The concept of democracy has long fuelled controversy among international legal scholars, especially concerning its definition. This article is an attempt to single out three constitutive elements of democracy that have been subject to extensive scrutiny in the practice of electoral assistance and the more comprehensive peace-building and state-building missions that the UN has taken up or supported since the end of the twentieth century: freeand fair elections, freedom of association – with emphasis on the freedom to establish political parties – and freedom of expression. In doing so, this paper examines the role and the importance of each of these three constitutive elements in the practice pertaining to post-conflict reconstruction of Kosovo, East Timor, Afghanistan, and Iraq.

The outbreak of the ‘war against terrorism’ has provoked a deluge of images. It is uncommon for lawyers to think of the impact of the media on the production of law, yet a specific set of images has had a considerable impact on how legal issues surrounding the use of violence have been framed. The article seeks to explore this novel area by focusing on international humanitarian law and how it deals with the recurring question of prisoners. Some of the distortions the media community imposes on the law are uncovered, but the law's inherent malleability to such distortions is also underlined.

International criminal tribunals have developed a number of legal theories designed to hold individuals responsible for their role in collective criminal conduct. These doctrines of criminal participation, known as modes of liability, are the subject of significant scholarly commentary. Yet missing from much of this debate, particularly as regards the International Criminal Court, has been an analysis of how current doctrine on modes of liability responds to the need to hold collective perpetrators criminally responsible for crimes of sexual and gender-based violence (SGBV). Indeed, many writings in this area of the law address perceived shortcomings in the theoretical underpinnings of modes of liability doctrine in the abstract but ignore the application of this doctrine in concreto. As a result, facially neutral writings on modes of liability may in fact be gendered in application, either because they fail to account for the specific characteristics of sexual and gender-based violence or because they are applied in a manner that requires higher thresholds for finding culpability for the commission of SGBV crimes. This article fills the gap between theory and practice, examining past and present doctrine, and suggesting ways in which the treatment of modes of liability by international criminal courts and tribunals can both properly respond to the need for personal culpability and the dangers of collective criminal activity, particularly as regards SGBV crimes.

Judges in international tribunals have historically been subject to political pressures which might influence the independence of their position. The Rome Statute for the International Criminal Court has created a system in which judges are selected by political representatives of state parties, without any independent screening process. Furthermore, judges will have a high degree of control over the fundamental decisions as to who should be prosecuted, an area which normally falls in the province of the Prosecutor. There are legitimate reasons to fear that this system will fail to provide the necessary safeguards to ensure that judicial independence is maintained.

The justification for a majority of international judges sitting on hybrid international criminal tribunals is tremendously undertheorized. At present, policymakers must rely on base pragmatic considerations that allege that local judges are either too incapable or too corrupt. This may or may not be true. It is, however, certainly unattractive and inadequate as an argument. In this article, I sketch out a principled theoretical argument defending internationalization of hybrid tribunals. Drawing on debates in municipal jurisdictions on the principle of fair reflection, my principled justification centres on institutional and sociological legitimacy. As international crimes strike at two societies – the local and the global – hybrid tribunals should be composed of both international and local judges. In principle, the severity of international crimes dictates that international judges should predominate. However, peculiar contextual factors may suggest moderating the principle of fair reflection in appropriate circumstances.

Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law, Cambridge, Cambridge University Press, 2005, ISBN 0521828929, 356 pp., £60.00 (hb).

Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge, Cambridge University Press, 2004, ISBN 0521827612, 414 pp., £65.00 (hb).

Much has been written on the similarities and differences between arbitration tribunals and international courts; much more could and will certainly be written in the future. The purpose of my comments is to define similarities and differences in regard to the role of equity in both. However, I hope to enter the caveat at the very outset that in this paper I will focus solely on the role of equity in cases where the decision is to be based on international law. Accordingly, I will not here discuss cases of the type I had in mind when I pointed out in a speech delivered 34 years ago to the Legal Committee of the UN General Assembly that “[t]he arbitral solution has been applied in the past to a variety of problems, some of which were not judicial in character and did not raise issues of law”. Nor will I now discuss arbitrations in which the parties have agreed that the arbitrators need not be guided by law, or where the arbitral tribunal is expressly authorized by the parties to decide ex aequo et bono and thereby to settle the matter in a liberal spirit without regard to legal requirements and technicalities. Thus, cases in which the arbitrators have been empowered to seek mutual accommodations that would give offense to neither party are outside the scope of this discussion, as are cases where arbitrators recommended action by one of the parties as an act of grace.

The speaker identifies the scale of the task facing the ICTY and ICTR. He speaks of the necessary procedural and personnel imperfections by which their performance is bound to be limited along with the imperfections of the people of the regions whose war crimes they deal with. He deals with some inevitable shortcomings in the lawyers and judges working at the tribunals and argues for the need to have personnel of the very highest quality doing the tribunals' work. He highlights the need to be truly objective about the tribunals and their work but expresses optimism about their potential beneficial effects.

This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemi's work, international lawyers came to feel that they have domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline's vocabulary decide on their behalf.

Since it is traditionally labelled the most neglected aspect of the field, different triggering factors might account for the so-called ‘historical turn’ in international law in the post-Cold War era. On the material side, the preconditions for professional work in this area have been met by a certain democratization of research brought about by the progressive incorporation of new technologies and a trendy rising demand for international lego-historically oriented work from the publishing side. The emergence of specialist journals, the consecration – as a matter of editorial policy – of special issues in reputed publications to key historical doctrinal figures of international law, and the appearance of a number of emblematic book-length works (which have, in their turn, contributed to feeding the industry of historical international legal commentary) feature both as cause and as nurturing ongoing effect of the contemporary ‘global surge of interest in the history of international law and its scholarship’. While admittedly receptive in its evolutionary dynamics to these favourable background material academic conditions, a number of intra-disciplinary rationales should be concomitantly examined so as to account for the accompanying scholarly spiritual drive that has made it possible that the history of international law might today claim a disciplinary status of its own.

In this article, I suggest that one of the central characteristics of New Legal Realism is the productive tension between empiricist and pragmatist theories of knowledge which lies at its core. On one side, new realist work in its empiricist posture seeks to use empirical knowledge of the world as the basis on which to design, interpret, apply, and criticize the law. On the other, in its pragmatist moments, it explicitly draws attention to the social and political contingency of any claims to empirical knowledge of the world, including its own. As a consequence, it is distinctive of much scholarship in the New Legal Realist vein that it continually enacts creative syntheses of different philosophies of truth in an attempt to be, in Shaffer's words, ‘positivist . . . interpretivist, and legal realist all at once’. The first part of this article draws on existing historical accounts of legal realism briefly to trace the problematic and ambiguous place of scientism in the legal realist tradition. Then, in the second and more important part of the article, I argue that the ambivalence of the legal realists’ vision has left us, in certain contexts, with a complicated form of mixed legal-scientific governance which has proved remarkably and surprisingly resilient in the face of late twentieth century critiques of scientific objectivity. This may be one of the most enduring legacies of the ‘old’ legal realists for those today who work in the New Legal Realist vein.

On 2 February 2007 the Special Envoy of the UN Secretary-General unveiled a comprehensive proposal for a supervised independence of Kosovo with a view of clinching the last chapter of the dismemberment of Yugoslavia. This proposal constitutes a further attempt by the international community of states to bridle the volatile and unpredictable phenomenon of statehood. The state of Kosovo that is envisaged by the Status Settlement is to be endowedwith all the features that are nowadays seen as indispensable for the establishment of a modern government apparatus, a tendency that had already beenobserved in the case of Bosnia and Herzegovina or East Timor. The proposed regulation of statehood in this case, however, proves to be of an unprecedented extent. Against that backdrop, the article grapples with the legal questions revolving around the independence of Kosovo, including secession, recognition, succession, international supervision, self-determination, and membership of international organizations.

Embassy bank accounts are among the properties of states most widely present in foreign states. Accordingly, they constitute an ideal target for attachment by creditors. International instruments have largely upheld state immunity from execution regarding bank accounts, however. Likewise, state practice largely – and apparently increasingly – supports state immunity from measures of attachment, by applying a presumption that funds in embassy bank accounts are used for governmental non-commercial purposes. This approach is overly deferential to the state. Instead, it is argued that domestic courts should require that the state, at least partially, discharge the burden of proof regarding the nature (commercial/sovereign) of the funds in the bank account. A failure to discharge this burden should result in a rejection of immunity. Only such an approach adequately balances the interests of states and creditors, and does sufficient justice to the creditor's right of access to a court. In addition, it is argued that such a balance is also brought about by construing literally general waivers of immunity from attachment, as not requiring an additional specific waiver regarding embassy bank accounts.

The United Kingdom’s withdrawal from the 1964 Fisheries Convention and from the European Union has raised questions concerning the potential existence of third states’ fishing rights in the UK’s maritime zones post-Brexit. Historic fishing rights are a complex and controversial issue in the law of the sea. Uncertainty remains regarding their nature, the process for their formation and ascertainment, as well as their contemporary relevance in the light of the Law of the Sea Convention (LOSC) and other fisheries agreements. This article explores the concept of historic fishing rights in the law of the sea. First, it examines the nature and scope of historic fishing rights as discussed in the jurisprudence of international courts and tribunals and their relationship with other akin terms such as ‘customary’ and ‘traditional’ fishing rights. Issues related to the formation and establishment of these rights are also explored. The article also examines whether these rights have been superseded by the LOSC in the territorial sea and exclusive economic zone (EEZ), or whether they are still relevant in the post-LOSC era and maritime zones. It finally explores the relationship between historic fishing rights and treaty-based fishing access rights, and addresses the question posed by Brexit whether withdrawal from a fishing access treaty can unilaterally eliminate any related pre-existing historic rights. This discussion will provide an answer to the question whether it is possible for other states to have historic fishing rights in the UK’s territorial sea and EEZ following its withdrawal from the London Fisheries Convention and the European Union.

The International Court of Justice (ICJ or the Court) continues to hear and determine the contentious cases submitted to it, keeping up what has been referred to as an acceptable ‘cruising pace’. After recalling the extent to which the demands on the Court have increased, and the practical means available to it have been greatly extended, the author (following up an earlier article on the subject in the Netherlands International Law Review) examines the Court's recent case-law (decisions given since 2010) to show how each decision, besides furthering settlement of the specific dispute, has contributed to the enlargement or development of international law. Attention is concentrated, however, on particular questions: the role of peremptory norms (jus cogens); interpretation of treaties; questions of jurisdiction (including the problem of the existence of a justiciable dispute in each case); and certain incidental proceedings contemplated by the Court's Statute and Rules, namely provisional measures and intervention under Articles 62 and 63 of the Statute.

In the past fifty years there have been changes in relation to the nature and sources of international law. Academic lawyers have welcomed these changes, which show a movement away from strict consent as the basis of international law. States and government law advisers have adopted a more conservative approach and emphasize the importance of consent as a basis for international law. Different approaches are apparent in the practice of the Human Rights Council. The Council has focused on the Occupied Palestinian Territory, much to the annoyance of Western states. The developing world sees the Occupied Palestinian Territory in much the same way as the United Nations saw apartheid in South Africa. The International Court of Justice has responded wisely to both these phenomena. It has given cautious approval to new notions of international law, encapsulated in the doctrines of obligations erga omnes and jus cogens. On the subject of Palestine the Court has given an Advisory Opinion which should form the basis for a peaceful settlement of the conflict in the Middle East. Unfortunately the international community has failed to give effect to this opinion.

The Dispute Settlement Understanding in the WTO Agreement represents a significant shift from a diplomatic model of dispute settlement to a rule-based model. The substitution of legal legitimacy for political legitimacy in the dispute settlement process makes the success or failure of the system largely dependent on the credibility of the jurisprudence produced by the panels and Appellate Body. One way which international tribunals have established credible jurisprudence, is by following their previous decisions unless there is good reason for deciding otherwise. This paper examines the precedential effect of previously adopted panel and Appellate Body reports, and policy reasons for and against a stronger form of precedent in WTO jurisprudence.

About half a million Cambodians have attended hearings or outreach activities about the Extraordinary Chambers in the Courts of Cambodia (ECCC) since public hearings began in 2009. Countless more have watched the trials unfold on television, and increasingly on social media. To date, the majority of conversations around the legacy of the ECCC have come from international scholars focusing on the legal impact the trials may have. This article instead presents the often-missing views of Cambodian youth about the Tribunal. It also, more broadly, explores the ECCC’s impact on education and young people’s understanding of history. Based on research carried out with university students, this article argues that the contribution of the ECCC to education has often been overlooked and is in fact one of its most significant legacies. In Cambodia, government and non-government organizations, as well as academic institutions, have the unique opportunity to incorporate testimony, footage, and documents from the ECCC into their programmes, greatly adding to the existing repertoire of Khmer-language resources dealing with the past. The result is a more well-rounded programme of transitional justice and reconciliation than the court alone could have provided, and certainly a higher level of external resilience than would have occurred had the court been located outside of Cambodia.

This article illustrates the power of discourse in free trade agreement (FTA) negotiation, elucidating the concept from the perspective of a country’s abilities of rule control, rule assimilation and rule contestation. To enhance rule control, the G2 (the US and EU) have chosen their FTA partners, designed the FTA rules, and offered offensive-defensive exchange strategically. They have approached weak or trade-dependent parties first in FTA negotiation, innovated new rules to accelerate FTA negotiation, skillfully constructed intentional ambiguity and exemptions to remove rule discrepancies and made offensive-defensive exchange with their negotiating parties. Some of these strategies have been copied by China although in a different way. Further, a template approach for negotiating an FTA and exporting domestic laws and normative values to others contributes to the G2’s rule assimilation. A de facto FTA template has also been established by China recently, but its legal culture and political stance have led it to sign incomplete contracts and tolerate rule differences with its negotiating parties instead of transposition of domestic law. In facing the rival rules adopted by their competitors, the G2 have incorporated counteractive rules in their FTAs with their competitors’ close trading nations. China has also contested rules treating China as a non-market economy in its FTAs, but its stance toward state-owned enterprises (SOE) disciplines and rules forbidding forced technology transfer is milder due to its lack of experience in dealing with unfavourable rules.