This book adds new dimensions to current transitional justice models. The title correctly suggests that in post-conflict situations there is no one agenda for coming to terms with large-scale past abuses but that a variety of ways and means commend themselves for rendering justice and rebuilding societies. The contributors to this volume offer perspectives which link the transitional justice debate to the structural causes of violence and conflict. Their chapters reveal a wide span of human compassion and expand transitional agendas to include the exigencies of justice for past, present and future generations. In fact, these agendas addressing large-scale patterns of injustice, discrimination, repression, exploitation and acts of brutality are essentially the core of a comprehensive human rights agenda.

In many conflict situations acts of violence causing human suffering affect and victimise most severely the vulnerable and marginalised sectors of society. It is widely recognised and expressed with serious concern by the United Nations Security Council that in particular women and children account for a large proportion of those adversely affected by armed conflict, and that in such situations sexual violence and rape are rampant. Similarly the recently adopted United Nations Declaration on the Rights of Indigenous Peoples (2007) recalls with deep concern that indigenous peoples have suffered from historic injustices as a result of the colonisation and dispossession of their lands, territories and resources. This book analyses and discusses the plight of vulnerable people who have endured a state of exclusion and discrimination for centuries. It asserts that transitional agendas should also tackle the root causes of exclusion and discrimination, render social and political justice, and foster processes of equality and participation with the goal of eradicating for good patterns and policies of exclusion and discrimination.

The normative basis for transitional agendas was in its essence already embodied in the Universal Declaration of Human Rights (1948), which was proclaimed as a common standard of achievement for all peoples and all nations. Subsequent legal instruments strengthened the edifice of human dignity and justice with special concern for the disadvantaged, the disabled, the excluded and the victims of gross human rights violations.

INTRODUCTION

In a previous chapter of this volume, it was argued that incorporation of horizontal inequality considerations into policy programmes is an important, though often neglected, aspect of post-conflict reconstruction. The authors reviewed a range of policies available for combating horizontal inequalities in the socio-economic, political and cultural status dimensions, and argued that there is a wide range of policy options available, although their suitability varies from context to context, but that national governments and donors alike have largely failed to take cognisance of them sufficiently.

In this chapter, these themes are more concretely explored through consideration of the post-conflict reconstruction strategies in two case study countries: Guatemala and Nepal. Guatemala, which suffered one of the most protracted and vicious civil wars of the past fift y years, is widely seen as a successful case of post-conflict reconstruction, built about an extensive set of peace accords ratified in 1996. Yet, this chapter argues that the implementation of these peace accords has paid scant attention to the severe horizontal inequalities between indigenous peoples and the politically and economically dominant ‘Ladinos’. In doing so, the government risks alienating further those who suffered most from the conflict and may well be sewing the seeds of future instability. In contrast, Nepal is a case where donors and the government alike have recognised the need for extensive social policies to correct the horizontal inequalities that drove the emergence of a Maoist rebellion between 1996 and 2005.

GUATEMALA

The aim of this case study is to evaluate the impact of post-conflict reconstruction on some major aspects of the role and position of indigenous people in Guatemalan society. In view of the remarkable complexity of recent Guatemalan history (comprising multiple transitions, away from war, authoritarianism and the once dominant coffee economy) it is important to underline that this chapter summarises some fundamental aspect of post-conflict reconstruction rather than providing a detailed study of the overall process. The case study however underlines the usefulness of a Horizontal Inequalities (HIs) approach when examining multi-ethnic conflict and post-conflict societies. The first section of the case study details HIs between indigenous and non-indigenous Guatemalan and the role played by HIs in the lengthy civil war.

INTRODUCTION

Although the number of violent conflicts and civil wars has been on the wane since the mid-1990s, there were still 29 ongoing intrastate violent conflicts around the world in 2009. The majority of conflicts consist of fighting between groups who are united by a common ethnic or religious identity. Moreover, over recent decades the identity basis of conflicts has become much more explicit, with the proportion of all conflicts that are labelled as ‘ethnic’ increasing from 15 per cent in 1953 to nearly 60 per cent by 2005. However, ethnic or religious differences in themselves do not cause violent conflict, as evidenced by the fact that the vast majority of multicultural societies are able to maintain peaceful inter-ethnic and religious relations. It is crucial, therefore, to look ‘beyond religion and ethnicity, as such, to find the causes of “ethnic” conflict’.

One important hypothesis about the causes of violent conflicts focuses on the presence of major ‘horizontal inequalities’ or inequalities between culturally defined groups. More precisely, this hypothesis ‘is based on the view that when cultural differences coincide with economic and political differences between groups, this can cause deep resentment that may lead to violent struggles.’ The concept of horizontal inequalities (HIs) and its theorised relationship with conflict was first developed by the Oxford-based development economist Frances Stewart in the context of a series of collaborative projects on the socio-economic causes and consequences of internal conflict and humanitarian emergencies and has subsequently been extensively researched by the Centre for Research on Inequality, Human Security and Ethnicity (CRISE) based at the University of Oxford. The main aim of this paper is to review the evidence concerning the relationship between horizontal inequalities and violent group mobilisation in multiethnic societies and to evaluate to what extent horizontal inequalities considerations are taken into account in countries coming out of conflict. The paper also discusses a range of measures and policies that could contribute to reducing horizontal inequalities in post-conflict settings.

INTRODUCTION

This article deals with the management of natural resources in armed conflicts from a human rights’ perspective. It analyses the impact on the rights of women and indigenous peoples of policies and operations affecting access to and control of natural resources, and also the damage to ecosystems caused by warfare. This analysis pays special attention to the processes of displacement and loss of habitat, as dimensions which can be used to assess the management of risks and damage, both to the population and the environment, as well as the responsibilities involved. The Colombian case has been analysed because it illustrates the relevance of addressing natural resource management in ongoing conflicts due to its effect on social and economic inequalities, as well as the need to insert this issue into debates on truth, justice and reparation. The article will highlight some dimensions which require more in-depth investigation in order to advance development of preventive measures, and accountability mechanisms. It will also explore the extent to which these abuses are justiciable in order to seek reparation and the implementation of equality and social justice policies.

In debates concerning ongoing armed conflicts and their possible outcomes, the issue of natural resources tends to be a dimension which is hardly touched upon, and even when raised, it is rarely linked to the demand for truth, justice and reparation. Despite the fact that in the emergence and prolongation of many current conflicts, it is easy to detect interests and operations associated with access to and control of natural resources, rarely are such interests and operationstransparently exposed to public attention. Their beneficiaries are concealed, as are the means employed to attain their objectives, in addition to their resultant environmental and human impact. In general, neither the agents nor the beneficiaries of these operations are accountable to the law, their activities are not examined, nor does the concept exist that they owe anything to the victims who suffered abuse during conflicts or that they ought to remedy the devastating impact of operations whose purpose and/or intention was to reap profits or benefits of whatever kind.

INTRODUCTION

Peace agreements not only signal the end of violence but also the start of a new relationship. They are central in addressing issues regarding equity, social justice and exclusion that emerge from conflict situations. In the process of transition from conflict and violence to peace and stability, peace agreements are often the first attempt at transforming the relationships that have led to conflict. While on the one hand the first and foremost goal of a peace agreement is to formally put an end to violence, on the other their role is much broader as they are the document that will seal the new relationship between a state and a part of its population that has entered into conflict.

In recent years, there has been a proliferation of peace agreements involving indigenous peoples. Several peace agreements have been signed directly between states and indigenous peoples. This includes well known cases such as the 1995 peace agreement in Guatemala or the 1996 San Andrés agreement in Mexico, and also less known situations such as the 2003 Memorandum of Settlement on Bodoland Territorial Council between Bodo representatives and the government of India. Indigenous peoples are also affected by peace agreements signed by other actors. For example, while the peace agreement signed between the Communist Party of Nepal (Maoist) and the Nepali government in 2006 did not directly involve indigenous peoples, the agreement had some consequences onthe rights of indigenous peoples. Likewise the peace agreement signed in the Government of the Republic of the Philippines and the Moro National Liberation Front (MNLF) has some direct consequences on the rights of indigenous peoples in the region. Overall, recently there has been an increase in the number of peace agreements that affect indigenous peoples’ rights.

Many factors could explain why governments and indigenous peoples enter into peace agreements. The relationship between states and indigenous peoples is often a confrontational one. The creation of existing borders and the establishment of nation-states have often been processes in which indigenous peoples have been ignored. To some extent, ignorance of the very existence of indigenous peoples has led to discrimination, racism, inequality and then to confrontation. From this perspective, peace agreements are often the first expression of a new form of relationship between the state institutions and indigenous peoples.

INTRODUCTION: INCORPORATING GENDER IN THE WORLD OF PEACEBUILDING

The aim of this chapter is to analyse the extent to which United Nations Security Council Resolution 1325 (Resolution 1325) has been integrated into the international community's post-conflict reconstruction policies and actions in Africa, to reflect on the factors that impede the realisation and further advancement of the gender equality agenda contained in this instrument, and suggest ways forward.

Resolution 1325 is a landmark instrument adopted by the UN Security Council in October 2000. Its objective is to address comprehensively efforts to address the impact of conflict on women with processes that promote their participation in peace making negotiations, security and state building. The enormous obstacles that remain in making reality Resolution 1325 (2000) are also highlighted in this chapter. These obstacles are not exclusive to post-conflict African societies but are also found in the agendas of members of what Mark Duffield defines as the ‘liberal peace complex’. The article argues that in order to transform UN Resolution 1325 rhetoric into reality, not only obstacles within African societies must be addressed but also serious dilemmas within the liberal peace complex need to be tackled.

In the post-Cold War era, the ‘gender’ agenda emerged assertively in global peacebuilding discourse and policies. Thus in 2000, the United Nations (henceforth UN) adopted four significant documents urging that the gender perspective be incorporated in the peacebuilding world: ‘Mainstreaming a gender Perspective in Multidimensional Peace Operations’, the Windhoek Declaration and the Namibia Action Plan and, above all, Security Council Resolution 1325 (2000) on Women, Peace and Security.

There are many explanations for the consolidation of the gender discourse in the agenda of the multiple international peacebuilding actors that constitute what Mark Duffield calls the ‘liberal peace complex’, a composite, mutable and stratified transnational network formed by the United Nations, the World Bank, the International Monetary Fund, regional organisations such as the African Union and the Economic Community of Western African States (ECOWAS), as well as states, donor agencies, NGOs and armed forces. Actors with different agendas, values, and interests that ‘make possible world liberal governance in the field of peacebuilding.

INTRODUCTION

In recent years, the international community has made some important advances in promoting gender equality and women's rights in post-conflict reconstruction programmes and transitional justice initiatives. However, these interventions have rarely been able to generate a context conducive to the realisation of economic and social justice for women. It is true that international attention to human security as a framework for post-conflict international action has opened a window of opportunity for introducing human rights in post-conflict debates and policy; yet this has not automatically translated into benefits for the inclusion of gender equality objectives in post-conflict programmes. Previous to the adoption of UN Security Council Resolution 1325 on women, peace and security, women's advocates debated whether the concept of human security would advance or, on the contrary, limit the fulfilment of gender equality objectives. While acknowledging the theoretical and strategic importance of a human security approach for women, and the overlapping nature of key human security and gender equality objectives, these debates highlight some missing dimensions in human security discussions: a focus on violence against women, gender equality in control over resources, gender equality in power and decision making, women's human rights, and women (and men) as actors, not victims. Achieving security for women during and after violent conflicts also entails making a reality the interrelated and interdependent nature of human rights. Ms. Sadako Ogata, Chair of the Advisory Board on Human Security, underscores that ‘human security, through the protection-empowerment framework, gives better means to realize human rights. It gives equal importance to civil and political as well as to economic, cultural and social rights, and thereby addresses violations in integrated and comprehensive ways.’

INTRODUCTION

The dominance of patriarchal social structures and formations in society has historically contributed to women's subordination and to widespread and pervasive discrimination against women. Manifestations of women's lack of equality such as the economic dependence of women, women's lack of mobility, their lack of familiarity with the public sphere and their lack of decision-making power within the family and within the household are embedded in this framework. The foundations of discrimination against women make them dependent and marginalised members of every modern society. The ‘normal’ vulnerability of women to discrimination, violence and exploitation is heightened in the course of a conflict, and while in flight from a conflict situation as well as in processes of resettlement in the aftermath of a resolution of the conflict. The entrenched expressions of inequality in a pre-conflict society enhance the specific vulnerability of women and girls in conflict situations.

Issues of inequality are often among the root causes of a conflict. In many cases it is the imbalance in power between diverse ethnic, religious and linguistic communities that lead to conflict in a society. A clash between opposing ideas and ideals regarding the allocation of power and resources within a family, a community or a country could lead to the same consequences – conflict which could be expressed in either violent or non-violent ways. In the discussion in this paper, the focus is on violent conflict, with the use of arms, and includes mass uprisings against political repression.

In this context, addressing the roots of both real and perceived inequality is often key in processes of conflict transformation and peace building, and in processes of creating structures of ‘transitional justice’ and reconciliation. Ensuring that the debates and negotiations on ways and means of redressing historical inequality in general extend to consideration of inequalities based on sex and gender remains a tremendous challenge in all post-conflict scenarios.

INTRODUCTION

Historical injustices are increasingly present in the debate and reflections on human rights and theories of justice. A conception of justice is emerging that goes beyond merely exacting retribution from the guilty party, but which seeks reparation and, when possible, reconciliation from the victims’ point of view; it should be noted that reparative or restorative justice has gained increasing acceptance and is not limited to analysing the present, but also looks back at past abuses. The efforts to repair the injustices of the past ‘form an important part of the search for justice in the present.’ The effects of past abuses such as colonialism, slavery and the expropriation of indigenous lands are still felt and, to a large extent, determine present inequalities and structural discrimination. Indigenous peoples from all continents are increasingly claiming their right to reparation for abuses and injustices both past and present.

However, the current situation of exclusion and marginalisation affecting indigenous peoples is exacerbated in contexts of armed conflict. Conflicts have devastating consequences for vulnerable groups and the case of indigenous peoples is of particular concern, as has been amply demonstrated in Colombia, Guatemala, Nigeria and the Philippines, to mention only a few.

This study aims to analyse the way in which post-conflict scenarios create opportunities which, if used effectively, can contribute to transforming the situation of historical marginalisation and exclusion suffered by indigenous peoples. This essay will first address the debate on the right to reparation for historical injustices and the progressive legal recognition of this right in relation to indigenous peoples. Second, the impact of armed conflict on indigenous peoples will be described and, for this purpose, the case of the indigenous peoples of Colombia, in the context of internal armed conflict, is particularly illustrative. Finally, the opportunities offered by post-conflict contexts for equality and the correction of inequalities suffered by indigenous peoples will be analysed. For this purpose the case of Guatemala and the reparation of historical injustices as an element in the Peace Accords will be examined. Furthermore, this case clearly exemplifies the enormous difficulties faced in this type of processes.

INTRODUCTION

On 16 September 2007 the world media extensively reported the massacre perpetrated by the indiscriminate shooting of private security guards of the company Blackwater in a populated neighbourhood of Baghdad which resulted in the death of 17 civilians including children and more than 20 persons injured.

This was not the first time an incident such as this occurred in Iraq since the 2003 war and the occupation of the country by the Coalition forces. According to a memorandum prepared by a United States Congressional House Committee on Oversight and Government Reform2, in 163 out of the 195 escalation-offorce incidents in Iraq in the past two years involving employees of Blackwater, the guards had fired first. In 2007, 845 security guards were employed by Blackwater in Iraq. In 84 per cent of the cases the Blackwater guards were found to have acted unprovoked and had deliberately fired against Iraqi civilians. This represents an average of 1.4 shootings per week. However, according to an interview of a former Blackwater ‘private guard’ given to NBC News, his team composed of 20 guards averaged ‘four or five’ deliberate shootings a week (several times the number reported by the company).

Most of the crimes perpetrated against Iraqi civilians have been covered up and forgotten. The State Department of the United States reaction was primarily to ask Blackwater to make monetary payments rather than insist upon accountability or to investigate for possible criminal liability. The US government has been paying $ 1,222 per day for each ‘security specialist’ which amounts to almost half a million $ per year for each of them. Blackwater is not the only private military and security company which has been involved in such deliberate shootings against the Iraqi population, sometimes for entertainment. Videos on the Internet have spread showing what appear to be foreign mercenaries utilising Iraqi civilians as targets. Private security guards of other companies such as Aegis, Triple Canopy, Erinys and Unity Resource Group have also been involved. Despite these incidents and the thousands of private contractors passing through the country, only two individuals have been indicted.

INTRODUCTION: THE GENDERED NATURE OF PEACEMAKING

In looking at peace processes, at how agreements are negotiated and what implications these have for women, it is useful to understand that peace processes are inherently gendered. They are negotiated by protagonists of conflict, who are primarily men in positions of power and are often mediated or facilitated by men. High-level negotiations are identified as male domains, which means that they also employ discourses and practices that are closer to men's reality than to women’s.

Formal peace processes rarely acknowledge the experience of conflict mediation, management and resolution employed by communities who have to survive conflict on a day-to-day basis. They also ignore the attempts at conflict resolution initiated by civil society throughout periods of war and strife, many of which are led by women. Indeed, early literature on women and armed conflict was gender blind, and was as oblivious to women's participation in peace building and peace making as it was to women's complicity in violence. Women were instead positioned as victims of war in need of protection, particularly from sexual violence, while less attention was paid to women's everyday lived experience of conflict, displacement, shift ing gender roles and agential moments.

Feminist theorising has since served to provide a nuanced understanding of how conflict affects women differently from men and how it also affects women in different ways depending on their ethnic, religious, caste, and class, regional and other identities and belongings, including their political affiliations. Protracted conflict and long term displacement also provide opportunities for greater personal and group autonomy and changes in identity, status and leadership for some women despite the initial or continuing trauma of dislocation and dispossession.

However women affected by violent conflict, continue in the main to be perceived as the archetype of marginalisation, discrimination and disempowerment and their identity and autonomy is assimilated into the universal category of ‘victim’. While normative frames bound by patriarchy contribute to such constructions, a range of human rights and humanitarian discourses and practices also tend to view women exclusively as ‘victims’ and imbue their responses with a strong protectionist bias.

INTRODUCTION

In the last two decades, the concept of transitional justice has come to represent the midwife for a democratic, rule of law state. The script for the construction of such a phase is now regarded as an indispensable building block for sound constitutionalism, peace-building, and national reconciliation in post-conflict societies or societies emerging out of abusive, authoritarian, and fractured periods. In fact, policy-makers and statesmen now increasingly realize that a human rights state that internalizes human rights norms cannot be created unless the political society concretely addresses the grievances of the past. There is no future without a past, and the future is largely a result of the past. Unless we construct a future based on the lessons of the past, we are bound to repeat our own mistakes and retard the development of our society.

The term transitional justice captures two critical notions. First, it acknowledges the temporary measures that must be taken to build confidence in the construction of the post-despotic society. Secondly, by its own definition, transitional justice rejects a winner-take-all approach as a beachhead to the future. In other words, transitional justice calls for deep concessions on either side of the divide. No one party or faction can be fully satisfied. Unyielding, none concessionary demands can only foil the truce that is essential for national reconstruction. But equally important is the realisation that transitional justice rejects impunity for the most hideous offenders. To shield egregious perpetrators would only encourage a culture of unaccountability for past abuses. Hence a balance must be struck between justice for the victims and retribution against offenders.

But the vast majority of states lack the requisite political will to effect transformative transitions. That is why most political transitions are either still born or aborted affairs. For Africa, this calls for soul-searching at all levels of society – within the political class, among the intelligentsia, in civil society, and the general public. In other words, Africans must ask themselves: Is transitional justice a necessity for us if we are to create a democratic polity? If so, what vehicles should we construct to effect transitional justice, and what mandate shall we give such vehicles?

The law relating to family property in Europe is at a key stage in its development. Unified conflict of law rules were adopted in December 2010 implementing enhanced cooperation for 14 Member States in relation to divorce, further proposals for the unification of private international law relating to matrimonial property and succession are being developed, and interest is growing in harmonisation of the substantive law itself.

The fourth conference of the Commission on European Family Law (CEFL) held in Cambridge in early April 2010 brought together around 180 participants from 32 jurisdictions in Europe and beyond to address a wide range of issues relating to the future of family property in Europe. This large and diverse group generated a stimulating discussion across the three days of the conference, prompted by the contributions of our conference speakers, most of which are produced in this volume.

The volume consists of eight parts. Part 1 contains the keynote address which began the conference proceedings given by Lord Justice Thorpe, Head of International Family Justice for England & Wales. As was fitting for a European conference taking place in the UK, Sir Mathew Thorpe's address provoked important debate about the challenges inherent in common law and civil law jurisdictions co-operating in this sphere, a theme taken up again in Part 8, the closing remarks from the local conference organisers Jo Miles and Jens M. Scherpe. Part 2 of the book examines in greater depth the issue of matrimonial property law in Europe, Professor Pintens’ chapter providing an examination of the variety of regimes currently operating in Europe, while Professors Boele- Woelki and Jantera-Jareborg preview the Commission on European Family Law’s own attempts to develop Principles on which the harmonisation of domestic laws in this field might be based. Part 3 takes us on to the question of party autonomy, both within and without marriage, in the marital context examining the extent to which parties are free by agreement to contract out of the default regime or remedies. Professor Dethloff's paper surveys the treatment of marital agreements across Europe, while Professor Cooke discusses the issues from the perspective of a law reformer in England & Wales.

SUMMARY

One of the major challenges that contemporary family law faces is how to ascertain proper maintenance for the child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent. A variety of approaches to these problems are identifiable in Western countries. Although the shift towards maintenance based on obligatory or recommended mathematical formulas is discernible, there are still countries whose legislation contains only very vague rules in this field.

This article focuses on these questions in the light of the relevant laws in the Czech Republic, Slovakia and Poland. All the above-mentioned countries have much in common as far as contemporary family law is concerned. This is primarily the effect of previously similar family law legislation adopted in 1949 and 1950 and, secondly, the effect of the long-lasting socialist era. Thus, the legal regulation of the maintenance obligation by parents towards their children has remained almost unchanged since those times in Poland and the Czech Republic. The determination of maintenance is still based on very simple rules and wide discretion by the courts is preferred. In Slovakia, on the other hand, new and progressive legislation was adopted in 2005. Nowadays, a minimum amount of maintenance is laid down and if the non-residential parent does not fulfil his/her obligation the state guarantees maintenance for the child to some extent.

In this article, the development of legal regulation is explained and, furthermore, the practical impact of changes on the rights of parents and their children is explored. Such an exploration proves that contemporary vague and discretionary rules, which are effective in Poland and the Czech Republic, are problematical and are an inheritance from the socialist era. These kinds of rules could have possibly worked in times when the state was inclined to greatly interfere in the lives of families and children, and, furthermore, the divorce rate was then lower. However, nowadays such an approach impairs the best interests of the child and calls for change.

INTRODUCTION

One of the major challenges which contemporary family law faces is how to ascertain proper maintenance for a child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent.

INTRODUCTION

Europe is getting older. Due to increased life expectancy but also to a decreased birth rate, the proportion of seniors in the overall population is constantly rising. Seniors may no longer be seen as forming a homogeneous group. Distinctions have been proposed between the “young old”, the “old”, and the “oldest old” or between persons of the third and of the fourth age. The definitions of the people who fall within these groups may vary. In any case, there is little doubt that the seniors belonging in the last of these categories, meaning the “oldest old” or the “fourth age”, constitute the fastest growing segment of the population. This increase is coupled with a rise in the number of people with declining health, be it their physical, psychological and/or mental state.

Under these conditions, elder law is evolving as a new area of law. Apart from issues regarding inheritance, legal ability to enter contracts and legal representation in cases of incapability, health insurance and pension schemes, which have been discussed at length in the traditional legal literature, elder law also pertains to questions of everyday care of older people. This last issue gains more relevance, the less the family are able to assume elder care responsibilities, as is nowadays the case. Due to increased life expectancy, the children of older seniors are often seniors themselves. Moreover, because of the decreased birth rate, the responsibility of caring for older relatives rests upon the shoulders of fewer family members, while an increase in female employment has led to a further reduction of care resources within the family. Finally, given the increased mobility of persons within a country, or even internationally, children often no longer live in the vicinity of their parents.

For many decades, the common response to the inability of an older person to live independently was his admission to a care or nursing home. Thus, the provision of care and services came together with a significant compromise of his autonomy. This unsatisfactory trade-off of independence for care, on the one hand, and the realisation that the scarce supply of places in nursing homes could not cope with the expected increase in demand in the near future, on the other hand, made evident the need to seek other creative and cost-efficient solutions.

THE EUROPEAN SUCCESSION PROJECT

When I told Adrian Briggs, Professor of private international law at Oxford, that the European Union was planning to tackle cross-border successions, he was not very impressed. He was rather surprised that, after the free movement of goods, persons, services and capital, the “free movement of the dead, previously only seen in cinema and by those who believe in zombies”, had also become one of the policies of the European Union. Indeed at first sight it is surprising that the European Union has discovered succession law – an area of law which has been constantly neglected by the European legislator. Following the 1968 Brussels Convention on jurisdiction and enforcement in civil and commercial matters most European private international law instruments expressly exclude “wills and succession” from their material scope. However, since the Vienna Action Plan of 1998, the rules for international successions are officially on the European agenda. Based on a detailed comparative study by the German Notary Institute, in 2005 the Commission published a Green Paper on wills and succession identifying “a clear need for the adoption of harmonised European rules”. After further consultations and negotiations the Commission submitted, in October 2009, a formal Proposal for a Succession Regulation. It is currently unclear whether and when the Succession Regulation will be adopted by the European Parliament and the Council; the only interesting news is that the United Kingdom and Ireland, which together with Denmark enjoy a special status in the European cooperation in the area of freedom, security and justice, have so far not exercised their right to opt into the succession project.

The Succession Proposal reveals ambitious legislative plans. The rules proposed by the European Commission go far beyond the classic areas of private international law, ie choice of law (Article 16 et seq of the Proposal), jurisdiction (Article 3 et seq of the Proposal) and recognition and enforcement of foreign decisions (Article 29 et seq of the Proposal). The Succession Proposal also aims to improve the cross-border administration and devolution of estates.