: Finding
the Law: the Micro-States and
Small Jurisdictions of Europe:
Andorra, Cyprus, Northern Cyprus, Iceland, Liechtenstein,
Luxembourg, Malta, Monaco, Montenegro, San Marino, Vatican State; UK European
dependencies: Channel Islands, Gibraltar, Isle of Man; Faroe Islands and
Greenland
Published February 2005
Andrew Grossman is
a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London,
Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark),
LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en
droit européen et international, Maître & Docteur en droit (Louvain) and is
a member of the New York and District of Columbia Bars. He lives in London,
where he writes on private international law issues, especially in the fields
of nationality, bankruptcy and tax. Among his publications are "Conflict of
Laws in the Discharge of Debts in Bankruptcy", 5 Int'l Insolvency Rev. 1 (1996), "Nationality
and the Unrecognised State" <http://www3.oup.co.uk/iclqaj/hdb/Volume_50/Issue_04/500849.sgm.abs.html> (subscription required
for download of full article), 50 Int'l
& Comp. L.Q. 849 (2001), "Gender and National Inclusion" 2001-1 Law, Social Justice and Global Development
<http://elj.warwick.ac.uk/global/issue/2001-1/grossman.html>
and "'Islamic land': Group Rights, National Identity and Law", forthcoming, 3 UCLA J. Islamic & Near E.L. (2004).
His current work in process is entitled "Conflicts in the
Cross-border Enforcement of Tax Claims".
Update to
an article previously published on LLRX.com on October 1, 2001 <http://www.llrx.com/features/microstates.htm>
Table of
Contents
Finding print sources of primary law
Sources of law on particular subjects
General Sources, Common to More than One of the
Jurisdictions under Study
Pathfinders, bibliographic references and general sources
of law online
Other sources of laws of the jurisdictions under review,
by type
Orthography and digitization - non-standard characters
The micro-states and small jurisdictions of Europe:
Andorra; Cyprus;
Turkish Republic of Northern Cyprus; Faroe Islands (Føroyar, Færøerne);
Greenland (Grønland);
Iceland;
Liechtenstein; Luxembourg; Malta; Monaco;
Montenegro (Republika Crna Gora); San Marino; Vatican State (Holy See); United Kingdom European Territories; Gibraltar;
Guernsey, Alderney, Sark; Jersey; Isle
of Man
General sources of information on foreign, international
and comparative law
This article aims to provide an
introduction to finding the sources of primary and secondary law for the "small
jurisdictions" of Europe: the distinct European political entities having a
population under one million persons. We have omitted three Eastern European
sub-jurisdictions (Republika Srpska, Kosovo and Transnistria) that appeared in
an addendum to the original survey, but which exceed our population threshold.
We have not considered the special status of non-sovereign enclaves with
particular special tax concessions trans-border legal situations, including Campione d'Italia, Buesingen, Llívia, and Baarle. Also
omitted are Ceuta, Melilla (enclaves
sometimes called migration "gateways to Europe") and other autonomous
nearby but non-European territories of European states. On the other hand, we
have added the Faroe Islands and Greenland, which have autonomous government
and legal systems and are outside the European Union, plus Iceland, which did
not appear in the original article. Suggested readings have been added to the
listings for each jurisdiction based on their value to research in comparative
law, and many citations and links to cited cases and works have been added.
More than the original article it replaces, this version concentrates on the
law and practice in those sectors that distinguish particular micro-states as
legal and economic entities: bank secrecy, flexibility in trust management, tax
sparing, asset protection, shipping, and political and juridical stability.
No attempt has been made to make the
country sections entirely parallel. The first priority has been to identify
online and print sources of primary law. Beyond that, secondary sources and
commentary are provided when they are known to the author and when it is
believed a bibliography would be difficult to develop by simple query on one of
the OPACs listed below. Nordic, NATO and similar multilateral documents and
links are generally listed only once, on the assumption that a reader
interested in, say, the Faroe Islands will read through the Greenland and
Iceland sections as well. All links were
visited during the last week of December 2003. Some links, especially links to
internal pages and those intended for student downloads, may have limited life
spans.[i]
|
Country or Area |
Approx. Population[ii] |
|
Andorra |
69,865 |
|
Cyprus (Republic)[iii] |
575,000[iv] |
|
Northern Cyprus[v] |
200,000 |
|
Faroe Islands |
46,662 |
|
Greenland |
56,384 |
|
Iceland |
293,996 |
|
Liechtenstein |
33,436 |
|
Luxembourg |
462,690 |
|
Malta |
396,851 |
|
Monaco |
32,270 |
|
Montenegro |
620,145[vi] |
|
San Marino |
28,503 |
|
Vatican State |
921 |
|
Gibraltar |
27,883 |
|
Guernsey |
65,031 |
|
Jersey |
90,502 |
|
Isle of Man |
74,261 |
The micro-states and juridical-autonomous
small jurisdictions of Europe owe their existence to historical anomalies; vested
interests seem to have assured their survival. Of the 13 jurisdictions covered,
only nine possess internationally recognized sovereignty. At least in the case
of North Cyprus, lack of such recognition may impede foreign courts from giving
force to its administrative and juridical acts and recognition to the status of
inhabitants abroad except insofar as a "subordinate level of government theory"[vii] or a
pragmatic or sympathetic legal approach intervenes. For this reason, conflict
of laws and foreign relations law need to be reviewed. In the United States,
the case law on alienage jurisdiction has sometimes yielded curious results
with respect to the bringing of cases by or against nationals of non-sovereign
political entities in federal court; thus: Matimak Trading Co. v. Khalily, 118
F3d 76 (2d Cir 1997), cert. denied 522 U.S. 1091 (1998) (Hong Kong,
pre-reversion; holding abrogated by JPMorgan Chase Bank v. Traffic Stream (BVI)
Infrastructure Ltd, 536 U.S. 88 (2002).
The access to U.S. courts of unrecognized states and territories and their
nationals (such as North Cyprus) remains problematic. Inhabitants of breakaway
provinces, including Transnistria and perhaps Kosovo, may face similar
difficulties to the degree that their nationality laws
recognize as citizens persons who are excluded as such under the laws of the
recognized state. Such territories also raise interesting questions of treaty
law and status with respect to international organizations, and the researcher
may wish to look at relevant data sources. Many micro-states have powerful
advocates with access to the government and legislature of a nearby, protecting
or sovereign power; the dynamics of tax-law legislation[viii]
and the international-law principle of sovereign equality[ix]
are important factors behind their viability.
The economically-active jurisdictions
covered depend on flight capital, entity hosting, trusts, shipping and tax
advantages or some combination of these for their economic survival The issues
have been extensively debated in international organizations and discussed in
the legal literature. Eight of the sovereign states reviewed here (i.e,
excluding the Holy See) are members of the Council of Europe. In addition,
because they are associated in varying degrees to the European Union, EU law
may need to be reviewed in relation to issues concerning the non-sovereign
European UK territories, plus at least Malta and Cyprus. Cyprus, Malta and
Gibraltar (and other UK dependencies) are within of the British Commonwealth[x], which can have
particular relevance to the application of UK tax and immigration law.
See the British Nationality Act 1981,
the Immigration Act 1971,
and the Immigration Act 1988;
for the history of British nationality, see Clive Parry, British
Nationality Law and the Law of Naturalisation (1954).
Luxembourg is a
member state of the European Union and is the seat of the European Court of Justice;
the Republic of Cyprus
and Malta will become
EU member states on May 1, 2004. The status of Andorra can be
found at this link. Liechtenstein and Iceland are member states of the European
Economic Area. With respect to Liechtenstein, Monaco, San Marino and the Vatican, relationships with the respective "protecting" powers
(France, Spain, Switzerland and Italy), and with the European Union, are
governed by treaties which may need to be examined; some of these treaties are
cited below. Iceland is a member of the Nordic Council. The Iceland Ministry of
Foreign Affairs has a Web page on
Icelandic cooperation with other Nordic countries.
The Turkish Republic of Northern Cyprus
has a functioning body of laws and legal system, but as it is recognized de jure only by Turkey; its inhabitants
may be treated by other countries as Cypriots, Turks or stateless, depending
upon facts and circumstances in each case. Turkish law may apply for certain
transactions: the shipping, banking and financial, postal and communications
systems are integrated with those of Turkey.
Where available and relevant, the name
and URL (or street address) is provided of one or more major national law library(ies).
In addition, the laws of many (but not all) the jurisdictions are available for
consultation at major repositories of foreign law, including:
. Swiss Institute of Comparative Law, Lausanne
. Bodleian Law Library, Oxford
. Harvard University
Law Library (HOLLIS)
. Los Angeles
County Law Library
. European
Commission Library (ECLAS), Brussels
. Institute of Advanced Legal Studies,
London
. Max-Planck-Institut
for Comparative Law, Hamburg
. Law Library of Congress, Washington
. Peace Palace Library, The Hague.
. Dag Hammarskjold Library, United Nations, NY
. Center for Research Libraries, Chicago
In the United States, the Center for Research Libraries has undertaken
historical collection of foreign official gazettes (shelf code: FOG). Other
recommended sources of official gazettes are the
. Dag Hammarskjold Library (Annotated list of
holdings as of 1986: Part I; Part II)
Especially for historical legal
materials, researchers may also wish to consult:
. RLIN
. OCLC
. COPAC
. FLARE
. Bibliothèque nationale de France
Most British Library historical
holdings of official gazettes are not now reflected in the British
Library OPAC; they are recorded in card file in the Science,
Technology and Business Reading Rooms. Current issues are more likely to be
found in the UK at
. IALS
. British Library of Political & Economic Science at LSE
and
. Bodleian
also see
For non-UK European materials:
. The Swiss Institute of Comparative Law
Other comparative law sources are
listed on the Web site of the American Society of Comparative Law.
Present and former UK dependencies
. Institute of Commonwealth Studies
. Institute of Historical Research
. British Official Publications Collaborative Reader Information Service
The Council of Europe
requires its member states to provide translations and summaries of various
laws (in English or French translation), and researchers may contact the
relevant CoE office for details and, in some cases, copies of the resulting
work product. The CoE site is an important source of primary and secondary law.
Other international organizations which may be sources of legal materials are:
. WIPO
. UNHCR (including REF-WORLD, online
and, more comprehensively, on CD-ROM)
. WTO
. IBFD
. IMO may be useful sources of documentation and
bibliographic references within their respective spheres of responsibility.
. ILO's Principal Sources of
National Law
. UNIDROIT, material relating to unification of law.
The common-law jurisdictions reviewed
will follow, generally Dicey & Morris
on the Conflict of Laws, now in 13th edition (2000). However, where
European Union law, specifically the Brussels and Lugano rules, do not apply,
the common law rules last set out and annotated in the 11th edition (1987),
superseded in England, should be considered.
For civil law jurisdictions, finding
guidance is more complex in the absence of a specific statute. Such statutes
and/or treatises dealing with the subject on a national scope are included in
the descriptions of each jurisdiction. See also the paper prepared for Seminar für Internationales
Privatrecht, Wirtschaftsrecht und Verfahrensrecht (MS Word, 64
kb) including a list of statutes on page 15). Batiffol & Lagarde, Droit international privé (8th ed. 1993)
is a good starting point for researching civil-law practice generally. On
Brussels and Lugano, see Rodrigo Rodriguez, Die Revision des Brüssels und
Lugano-Übereinkommens im Kontext der Europäisierung von IPR und IZPR
(PDF, 452 kb) (2002).
See also: Hague Conference on Private International Law and
Symeon Symeonides, Private International
Law at the End of the 20th Century, Progress or Regress? (Kluwer Law/Aspen
2000)
Note
This is a preliminary compilation of
sources of the law based on personal visits to all the jurisdictions and
national libraries listed (except for Iceland and Malta), and on consultation
with law librarians. Small countries have come to appreciate that easy access
to their law is an important element of commercial prestige and recognition and
further development in collections of digital information can be expected.
While we have concentrated upon online resources, some print resources are
listed, especially for those jurisdictions that are largely ignored by many
major libraries.
European integration
. European Union, treaties and
draft constitution (consolidated versions)
. Treaty on European Union
(1992 version, with protocols)
. Werner
Schroeder, European Union and Communities
(Jean Monnet Program, Feb. 2003) (addressing the distinction and blurred
frontier between Union and Communities)
. Council
of Europe links to legal information
databases
. European
Union Mission to the U.S.A.: discussion and links, member state offshore
dependencies
. Hague Conference on Private
International Law: Cyprus and Malta are members
. European
Union EUR-LEX site
. Europa SCADPlus (summary of EU legislation,
by subject)
. European Court of Justice
site
. European law explanatory site
. European Free Trade Area site
and see
·
UC Berkeley Library, European Union Internet
Resources
. University of Exeter European
Information links
International organizations
. International Maritime Organization
. International Organization for Migration
. UN High Commissioner for Refugees
Legal databases
. Association des Cours Constitutionnelles databank
. Conference of European Constitutional Courts
. Institut français de micropatrologie - archived copy of Web page as of Aug.
26, 2004
. Intellectual property law
Internet Resources
. Netherlands Institute of Human Rights SIM
database
. Bayefsky.com: UN Human Rights Treaties
. U.S. Social Security Administration, Social Security
Programs Around the World
. Selected judgments of various international tribunals
. Transparency International (integrity in
government)
. U.S. Department of State human rights reports
. U.S. Department
of State Freedom of Information Act pages (include post
reports, Foreign Affairs Manual instructions regarding visas, availability of
birth, death, marriage, military, police and other documents).
Jus commune (droit commun, law based on Roman law, canon law, and the
interpretations of glossators and commentators and common to Europe at the
beginning of the Renaissance. Cf. common law):
. Pedro A.
Malavet, The Reception of the Jus Commune in Europe
. Société
de Législation Comparée, Pensée juridique française et harmonisation
européenne du droit (PDF 68 kb)
. Origins
in canon law: Stéphane Boiron & Franck Roumy, Chronique d'histoire du droit
canonique
A search-engine and Index to Legal Periodicals search
on "jus commune" and "ius commune" will yield other scholarly studies of the
origins of law in Andorra and San Marino and similar jurisdictions.
. Professor
A.D.E. Lewis's course outline on Western European History
is useful for topics and references.
The French Government
("Service-Public") web site contains a directory of
foreign public web sites.
Luxembourg (and since May 1, 2004
Cyprus and Malta) are member states of the European Union; Liechtenstein and
Iceland are members of the European Economic Area. Gibraltar is within the EU
for some purposes, including free movement of persons. It is not within the EU's Common Agricultural
Policy (CAP) or its customs union. This is stated in the UK Treaty of Accession (OJEC 1972 L-73/201). However, that
agreement is otherwise unclear on the subject and there is limited law on
point; so the extent that EU law on free movement of goods applies remains
arguable. The ECJ decision of Sept. 23, 2003 in case C-30/01, Commission v. UK (non-implementation of directives on
dangerous chemical substances, noise emission, packaging waste and
genetically-modified organisms) discusses the subject in some depth. On
immigration issues, see Regina v. Director of Labour
and Social Security, ex parte Amimi Mohamed, [1992] 3
C.M.L.R. 481 (Sup. Ct. Gib.; application of EEC-Morocco cooperation agreement).
A history of financial scandals including the Barlow-Clowes affair
(Regina v. Clowes, [1994] 2 All E.R.
316 (C.A. Crim.)) has called attention to the nature of financial services
regulation. The Lloyd's of London cases illustrate the
dynamics of pre-empting, out of comity, the "interests" and rules of the
investor's jurisdiction by those of the securities-issuing jurisdiction[xi]. See also the
discussion of Gibraltar's regulatory climate in Offshore News Online.
The Channel Islands and the Isle of Man are subject to certain EU laws; the
extent of this is open to some debate; see:
. Department of Health and
Social Security v. Barr and Montrose Holdings Limited, [1991]
ECR I-4379
. Rui Alberto Pereira Roque v.
Lieutenant Governor of Jersey, [1998] E.C.R. I-4607
. Memorandum of law of Michael Birt, QC
Other references are listed in the
relevant country outlines, below.
With respect to EEA member states, note
particularly the acquis regarding the relationship with member states of
the EU (PDF, 256 kb) and the Lugano Convention[xii] on
jurisdiction and the enforcement of judgments in civil and commercial matters.
Guides to finding European Union law
include
. Marylin J.
Raisch, European Union Law: An Integrated Guide to Electronic
and Print Research
. SOSIG's European Union Law
The leading print text is Trevor C.
Hartley, The Foundations of European
Community Law (4th ed. 1998).
The European Free Trade Area
is comprised of Iceland, Norway, Switzerland and Liechtenstein; see the Web
site for details of the Secretariat, Surveillance Authority and Court, and the EFTA Court site for case reports and legal texts. The European Economic Area includes Iceland,
Norway and Liechtenstein.
Andorra, Luxembourg, Monaco, San Marino and the
Vatican (among the jurisdictions under study) are part of the European Central
Bank (euro) currency union. See:
. Legal Documents relating to
the European Central Bank
. Opinion of ECB relating to the
Vatican State (PDF, 86.9 kb)
. Monetary Agreement
between the Italian Republic, on behalf of the European Community, and the
Vatican City State and, on its behalf, the Holy See (PDF, 34.8 kb)