This article addresses a currently very controversial issue—the question of environmental regulation of foreign investment and the limits on such national regulation by international law, in particular by recently completed and negotiated multilateral investment Treaties (MITs). It contributes to the emerging discussion on how and where to draw the line between legitimate non-compensable national regulation aimed at protecting the environment, or ‘human, animal or plant life or health’1 on one hand, and regulation which is ‘tantamount’ to expropriation requiring compensation, on the other. It is a question that is largely responsible for the 1998 collapse of the negotiations for a Multilateral Agreement on Investment (MAI) within the OECD.2 This experience is currently the main obstacle for negotiating multilateral investment agreements—and it has already become a problem for the proper implementation of the already existing ones—in particular the novel and far-reaching investor-state arbitration under Chapter XI of NAFTA and Art. 26 of the Energy Charter Treaty.3

This article examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by its reluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.

In seven years of WTO dispute settlement (1995–2001), six panels appointed scientific experts,2 two panels requested expert advice from other international organisations3 and one panel nominated a linguistic expert.4 Under GATT 1947, in contrast, only one panel saw the need to seek expert advice.5 Very often also the parties to a WTO dispute nominate experts on their delegation, be they lawyers, economists, scientists or linguists. In addition, an increasing number of ‘outsiders’ or amici curiae, such as NGOs, but also industry and academics, have pressed their (expert) opinion on WTO panels and the Appellate Body.

The legal version of post-modernism has not failed to challenge comparative law. It points out that, traditionally, comparatists have participated in a project of objectivity, universalism and neutrality of law, of which the “new” approach to comparative law is altogether sceptical.1 In the era of globalisation, both the discipline and its critique have gained relevance. What the transition of post-socialist countries and the unification of Europe have effected regionally, globalisation now accomplishes on a global scale: it creates desires for harmonisation and, as a pre-requisite, legal comparison. However, not only the technical function of comparative law is needed, but also its critical potential. In the process of globalisation, different legal systems and different cultures are confronted with each other and must interact. This provokes new questions about the options and limits of comparative law and legal unification, regarding, for instance, the applicability of specific moral and legal standards to other cultures by comparatists and law-makers. These questions are all the more pressing as we begin to realise that governing globalisation, in particular economic globalisation, with the help of global law perhaps requires a concept of a global legal order which is based on a “global legal pluralism”.2

This article compares the law and practice of the European Union and Australia in respect to the search and rescue (SAR) of boat migrants, concluding that the response to individuals in peril at sea in both jurisdictions is becoming increasingly securitized. This has led to the humanitarian purpose of SAR being compromised in the name of border security. Part I contrasts the unique challenge posed by SAR operations involving migrants and asylum seekers, as opposed to other people in distress at sea. Part II analyses the relevant international legal regime governing SAR activities and its operation among European States and in offshore Australia. Part III introduces the securitization framework as the explanatory paradigm for shifting State practice and its impact in Europe and Australia. It then examines the consequences of increasing securitization of SAR in both jurisdictions and identifies common trends, including an increase in militarization and criminalization, a lack of transparency and accountability, developments relating to disembarkation and non-refoulement, and challenges relating to cooperation and commodification.

This Keynote speech examines the implications of the multiplying of judicial institutions and the deepening of international law. Overlapping jurisdiction issues already exist among international courts and tribunals. This raises the question of ‘Whose view prevails?’ But the deepening of international law also requires any given court to ask itself, ‘Which of the many norms now developed are applicable?’ Alternative plausible applicable norms could lead to different solutions. It is ever more apparent that that law is more than ‘bright rules’ that simply need to be applied. This speech discusses potential solutions that have been proposed, such as instituting a judicial hierarchy, using certain provisions of the Vienna Convention on the Law of Treaties, and invoking a hierarchy of norms. It closes with a call for international judges to regard the multiplication of institutions and applicable norms as an opportunity rather than a problem, to read each other's judgments, respect each other's work and try to preserve unity unless context dictates otherwise.

Applying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

The aim of this article is to extend the critique of human rights law by feminist scholars to humanitarian law—or the law of armed conflict, as it is more traditionally known. When reflecting generally on the role that international law plays in providing protection for women from the effects of violence the obvious starting point is the regime of human rights. So much of human suffering in today's world occurs, however, in the context of armed conflict where to a large extent human rights are in abeyance and individuals must rely on the protections offered by the law of armed conflict.1 The debate that has been taking place for some years in the context of human rights as to the extent to which that system takes account of women&s lives needs to extend to the provisions of the law of armed conflict. Although commentators have convincingly demonstrated the limitations of the existing body of human rights law adequately to take account of the reality of women&s experience of the world,2 the law of armed conflict is even more deficient. Moreover, despite the recent focus on rape in armed conflict as a result of the international outrage at the sexual abuse of women in the armed conflict in the former Yugoslavia, these shortcomings remain largely unaddressed.3 At first glance this seems somewhat surprising until the special difficulties that flow from certain characteristics of the law of armed conflict are appreciated.

The role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.

Does the rise of international arbitration signify a retreat of the State from classical adjudication? In examining this question, it is important to distinguish contract-based arbitration of individual claims against the State from arbitration pursuant to investment treaties. The former is broadly limited to the private sphere of the State's activity, whereas the latter gives arbitrators a comprehensive jurisdiction over public law. An elaboration of this distinction, and the grey area within it, demonstrates that the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere.

The Durban Climate Conference,1 marked by tension, high drama and sleepless nights, agreed on a set of historic decisions under the climate regime 36 hours after the scheduled end of the conference. The climate regime—comprising the 1992 Framework Convention on Climate Change2 and its 1997 Kyoto Protocol,3 and decisions taken by Parties under these instruments—has been plagued in the last few years, in particular after the debacle at Copenhagen,4 by doubt and uncertainty. Doubt over its ability to meet climate goals, and uncertainty over its future, in particular that of the Kyoto Protocol. At Durban, Parties strengthened the climate regime with decisions to implement the 2010 Cancun Agreements,5 extend the beleaguered Kyoto Protocol, for a second commitment period,6 and launch a new process to negotiate a post-2020 climate regime.7 This new process, christened the Ad-Hoc Working Group on the Durban Platform for Enhanced Action, is intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions.

International soft law as a legal metaphor has become part of legal discourse. The author argues not only that the term itself is misleading and contradictory, but that the terminological problem indicates deeper doctrinal difficulties which soft law theories should overcome. Identifying two main streams of these theories, the article provides a short review of the fundamental arguments for the existence of soft law. It distinguishes between two lines of arguments, ie functional arguments and proximity arguments, evaluates their coherence and explanatory power, and finds that these arguments fail to lay a coherent and persuasive foundation for international soft law. The author concludes by pointing out that non-legal norms may have essential regulatory functions in international relations but the law and non-law distinction should be maintained, and separating soft law as a distinct category is unwarranted.