The awards on liability and damages for violations of international humanitarian law of the Eritrea-Ethiopia Claims Commission uncover both the extent of state responsibility for unlawful displacement and deportation of civilian population resulting from wrongful actions of belligerents under international law and the availability of remedies for victims of such violations. The Commission reached a number of important decisions based on government-to-government claims brought by Ethiopia and Eritrea for injuries, losses, and damage suffered by individuals and groups uprooted by the war. While these decisions bring to light the potential of international humanitarian law in addressing the plight of the displaced, they also expose the limitations of the tribunal's mandate and its interpretation of existing law. The aim of this essay is to analyse the case law of the Commission in the light of international law applicable to situations of displacement of civilians triggered by international armed conflicts, and evaluate the relevance of the Commission's jurisprudence for the development of the law in the field.

The history of indigenous peoples is not a fortunate one: colonization,discrimination, exploitation, dispossession, relocation, and genocide have been their lot.1 Indigenous peoples seek recognition as distinct groups in order to preserve their culture and, plainly, to survive. Their wish for recognition is coupled with various demands, ranging from political participation to autonomy, self-government and independence, often subsumed under ‘the right of self-determination’. Although, throughout this century,attempts have been made to improve the plight of indigenous peoples,these have proven inadequate so far.2 In 1994, after nine years of preparation,the UN Working Group on Indigenous Populations (hereinafter:Working Group) finalised the draft of a Declaration on the Rights of Indigenous Peoples. With its adoption by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter:UN Sub-Commission)in August 1994, 3 the draft Declaration has commenced its course towards adoption by the General Assembly.

The UN Security Council, as ‘parent body’ of the two ad hoc Tribunals, never introduced explicit rules on how to compensate accused persons for violations of their rights imputable to the Tribunals' organs. Notwithstanding the absence of such rules, a series of decisions by ICTYand ICTR chambers show the willingness of these institutions to address such violations when they occur. In doing so, the Tribunals appear to have followed some of the same principles on responsibility of international organizations as are being elaborated by the International Law Commission (ILC). By analysing these parallel processes, the author suggests that the elaboration of rules by the ad hoc Tribunals in the field of human rights violations and the codification by the ILC of rules on international responsibility, although distinct in aim and scope, might mutually benefit each other andshed some light on the difficulties of applying such principles in practice.

Theorizing about the operation of law in an internationalized territory involves three discrete dimensions, according to which this article is structured. First, liberal legal forms are transmitted without being subject to mediation by a ‘sovereign’. The diffusion of imported norms represents the precise telos of a mission civilisatrice of a postcolonial institution-building mission. Such internationalization projects realize their liberalizing potential through a complex process where they provide legal continuity while importing legal forms that emphasize discontinuity and progress. In the second dimension, the article accounts for the asymmetric co-government setting exhibited in Kosovo in which law is both municipal and international. The syncretic nature of legal sources limits attempts to establish a ‘hierarchy’ of norms in an internationalized territory. Further, the promised advent of a liberal future is challenged by what this article identifies as the third characteristic of such a transitory legal order – the unaccountability of the international administering agent. These three properties of a normative order entail a paradox in which the aspirations of a fiduciary administration operating in the slipstream of liberal internationalism and its ‘civilizing mission’ are qualified by the absence of key criteria of a Rechtsstaat – the democratic creation of laws, the separation of powers, legal certainty, and the judicial control of normative acts.

On May 14, 1954 the Inter-governmental Conference on the Protection of Cultural Property in the Event of Armed Conflict which convened in The Hague, managed to adopt the text of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention). Apart from the Convention as such, the Regulations for the Execution of the Convention, a Protocol directed towards the prevention of the exportation of cultural property from occupied territories during armed conflicts, and three Resolutions were adopted.

This special issue of the Leiden Journal of International Law on the Nigerian international lawyer Taslim Olawale Elias (1914–91) marks the second of the journal's Periphery Series. The collection of essays featured here serves essentially two functions. On the one hand, it pays tribute to an exceptional jurist whose work marked international legal scholarship during the years of decolonization. On the other, it invites critical engagement with the theme of international law's ‘periphery’. The centre–periphery formulation, as explained elsewhere, owes its provenance mostly to recent debates in political economy. It is a spatial metaphor which postulates a structural relationship between a presumed ‘centre’, typically portrayed as advanced or metropolitan, and a less developed and provincial ‘periphery’. In such debates the centre–periphery opposition is assumed as stable, decisive, and representative of the empirical reality of a ‘world out there’. The Periphery Series was launched in 2007, with a special issue on the Chilean jurist Alejandro Álvarez, to foster engagement with the discursive function of centre–periphery oppositions in public international law in its various iterations, and to confront questions of resource allocation, dependency, geography, and power.

The energetic implementation of the 1992 programme should not be allowed to put the contribution of the Court of Justice to the establishment of the Common Market in the shade. Its case law on the direct effect of Treaty provisions concerning the free circulation of persons, services and goods enables European workers and business-men to fight effectively against protectionism in the EEC Member States. The Court gives, moreover, a very broad interpretation to the prohibitions contained in these provisions and, reciprocally, a very restrictive interpretation to their exceptions. This approach leads to the removal of nearly every obstacle to free trade. Liberalisation has its limits however. Certain economic activities require regulation, even if it has restrictive effects.

Biodiversity loss raises some of the most difficult issues of equity in international environmental law. Differential obligations have been developed as a means of enabling developed and developing countries to participate in the Biodiversity Convention. This article contends that the actual practices of these obligations have been cast narrowly, reinforce the existing politics and economics of biodiversity conservation, and are difficult to see and practise. They have been predominantly understood as obliging the transfer of funds and technology between states and as implicitly encouraging technology-based development pathways. The article calls for differential obligations to be reworked in environmental justice terms to encompass plural, alternative development pathways, such as creating local economies. It proposes that emerging market-based, community initiatives and the ecological footprint concept could help to provide ways to make differential obligations more workable.

Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years. It is hoped that this retrospective will not only bring back some fond memories but also – by viewing this material as a whole, and pointing out certain gaps in the Journal’s coverage of the Court's work – stimulate future analyses.

The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.

On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

In the decision on the second Genocide case (Croatia v. Serbia) the ICJ did not deviate from its ruling of 2007 (Bosnia-Herzegovina v. Serbia and Montenegro) in matters of evidence. A comparison between the two cases nevertheless shows subtle but interesting nuances. Whereas in the first Genocide case the Court was confronted with a ICTY finding that a genocide had indeed been committed in Srebrenica in July 1995, in the present case the ICTY Prosecutor had not even indicted any Serbian or Croatian organ of such a crime. The ICJ was able to find the actus reus of genocide in many instances, both on the part of Serbia and Croatia, but it found that neither party had been able to prove the existence of the mens rea, either by relying on a pattern of conduct, or even by relying on the transcript of a governmental meeting. This throws a disquieting light on the actual capacity of the Court to deal with claims of commission of genocide, as distinguished from claims of lack of prevention or repression.

This article considers the relationship of international law and the media through the prism of human rights. In the first section the international regulation of the media is examined and visions of good, bad, and new media emerge. In the second section, the enquiry is reversed and the article explores the ways in which the media is shaping international legal forms and processes in the field of human rights. This is termed the ‘mediatization of international law’. Yet despite hopes for new media and the Internet to transform international law, the theoretical work of Jodi Dean warns of the danger to democracy of commodification through the spread of ‘communicative capitalism’.

As a result of the 2010 sovereign debt crisis and the subsequent restructuring operations, bondholders have pursued different dispute resolution strategies. Litigation before US courts has proved to be a viable option, as demonstrated by the Argentine cases. State court litigation, however, is not the only available forum: in some cases, bondholders have commenced arbitration proceedings against the issuing state.

Arbitral case law has been consistent in concluding that the holders of sovereign bonds issued by the host state qualify as investors and thus have standing to bring investment treaty-based claims. The recent Poštová award, however, casts doubts over whether holders of sovereign bonds qualify as investors for the purposes of international investment law.

This article illustrates the main problems revolving around the qualification of sovereign bonds as investments for the purposes of international investment law. The article summarizes the relevant legal framework and the solutions adopted by arbitral case law so far. Subsequently, the contents of the Poštová decision are addressed in detail and the consequences of this decision are scrutinizsed.

Recognizing the needs of victims in international criminal justice, the International Criminal Court (ICC or the Court) has introduced an innovative reparation scheme including the establishment of the Trust Fund for Victims. Besides the Fund’s role to implement reparation orders, a second mandate has been developed to provide immediate help to victims independent from a criminal conviction: the general assistance mandate. Surprisingly, this mandate has to date attracted little attention from scholars and remains vastly under-researched. By exploring in detail the work of the general assistance mandate, this article exposes its structural weaknesses as well as the negative impact it has on the procedures of the Court as a whole. It will demonstrate how the general assistance mandate weakens the legitimacy of the ICC as it undermines the presumption of innocence, risks compromising international and national Court proceedings, and masks the weaknesses of the Court. While there is no doubt that humanitarian assistance is urgently needed in situations that are investigated by the ICC, the mechanism chosen, namely the Trust Fund’s general assistance mandate is not an adequate solution. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.

This article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

This article examines how the encounter between China and international law is narrated in the English-speaking and Chinese literature and sheds light on the politics thereof. It particularly shows that the English-speaking and Chinese-speaking literature diverge as to the order of meaning in which the encounter between China and international law is registered. It demonstrates that the divergences between these bodies of literature are everything but innocent.

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

The Bosnia Genocide case dealt with several important matters of international law, apart from the issue of responsibility proper for genocide. The Court began by addressing issues of state succession in order to identify the proper respondent. It then found that the objection to jurisdiction raised by the respondent was res judicata. It held that the Genocide Convention created state responsibility in addition to international criminal responsibility of the individual. The contribution of the judgment to the law of evidence, in particular with reference to the standard and methods of proof, is significant. Finally, the Court applied the codification by the International Law Commission of attribution in state responsibility to the situation before it in deciding that the genocidal acts subject of the case were not attributable to Serbia, while also holding that Serbia was, nevertheless, responsible for omitting to prevent genocide.