the care of children which sometimes demands placing allegations before courts. Where these allegations are reasonably made, even if they later prove unfounded, the local authority should not be liable for costs. In Solihull Metropolitan Borough Council v Hickin,3 a divided Supreme Court considered the operation of theHousing Act 1985with respect to the transmission of secure tenancies held by joint tenants. Mr and Mrs Hickin were joint tenants of a secure tenancy over a property owned by Solihull Metropolitan Borough Council. However, at the time of her death, Mrs Hickin and her daughter were the sole occupants of the house, as Mr Hickin had been away for 27 years. The majority of the Supreme Court held that the provisions of the Act did not displace Mr Hickin's common law right of survivorship in favour of his daughter, despite his prolonged absence and his daughter's occupation of the property. It did not matter that, by virtue of Mr Hickin's absence, the tenancy would cease to be secure. The issue of whether a local authority could take financial considerations into account when making decisions was addressed in two cases. In The Health

The margin of appreciation, as a doctrine of international law, has a great future behind it. It was once thought to be the panacea that would solve international law’s problems, but has in fact diminished in importance in international law. Contrary to what is often argued, the doctrine of the margin of appreciation originated in early public international law, not in Continental domestic public law. In the course of the twentieth century, international law discarded the doctrine. The preferred standard of review, as the International Court set out in Whaling in the Antarctic, is ‘an objective one’. In the sphere where the margin of appreciation is most famously in operation, the law of European human rights, it is being supplanted by the doctrine of subsidiarity. The margin of appreciation is, in international law, an aberration. It is time we treated it as such. This article was presented as the inaugural CJICL Young Scholars’ Lecture in February 2015, held at the Lauterpacht Centre for International Law, University of Cambridge.