This article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related—and through the backdoor of a balancing exercise—even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would—within the context of such a balancing exercise—ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunal's expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have little to do with the law of the sea.

This article examines the application of the principle of justiciability principally where it has been invoked in the context of claims in the UK courts related to foreign affairs or public international law. It is submitted that the modern judicial trend is to find that issues are justiciable and focus instead on the degree and intensity of the review exercised. The trend is directed and supported by the growing importance of human rights and the rule of law.

This article addresses an important and complex subject relating to the link between international law and economic development. There is broad agreement that trade liberalization and participation in foreign markets play an important role in economic development. Countries in Sub-Saharan Africa (SSA) have generally pursued a liberalization route over the past two decades, but their economic performance has been deeply disappointing. In this article, we look at seven countries in the Horn of Africa and examine, from legal and institutional perspectives, the central question of why these countries have failed to translate their comparative advantage, particularly in the livestock sector, into meaningful trade-led economic growth. In order to answer this question, we have reviewed the relevant legal and policy instruments and the literature, visited five of the seven countries, and interviewed different players in the livestock value chain. Analysis of the evidence reveals that the main impediments to trade relate to rising sanitary import requirements in foreign markets and weak institutional capacity within the Horn. The limited technical and financial resources available to these countries also reduce their capacity to meet these standards. Meaningful institutional change requires substantial involvement of local actors and it takes place incrementally and over the long term. International law can play a role in this process by promoting the rule of law and tackling corruption, facilitating capacity-building, and encouraging regional integration.

Can a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.

It was Oliver Wendell Holmes who used the words ‘clear and present danger’ in the judgment of the US Supreme Court in the Schenk case in 1919.1 The Court upheld the conviction of Charles Schenk, general secretary of the American Socialist Party, under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment. Schenk had distributed leaflets allegedly calculated to cause insubordination and obstruction among recruits. He argued that his conviction was incompatible with the freedom of speech guaranteed by the First Amendment.

Whether through the framework of the Commonwealth of Independent States (CIS) or outside of it, the former Soviet republics continue to seek and depend on economic cooperation with each other, particularly in the area of trade in goods. This article examines the legal framework for free trade in the post-Soviet space and discusses its role in fostering effective regional cooperation. The focus is on the multiplication of regimes at the bilateral and multilateral (CIS) level—a particular blend of ‘à; la carte multilateralism’ and multiple bilateralism—and their respective features in terms of legal nature, substantive scope, and disciplining mechanisms, as well as the implications of their overlap. We find that both the bilateral and the multilateral regimes have undergone significant (often underestimated) development, and that the multilateral regime has generally sought to be more ambitious both in its substantive and institutional reach. Yet, both regimes can be described as ultimately weak and their overlap confusing. While a higher juridicization and comprehensive consolidation at the multilateral level of the CIS free trade regime may be recommended, we remain sceptical about its likelihood in the short and medium term.

To what extent is EU company law harmonized? This article first makes the point that little progress has been made in the direction of company law uniformity within the EU. It then argues that, even leaving aside the question of whether it would be desirable to have a uniform EU company law, that outcome is simply impossible to achieve, due to interest group resistance and the variety in national meta-rules. Yet it concludes that, in a narrow meaning, European company laws have indeed been harmonized: European Member States company laws fit together, which may well be what harmonization, not only etymologically, is all about.

Litigation involving individuals and entities whose financial assets have been frozen and whose names have been blacklisted in the fight against terrorism is on the rise around the world. However, the global ‘securitization’ of terrorism has rendered court performance of judicial review and the provision of remedies in these cases more difficult. What the main judicial challenges are, the need to overcome them, and how they can be overcome, are identified in this article as questions of central concern in an effort to secure the human right of effective access to justice for persons subjected to counter-terrorism sanctions. Special attention is given to the specific challenges facing the Court of Justice in the European Communities, the manner in which it has responded, and outstanding issues.

1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum “on the area of international law“.1 In the course of his career as a member of the English Bar, specialising in international disputes, the writer has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.

The decision of the Appellate Committee of the House of Lords, given on 24 March 1999,1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.

The standard of review applied by WTO decision-makers in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement plays a critical role in determining the scope of SPS risk regulatory authority afforded WTO Members by governing the degree to which such measures must be science-based. The standard of review question in SPS jurisprudence finds resonances in international environmental legal adjudication of highly technical disputes, as well as in comparative law concerning judicial review of science-based risk regulation in the United States and European Union. This article considers recent case law of the WTO Appellate Body in Continued Suspension and Australia–Apples and the extent to which these decisions permit a more deferential approach on the part of WTO decision-makers in evaluating the scientific underpinnings of Members' disputed SPS measures. It is argued that the case law has failed to articulate a strong normative rationale for the current interpretation of the standard of review applied in SPS disputes. Drawing on social scientific findings regarding the limitations of science-based risk assessment in diverse risk settings, the article contends that a more coherent and principled approach to application of the standard of review would allow for its adjustment according to the nature of the risk situation under consideration.

This article is part of a larger international investigation of the effects of a country's legal origins on the style of business regulation. We employ an innovative ‘leximetric’ methodology to numerically code the protective strength of Australian corporate law for both shareholder and creditor protection for the period 1970 to 2010. This leximetric methodology has been used in a prominent international debate concerning the development of legal rules and the effects of different styles of regulation on a range of economic outcomes—the legal origins debate. Drawing on similar data compiled by Armour, Deakin, Lele and Siems in five other countries (France, Germany, India, the UK and the US) for the period 1970 to 2005, we compare changes in the level of protection afforded to Australian shareholders and creditors with developments in other countries. Our analysis finds that in Australia there was a sustained upward trend in shareholder protection, but not in the case of creditor protection. Compared to the five other countries, the level of protection afforded to shareholders under Australian law was relatively high, and this was the case for the level of protection afforded to creditors as well. We also examine the extent of convergence and divergence in shareholder and creditor protection among the countries in the study. We find persistent divergence in shareholder protection, with the extent of divergence in 2005 similar to that in 1970. For creditor protection, we find increasing divergence among the countries over the period of study. Our findings are not supportive of legal origins theory.

For lawyers in general, and international lawyers in particular, democracy is a neglected concept. Discourse is dominated by the ideas of human rights for individuals and minority or self-determination rights for groups. Those who seek greater protection for vulnerable members of a community argue for the recognition of new rights, or the more effective implementation of existing rights. They do not argue for more democracy. Indeed, given that claims for human and minority rights are not made only against authoritarian governments, but also democratic ones, there must exist an implied assumption that democracy is, by itself, not capable of protecting the interests of vulnerable minorities. Moreover, as the form of government which apparently venerates the will of the majority, democracy might be considered by some as being downright hostile to the interests of individuals and minorities.

On 2 November 1994 the Human Rights Committee adopted General Comment No.24(52) relating to reservations made on ratification or accession to the International Covenant on Civil and Political Rights. It is addressed to States party to the Covenant and indicates the manner in which reservations to Covenant guarantees will be treated. The fact that the Committee has issued a general comment on the topic of reservations is clear expression of the Committee's concerns regarding the number and scope of reservations which have been made. In its view these threaten to undermine the effective implementation of the Covenant as well as impair the performance of the Committee in respect of the subject matter to which the reservations apply. Though not as seriously afflicted by reservations as some other human rights treaties, most notably the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, the Covenant has nonetheless been the object of some sweeping reservations to which few objections have been made. There is the concern that the integrity of the Covenant may have been sacrificed in order to ensure widespread participation. “Indeed”, suggests Higgins, “one might almost say that there is a collusion to allow penetrating and disturbing reservations to go unchallenged.”