At 12:20 in the morning on Saturday, June 12, 2010, the Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda, adopted by consensus a comprehensive package of amendments on the crime of aggression. States parties to the Rome Statute thereby delivered on their promise, reflected in Article 5 (2) of the Statute, to define the crime of aggression and to agree on the conditions for the Court’s exercise of jurisdiction over that crime. Despite a thorough and more than decadelong preparatory process, few, if any, had predicted such a substantive outcome on the crime of aggression in light of the serious disagreements on major questions, which persisted until the last days of the conference. The key elements of the final package are a definition of the crime of aggression, which limits criminal responsibility to leaders who are responsible for the most serious forms of the illegal use of force between states, and a complicated set of conditions for exercising jurisdiction. Investigations would be based on either a Security Council referral or state consent.

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires (travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

To many international lawyers and army officers the terms “law of war” and “military necessity” are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.

The responsibility of the state in international law is a subject of constantly increasing interest, whether to the practicing lawyer, who finds himself called upon to prepare an international claim, or to the theoretician, interested, perhaps, in the current codification of international law.1 Of the many problems connected with state responsibility, one of the most interesting, and at the same time one of the most vital,is that of the proper denotation to be given to the phrase “ denial of justice.” Most debates hinge upon definitions; and a consistent statement of the rules of responsibility would seem impossible until denial of justice is given clearer definition.It is believed that practice now affords us enough consideration of the meaning of the term to permit of analysis and of more precise definition.

According to the Declaration made at Berlin on June 5, 1945, by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom, and the Provisional Government of the French Republic, these Governments have assumed “ supreme authority with respect to Germany including all the powers possessed by the German Government, the high command, and any state, municipal, or local government or authority.” This means that the German territory, together with the population residing on it, has been placed under the sovereignty of the four powers. It means further that the legal status of Germany is not that of “ belligerent occupation” in accordance with the Articles 42 to 56 of the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. After Germany's unconditional surrender and especially after the abolition of the last German Government, the Government of Grand Admiral Doenitz, the status of belligerent occupation has become impossible. This status presupposes that a state of war still exists in the relationship between the occupant state and the state whose territory is under belligerent occupation. This condition implies the continued existence of the state whose territory is occupied and, consequently, the continued existence of its government recognized as the legitimate bearer of the sovereignty of the occupied state. This is the reason why it is generally assumed that belligerent occupation does not confer upon the occupant power sovereignty over the occupied territory. By belligerent occupation the legitimate government is made incapable of exercising its authority and is only substituted for the period of occupation by the authority of the occupant power. The legitimate government of the occupied state, especially the head of the state, may be expelled from the occupied territory and may have established his seat on the territory of an ally; the government, and especially the head of the occupied state, may even be made prisoners of war.But the government must continue to exist and must be recognized as such by the occupant power. The latter must be willing to conclude with this government a treaty of peace and to hand back to it the whole or a part of the occupied territory.

In its June 1997 review of the state of the global environment and the implementation of Agenda 21, five years after the United Nations Conference on Environment and Development (UNCED), the UN General Assembly drew a rather gloomy picture. While acknowledging that some progress toward sustainable development had been made, for example, in curbing pollution and slowing the rate of resource degradation in a number of countries, the Assembly’s report noted that, overall, trends tended toward continued deterioration. Not surprisingly, therefore, the report also reiterated Agenda 21’s call upon, inter alia, multilateral development banks (MDBs) to ensure that development funding “contribute to economic growth, social development and environmental protection in the context of sustainable development.” The report, in short, enjoined MDBs to strengthen their commitment to sustainable development.

On March 12, 1996, President Clinton signed the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, generally known by the names of its principal sponsors as the Helms-Burton Act. The Act is a mixture of codification of existing economic sanctions previously imposed pursuant to executive orders; inducements and promises related to restoration of democracy in Cuba; threats against persons from third countries that do business with Cuba; a new, unprecedented remedy for expropriation; and restrictions on entry into the United States by persons who “traffic in confiscated property” or who are affiliated with such persons by ownership, employment or family. The President had indicated that he would veto the Helms-Burton bill if it reached his desk, and quite possibly it would never have done so, but for the events in the Florida Strait on Saturday, February 24, 1996. On that day, at about 3:15 in the afternoon, two Cessna 337 light planes flown by a Cuban-American organization based in Florida were blown up by missiles launched by MIG–23 and MIG–29 planes of the Cuban Air Force, apparently on standing orders of President Fidel Castro. President Clinton immediately condemned the attack, and by the following Wednesday, he announced that he now would sign the Helms-Burton bill, subject to one compromise to be discussed hereafter.

Under the traditional rules of international law, the sea was divided into the high seas and the territorial seas and in each case different rules and regulations obtained. As for the exploitation of fishery resources, the coastal state possessed unquestioned rights to regulate any such exploitation within its territorial sea and to apply its domestic legislation fully to any person engaged in such activities. Similarly, the coastal state was free to prohibit fishing by foreigners in its territorial sea and thus to monopolize those fishery resources. On the high seas, however, no state was allowed, at least in principle, to impose its jurisdiction upon any foreign vessel, since fishing on the high seas fell under the general regime of the high seas. The existence of these two disparate regimes, namely, exploitation under the full control of the coastal state and exploitation free from interference by any country, was a fundamental presumption underlying the exploitation of fishery resources.

Dealing with pirates off the coast of Somalia in the Gulf of Aden and the western Indian Ocean over the past two-plus years has highlighted the international law applicable to countering piracy at sea and the role of international institutions in that effort. This essay seeks to illuminate related issues with a view to improving counterpiracy action.

Writers on international law agree that its development in its present form began in the 16th century among the Christian States of Europe, when the feudal organization of the continent gave place to its modern organization in the “sovereign, independent” States of the traditional terminology, and that originally it was considered as not applying, or as not fully applying, to States outside the pale of Christian civilization. At the end of the 18th and until well into the 19th centuries it was common for treatises on the subject to bear titles referring not to “International Law” but to “European International Law,” although such a title had ceased to be appropriate after the attainment of independence by the United States. It is also usually said that Turkey, the first Mohammedan State to join the family of States between which international law is in force, was brought into the family and made for the first time a subject or “person” of international law by Article 7 of the Treaty of Paris of March 30, 1856, which terminated the Crimean War. This view has, however, been disputed by A. H. Smith who argues that “for many centuries Turkey had maintained diplomatic intercourse and concluded treaties with Great Britain and other European Powers and … the general body of international law was considered to apply,” and that the alleged recognition appears to have made no practical difference; and who accordingly suggests the meaning of the article to be that Turkey was formally “admitted to the specifically European group of nations which was deemed to have been established by the Vienna settlement of 1815.” Smith gives no details regarding the evidence on which his view is based, and other writers habitually content themselves with quoting the text of the article. It may be interesting to consider what light contemporary evidence throws upon the matter.

The distinction between combatants and the civilian population has been characterized not only as one of the fundamental principles of international law, but as its greatest triumph. The purpose of this paper is to show that both in point of fact and in theory the distinction has been so whittled down by the demands of military necessity that it has become more apparent than real. On occasion belligerents still give lip-service to the doctrine but when confronted with a particular military situation in the course of actual combat activities in most cases they have either refused to recognize the distinction or, possibly in order to satisfy the requirements of their legal advisers, have extended the definition of combatant to include almost all important elements of the enemy's civilian population.

“Autonomy” is not a term of art or a concept that has a generally accepted definition in international law. Indeed, one surveying either the literature on the subject or the examples brought forth to demonstrate the existence of the concept is apt to conclude, to paraphrase the late jurist John Chipman Gray, that “on no subject of international law has there been so much loose writing and nebulous speculation as on autonomy.” Yet the term is very much in vogue today. The Camp David framework, for instance, establishing the context for negotiating peace in the Middle East, seeks to provide “full autonomy to the inhabitants” of the West Bank and Gaza. Regional autonomy has been extended recently to the Basque country and Catalonia by Spain, and to the 34 atolls composing the Marshall Islands by the United States. Currently, demands for greater autonomy have been made by the Shetland Islands against Great Britain, as well as by Quebec against Canada. Greek officials have offered to create “a self-administered and inviolable” area within Greece as a permanent site for the Olympic Games. While conventional wisdom accords regional autonomous entities only limited status under international law, the increasing frequency of claims to autonomy and the incremental effect such claims will have upon the international legal order make the concept of autonomy ripe for review.

Prosecutor v. Akayesu. Case ICTR-96-4-T.

International Criminal Tribunal for Rwanda, September 2, 1998.

This pioneering opinion marks the first time an international criminal tribunal has tried and convicted an individual for genocide and international crimes of sexual violence. The case arose out of the massacres of perhaps a million Tutsi in Rwanda in 1994. At least two thousand died in Taba, a rural commune where defendant Jean-Paul Akayesu was mayor. A trial chamber of the International Criminal Tribunal for Rwanda concluded that, although Akayesu may at first have tried to prevent killings, he eventually donned a military jacket and participated in or ordered atrocities. The Tribunal found him guilty of one count each of genocide and incitement to commit genocide and seven counts of crimes against humanity. It acquitted Akayesu of five counts brought under common Article 3 of the 1949 Geneva Conventions and Protocol Additional II to those Conventions on the ground that he was not within the class of perpetrators contemplated by them.

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

The Hague Conferences of 1899 and 1907, and the conventions they produced, opened the doors—just barely—to the era of arms control. But they did so in a way that would not have been expected. Arms control can be understood as having two main branches—the quantitative and the qualitative. “Quantitative”refers to controls that permit a given category of weapons—such as batdeships, nuclear warheads, and andballistic missile systems—but restrict the number that each of the participating powers may hold. “Qualitative” refers to prohibitions on the use of specified items—such as explosive bullets, poison gas, and bacteriological weapons. Curiously, it was the matter of quantitative control—the desire to check the costs of the arms race—that led to the calling of the Hague Conferences, but their only arms control outcome concerned qualitative limitations. One can trace influences of the Hague experience in this regard on both sides of the arms control movement after World War I and more faintly after World War II, though its descent is less clear than that of the prisoner-of-war conventions and other law of war rules. The inclination of scholars and policymakers to neglect the arms control efforts made between the two world wars has tended to obscure the indirect influence of the Hague Conferences.

Decentralized finance (DeFi) is an ecosystem of financial applications that are built on top of blockchain networks. DeFi aims to create an open-source, permissionless, and transparent financial system that operates without any central authority. Instead, a smart contract—which is a self-executing contract with the terms of the agreement between transacting parties written into lines of code—replaces financial institutions in the transaction. As a result, DeFi is available to everyone with reliable access to electricity and Internet connectivity. It also serves as a form of non-custodial finance since users maintain full control of their assets and transact through smart contract programs that facilitate peer-to-peer interactions. While DeFi presents huge opportunities, it also poses significant risks to traditional finance ecosystems, including the use of stablecoins and the absence of a know-your-customer framework. This essay argues that for DeFi to secure credibility, it needs to be adequately regulated in a way that aligns with how the technology works.

Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state's treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state's territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.