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 article focuses on the correlation between the secondary objectives of the European Central Bank (ECB) and the right to a healthy environment. Whereas the primary mandate of the ECB is maintaining price stability, the applicable law also envisages secondary objectives, such as supporting economic growth and sustainable development. Crucially, however, there is an emerging scientific literature suggesting a trade-off between economic growth and environmental sustainability. This results in a balancing problem: To what extent environmental protection and sustainability can be balanced with economic growth within the ECB’s monetary policy? This article aims to analyse this issue with a specific focus on legal implications in terms of the right to a healthy environment. This study reveals the failure of the member states to comply with the international obligations under the right to a healthy environment in shaping the law of the ECB.

As the list of contentious cases concerning issues of state responsibility brought before the International Court of Justice (the Court) continues to grow, a closer consideration is demanded of the most common remedy granted by the Court – the declaratory judgment. In particular, while the Court continues to issue declarations intended to constitute ‘appropriate satisfaction’, it also appears that the Court is – or is attempting – to use declarations more creatively in certain circumstances. This immediately provokes a question as to not only the proper role of declaratory judgments, but also whether and to what extent variations in the nature of the obligations owed by states, or the nature of their internationally wrongful acts, gives rise to a coherent differentiation in the remedies granted by the Court.

The article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

This article analyses the ICJ, one of the most eminent actors of the international legal regime, as an actor of the international tax regime. So far, the ICJ’s role in tax dispute resolution has been a blind spot in the literature.

The descriptive part of this article first discusses the case law of the PCIJ and ICJ that considers – albeit incidentally – questions of taxation. These tax-related cases are categorized as (i) ‘wrongful taxation’ constituting the subject matter of the dispute; (ii) taxation as evidence for a ‘genuine link’ between the state and a national; or (iii) taxation as an ‘effectivité’ to prove the de facto exercise of state authority over a given territory.

The second half of the descriptive analysis assesses the Court’s jurisdiction over tax disputes. Tax treaties usually lack compromissory clauses. Yet, there are a number of jurisdictional bases that vest the Court with the competence to sit over hypothetical tax treaty disputes, although certain reservations may render the Court’s jurisdiction residual to other means of tax dispute settlement. Further, Article 344 TFEU possibly precludes EU member states from initiating ICJ proceedings concerning tax treaty disputes with other EU states.

The second, normative part of this article contemplates the Court as a future ‘World Tax Court’. It briefly addresses (i) possible effects of the ICJ’s hypothetical involvement in tax disputes; (ii) whether the ICJ might have a future role in tax dispute settlement in light of recent developments; and (iii) whether it is even desirable to involve the Court in tax disputes.

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

This article compares and contrasts the interpretation of the Lusaka Ceasefire Agreement 1999 by the International Court of Justice, the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone by the Special Court for Sierra Leone, and the General Framework Agreement for Peace in Bosnia and Herzegovina by the European Court of Human Rights. In doing so, it critically analyses the approach of the three different tribunals and attempts to explain the differences identified on the basis of the jurisdictional scope of each tribunal and the substantive law each has been tasked to apply. This comparison is both substantive and procedural. The article then examines the impact of these three tribunals on two specific aspects of the rule of law: legal accountability and legal certainty, both internationally and in the countries under examination. It is argued that, while these tribunals have enhanced legal certainty and accountability on the international level, any contribution they have made to the domestic rule of law has been questionable.

The US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

The adoption of the Statute of an International Criminal Court in July 1998 is widely regarded as a major step forward in international criminal law. The United States, however, does not share this point of view in all respects. It particularly fears that the Statute will allow prosecution of American peacekeepers for political instead of legal reasons. This article examines the provisions of the Statute in the light of that fear. It concludes that not only is such a fear unjustified, the United States position may have disastrous consequences for efforts in peacekeeping.

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.

International criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

This comment questions some of the key assumptions in the article by Roper and Barria with respect to the ICC's power to bargain with territorial states to attain the apprehension and surrender of indictees. The comment notes that, while factors such as the nature of the referral to the Court, the crimes charged, and whether the conflict is still ongoing are likely relevant to the ICC's bargaining power, the effect of these factors is indeterminate. The comment highlights the regional political dimension of the ICC's bargaining leverage in the Great Lakes region of Africa and suggests that the Court's bargaining power is engaged in a path-dependent three-level bargaining game.

The Treaty of Rome, establishing the European Economic Community (hereinafter: the Treaty), does not provide for a system of Community-wide merger control and authorization.The anti-trust provisions of the Treaty are only concerned with distortion of competition resulting from certain restrictive agreements (Article 85) and with abusive behavior of undertakings in a dominant position within the common market (Article 86);concentrations like mergers, which may as well affect the internal European market, are not explicitly mentioned. To a certain extent however, the European Commission has in fact won the power to control large-scale mergers as a result of the European Court's decision in Continental Can (1973).

Straddling both the centres of (European) power and the shifting dynamics of the post-Ottoman world in a quest to guarantee private rights through public international legal redress, the PCIJ Mavrommatis case provides a rich resource for interrogating the extent to which international law during the League period could speak for voices on the edge of empire. In this article, historical consideration of the regimes of empire and Mandate form the backdrop to an exploration into how international legal discourse (re)configured the relationship between the core and the periphery, especially for those peoples awaiting the promise of self-determination and sovereignty. The figure of a lone Greek investor and his dashed hopes in the newly created Palestine Mandate is the backdrop to this tail of ever-shifting interpretations of public and private rights, of speech as well as silence before and beyond the Peace Palace.

The ICC's Regulation 55, which allows the Trial Chamber to modify the legal characterization of facts in the final judgment, has been used too often and too carelessly. Recharacterization must not exceed the facts and circumstances described in the charges, but material facts and their legal qualification are like communicating vessels; changing the latter affects the former (and vice versa). In their application of Regulation 55 to date, chambers have underappreciated this, treating cases as if they have blurry factual boundaries where material facts can be swapped, neglected, or created at will. This article is not a plea for abolition of Regulation 55, though, but explores which modifications are permissible, and finds that when comparing a change regarding the contextual elements or (sub)categories of crimes to a change regarding the mode of participation the latter is most problematic and often detrimental to the rights of the accused.