INTRODUCTION

Since the colonial era, Mexico has had various mechanisms and officials in charge of protecting the country's most vulnerable people. The recognition of the dignity and rights of indigenous people gave rise to the development of different institutions as well as the corresponding doctrinal apparatus for the protection of indigenous peoples. Examples include Francisco de Vitoria's (1538–1539) Relectiones de indis and Relectio de iure belli, the appointment of Bartolomé de las Casas (1484–1558) as Universal Procurator and Protector of Indians, and the Ordinances for the Good Treatment of Naturals, issued by Emperor Charles V of Spain (1500–1558) in 1528.

After the Mexican Independence War (1810–1821), small efforts, such as the establishment of the Office of the Procurator for the Poor in San Luis Potosí (1847), could not prevent the effective protection of human rights from going into oblivion, due to different social and cultural factors prompted by armed conflicts and political instability as well as the one-party dictatorship instituted after the Mexican Revolution (1910–1921). This period was marked by constant internal disputes, both violent and social, and severe human rights abuses. The most relevant examples were the Cristero War (1926–1929), an armed conflict between civilians, who were defending their religious liberties, and the military, which was enforcing anti-religious legislation that resulted in thousands of deaths; and the Dirty War (1960s–1970s), which was the name given to the military repression aimed at dissolving or suppressing political opposition movements.

INTRODUCTION

The Deutsches Institut für Menschenrechte (DIMR), or German Institute for Human Rights, is still a relatively young institution in the context of NHRIs. The DIMR (‘the Institute’) was founded in March 2001: this followed a unanimous decision, in December 2000, in which the German Federal Parliament called for the creation of an NHRI. One of the reasons for the comparatively late establishment of such an institution in Germany was the existence of a strong domestic tradition, which has seen basic constitutional rights protected through the German Federal Constitutional Court. This tribunal has the power to annul legislative, administrative, and judicial acts of all state entities, on the basis of individual complaints which successfully claim a violation of the basic constitutional rights enshrined in the German Basic Law (Grundgesetz): these rights are viewed as being equivalent to internationally protected human rights.

This chapter is organised as follows: the first substantive section (section 2) introduces the legal and institutional framework of the DIMR, including its legal basis, institutional structure, and main tasks; next, section 3 provides an overview of the DIMR's historic development, including its foundation and establishment, its struggle for a legislative basis, its path to re-accreditation, its current challenges, and future possibilities; the chapter then briefly reflects on the relationship between the DIMR and civil society (section 4); finally, it concludes with some observations on general lessons drawn from the experience of the DIMR (section 5).

INTRODUCTION

The Commission nationale consultative des droits de l’homme (CNCDH), or French National Advisory Commission for Human Rights, is one of the world's oldest NHRIs. Since its inception, the CNDCH has passed through three stages, with different legal bases and mandates.

THE ARRÊTÉ MINISTÉRIEL OF 1947

Established in 1947, by an order of the Minister of Foreign Affairs, as the ‘advisory commission for the codification of international law and the definition of the rights and duties of States and human rights’, this NHRI was originally composed of 10 eminent members, including Suzanne Bastid (1906–1995), Charles Chaumont (1913–2001), Henri Donnedieu de Vabres (1880–1952), and Georges Scelle (1878–1961), under the leadership of René Cassin (1887–1976). As an administrative commission within the Ministry of Foreign Affairs, its mission was to prepare initiatives and position papers for French diplomats acting within the International Law Commission and the Human Rights Commission of the UN. This first French Commission was particularly instrumental in the travaux préparatoires of the 1948 Universal Declaration of Human Rights and the 1966 International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights. Throughout this period, the Commission did not have monitoring functions.

THE REVISED DECRET OF 1984

The CNCDH was re-established in 1984, by a decree of the Prime Minister. This iteration was modelled as an advisory commission for human rights, with more independence from the administration. It was placed under the presidency of Nicole Questiaux, a former minister who was then a member of the Conseil d’État, (Council of State). At a time when France was faced with new legal commitments, both at the regional and universal levels, the CNCDH was entrusted with a limited external competence.

INTRODUCTION

The Defensor del Pueblo of Spain, or Spanish ombudsperson, is a body created by the 1978 Spanish Constitution. The body has subsequently developed through the Organic Act 3/1981 and the institution's own Structure and Organisation Regulations, of 1983. The first ombudsperson was elected on 28 December 1982 and, from that moment on, the Defensor del Pueblo has operated without interruption. At the time of the institution's establishment, there existed a broad consensus regarding the appropriateness of the chosen NHRI ‘model’ as well as its fit within the Spanish system; indeed, there were hardly any substantial debates on the issue. Being a novel legal concept at the time of its creation, the body's inclusion in the Spanish Constitution strengthened the Defensor del Pueblo: reform of the institution requires modification of the Constitution, which is, in itself, a complex process. There are other defensorías in Spain, including bodies in most of its Comunidades Autónomas, or Autonomous Communities. These are similar in their nature to the national Defensor, but they were not established by the Constitution. This situation is explained by the decentralised nature of the Spanish political system: whereby there is a central state, which functions as a federal entity, and territorial divisions, which enjoy political autonomy. All in all, the Defensor del Pueblo is a relevant body within the architecture of power in Spain; it has, at times, been highly influential in shaping public opinion; however, much like other state entities, it has been affected by a loss of citizen confidence in recent years.

INTRODUCTION

It is widely known that the Latin American ombudsman model is rooted in the Spanish legal tradition and carries all the core elements of the Swedish ombuds-prototype; this sees it take the form of an independent and autonomous state institution which oversees the public administration and reports to parliament. The Spanish Defensor del Pueblo has two additional characteristics: it is empowered to hold laws unconstitutional and plays a role in protecting human rights. The ombuds-institution appeared in Spain in 1978 and in most Latin American systems in the 1980s, during a period of transition from authoritarianism to democracy for these states. Because authoritarian regimes generally distinguish themselves through the systematic abuse of state power, the violation of citizens’ rights, and a general lack of mechanisms which provide checks and balances within the state structure, efforts to protect human rights only began to come to the forefront when new state structures were organised in Spain and Latin American countries. The resulting entity was the Defensoría del Pueblo, which represents a new institutional model that is able ‘to prevent human rights abuses and bureaucracy left behind by the prior regimes’. In Latin America, the authoritarian past had serious consequences. Abusive former regimes had destroyed public trust in state institutions, which placed emerging ombuds-institutions in a disadvantaged position.5 Beyond restoring public confidence, ombudsmen had to convince public authorities of the benefits their new institutions would bring, all the while waiting until the countries’ judiciaries normalised.

INTRODUCTION

Since the mid-1980s, one of the common characteristics of Latin American constitutional design has been the incorporation of autonomous bodies, generally with a parliamentary mandate, that are responsible for promoting knowledge of and respect for human rights by means other than administrative or jurisdictional powers.1 Normally, these institutions are single-person ombudsmen based on the European model. As Carlos Constenla notes, NHRIs initially followed the ‘Iberian model’ of Spain and Portugal, in line with the proposals of the Latin American Ombudsman Institute. They subsequently began to adopt their own formats, as a natural consequence of the characteristics of Latin American constitutional and administrative law. At present, it could be claimed that these ombudsmen now constitute the fourth most prevalent branch of state government in the region: ahead of the comptroller generals. Indeed, not even the constitutional courts, which are absent from the three largest countries in the region, enjoy such a widespread presence in Latin America. According to certain legal historians, the ‘negative power’ of Latin American ombudsmen can trace its roots back to non-sovereign Roman institutions, such as the Tribune of the People, which Jean-Jacques Rousseau described as a figure that although ‘unable to do anything, is able to prevent everything’. In contrast to the traditional European ombudsman model, which focuses on the submission of complaints filed against deficient state administration, Latin American defensorías are vested, from the outset, with the express mandate to protect and promote human rights. Therefore, they are entities that primarily follow the model of the human rights ombudsman.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Parental Responsibilities were published in 2007.1 They consist of 39 Principles (Principles 3:1–3:39). The Principles comprise eight chapters. Chapters I and II deal with definitions and the rights of the Child. Chapter III is devoted to the parental responsibilities of parents and third persons. Chapter IV is about the exercise of parental responsibilities: Section A by parents and Section B by third persons. Chapter V contains principles on the content of parental responsibilities. Section A thereof is devoted to the child's person and property, and Section B deals with the maintenance of personal relationships. Chapters VI and VII concern the termination, discharge and restoration of parental responsibilities. Chapter VIII deals with procedural matters.

The Parental Responsibilities Principles were drafted on the basis of 22 national reports reflecting the legal situation up to December 2004.2 Due account was also taken of International and European instruments from the United Nations (UN), the Hague Conference on Private International Law, the Council of Europe and the European Union (EU). The Principles also considered statistical information where available.

The updated national reports cover the legal developments in most of these jurisdictions until the end of 2020/beginning of 2021. No update reports were received from czechia, lithuania and switzerland.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Property, Maintenance and Succession Rights of Couples in de facto Unions were published in 2019. They comprise 27 Principles (Principles 5:1–5:27) set out in seven chapters. Chapter I concerns the definitions in and scope of the application of the Principles. Chapter II sets out the general rights and duties of partners in a de facto union. These are mandatory rights and their aim is to be applicable in every de facto union. Chapter III confirms the partners’ private autonomy by promoting agreements between the partners. Chapter IV contains rules on the partners’ property and debts. Chapter V focuses on issues that arise due to the partners’ separation. Chapter VI focuses on corresponding issues that arise in the event of a partner's death. Finally, Chapter VII deals with dispute resolution in respect of de facto unions.

Comparisons between 29 European jurisdictions, reflecting the legal situation until the end of 2014 or January 2015, provided the primary basis for these Principles. The updated national reports3 cover the later legal developments in these jurisdictions until the end 2020/early 2021, with the exception of croatia, czechia, latvia, lithuania, luxembourg, slovakia and switzerland. As a result, it has not been possible to take account of any later developments in these jurisdictions.

Eight of the update reports (belgium, bulgaria, denmark, estonia, hungary, norway, poland and russia) state that no changes of relevance have taken place in legislation or case law. However, in the light of the information in their previous national reports, the current law in most of them recognises de facto unions and provides the partners with certain mutual rights and duties, during the relationship, upon separation or in the case of a partner's death (belgium, bulgaria, denmark, estonia and norway).

In this book we have revisited the Principles of European Family Law by collecting updated comparative material from the CEFL experts, comparing recent developments in the surveyed jurisdictions with each other, identifying trends common to many family systems in Europe and, finally, comparing them with our proposals for how to harmonise the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and to issues of property, maintenance and succession rights of de facto unions in Europe.

Revisiting the CEFL Principles of European Family Law has been an exciting enterprise. For the first time we have addressed all five areas covered by the Principles at the same time. Equally, for the first time we have compared the Principles with recent developments in the European jurisdictions surveyed rather than drawing inspiration from comparing the European systems in order to propose our Principles in the first place. In addition, we once again carefully scrutinised almost every one of the Principles, which had been the subject of extensive discussion amongst ourselves and with CEFL experts prior to their initial adoption and publication. Finally, for the first time we have added Charts to our comparative exercise which are a valuable aide-mémoire to recent legislation and whether or not they conform to general trends.

This chapter brings our revisiting project to a close. We begin by recalling our general considerations which accompanied the comparative research-based drafting of the Principles from the very start since 2001.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Property Relations Between Spouses were published in 2013.1 They comprise 58 Principles (Principles 4:1–4:58) contained in three chapters. Chapter 1 provides for the general rights and duties of the spouses. Chapter 2 concerns the principles on matrimonial property agreements. Chapter 3 focuses on matrimonial property regimes and introduces two alternative regimes: participation in acquisitions and community of acquisitions. In drafting these Principles, account was taken of the position in 26 European jurisdictions, reflecting the legal situation as at August 2008 (in some cases until the end of 2008). The updated national reports cover the later legal developments in most of these jurisdictions until the end of 2020/beginning of 2021. Regrettably, no update reports were received from czechia, lithuania, malta, slovakia and switzerland. The update reports of estonia and slovenia, however, provide information on later developments in respect of spousal property relations, even though these jurisdictions were not included in the original national surveys on marital property relations. These two jurisdictions have been included in the following analysis in order to give a broader perspective, and thus a more inclusive comparison, of recent European trends on the regulation of spouses’ property relations.

The update reports show that spousal property relations have been subject to far-reaching legislative reforms, in one way or the other, in a number of the jurisdictions during the period from 2009 to 2019, e.g., in austria (2009), belgium (2018), bulgaria (2009), catalonia (2010), denmark (2017), estonia (2009) hungary (2013), the netherlands (2018) and slovenia (2019).

PREAMBLE

Recognising that, notwithstanding the existing diversities of national family law systems, there is nevertheless a growing convergence of laws;

Recognising that the free movement of persons within Europe is hindered by the remaining differences;

Desiring to contribute to the harmonisation of family law in Europe and to facilitate further the free movement of persons within Europe;

Desiring to balance the interests of spouses and society and to support actual gender equality, taking into account the best interests of children;

The Commission on European Family Law recommends the following Principles:

PART I: DIVORCE

CHAPTER I: GENERAL PRINCIPLES

Principle 1:1 Permission of divorce

• (1) The law should permit divorce.

• (2) No duration of the marriage should be required.

Principle 1:2 Procedure by law and competent authority

• (1) The divorce procedure should be determined by law.

• (2) Divorce should be granted by the competent authority which can either be a judicial or an administrative body.

Principle 1:3 Types of divorce

The law should permit both divorce by mutual consent and divorce without consent of one of the spouses.

CHAPTER II: DIVORCE BY MUTUAL CONSENT

Principle 1:4 Mutual consent

• (1) Divorce should be permitted upon the basis of the spouses’ mutual consent. No period of factual separation should be required.

• (2) Mutual consent is to be understood as an agreement between the spouses that their marriage should be dissolved.

• (3) This agreement may be expressed either by a joint application of the spouses or by an application by one spouse with the acceptance of the other spouse.

AIM AND OBJECTIVE

This book provides an update on recent developments in family law in Europe, predominantly in the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and de facto unions. In these areas, the Commission on European Family Law (CEFL) has drafted its Principles of European Family Law, which in turn are based on national reports representing up to 30 European jurisdictions. The total number of jurisdictions varied according to each working field.1 The Principles can be considered as model laws for national legislators in their quest to reform their family law systems. In turn, new family law legislation inspired by the European Family Law Principles2 may contribute to the further harmonisation of family law in Europe. In addition to comparing recent developments among the European jurisdictions, they have been compared with the different sets of our Principles. This comparison is the focus of the present analysis. It was never our intention to rewrite the Principles, but to reflect on them in the light of new developments.

MATERIAL AND METHODOLOGY

The national reports upon which the Principles of European Family Law are based on the law as it stood in September 2002 (Divorce and Maintenance Between Former Spouses), December 2004 (Parental Responsibilities), August 2008 (Property Relations Between Spouses) and February 2015 (de facto Unions), whereas our Principles in these areas were only published in 2004, 2007, 2013 and 2019 respectively.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Maintenance Between Former Spouses were the second to be drafted and were published together with those regarding divorce in 2004. The Maintenance Principles comprise ten Principles (Principles 2:1–2:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the aim of the Maintenance Principles is to provide a common set of principles covering spousal support after divorce, regardless of whether the divorce is consensual or not. The basic underlying strategy is to limit post-divorce maintenance claims to where the creditor spouse has insufficient resources to meet his or her needs and the debtor spouse has the ability to satisfy those needs. For the most part, post-divorce spousal maintenance is envisaged to be short-term. Allowance is also made for the spouses to make their own maintenance agreement.

The updated reports cover later legal developments until 2020. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland). On the other hand, an update report was received from estonia, which was not one of the original jurisdictions surveyed, and that jurisdiction has been included in the following analysis.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Divorce were the first to be drafted, although they were published together with those regarding Maintenance Between Former Spouses in 2004. The Divorce Principles comprise 10 Principles (Principles 1:1–1:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the underlying strategy of the Divorce Principles is to provide for a simplified non-fault basis upon which divorce can be obtained. A distinction is made between divorce by mutual consent and divorce without the consent of one of the spouses, divorce being easier in the former case than in the latter and immediately available if the parties have been factually separated for six months. In the latter case, divorce is available simply on the basis of factual separation for one year. Various safeguards are in place to safeguard the interests of children under the age of 16 and to give some protection to the economic needs of spouses. An important innovation of the Principles was the removal of any reference to the ‘irretrievable breakdown of the marriage’.

The updated reports cover later legal developments until 2020, though some reference has been made to subsequent developments. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland).

Albert Venn Dicey blazed a trail in expounding the principles, laws, and conventions of the British constitution. Those three types of norm are crucial elements in any constitution. In offering fragments of an account of their nature, Dicey was making a significant contribution to analytical jurisprudence, by which I mean the work of clarifying the basic concepts to be used in the general theory of law. Yet he maintained a curiously detached attitude to an academic industry that already went by the name ‘analytical jurisprudence’, which Jeremy Bentham and John Austin had instigated by provoking others to respond to their dramatic utilitarian, empiricist theory of law.

My purpose here is to consider what Dicey said, suggested, and took for granted about the nature of principles, of laws, and of conventions. And I will ask what might best be said about those things for his purpose of explaining the British constitution. Dicey thought that many norms of the United Kingdom constitution are not legal norms, and I will defend this idea and try to explain its import. Non-legal norms are critically important to the constitution: they institute our form of executive government and do much to regulate it. But Dicey quite deliberately focused on law, and sidelined the non-legal. He wrote that ‘the law, not the morality of the constitution [by which he meant, not constitutional conventions], forms the proper subject of legal study’.