More than a decade after the end of the conflict in Bosnia and Herzegovina, the issue of missing persons remains a major obstacle to reconciliation. With a focus on Bosnia and Herzegovina, this article looks at the phenomenon of missing persons and reviews the scope of the legal protection available to the victims and their family members, as well as some of the institutional efforts to shed light on their fate. The article describes the progressive development of the jurisprudence of the Human Rights Chamber for Bosnia and Herzegovina, a court modelled on the procedures of the European Court of Human Rights, which held that Bosnian authorities who are withholding from family members information about missing persons are violating their right not to be subjected to inhuman or degrading treatment and their right to respect for private and family life. It further illustrates the positive effects on politicians and lawmakers which can emanate from transitional justice.

In July 2001 the Human Rights Committee of the International Covenant on Civil and Political Rights issued a General Comment on the possibility of member states derogating from human rights in case of emergency. Basing its analysis on the issue of limitation of fair trial rights during a state of emergency, this article suggests a critical analysis of the reasoning, rather than the conclusions, of the Committee. Expanding arguments developed by monitoring bodies of the American and European Conventions on Human Rights, the author suggests alternative reasoning according to which the right to a fair trial is inalienable. She argues in particular that this right constitutes a guarantee necessary to the effective enjoyment of all human rights, the preservation of legality in a democratic society, and the effectiveness of the principle of separation of powers.

This article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

On October 4,1991 the parties to the Antarctic Treaty adopted the Protocol on Environmental Protection to the Antarctic Treaty. This Protocol contains a prohibition for the duration of fifty years of all exploration and exploitation of mineral resources in the Antarctic. The Wellington Convention, which was adopted in 1988 and was intended toregulate the exploitation of minerals,can now be considered dead and buried. Apart from the prohibition on minerals activities, the Protocol sets out a number of rules and regulations to control the activities in Antarctica in a more stringent way than before. This article analyses the Protocol and compares the ‘severeness’ of the rules with the degree of control in the Wellington Convention. It seems likely that states are less willing to accept heavy bureaucratic measures if the road to minerals development is cut off. For issues like dispute settlement, environmental impact assessment, the creation of new institutions and liability, the articles in the Protocol are compared with the corresponding articles of the Minerals Convention. Furthermore this article contains some suggestions on how the current plans to protect the Antarctic environment can be improved.

The article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.

This study examines the major legal, institutional, operational, and administrative aspects of the international property-related interventions in post-conflict Bosnia and Herzegovina and Kosovo. The establishment of international mass claims proceedings to restore or compensate for property rights lost due to ethnic discrimination and cleansing is a milestone for the protection of the rights of refugees and internally displaced persons. The case studies demonstrate that far-reaching international intervention and law enforcement do indeed effectively function if the international community engages in a sustainable and co-ordinated manner and provides sufficient funding.

In parallel to the negotiation of international investment agreements to protect foreign investment, intergovernmental organizations have deployed considerable efforts to adopt and implement standards of conduct for business enterprises operating abroad. Despite their informal character under international law, these instruments are increasingly mentioned in international investment agreements and investment arbitration. How can references to informal instruments elaborated by intergovernmental organizations contribute to the imposition of human rights obligations on foreign investors in international investment law? Drawing upon the interactional theory developed by Jutta Brunnée and Stephen J. Toope, this article considers these references as a practice that has the potential to strengthen the normative pull towards compliance with human rights norms. In addition to emphasizing the role of international investment law as a relevant forum to develop a practice surrounding these informal instruments, it assesses whether the use of these instruments by members of a community of practice is intended to establish a genuine sense of obligation and to impose human rights obligations on foreign investors. Even if some instances evidence a practice that strengthens such a sense of obligation, most of the references included in international investment agreements and investment arbitration do not render a practice of legality.

The enquiry into international legal personality in the following article is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described and explained, in order to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international) legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law.

The purpose of this article is to examine the attitude of the International Court of Justice toward questions concerning different aspects of the international arbitration process. This relates in particular to disputes over the obligation to submit an alleged dispute to arbitration, disputes over the validity or nullity of an award rendered in an international arbitration process, and appeals to the International Court from other bodies with a power of dispositive decision. These questions have arisen in many different circumstances. The matter is also important having regard to the presence of compromissory clauses in international treaties conferring jurisdiction on the International Court itself, but only after it is clear that a process of arbitration, as the preferred method of dispute settlement, is not going to be successful in the concrete case.

The statute of the newly established international criminal court provides for command responsibility; the vicarious liability of civilian and military officials for the internationally proscribed conduct of their subordinates. The interpretation of this provision requires an understanding of the doctrine's complex and convoluted evolution. The Geneva Protocol of 1977 created a measure of uniformity. The Geneva Protocol, along with the Delalić decision of the trial chamber of the Criminal Tribunal for the Former Yugoslavia, likely will inform the interpretation of command responsibility under the statute of the International Criminal Court.

The ‘question of labour’ and its exploitation in the Third World has not been given ample consideration by contemporary international legal scholars in their historical examinations of the making of the international order. This article revisits the history of the interwar institutions of the League of Nations, particularly the International Labour Organization (ILO), to argue that international law reformulated imperialism through its re-articulation of labour relations, beginning with its quest to suppress slavery and ultimately regulate forced labour in Africa. International institutions contributed to the valorization of ‘free wage labour’ in Africa and the Third World through its international ‘native labour’ policies, the development of international labour standards, and especially the passing of the 1930 Forced Labour Convention. The article argues that international institutions safeguarded the processes of capitalist racial/colonial accumulation and labour exploitation by ideologically dis-embedding the violence of slavery and forced labour from ‘free wage labour’, veiling the structural unity and totality of the international legal order with racial capitalism. Drawing on the ‘Black radical/internationalist tradition’, I propose an expansive critique of the international order as a form of ‘enslavement’ to the structures of capitalism, so as to adequately expose international law’s structural embeddedness with labour exploitation, white supremacy, and racial capitalism.

The article surveys the Saint Vincent and the Grenadines v. Guinea M/V Saiga cases which inaugurated jurisprudence of the 21 Member International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, with delivery of two important decisions on prompt release of the vessel and its crew (1997, Case No. 1) and on provisional measures of protection (1998, Case No. 2). The decisions provided precedential instances of application by the Tribunal of Articles 292 and 290 of the 1982 UN Convention on the Law of the Sea respectively, and of the relevant provisions of the ITLOS Rules. The prescription of provisional measures of protection formed the incidental proceedings of the pending M/V Saiga (Merits) case which is to be settled by ITLOS in mid-1999 (Case No. 2) and is to be the subject of a separate article. In view of the ITLOS Statute and the Rules being closely modelled in the Statute and the Rules of the International Court of Justice (ICJ), careful attention is given to comparison of the inaugural practice of ITLOS with the longstanding practice of the ICJ, and preservation of judicial consistency by ITLOS is particularly commended. A history of the M/V Saiga dispute, intertwined with domestic proceedings before Guinean courts, is for the reader's convenience outlined in a Chronological Table annexed to this article.

International criminal procedure (ICP) has fluctuated uncertainly between common- and civil-law procedural principles. Consensus on the principles underlying ICP is needed to ensure consistent standards of justice. The article begins by comparing criminal procedure in common- and civil-law systems, and describes the theories underlying the trial and judicial role in these systems. It then compares ICP to civil- and common-law criminal procedure. This comparison establishes the scope of judicial powers that can be exercised by international criminal judges. These powers differ from those exercised by both common- and civil-law judges. The article concludes by arguing that ICP is based on a new theory of the trial: the theory of ‘tempered adversariality’.

The international legal entitlement by which a state constitutionally designates its name, or a province therein, involves a unilateral act. Where, however, another state wishes to choose the same appellation, as is the case with the former Yugoslav Republic of Macedonia (FYROM), the matter can only be resolved by reference to the first user and the maxim prior in tempore potior in jure. The first user must provide evidence of continuous use and of protest in those cases where the same appellation was appropriated by a third state. Under such circumstances the entitlement becomes exclusive, rather than concurrent, because the prior user may be said to possess a sound historic title, such that has been recognized by international judicial bodies to determine acquisition of territory, effective administration, historic bays, and so on. The exclusivity of the entitlement is further reinforced by analogy with general principles derived from the law of trademarks. At a practical level, the application of the international law of geographical indications clearly demonstrates that the designation ‘Macedonia’ cannot be used for a significant number of products originating in FYROM, since the Greek province of Macedonia has for a long time branded and registered such products. This will create insurmountable problems for producers in FYROM when they try to brand their goods under the country's constitutional name. A change of name, particularly through the compromisory use of a compound, would alleviate legal, political, and financial concerns.

Over the course of the nineteenth century, the question of state responsibility for injuries done by rebels to foreign nationals, or ‘aliens’, in its territory became an important one for international law. Initially, it was common for disputes regarding such responsibility to be resolved through diplomacy, backed up, not infrequently, by the threat and even the use of force. Later it became a matter which also led increasingly to arbitration; beginning around the middle of the nineteenth century a growing number of arbitral tribunals dealt with claims against states for injuries done to aliens by rebels. From the first, established in 1839, there followed a series of 40 mixed claims commissions which touched on state responsibility for rebels. Nearly three-quarters of these arbitrations involved a Western state against one of the new Latin American republics. In this article, I explore how intervention in Latin America, and particularly its turn to arbitration, produced the highly-contested doctrine of state responsibility for rebels. Reading this history in the context of decolonization, capitalist expansion and economic imperialism in Latin America, I argue that the doctrine of state responsibility for rebels was produced out of and used to manage the transition from old colonialism to new imperialism in the region so as to guarantee foreign trade and investment. Understanding this history, I argue, helps us to put back together the pieces of alien protection which fragmented after 1945 and illuminates how international law continues to protect foreign investment against rebels in the decolonized world.