One of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

One of the most controversial contests over the allocation of shared natural resources is now being waged by four former Soviet Union republics (Azerbaijan, Kazakhstan, Russia, and Turkmenistan) and Iran over the riches of the Caspian Sea. The bilateral regime established by the former USSR and Iran governing the Caspian Sea, though technically still existing today, is inadequate to deal with the present-day complex issues of the use and allocation of natural resources. The situation is aggravated by unilateral claims of the states bordering the Sea. Although the coastal states are currently discussing how the regime of the Caspian Sea might be resolved, the issue is not yet settled and the positions of the parties remain divergent.

This article argues that human rights law – which mediates between claims about universal human nature, on the one hand, and hard-fought political battles, on the other – is in particular need of a richer exchange between jurisprudential approaches and social science theory and methods. Using the example of the Inter-American Human Rights System, the article calls for more human rights scholarship with a new realist sensibility. It demonstrates in what ways legal and social science scholarship on human rights law both stand to improve through sustained, thoughtful exchange.

Together with the Security Council and the General Assembly, the International Court of Justice is one of the most important guarantors of peace, security and co-operation among states. The role of the ICJ in the enforcement of its decisions has received little attention in the existing literature. Although international courts, regional courts and national courts do not physically enforce their decisions, they have various levels of enforcement mechanism procedures. Nevertheless, it has been widely and mistakenly believed that it is not the business of the ICJ to enforce its decisions, but rather this is the business of other political bodies of the United Nations. It is argued in this paper that this proposition is not accurate and, instead, the ICJ has at its disposal various enforcement procedures and is, moreover, under statutory obligations to participate actively in policing and enforcing its decisions.

The Haiti cholera claims are focused upon the UN's violation of the rights of individuals affected by the cholera outbreak to access a remedy. The UN's absolute immunity from jurisdiction of national courts is counterbalanced by its duty to provide alternative dispute resolution mechanisms for private law claims. The UN has not only failed to provide those alternative dispute resolution mechanisms, but has repeatedly stated that no claims are receivable in these circumstances. Here we set out that even if the UN is able to shield itself from private law claims by using the cloak of absolute immunity, the UN might be held responsible for human rights violations arising from the cholera outbreak in Haiti. This article is concerned with the broader issue of whether the UN has violated and continues to violate individuals' right to health in Haiti.

The debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

Carl Schmitt was an intellectual who made the discipline of international law grapple with the major issues of his time. His work as an international lawyer remains largely untranslated. It is riddled with racism and anti-Semitism. However, an interest of his work is that it reflects the ‘shadow side’ of contemporary international law, forgotten because the moral defeat of Germany in 1945 was so total. Schmitt argues for an inherent tendency to violence and demonization in Western liberal international law theory and practice. He argues for the acceptance of difference as against homogeneity in world society as the only way to limit this violence. Finally, he argues that the liberal tradition is fundamentally compromised by its own colonialist heritage. Its objections to Nazi Germany translating this colonialist imperialism onto Eastern Europe are incoherent. Schmitt's avowed racism and anti-Semitism remain shocking. The article does not try to downplay this aspect of his work. However, it is worth noting that his Nazi bosses, for the most part, thought his racism insincere. If any negative spirit imbues the actual technical detail of Schmitt's work it is his aversion to the West. This probably had its roots in the envy which the Kaiserreich had of the British, French, and American Empires while Schmitt was growing to maturity.

This article appraises the impact of the Advisory Opinion of 7 July 2004 on the development of self-determination as a legal principle. The plight of the Palestinians being widely understood as a textbook self-determination struggle, the Court had to address the issue in its examination of the case at hand. Self-determination left an indelible mark upon the Opinion, from the decision to allow Palestine to participate, through the use of the principle as applicable law, to the elucidation of the violations and the erga omnes character of the obligations breached. The article examines the Court's positions, which, however sparsely elaborated, may have serious repercussions on the understanding of the principle and on its handling in future judicial proceedings.

With a number of sentencing judgments expected in cases pending before the International Criminal Tribunal for the former Yugoslavia, the enforcement of sentences has become an important concern. The author discusses theoretical and practical issues raised in this regard, including the juridical basis for enforcement as well as the Model Agreement regarding modalities of enforcement. On the basis of this Model Agreement, a number of agreements has been concluded with individual states. The author concludes that the nature of the Tribunal has necessitated the development of novel and sometimes artificial measures for the enforcement of sentences.

This article proceeds from two basic assumptions: that international criminal courts are engaged in writing history, and that this may influence the legal framework in which they operate. Against this background, the article takes a closer look at the Statute of the Special Tribunal for Lebanon in order to investigate allegations that the Tribunal has been tailor-made to further a certain view of recent Lebanese history.

Recent developments in legal scholarship evidence that the orthodoxy on the law on the use of force has dramatically switched from a restrictivist to an expansionist perspective. This article seeks to analyse this recent shift, especially with respect to the law of self-defence, from an expansionist point of view. Its purpose is to examine the argumentative landscape which currently exists on the expansionists’ side about that law. It observes that such argumentative landscape has significantly changed, as expansionists tend to pay less attention to the traditional arguments based on state practice and increasingly rely on policy considerations in order to strengthen and to go deeper in their wide conception of the law of self-defence. It calls into question such increasing recourse to policy oriented arguments and argues that those arguments cannot justify alone any evolution of the law of self-defence, while emphasizing that state practice remains central in that respect and explaining the different ways through which this practice may play such a role.

S. Zappalà, Human Rights in International Criminal Proceedings, Oxford: Oxford University Press, 2003. ISBN 0199258910, 308 pp., £67.50.

On 16 June 2003, the first Prosecutor of the newly established International Criminal Court (Court), Luis Moreno Ocampo, was inaugurated. He faces enormous challenges ahead in the short term, including the need to increase the number of states ratifying and implementing the Rome Statute of the International Criminal Court and to demonstrate that criticisms of the Court and his powers made by the current administration of the United States of America in the course of its campaign to undermine the Court are unwarranted. This article describes the background to the establishment of a permanent independent Prosecutor within the Court, able to open, subject to extensive statutory and judicial constraints, investigations on the Prosecutor's own initiative. It then describes the statutory provisions establishing the post and defining the powers and duties of the Prosecutor. The article concludes with a discussion of the imaginative way in which he is setting up the Office of the Prosecutor and his innovative overall strategy as a leader in the global fight against impunity. As the Prosecutor demonstrates his independence, impartiality, fairness, and effectiveness in conducting trials, and his ability to inspire states to fulfil their obligations to complement his efforts by investigating and prosecuting these crimes themselves, the long-term prospects for the Court will become increasingly promising.

This article reviews the case concerning Kasikili/Sedudu Island with reference to acquisition of title to territory under international law. It traces the ICJ's use of evidence of African use and occupation to establish territorial sovereignty in a European state. The tests adopted by the Court are based on Eurocentric assumptions that only the consent of European states is necessary to adjudicate nineteenth century claims of title to territory. International law still carries forward within it the colonial notion that treaties between colonial powers in the nineteenth century extinguished pre-existing title to territory based on African use and occupation. The decision gives probative value to economic intentions of colonizing powers and geographical and scientific evidence in determining title to the disputed island while Africa use and occupation of territory is sidelined. Africa is treated as an unconscious geographical entity – a feature referred to as geographical Hegelianism in this article.

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

In March 2014, a meeting of CARICOM states approved a ten-point plan of the Caribbean Reparations Commission to achieve reparatory justice for the victims of slavery, genocide and racial apartheid in the Caribbean. With assistance from the London-based law firm Leigh Day, the aim is to reach a negotiated settlement with the governments of Britain, France and the Netherlands. What makes this case different from previous discussions on Caribbean reparations is that the claim includes an indigenous component, with ‘native genocide’ included in the title and an ‘indigenous peoples’ development program’ included within the ten-point plan for reparations. Yet reparations are problematic in the Caribbean context due to the ongoing violation of indigenous rights internally. This article analyzes the various dimensions of the Caribbean reparations discourse with regard to contemporary indigenous communities in the region. It highlights the problems at regional level with regard to state responsibility and indigenous rights, particularly in relation to land, and argues that this presents a problematic element in the claim due to the fact that violations are being perpetrated against indigenous peoples by the same states who are representing them in the Caribbean Reparations Commission. Finally, it discusses the onus on European governments to acknowledge past wrongs and the potential of ‘cultural reparations’ to contribute to the Caribbean reparatory justice programme more generally.

This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadić Jurisdiction Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.

The recognition of Baltic independence in 1991 led to a number of challenges in their relationship with Russia. The legal status of large Russian-speaking minorities in Latvia and Estonia, the unresolved border questions, and the particular situation of Kaliningrad have proved to be the most pressing of these. This article tries to link these topical political issues with international law practice on state continuity. It refers to competing visions of Baltic statehood and its political and legal consequences, particularly in the context of the forthcoming enlargement of NATO and the EU.

The workload of the International Court of Justice in recent years has increasingly featured cases of disputes classified either as ‘territorial disputes’ or as ‘boundary disputes’, or otherwise involving the Court in considerations of the law relating to acquisition or transmission of territory, or to the creation, location and effect of territorial frontiers. The present survey analyzes the contributions to international law of the Court's decisions in these recent cases. Matters examined include the significance of the terms ‘boundary dispute’ or ‘territorial dispute’; the definition of what constitutes sovereign territory; titles and effectivités as bases for territorial claims; decolonization and the uti possidetis juris; use of natural features or of straight lines as boundaries; and relations across a frontier once established.

Can an occupier invoke the right of self-defence against terrorism stemming from territories which it occupies? In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the International Court of Justice responded to this question in the negative. This article critically analyses the reasoning presented by the Court concerning the specific question of the right of self-defence, not least in the light of the fact that it was harshly criticized by a number of judges in their individual opinions and by the Supreme Court of Israel in the subsequent Mara'abe (Alfei Menashe) case. It is also suggested that the issues discussed in this article, such as state responsibility for an armed attack, the principle of effective control, and the interplay between jus ad bellum and jus in bello, loom beyond the scope of the concrete question and concern more theoretical issues of international law.