Bilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.

Much ink has been spilled over the question of the legality of the invasion of Iraq and of the extraordinary claims to a right to override ‘unreasonable’ uses of veto in the Security Council. That invasion has taken place, and as the United States and the United Kingdom withdrew from the Security Council the draft resoluation that would have expressly authorised that invasion, there was no occasion to override any veto that might have been cast against such a resolution had it been put to the Council. Writing while fighting in Iraq is still processding, it is both too late and too early to consider those questions of legality in great detail: too late to have any practical value; and perhaps too early for the measured appraisal of the situation that will be needed in due course. I want instead to address a slightly different question.

The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2 dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3 This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.

The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the October Human Rights Law Journal.2

It is a common observation that the theory and practice of international law are far apart. Richard Falk, for example, begins his 1970 book by chastising international legal theorists for failing to “provide adequate guidelines for evaluating particular decisions”.2 Likewise, Louis Henkin asserts that, “Lawyer and diplomat are engaged in a dialogue de sourds. Indeed, they are not even attempting to talk to each other, turning away in silent disregard.”3

In September 2002 seventeen whales were stranded off the coast of the CanaryIslands at a time when NATO was testing its active sonar system designed to detect silent enemy submarines.1 The suggestion has been made that the use of sonar caused these whales to strand. In fact, sonar is just one of a variety of anthropogenic undersea sounds which, scientific research increasingly suggests, impacts negatively on marine biodiversity. Pollution of an acoustic nature is currently omitted from traditional works on the protection of the marine environment and is as yet the subject of very little jurisprudential discussion.2 However the topic, which has received scientific attention for over 30 years, has recently been identified as acause for concern and consequently, for action, within the parameters of a number of global and regional environmental instruments.

The 1990s have been characterised by the globalisation of markets and the internationalisation of trade. Countries seem to be more interested than ever in creating new trading blocs and strengthening existing ones. As perhaps the most developed integration group in the world, the European Union has been used by framers of many other integration processes as a model on which to design their own institutional and legal structures.

This article challenges the idea, both in domestic and international law, of defining terrorism. Using section 1 of the UK's Terrorism Act 2000 as an illustrative example, this article argues that a single definition of terrorism is invariably broad owing to the need to accommodate the lowest common denominator. This is damaging to the ‘principle of legality’ as recognized in British public law and the ECHR. Moreover, this problem is further exacerbated by the increasing application of counterterrorism legislation to non-international armed conflicts. This article therefore suggests an alternative solution: multiple definitions of terrorism whose breadth is dependent upon the specific circumstances for which they are designed. Fears that such an approach may amount to an ‘expression of inconsistency’ will be addressed by arguing that law's capacity to shape and frame public and political debate on the concept of terrorism is over-exaggerated. Legal definitions of terrorism therefore should remain primarily concerned with the legal rather than political function of defining terrorism.

In a seminal 1992 article Thomas Franck postulated the emergence in international law of a right to democratic governance.1 Franck argued that, increasingly, the acceptance of a government by other States turns on whether the government governs with the consent of its people.

In supporting this notion, Franck pointed to events such as the 1991 effort by Haitian military and police authorities to overthrow the elected President of Haiti, Jean-Bertrand Aristide. Although those authorities exercised complete control over Haiti, the international community condemned the coup leaders, refused to engage in normal diplomatic relations with them or to seat their representatives at international organisations, and instead continued to recognise the exiled President Aristide as representing the legitimate government of Haiti. Severe economic and ultimately military sanctions were imposed on Haiti, and finally, in 1994, the coup leaders were forced to relinquish power. President Aristide then returned to Haiti to complete his term as president.

In his seminal work The Multinational Challenge to Corporation Law Professor Phillip Blumberg assets that, “jurisdiction continues to be one of the most litigated areas involving the clash of enterprise and entity.”1 Indeed, in a world where business is increasingly conducted through the medium of economically integrated multinational enterprises (MNEs), the question of whether a forum has jurisdiction over disputes arising out of the operations of non-resident entities of the MNE brings into contrast the mismatch between the territorial reach of the legal system and the transnational reach of the enterprise. In terms of corporation law this raises the further matter of whether, and how far, the legal organisation of the MNE into distinct legal entities, in distinct legal jurisdictions, should affect the applicable rules of private international law as to the reach and scope of forum jurisdiction. Such issues have recently been aired before the English courts in a series of cases, arising out of the asbestos mining and milling operations of the British based MNE Cape plc in South Africa, which culminated in a judgment given by the House of Lords on 20 July 2000. It is the purpose of this paper to explore the issues of jurisdiction over non-resident entities of MNEs, first, through an examination of these cases in the light of Cape's industrial and management structure. It is striking how little such matters are addressed in the Anglo-American legal literature pertaining to private international law. Rather than considering the economic realities of the cases in issue, and developing new doctrines to deal with them, lawyers have tended to rely on legal concepts—in particular, the territorial nature of legal jurisdiction and the single unit corporate form—to lead them to often unsatisfactory results that would appear to a lay person not to accord with justice. A clearer understanding of the economic realities of group operations thus seems essential for the development of law in this area.

In the wake of increasing corporate disasters, there has been an urgent need to address the impact of business on human rights. Yet business responsibilities for human rights are mainly voluntary and best understood as ‘soft law’. Recently, however, States have begun negotiations for an internationally binding treaty in this area, suggesting that there is a need to turn to ‘hard law’ to increase the efficacy of business and human rights (BHR) initiatives. This article argues that because soft and hard law concepts are not dichotomous, BHR governance need not become ‘hard law’ to be effective. Rather ‘hardened’ soft law instruments can be equally effective.

While countries that receive refugees have certain legal obligations to assist and protect them, the legal duties of other States to step in and help relieve this burden is less clear. Despite multiple proposals, a mechanism to systematically, equitably and predictably allocate responsibilities between States at a global level has still not been agreed. The UN's High-Level Summit on Addressing Large Movements of Refugees on 19 September 2016 held some promise in this regard, but the resulting New York Declaration was more muted than earlier drafts. This article seeks to provide a unique insight into the meaning of responsibility-sharing and international cooperation from the perspective of individual States. It does so by examining statements they have made at various UN fora over the past decade. It focuses on the two main methods of sharing responsibilities, namely the provision of financial and other assistance to host countries, and the admission of refugees. It then considers the extent to which States perceive responsibility-sharing to be a legal obligation, as opposed to a voluntary undertaking, and analyses this in light of expert opinion. Finally, it discusses the principle of common but differentiated responsibilities, a concept drawn from international environmental law, and considers whether and how it might apply in the international refugee law context.

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

This article examines UNCITRAL's draft Rules for Online Dispute Resolution (ODR) and argues that in low-value e-commerce cross-border transactions, the most effective consumer protection policy cannot be based on national laws and domestic courts, but on effective and monitored ODR processes with swift out-of-court enforceable decisions. The draft Rules propose a tiered procedure that culminates in arbitration. Yet, this procedure neither ensures out-of-court enforcement, nor does it guarantee compliance with EU consumer mandatory law. Accordingly, this article argues that the draft Rules may be inconsistent with the European approach to consumer protection.

In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.