This article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.

The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

The concept of sovereignty plays too large a part in contemporary discussion. No nation is sovereign in the sense that it is free to do what it wants within its own borders and not subject to influences from outside. It is not self evident either that political systems have to be hierarchically organized or that there should be one final arbiter of law for all decisions. There are advantages in having different centres of power for decisions affecting differing matters. There is a case for the co-existence of overlapping power centres and for sharing in decision-making and being prepared to live with a decision which does not in itself reflect the wishes of your State. There are advantages in being part of a larger conglomerate. The State can then have some influence and control over what goes on outside its boundaries. There is no reason why that conglomerate should itself be a large sovereign State. The European Union offers the hope of transcending the sovereign State rather than simply replicating it in some new superstate. It may prove to be a model and an inspiration.

An increasing trend in private international law cases decided by courts in the United Kingdom has been to refer to the European Convention on Human Rights and, in particular, to Article 6. This article will examine the impact of this provision on private international law. The article will go on to examine why the impact has been so limited and will put forward a new approach that takes human rights more seriously, using human rights law to identify problems and the flexibility inherent in private international law concepts to solve them.

A court of law can take various approaches when dealing with a case before it: judicial restraint, judicial activism or a proactive policy. In the present article the recent case law of the International Court of Justice is analysed in this light. The author is of the view that the Court, as the principal judicial organ of the United Nations should, wherever possible, by a careful judicial policy, apart from deciding the case in hand, give guidance and provide clarification on a number of questions which are of primordial importance in present-day international society but still are largely obscure from a legal point of view.

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.

The success of an international claim impugning a series of State acts, or a ‘composite act’, straddling the date a treaty comes into force can depend on the weight the tribunal gives to the elements of the composite act occurring before that date. Recent bilateral investment treaty decisions highlight ambiguities on this critical issue. One tribunal practically ignored State acts occurring before the treaty came into force in finding that there had been no breach of the treaty, whereas another tribunal considered those previous acts in reaching the opposite conclusion. This paper identifies steps to ensure future tribunals give consistent weight to the elements of a composite act occurring before a treaty comes into force.

This article examines the establishment and work of the Eritrea–Ethiopia Boundary Commission with regard to its decision of 13 April 2002 concerning the delimitation of the border between Eritrea and Ethiopia and subsequent events. Apart from an examination of the substantive decision of the Commission in the light of the law relating to territory, the article will discuss certain unusual features of the process, including mandating the Commission both to delimit and demarcate the boundary and the involvement of third parties. The delimitation decision is significant in a number of ways, including its views as to the applicable law, treaty interpretation and the subsequent conduct of the parties in relation to title. The long-running and difficult process of demarcation is noted, together with the important role played by the UN and other international actors.

The fact that the International Criminal Court has not been granted universal jurisdiction exercisable proprio motu has often been criticized on the basis that it will leave some offences beyond its power to prosecute. This article investigates whether the drafters of the Rome Statute were necessarily wrong in deciding not to grant the court such jurisdiction. It concludes that to have given the Court universal jurisdiction would have been lawful under current international law, and would have provided a welcome reaffirmation of the concept. Still, the nature of the cooperation regime and of the Prosecutor's investigatory remit, would mean that such jurisdiction would be difficult, if not impossible, for the Court to use. As the Court has to operate in a world of sovereign States, not all of whom are sympathetic to it, the drafters' choice was a prudent one.

This article considers the significance of the UK Takeover Code's non-frustration prohibition. It asks to what extent the prohibition actually prevents post-bid, director-controlled defences that would not have been, in any event, either formally prohibited by UK company law without share-holder approval or practically ineffective as a result of the basic UK company law rule set. It finds that there would be minimal scope for director-deployed defences in the absence of the non-frustration prohibition, and that, in the context of UK company law, such defences have limited scope to be deployed for entrenchment purposes. Furthermore, this minimal scope for board defensive action would, in order to be compliant with a director's duties, require a pre-bid, shareholder-approved alteration to the UK's default constitutional balance of power between the board and the shareholder body to allow corporate powers to be used for defensive effect. In light of this conclusion the article looks for a rationale to justify denying shareholders the right to make this limited and potentially beneficial defensive election. It concludes that no persuasive rationale is available and that the prohibition is unnecessary and without justification.

The basic aim of the Good Friday/Belfast Agreement was to try to achieve a political settlement to the conflict in Northern Ireland. While the channels for the settlement were to be primarily institutional, the importance of safeguarding the rights of both communities in Northern Ireland by addressing equality and justice issues was recognized, to varying degrees, by all parties to the process that led to the drafting of the Agreement. As the negotiations progressed, the human rights section of the Agreement grew exponentially, moving ‘from the margins to the mainstream’ so that the final Agreement contains a whole section on human rights protections. Not only have these particular elements of the Agreement come to fruition, but they also have received a considerable amount of public and political interest as well as academic comment and analysis. Buried within the human rights chapter, however, is a concept that has so far received minimal interest or enthusiasm from any quarter. That is the reference in paragraph 10 of the ‘Rights, Safeguards and Equality of Opportunity’ chapter to the possibility of establishing an all-island Charter of Rights.

The purpose of this article is threefold. First, it traces the genesis of the Charter of Rights concept through to its inclusion in the Good Friday/Belfast Agreement; secondly, it examines the approach thus far taken by the Joint Committee of the two human rights commissions to the task entrusted to them in relation to the Charter by the Agreement; and finally, it explores some of the issues that need to be considered and the challenges faced by that Committee in future efforts to assist in the construction of any such Charter. In so doing, it describes the political and legal difficulties faced in attempts not only to formulate agreement on human rights but also to create a legal document which may be applicable to two jurisdictions. It concludes by suggesting ways in which the project may be progressed.

Can the law of countermeasures be used to police the high seas? The freedom of the high seas is guaranteed by the immunity of a State's flag vessels from interference by the public vessels of other States, subject to limited exceptions. However, this rule of non-interference may shield those engaged in unregulated or illegal fishing or transporting weapons of mass destruction and their precursors. This article argues that while such conduct may breach obligations protecting the common interest, unilaterally boarding and arresting a vessel involved would constitute an illegal use of force and cannot be justified as a countermeasure.

This article compares and contrasts Chapter 11 of the US Bankruptcy Code with the UK administration procedure under the Insolvency and Enterprise Acts. It focuses in particular on who runs a company during the restructuring process—debtor-in-possession or management displacement in favour of an outside administrator. Various reasons have been given to explain the US/UK divergence in this respect including differences in entrepreneurial culture and differences in the lending markets in the two countries. The article suggests that the divergence cannot be reduced to a single factor but instead implicates a complex web of circumstances.

This article argues that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes. Judicial power is a more accurate measure because it assesses whether courts have sufficient jurisdiction, discretionary authority and enforcement powers to make decisions over socially meaningful commercial problems. In fact, judicial independence may reduce the power of newly emerging commercial courts in socialist-transforming Asia, which need politics to protect them from interference by powerful governments and private investors. This article explores the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference. It also investigates the conditions in which judges are most likely to acquire or arrogate discretionary powers to understand politics on their terms. Finally, this article analyses the highly polarized views in this region about what constitutes valid judicial determinations. The message for international agencies contemplating judicial reforms is that reducing political influence and promoting law-based decisions will not uniformly generate popular support and legitimacy for courts.

International law recognizes two mechanisms for the protection of individuals in case of violations of peremptory norms affecting individuals: invocation of State responsibility erga omnes and diplomatic protection. While they share some fields of applications and are both based on some measure of indirect injury, there are important differences between these two mechanisms. This paper analyses and discusses these differences and similarities, and concludes by demonstrating that the essential distinction is to be found in the legal interest in the claim and the nature of the claim. The traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection (exhaustion of local remedies and nationality of claims) are not applicable to invocation of responsibility erga omnes. This paper will argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim. In the interest of enhancing protection of individuals against violations of peremptory norms, the simultaneous existence of these two mechanisms should be welcomed.

The ‘Operation Iraqi Freedom’ in 2003 raised many international legal questions, which all have been more or less addressed in the academic literature since then. However, the thrust of the relevant legal etiology pertained to the implementation of a series of UN Security Council Resolutions, whose hermeneutics, ie the rules of interpretation, in contrast to other issues, have been scarcely explored and elucidated. Accordingly, the purpose of this article is to address the latter question of the hermeneutics of Security Council Resolutions, and propound a coherent thesis in this respect, which would be applicable not only in the Iraqi conflict but even beyond. It will examine, first, whether the provisions of Articles 31–33 of VCLT are applicable either ipso jure or mutatis mutandis in this respect and then having deprecated both of these options, it will turn its focus to the question of which theoretical framework in relation to the hermeneutics in international law could better serve its purposes. Drawing insights from, amongst others, Stanley Fish, Ian Johnstone and Aharon Barak, it will be possible to propound the thesis that any relevant regulatio interpretations should pay due regard to the institutional setting of the ‘community’ of the Council, which in turn qualifies the ‘inter-subjective’ approach or the collective will of the Council in light of the object and purpose of the Charter, ie the maintenance of peace and security, as the most pertinent hermeneutic paradigm. Premised upon the latter, the article proceeds and articulates a rubric of interpretive principles and presumptions to be applied in this regard, which, at the end, will be tested in the case of ‘Operation Iraqi Freedom’.

In Europe part of the rule-making and the whole enforcement of financial services regulation still take place at national level. For this reason, mutual recognition of national financial laws remains an element of central importance in the creation and regulation of a European market in this field. This article seeks to contribute to the analysis of such legal instrument, as several aspects of its functioning often appear unclear. The article starts by analysing the principle of mutual recognition as developed by the European Court of Justice. An important distinction is drawn between such judicially created principle and the principle of mutual recognition applied by the EC legislator. The article then looks at the question of why mutual recognition has not succeeded as a regulatory mechanism of financial services market integration, and at the role of mutual recognition after the introduction of the so-called ‘Lamfalussy’ law-making process to the financial services sector.

This article compares the approach of the Court of Justice in the area of taxation with its general case law on restrictions on free movement. It is argued that the Court, while sometimes referring to the same concepts as in the field of regulatory barriers, is in practice employing a narrower test. The possible reasons for the comparatively cautious approach are analysed and the issue of double taxation is examined, with reference also to the US case law. Finally, the connections to larger questions concerning the nature of the single market and the roles of the Community institutions are noted.

This article examines the evolution of the EU anti-money laundering legislative framework (which in recent years has also included measures to counter terrorist finance), by focusing in particular on recent legislation such as the third money laundering Directive and the Regulation on controls of cash entering the EU, both adopted in 2005. The analysis highlights the relationship between these instruments and international initiatives in the field (in particular FATF standards), and addresses the challenges posed to the European Union legislative and constitutional framework when attempting to accommodate global standards.

The Court of Appeal, Civil Division, Longmore LJ, on 24 January 2007 handed down a decision in Fiona Trust v Privalov which clarifies the relation between sections 9 and 72 of the Arbitration Act 1996; affirms, again, in strong terms the separability (or severability) of an arbitration clause from the contract in which it is included; and, apparently for the first time in English courts, establishes that allegations of bribery may be subject to the jurisdiction of an arbitrator. The decision therefore holds interest in relation to the enforcement in the United Kingdom of agreements to arbitrate and, more generally, supports the position that arbitration has a role to play in international efforts to combat corruption.

Within common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.