Abstract

Article 16 of the Resolution of the Institute of International Law on Human Rights and Private international law stipulates that those in a situation of vulnerability, such as children claiming support from their parents, should enjoy protection in cross-border relations. The provision fails to state how vulnerability should be understood, but the mention made to children in need of support suggests that the term, as used in the Resolution, refers to anybody exposed to a special risk of seeing their fundamental rights violated because of their inherent fragility and/or the circumstances in which they are found. The protection due by States to persons in vulnerable situations entails that their special needs and concerns be addressed, including through positive actions aimed to prevent the risk of violation and facilitate redress. The paper discusses the different techniques whereby private international law rules may fulfil this mission. The creation of concurrent heads of jurisdiction, meant to make access to justice effective, fits into this picture, as do conflict-of-law rules the operation of which is influenced by a concern for achieving a given substantive result (sometimes called substantively coloured conflict-of-laws rules), to name just two examples. The paper goes on to discuss the benefits that the international harmonisation of (private international) law is likely to provide to the crossborder protection of persons in vulnerable situations, as stressed by Article 16 of the Resolution itself. The potential of a ‘cooperative’ approach to private international law, made of flexible rules and inter-jurisdictional dialogue, is examined in this context