Freedom of Association in Australia

Introduction to the Special Issue: The Right to the Protection of One's Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries

DOI: http://dx.doi.org/10.3126/njog.v9i1.11177 NJOG 2014 Jan-Jun; 2(1):5-7

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

The 21st century saw the rapid development of the administration of the nations of the world. With the development, it is essential to ensure that administrator entrusted with the administration of the country perform its duties in accordance with the rule of law. It must not act arbitrarily. Discretionary power if given to the administrator, it is limited. This is to guarantee that administrator in performing its duties would not infringe rights of an individual or community, especially fundamental rights. To make certain that this is achieved, an effective mechanism for the protection of rights, especially human or fundamental rights in state administration is needed. Judicial review is one of the effective mechanism to supervise and control action of the administrator. This mechanism is available in Administrative Law. Under the instrument, grounds of judicial review is made available to review action of the administrator. Currently, there are two streams of judicial review: Administrative Review and Constitutional Review. The former is a non-right based review of administrator’s power founded on the traditional common law using Wednesbury objective test or CCSU grounds not involving violation of fundamental and human right and the procedures. Meanwhile, the latter is a right-based review involving the exercise of administrative powers that violate the constitutional right of an individual or community, particularly, fundamental rights. The traditional common law, nevertheless, are inadequate in addressing review of administrative action involving violation of fundamental rights. For that reasons constitutional review as another stream in judicial review was developed. This was illustrated looking into the development in United Kingdom, India, Malaysia, South Africa and Hong Kong. With the expansion, mentioned the common law countries are capable of providing a more comprehensive and meaningful protection to an individual or community against unlawful act of the administrator that violates rights, especially human and fundamental rights. Consequently, state integrity is strengthen and be more accountable to the community. Hence, state can develop administration that is sound, and efficient in human, natural, economic and financial management. The proper enforcement of human rights will promote political and socio-economic stability, provide legal certainty and it encourages investors to invest in the country.

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.Stefan Somers is a professor at the Free University of Brussels (VUB) where he lectures on the law of obligations. He is also a trainee judge and prosecutor at the Court of First Instance and the Commercial Court, Antwerp.

Across national and international frameworks – from UN conventions, reports and policies, and the proliferation of human rights discourses, to national commissions, inquiries and legislative responses – the figure of the child has been the occasion for significant legal and political interventions. In various national contexts, the sentimentalised child has been used to justify state law’s inventions into, and adjudication of, violence, and has become a highly significant figure in the liberal juridico-political imagination. Across civil and criminal legal forms, Australia has developed a carceral imaginary of Aboriginal people that positions Aboriginal children at its centre. This chapter begins by examining Australian law’s sentimental imaginary of children when framing historical injuries within common law and transitional justice frameworks (from Bringing Them Home to the Trevorrow cases) and then theorises the relation of this historical imaginary to the contemporary carceral imaginary, as it disproportionately affects Aboriginal men, women and children. This chapter then argues for the centrality of the figure of the girl to emergent critical and cultural forms that challenge Australian state law’s violence towards Aboriginal people. We need to shift the critical emphasis away from “the sentimental child” of the liberal imaginary. This critical method means recognising that state law is not the only law operating through any one territory, at any one time. Rather, multiple legal systems co-exist as complex relations – some of which are recognised and met by the majority, most of which are not. In this way, my critical analysis of imaginative literature initiates alternate modes of not only thinking about law, but also constituting law and legal thought. I focus on modes of indigenous law, feminist law, queer and anti-racist law – all laws that become legible in genres defined as “fiction”, in contrast to what I term Australian state law’s aggressive realism.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

'A Patchwork of Accommodations': Reflections on European Legal Hybridity and Jurisdictional Complexity

Much attention has been paid to whether and how China has responded to international criticisms of its human rights record to improve its domestic human rights; however, few studies have examined China’s discourse on human rights for clues of potential continuities and changes in attitudes toward and policy-making of human rights. China’s deeply embedded philosophical and cultural traditions shed light on its ideas of citizenship and human rights, and the reciprocal relation between the individual and community. This chapter elucidates four main ideological orientations—Confucianism, liberalism, nationalism, and cosmopolitanism—that clarify the shifting understandings of citizenship and human rights in Chinese history. The legacy of Chinese traditions have affected the development of human rights over the centuries, and the selection, interpretation, and promotion of human rights varied under different Chinese leaderships during different periods in history. This chapter firstly examines elements of human rights found in Confucian thought. It then illuminates the liberal orientations, mainly developed in the late Qing and early ROC periods, adopted by the reformists to introduce human rights into Chinese society for its nation-building. Next, it introduces how ideas of human rights have been shaped and evolved in the socialist China for the national ends. These cultural and historical traditions and notions suggest that deeply imbedded Chinese philosophical and cultural traditions have supported a meaningful framework for conceptualizing human rights in China.

Jurisprudence emanating from the High Court of Australia over the past three decades manifests increased willingness on the part of litigants, advocates and judges to voice or consider arguments in terms of 'human rights'. Alongside this, the 1980s and 1990s have witnessed a proliferation in the scholarly analysis of Australian law in terms of human rights. In this context, this article raises the following question: Should moves towards assimilation of human rights into Australian law over the period 1976-2003 be regarded as a 'journey of enlightenment', as a member of the Australian High Court has suggested? Taking issue with the expectation that Australian law is likely to be made more progressive through its greater internalisation of international human rights law, this article scrutinises those cases in which international human rights law has featured in the jurisprudence of the High Court of Australia. It studies the impact of appeals to 'the international' in these settings and, in view of this study, puts forward the following thesis: Efforts to promote the adoption of human rights language and instruments in Australian law tend to do as much, or even more, to reassure Australian law and lawyers that progress is being made than they do to effect meaningful legal, social or political change. Indeed, in specific cases, human rights' invocation in the High Court of Australia may be shown to have had demobilising or otherwise disadvantageous effects for those pursuing a human rights claim before that Court. Moreover, these tendencies are engendered by the prevailing jurisprudential style of Australian case law and scholarship: specifically, its particular combination of late modernism and legal pragmatism.

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

INTRODUCTION. The paper demonstrates that the problem of implementing judgments of the European Court of Human Rights does exist if such a judgment is not in line with the Constitution of the Russian Federation. This problem is caused in legal dimension by the two different factors. On the one hand the Constitution of the Russian Federation “shall be the supreme law and shall be in force throughout the territory of the Russian Federation. No laws or other legislative acts … shall contravene the Constitution of the Russian Federation” (Article 15 Part 1). On the other hand, a State may not invoke its internal (national) law as justification for its failure to perform a treaty (Article 27 of the Vienna Convention on the Law of Treaties, 1969). MATERIALS AND METHODS. Research materials include judgments of the European Court of Human Rights and Orders of the Constitutional Court of the Russian Federation and also the teachings of the most qualified scholars in International Law which are relevant to the title of this paper. General and specific scientific methods are used by the author. In the context of applicable general international law the paper considers both judgments o the European Court of Human Rights and orders of the Constitutional Court of the Russian Federation paying specific attention to the reasons of different legal positions adopted by these Courts. RESEARCH RESULTS. The widening of the competence of the Сonstitutional Court of Russia in December 2014 arouses apprehension. The Court pointed out that two judgments of the European Court on Human Rights were unenforceable: (1) on the judgment on the application of Anchugov and Gladkov and (2) on the judgment concerning the application of UKOS. In the first case the European Court on Human Rights admitted that Russia was responsible for moral damage and the recognition of it was enough for compensation. In the second case the European Court on Human Rights admitted that Russia violated Protocol No.1 to the Convention on Human Rights. In connection with it Russia must compensate the pecuniary damage. It is confirmed by the Committee of Ministers (the Council of Europe). DISCUSSION AND CONCLUSIONS. The Constitutional Court of the Russian Federation indeed has (as its professional function) an obligation to legally protect the national interests of Russia if they are questioned by a judgment of a foreign court which does not correspond to International Law. But in cases considered in this paper the Constitutional Court of Russia while addressing the judgments of the European Court of Human Rights (which are in contradiction with the International Law) made itself a legal mistake from the point of International Law. According to Article 26 of the Vienna Convention on the Law of Treaties, 1969, every treaty in force is binding upon the parties to it and must be performed by them in good faith”. Even in the case when the national law provides for a different approach (article 27 of the same Convention). The Constitution of any State is a part of its national law. So the 1969 Convention’s rules of Articles 26 and 27 are applicable also to Constitutions. While stating that the Constitution has a higher legal value then International Treaty of the Russian Federation, the Constitutional Court thus undermines the national interests of Russia in maintaining legal order and the Rule of Law in international relations.

SETTING THE SCENE The relationship between fundamental rights and private law has enjoyed a prominent place in the legal debates of both private and public lawyers for decades. At first sight, so it seems, two opposing, perhaps even contradictory, perspectives exist. On the one hand, constitutional lawyers look at the substantial outreach of fundamental rights. They see private law as a body of law inferior in the hierarchy of norms. In fact, private rights and obligations may even be derived from constitutional law. On the other hand, many private lawyers have expressed concerns that the intrusion of public law principles will disturb the coherence of the system of private law and ultimately pose a threat to libertarian ideals of private law, notably party autonomy. Partisans of such extreme positions are rare. While most discussants accept that there is some influence of constitutional law on private law, none of the views presented have settled the dispute. As the controversy continues, eminent lawyers like Lord Neuberger have advanced the plea for a ‘grand unifying theory from which a freestanding action for breach of human rights could then be identified’. The aim of this chapter is a more modest one. It will not devise a new theory which explains the missing link between fundamental rights and private law. It acknowledges that constitutional courts of all sorts in fact decide private law cases. Rather, the chapter will provide a sketch of what could be called an inclusive approach to private law. It will only deal with the interaction between fundamental rights (as stipulated in national constitutions as well as in supranational texts, such as the Charter of Fundamental Rights of the European Union or the European Convention on Human Rights) and national private law. The Charter's influence on EU secondary law will not be dealt with, as thus far EU secondary law (EU private law) has mainly been regulated by way of EU directives that must be transposed into national law. The proposal for a Common European Sales Law could have been established as a notable exception, but as the resistance to such a horizontal instrument in some Member States was too strong, the Commission has returned to the traditional approach of harmonisation by directives.

Empirical analyses of domestic legal traditions in the social science literature demonstrate that common law states have better economic freedoms, stronger investor protection, more developed capital markets, and better property rights protection than states with civil law, Islamic law, or mixed legal traditions. This article expands upon the literature by examining the relationship between domestic legal traditions and human rights practices. The primary hypothesis is that common law states have better human rights practices on average than civil law, Islamic law, or mixed law states because the procedural features of common law such as the adversarial trial system, the reliance on oral argumentation, and stare decisis result in greater judicial independence and protection of individual rights in these legal systems. We also examine how the quality of a state’s legal system influences repression focusing on colonial legacy, judicial independence, and the rule of law. A global cross-national analysis of state-years from 1976 to 2006 shows that states with common law traditions engage in better human rights practices than states with other legal systems. This result holds when controlling for the quality of the legal system and standard explanations for states’ human rights practices (economic growth, regime type, population size, military regime, and war involvement).