In almost 20 years of existence, the World Trade Organization (WTO) has managed to be at the forefront of public discussions on international organizations (IOs). Transparency in the WTO decision-making has been on the agenda of the multilateral trading system for several years. Pressures from developing countries, non-governmental organizations (NGOs) and the civil society in particular have led to significant improvements towards more openness and participation in the WTO decision-making. This article posits the WTO within the current debates about more institutional transparency in IOs. It discusses the current features of good governance in the WTO decision-making and the consensus rule in particular, in an attempt to identify the pros and cons of this voting tradition in a modern IO. It also discusses the recent selection of the new WTO Director-General. A central insight of the paper is that input and output transparency of the WTO could be further enhanced by increased, managed participation of NGOs. As the WTO is gradually becoming a genuine IO in terms of membership and gets involved in global discussions relating to finance, climate change, or poverty eradication, public scrutiny will only increase and thus improved governance is an irreversible process. However, divergences in the views of WTO Members as to the proper scope of WTO input and output transparency will most probably lead to extended negotiations. Some thoughts about the future prospects of and possible avenues for the WTO system are also identified.

The trial of Adolf Eichmann was poorly received by many contemporary observers, who felt that it bent the law beyond recognition in several key areas. With the renaissance of international criminal law in recent decades, the handling of difficult issues by the District Court of Jerusalem and the Supreme Court has been shown to fare rather well. The understanding of the relationship between crimes against humanity and genocide by the Israeli courts, and their response to the charge of retroactive criminality, to the consequences of the kidnapping, and to claims that the tribunal lacked impartiality, have also stood the test of time. Perhaps most important of all, the Eichmann decisions actually moved the law forward on the question of universal jurisdiction, effectively setting aside the narrow jurisdictional frame set by the 1948 Genocide Convention. Critics at the time of the judgments, possibly influenced by the famous but harsh commentary of Hannah Arendt, were much too negative in their assessments.

Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.

International criminal justice is based to a large extent on extrapolations from criminal-law research on domestic systems. The difficult exercise of arriving at a common denominator is exacerbated by the systemic dichotomy of the so-called common-law and civil-law models, which, in turn, have now been joined by a third contender: public international law. Each of these has its own methods of approaching the task of solving legal problems. This paper queries the inter-model conversation that is happening so far and asks the question as to whether it is necessary to hold this discussion at a much more fundamental level than it would seem has been the case so far. It does so at the example of the relationship between German and English and Welsh law, but its concerns and conclusions merit consideration for the entire debate between the systems.

Independence and impartiality of the judiciary is a conditio sine qua non for confidence in, and the authority and success of, any judicial procedure. This article takes a close look at the voting patterns of the judges of two influential international tribunals: the International Court of Justice and the European Court of Human Rights. To what extent do national judges (and judges ad hoc, in particular) vote consistently with the position of their national governments? By conducting a factual analysis of the voting behaviour of the judges, the present paper aims at drawing some tentative conclusions on the fulfilment of the requirements of independence and impartiality in the operation of these two distinguished courts. Of all influences to which men are subject, none is more powerful, more persvasive or more subtle than the tie of allegiance that binds them [judges] to the land of their homes and kindred and to the great sources of the honors and preferments for which they are so ready to spend their fortunes and to risk their lives.

This article evaluates the benefits of a ‘turn to narration’ in international legal scholarship. It argues that significant attention should be paid to the narrators who employ international law as a vocabulary to further their professional projects. Theories of unreliable narration help map consensus within international law's interpretive community in a manner that is acutely sensitive to point of view and perspective. The article examines the existence and extent of unreliable narration through a case study: the practice of targeted killing by the Obama administration in the United States. The struggle for control of the narrative, by narrators with different professional roles and cognitive frames, is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ divergent narrative visions. Unreliable narration offers a critical heuristic for assessing how narratives are generated, sustained, and called into question in international law, while fostering reflexive inquiry about international law as a professional discipline.

This article sets out to examine the legal nature of ceasefire resolutions issued by the United Nations Security Council. While it has become common practice for the Council to issue calls or demands for ceasefires, their legal nature – and in particular whether they are legally binding – remains unclear. Furthermore, given the ubiquity of non-international armed conflict, there is an additional challenge with regard to the legal effect of such resolutions upon non-state armed groups. The article provides an analysis of these issues and concludes with a potential way forward.

Questions about methodology are questions of disciplinary identity. It is thus not surprising that they provoke such heated debates. The state of methodological debates is indicative of the condition of a discipline. If those debates advance to the centre of attention within any specific field of scholarly practice, it typically indicates a moment of crisis or – less dramatically – a push for change. In other times of relative stability, questions of methodology tend to stay on the margins of the field. Scholarly practice goes about its routine business along well-established lines. It uses the tools of a discipline without further ado.

This article sets out two case studies to examine the evolving reality of ‘boat migration’ and the intersecting legal frameworks at play. Our analysis takes a systemic integration approach to reflect on the complex dynamics underpinning responses to the phenomenon in Australia and the Central Mediterranean. The regime that governments purport to act under in any given instance reflects the way they choose to frame incidents and possibly exploit legal gaps in, or contested interpretations of, the relevant rules. The ‘closed ports’ strategy adopted by Italy and Malta against the MV Lifeline and the detention-at-sea policy pursued by Australia are investigated from the competing perspectives of what we call the ‘security lens’ and the ‘humanitarian lens’ to demonstrate how a good faith interpretation of the applicable (if apparently conflicting and overlapping) norms can (and should) be mobilized to save lives, and how that goal is unduly undercut when security concerns trump humanitarian interests.

This piece provides critical analysis of some of the broader consequences of what is potentially suggested by certain findings in the 2010 Advisory Opinion of the International Court of Justice on ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. The focus is on consequences for disputes generally, and disputes relating to self-determination and secession in particular, in either case including disputes that have been made subject to a Security Council-imposed settlement process. In the first place, the piece considers the relatively specific suggestion that sub-state groups are free to unilaterally terminate a Security Council-imposed process aimed at enabling the resolution of a dispute concerning their aspirations to external self-determination, without this termination having to comply with the principles of justice and international law. In the second place, the piece considers the relatively broad suggestion that the act of any sub-state group of declaring independence and seceding from the state within which it is located, without the consent of that state or any other international legal sanction, is likewise not regulated by international law.

This article considers the ways in which concerns about economic equalities, both among and within countries, were taken up in human rights debates of the 1970s and how concerns about economic inequalities impacted on discussions about the possibilities, objectives and conceptions of rights. It shows how scholars and advocates from the global South, concerned about the production of underdevelopment and unequal accumulation, advocated a more ‘structural approach’ to human rights during this period that argued that a just international order was necessary for the realization of rights. The article first considers Third World demands for a New International Economic Order to address inequalities among countries, as well as the potentially conflicting focus on inequalities within countries by the World Bank and its subsequent promotion of a ‘basic needs’ approach to development. Thereafter, it considers how these different approaches to economic inequality were taken up in and influenced human rights debates and frameworks of this period.

Litigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law.

This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.

The right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within the jus ad bellum paradigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986 Nicaragua decision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

The provisions of the ICJ Rules of Court concerning counter-claims have fallen to be applied in two recent cases, in circumstances such the Court has had to examine the nature of a counter-claim and the conditions for its admission as such, and in particular the nature of the ‘direct connection’ with the subject-matter of the application, required by the Rules. In each case the counter-claim was admitted, over the dissent of some judges: these decisions are probably justified, even though some aspects of the reasoning may be criticised.

The occupation of Iraq in 2003 involved a wide-ranging set of interventions in the domestic legal, political and economic structures of the state, interventions that provoked a debate about whether the law of occupation should recognize a category of ‘transformative’ occupation.

While the occupation itself has often been decried as an imperial venture, its administration involved a diffusion of power among international institutions as well as ratification by the Security Council through Resolution 1483. This article pursues the intuition that the transformation of norms and practices elsewhere in the international order underwrote the idea that it was the law of occupation that was problematic, at the same time facilitating the transmutation and preservation of practices that might be identified as imperial. Two developments are key: The first is the pervasive normalization of intervention in the domestic policy and legal orders of states; the second is the dissemination of norms about domestic regulation within the international order, those that touch on economic governance in particular. The orders of the occupying were infused in both form and substance with ideas of ‘normal governance’ traceable to myriad projects, policies and practices of other international institutions: development agencies, financial institutions, trade organizations. Iraq then might be a revealing case with which to consider the character and locations of contemporary imperialism, as well as the role of international law and international institutions in its unfolding.

Since the post-Second World War tribunals, only a few scholars have attempted to draw a definitional distinction between international and national criminal courts. Remarkable exceptions include Robert Woetzel, who in 1962 categorized criminal courts according to ‘the involvement of the international community’, and Sarah Williams, who 50 years later relied on the same factor in her definitions of ‘hybrid’ and ‘internationalized’ criminal tribunals.

Through examples of rulings by the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, this article will demonstrate that ‘the involvement of the international community’ is at best an unhelpful criterion when it comes to resolving questions, e.g. regarding the immunity of state officials and the relevance of domestic law, that require a determination of the legal system in which the court operates.

Instead, it is argued that only criminal tribunals deriving their authority from international law should be labelled ‘international’, while the term ‘national criminal court’ should apply to tribunals set up under national law. This terminology would underline that issues concerning jurisdiction and applicable law must be settled according to each court's constituent document and other relevant sources of law, depending on the legal system to which this document belongs.

The European Community (EC) has recently announced its decision to begin dispute-resolution procedures in the World Trade Organization (WTO) against the United States (US) because of the latter's passage of the so-called ‘Helms-Burton’ law, which tightens the sanctions against Cuba by means of extraterritorial application. This will, in all probability, offer the WTO an ideal opportunity to define the limits of the General Agreement on Tariffs and Trade's (GATT) security exception. The security exception, contained in GATT Article XXI, is also included in other agreements annexed to the Agreement establishing the World Trade Organization (WTO Agreement), such as the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). It provides an exception from all GATT (as well as GATS and TRIPs) obligations, including the all-important ‘most-favoured-nation’ non-discrimination rule. The security interests at issue must be those of a political, rather than an economic, nature. It should be noted that because there is no human rights and democracy exception to the GATT or other agreements annexed to the WTO Agreement, trade restrictions that are based either in whole or in part on these concerns, such as the measures against Cuba, are usually justified on the basis of the security exception.

While much has been written about the formation of the International Criminal Court (ICC), less attention has been focused on the enforcement capability of the Court. As demonstrated by the history of the ad hoc international tribunals, one of the most pressing problems for international criminal courts is the arrest and the surrender of suspects, which often requires substantial bargaining between the court and the state in which the suspect resides. We develop a classification of the issues which have the greatest impact on the bargaining influence of the ICC to secure the arrest of indictees, and apply this classification scheme to a study of the four ongoing situations at the ICC in order to explore the bargaining environment in which the ICC operates. While many of the cases have features which should assist the ICC in bargaining with the state, the situation in Sudan represents the greatest challenge for the Court.

This article understands risk dialectically as a decision-making resource stressing probability but as also giving rise to further uncertainties. It shows that the panel report in EC – Biotech reflects an understanding of risk as decision-making that is deterministic and leaves little room for the application of precautionary approaches and non-scientific factors. It submits that such an approach is unsuitable for novel technologies with limited background knowledge and reduces the accountability of risk regulators. A different approach is put forth, which allows members greater scope for precautionary action while preventing trade protectionism. The article concludes that law can enhance its authority and epistemic validity through scientific evidence but only if it recognizes science's epistemic and its own limitations. Law has to approach science as contested knowledge and risk regulation as political decision-making, leading – inevitably – to more indeterminate solutions to legal conflicts.

This article examines the judgment on Kantaga's appeal against the decision of Trial Chamber II of the International Criminal Court that the case against him was admissible. The Appeals Chamber rejected Katanga's appeal, and affirmed the admissibility of the case. However, it did not do so on the same basis as the Trial Chamber (that the Democratic Republic of the Congo (DRC) was unwilling). Rather, it looked at the plain language of Article 17, and found that at the time of the challenge the DRC was not investigating or prosecuting Katanga. This judgment can be seen as an example of judicial restraint. The Appeals Chamber dealt only with those questions which were necessary to dispose of the appeal. It did not engage in policy debates or seek to create new facts, but rather applied the Statute as drafted to the facts of the case before it. In doing this, the Appeals Chamber confirmed certain basic principles of the admissibility regime. The case also provides an insight into the relationship between admissibility and ‘positive complementarity’.