This article argues in favour of broadening the trade and environment debate in the World Trade Organization (WTO) to include a developmental perspective. WTO litigation involving environmental regulation touches upon the issue of global justice and the power asymmetries structurally embedded in the global economy. The recognition of the WTO as a legitimate global institution, therefore, depends on its ability to reconcile the respect for the right to regulate with the need to give due regard to the interests and concerns of foreign constituencies affected by domestic regulation. By imposing other-regarding obligations, WTO law can act as a mechanism of external accountability of powerful states vis-à-vis affected foreigners, especially where asymmetric relations and different stages of economic development are involved. The article applies this framework to analyze the legal reasoning of the Appellate Body in the US-Tuna II dispute between the US and Mexico – a dispute illustrating the complex intertwinement between economic, environmental and developmental issues. It concludes that the use of the concepts of ‘even-handedness’ and ‘calibration’ under Article 2.1 of the Technical Barriers to Trade Agreement and Article XX of the General Agreement on Tariffs and Trade did not enable the Appellate Body to strike an adequate balance between the right to regulate and external accountability. While in the original report the Appellate Body used ‘even-handedness’ to impose only a minimal level of external accountability on the US, in the compliance report, the Appellate Body has gone too far by failing to defer to the US risk assessment amidst scientific controversy and uncertainty.

It was recognized that it was critical to the process of national reconciliation and the maintenance of peace in Sierra Leone that the Special Court for Sierra Leone (SCSL) be a strong and credible court operating in accordance with international standards of justice, fairness, and due process of law. This article assesses the fulfilment of this mandate through an examination of the fairness of the RUF trial as illustrated through two issues: the interpretation of the accused's right to be informed of the nature and cause of the charges and the approach taken by the Trial Chamber and the Appeals Chamber in assessing the evidential links between the accused and the crimes pursuant to the joint criminal enterprise (JCE) mode of liability. First, the article discusses the decisions that led to the omission of 250 charges from the indictment and their introduction into the trial through late evidential disclosures after the commencement of the prosecution case. Second, the article examines the way in which the charges, in a majority of cases, were found to be part of a common criminal purpose without a sufficient nexus being established to the accused or any member of the alleged JCE. The article concludes that the judicial approach to these issues abandoned the safeguards contained in the jurisprudence developed at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, giving rise to a trial that failed to adhere to international standards of justice, fairness, and due process, leading to manifestly unjust convictions.

Like all rules of customary international law, those existing in the field of international investment law are binding on all states. According to the theory of the persistent objector, however, a state is not bound by a rule if it objected to it in the early stages of its formation and continued to do so consistently thereafter. This paper analyses the different grounds of criticism that have been raised against the concept. We found that there is only very weak judicial recognition of the concept, that there is no actual state practice supporting it, and that it is logically incoherent. Specifically, this paper argues that the concept should not be successfully used in investor–state arbitration proceedings to prevent the application of a custom rule by an arbitral tribunal. This is essentially because of the great importance of the few custom rules existing in that field and the fact that they represent universally recognized values.

G. W. F. Hegel is one of the most significant philosophers in history yet the reception afforded to him in International Relations (IR) does not compare with his peers, most notably Immanuel Kant. Although by no means absent from IR he cannot be described as a canonical figure. Given his stature in philosophy this comparatively minor interest in Hegel prompts investigation into his failure to enter the pantheon of ‘Great Thinkers’ in IR. The critical-historical investigation of Hegel’s reception in IR undertaken in this article reveals that Hegel, unlike Kant, was cast as an intellectual villain – a blood-soaked Priest of Moloch, whose demonic ideology of state-worship led to the slaughter of the First World War, the rise of the Nazis, and the catastrophe of the Second World War. Condemned by an array of leading intellectuals from John Dewey to Karl Popper, Hegel was side-lined and erased until his work was reconsidered by revisionist scholarship in philosophy and – eventually – in International Relations. From the 1980s, a number of hotly contested, decidedly uncanonical ‘Hegels’ have found expression in IR, from a ‘realist’ Hegel to a postcolonial Hegel. Ultimately, the article argues that the treatment of Hegel reveals that the formation of the IR canons was not an innocent, dispassionate process but rather was imbricated in the great ideological and military conflicts of modernity.

This article addresses the question stated in its title by considering not only the role of national courts but also the roles of national legislatures and executives. That emphasis is called for because most of international law most of the time operates through national, rather than international, institutions and in particular through the executive and the legislature. Before I get to those national institutions, I consider two undisputed propositions of law, the varying characteristics of rules of international law and the impact of those characteristics on different national constitutional and legal systems.

The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

Proportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.

When it first encountered the Genocide Convention in its 1951 Advisory Opinion, the International Court of Justice recognized that the treaty reflected the ‘most elementary principles of morality’. Its provisions were to be read broadly, in light of the Convention's transcendent object and purpose. This expansive approach stands in contrast with the narrow interpretation of Article IX in the recent Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This article is a commentary on the retroactive obligation to punish genocide under the Convention with regard to acts occurring prior to its entry into force for that state. It concludes that the Court's narrow interpretation of its jurisdiction ratione temporis raises wider questions for its contemporary jurisprudence, namely, whether it will interpret human rights treaties enshrining fundamental values any differently than other international instruments.

Emil Cioran often likened the experience of abandoning his native Romanian for French to submitting to a straitjacket. Indeed, the language in which he would go on to secure his reputation was itself, he wrote, best understood as ‘the combination of a straitjacket and a salon’. It was only by undergoing an ‘exercise in ascesis’, suspending his commitments to what he regarded as an earthier, less regimented tradition, that he had been able to don the garb of a French author, if still only as a ‘Balkan reject’. The rigour and crispness of his adopted tongue flew in the face of his desire. The severity of its lucidity stifled his passions, or simply channelled them along directions deviating from their natural path. ‘[Y]et’, Cioran went on to observe, ‘it is precisely on account of this incompatibility that I have attached myself to this language’. So much so that what caused him the greatest grief of all was to see that ‘[t]oday, when this language is in full decline, . . . the French themselves do not seem to mind.’

The discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court's ruling had been profoundly influenced by Serbia's fragile domestic politics and hence this worked silently to constrain the Court's rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole.

The principle of sovereign rights under UNCLOS countenances competition among littoral states for ownership of a common oil deposit through the unilateral exploitation of their continental shelf. This leads to conflict, wastage, and resource sterilization. However, rather than apply the principle of sovereign rights, states seem to turn to natural law principles as a more reasonable regulation of their activities on the continental shelf. Two sources of natural law principles are relevant. One source consists of a priori principles of sociableness and necessity which prescribe that, for their own preservation, states ought to act pursuant to the common good. These principles underlie energy security policies which espouse interdependence. Another source of natural law principles are international agreements and national laws in which states temper their sovereign rights and interests and recognize the co-existence of the rights and interests of other states in a common deposit. These practices constitute a posteriori intervenient or secondary law of nations, which appears similar to customary law. Adherence is not dictated by conviction that these principles are obligatory. Rather, adherence seems to be based on discernment that, while permissible under the principle of sovereign rights, unilateral appropriation is impermissible under natural law.

This article reviews and analyzes the Furundžija Judgment rendered by the International Criminal Tribunal for the former Yugoslavia, the first international war crimes trial in history to focus virtually exclusively on rape. The judgment addresses what acts constitute rape, whether a non-physical perpetrator can be held individually criminally responsible for rape, and whether rape can constitute torture; it also broadens the purview of Common Article 3 crimes and considers acts which may constitute outrages upon personal dignity. This article discusses how these issues impact upon both international humanitarian law generally and gender jurisprudence specifically.

The Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke the inadimplenti non est ademplendum rule to justify breaches of their own obligations under the same treaty.

Tadić (indictment of 13 February 1995)

1. Order of Trial Chamber II Granting the Withdrawal of Assigned Counsel on 22 April 1997.

2. Opinion and Judgment on 7 May 1997.

3. Order of the return of a Detained Witness (Dragan Opacić) on 27 May 1997.

4. Order of the President Assigning Judges of the Tribunal to the Bench of the Appeals Chamber in the Case of Dragan Opacić on 12 June 1997.

5. Decision on Application for Leave to Appeal in the Case of Dragan Opacić on 2 June 1997.

6. Order Regarding Pre-sentencing Hearing on 12 June 1997.

7. Order of the President Assigning Judges to the Appeals Chamber on 16 June 1997

8. Judgment on 7 May 1997.

9. Revised Order of the President Assigning Judges to the Appeals Chamber

10. Sentencing Judgment on 14 July 1997.

In the relationship between the Netherlands and the International Criminal Court distinction must be made between the position of the Netherlands as party to the Statute and the special position of the Netherlands as host country. Seen from a political perspective, this distinction is not always obvious, but from a legal perspective it is useful because it helps to show that legal problems and objections raised either do not exist or are solved more easily. As far as the preparations for the actual functioning of the Court are concerned, the legal infrastructure in the host country is largely in place.

One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.

By now it is commonplace that developments in Europe take place faster than any observer, who intends to write an analysis, would prefer. The degree of difficulty to predict the directions in which Europe will develop itself, is only matched by the importance to study the landmarks that have already been reached.