Comparative advantage which motors free trade crucially depends on national differences in respect of endowment with resources – e.g. natural,human, technological – and with factors and standards of production, including standards on production processes. Yet, is it open to any GATT contracting party to unilaterally force its own standards upon others?Moreover, is it permissible for a contracting party to enforce such standards by means of ‘trade sanctions’ in the form of import prohibitions against another whose environmental standards regarding certain production processes it has judged inferior to its own? The answer is a resounding ‘yes’ from some exponents of the environmental constituency, arguing that values pertaining to global environmental welfare should prevail. Similarly, some members of the GATT constituency, particularly developing countries, emphatically reject what it they term ‘eco-imperialism’.Generally, their argument is that, in order to safeguard the welfare of world trade against disguised protectionist aberrations, governmental environmental measures must be justified under the general exceptions of GATT.

The European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1

Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.

In the process of selection of articles for the International Court of Justice section at the Editorial Board of the Leiden Journal of International Law (LJIL), we tend to be seduced by those manuscripts which are effective in making use of the jurisprudence of the Court as an instrument to engage in an in-depth examination of substantive legal issues of a general nature. This reflects our conviction – hardly an original one, since it appears to be shared by our entire legal community – that the Court has a fundamental role to play in the advancement of international law as a legal system. It also echoes an idea that is present in the mission statement of our journal, which is conceived as ‘a forum for two vital areas, namely international legal theory and international dispute settlement’, thus establishing an intrinsic link between them. But how is the Court's contribution to the development of international law to be assessed? And what do we expect from a scholarly piece examining its case law in this respect?

Carl Schmitt's Der Nomos der Erde allows us to rethink his interlinked proposals for the organization of the Weimar Republic, namely his theory of ‘democratic dictatorship’ and the ‘concept of the political’. Connecting the domestic homogeneity of an empowered people with the pluralism of the Westphalian state system, Schmitt seeks to humanize war; he objects to the renaissance of the ‘just war’ tradition, which is premised on a discriminating concept of war. Schmitt's objections are valid today, yet their Eurocentric foundations are also partially outdated. We are thus to argue with Schmitt against Schmitt to reflect on possibilities for the humanization of war.

The interplay between the International Criminal Court (ICC) and domestic jurisdictions under the complementarity regime has unveiled statutory and policy limitations. These loopholes became vivid when the ICC faced new complex situations that were not initially envisaged by the drafters of the Rome Statute. On the practical side, the Libyan situation revealed setbacks and shortages in the policy(ies) adopted by the ICC. The first of these setbacks is the apparent lack of a coherent strategy on positive complementarity as invoked by (some) organs of the Court. The second aspect is the Court's adoption of a restrictive interpretation of the constituencies of the complementarity regime, making it extremely difficult even for some willing and able states to exercise their primary duty to prosecute core international crimes.

The unfortunate loose interpretation of ‘unavailability’ that the ICC has developed has led to inaccurate interpretations of the complementarity mechanism in certain situations, such as Libya. Furthermore, the fair trial standards within the admissibility regime should not be exaggerated, but rather invoked to determine whether the state has a bona fide intention to investigate and prosecute these crimes. Contrary to some writers’ interpretation, this is an objective test of intention, not one of relativity or specific result.

The ICC practice has shown a patchy approach that lacks a consistent and clear vision of its relation with domestic jurisdictions. While the ICC has not missed every opportunity to hail its commitment to positive complementarity, the reality is that the Court seems keen on understanding its success through conducting more international prosecutions.

While today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalization, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies, that scholarship claims competencies which it does not have, and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen's arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) of the UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the rediscovery of a strictly legal – that is, structural – constitution as the highest echelon of legal regulation.

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes or to comply with the obligation of peaceful settlement of disputes.

This article, based on a lecture offered in honour of Professor Cleveringa, provides some insights into the difficult question of ‘unjust laws’ and the place of ethics in law, with an emphasis on international law. While this question has long been a bone of contention between natural lawyers and positivists, it has a particular importance in international law. Attention is paid to the role of ethics in the context of non-discrimination and armed conflicts.

The Special Tribunal for Lebanon is the latest international criminal tribunal to be established by the United Nations. Similar in many respects to the earlier institutions – for the former Yugoslavia, Rwanda, and Sierra Leone – it stands alone in the fact that its subject-matter jurisdiction does not contain any international crimes. It is thus international in some respects, but it is arguably not an international criminal tribunal in the sense that was intended by the International Court of Justice in the Yerodia case. The drafting history of the Statute of the Special Tribunal is examined with a view to determining whether the new court should treat sovereign immunity in the same manner as the other three UN criminal tribunals.

The recent investor–state arbitration claim of Piero Foresti, Laura De Carli and others v. Republic of South Africa considers the extent to which international human rights obligations might be compromised by investor protections. In this regard, the paper examines the investor protection known as fair and equitable treatment (FET). It addresses this treatment obligation in the context of the South Africa–Italy bilateral investment treaty, and its invocation by investors who feel wronged by South Africa's black economic empowerment policies. It analyses the main interpretative theories of the FET clause, and concludes that it is to be interpreted as a self-contained treaty standard. This sui generis approach to interpreting FET clauses more accurately reflects the intentions of the state parties. Such a view supports the conclusion that international human rights should be considered in the interpretation of the FET clause.

In the summer of 1997, a member of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia met with Slavko Dokmanović in Serbia in order to lure him into Croatia, where he was ultimately arrested by UN peacekeeping personnel, Dokmanović was the subject of a sealed indictment for his role in the execution of 261 people forcibly taken out of the Vukovar hospital in 1991. The Tribunal rejected Dokmanović's argument that the manner of his arrest violated the sovereignty of the Federal Republic of Yugoslavia (Serbia and Montenegro) and international law. In doing so, the Tribunal focused on the distinction between ‘luring’ and ‘forcible abduction’, reckoning that the former was acceptable while the latter might, constitute grounds for dismissal in a future case. The article argues that the Tribunal's decision rests on an artificial distinction between luring and abduction which may needlessly discourage future apprehensions undertaken by NATO and UN troops in the territory of the former Yugoslavia. What the Tribunal in Dokmanović should have focused on, is that there is no violation of international law where the Security Council or the Tribunal has authorised law enforcement activities, where the state has consented to such activities, or where such activities are necessary under the principle of self-defence. Moreover, even where the manner of apprehension violates international law, the Tribunal may apply the so-called ‘Eichmann-exception’, while at the same time recognising that the mala captus bene dententus principle is generally inconsistent with the modern law of human rights.

Martti Koskenniemi's From Apology to Utopia is (rightly) considered a classic in international legal theory. The study tracks the oscillation of international legal argument over hundreds of years to reconcile seeming incongruencies: legal reasoning does not provide determinacy, but it brings weighted direction to political conflict; legal categories are amorphous, yet also an autonomous field of study. Though not commonly engaged, the methodological and theoretical posture of the book is significantly informed by a theory of history. This article focuses on this historical element within the text as a means to analyze some of its central claims and situate it within a broader sociology of knowledge production particular to late twentieth century legal academia.

The European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court's 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

Accession to the World Trade Organization (WTO) is viewed as a major step in the development of a state, and the commitments made by acceding states are often interpreted as a symbolic commitment to international economic and political community. However, as a subject of scholarship, WTO accession is under-theorized – there has been no sustained academic attempt to build a theory that accounts for the complexity of the accession process. Traditional, positivist approaches can point to increasingly onerous terms of accession, but fail to probe past Article XII's one-dimensional concept of ‘the acceding state’ negotiating with ‘the WTO’. This perspective dislocates the accession process from the broader political, economic, and legal reforms that involve both state and non-state actors. This article examines the role of these actors as epistemic communities, and argues that these epistemic communities engage in a series of dialogues about the nature of law and the legal system in the acceding state.

This keynote address delivered to a Conference on Evidence in International Criminal Tribunals at University College Dublin in November 2011 considers how differently evidentiary issues are dealt with by international criminal tribunals from domestic tribunals. It is argued that, although there are jurisdictional differences affecting what international prosecutors have to prove before international criminal tribunals, many of the problems and difficulties that beset international tribunals are also to be found in domestic tribunals and both types of tribunal have similar duties and issues to grapple with.

Under the UN sanctions regime of Resolution 1267, UN member states are obliged to freeze the assets of persons and entities which are associated with Usama bin Laden, and which therefore reason have been listed by the UN. Within the European Union this ‘UN sanctions list’ is implemented by means of a Community regulation, having direct effect in all EU member states. The regulation was challenged by several individuals and an organization, which were added to the UN sanctions list on the basis of their association with al Qaeda. The regulation was challenged on two grounds. First, the applicants claimed that the Community did not have the competence to adopt the contested regulation. In the second place, the applicants claimed that the Community regulation infringed their human rights (right to property, right of access to court). Thus the CFI was asked to determine to what extent it is competent indirectly to review measures adopted under the UN Charter. This delicate legal question is answered in a lengthy judgment, the legal reasoning of which is not always convincing.

The concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

Ian Balfour and Eduardo Cadava (eds.) And Justice for All?: The Claims of Human Rights, Durham, NC, Duke University Press, 2004, ISBN 0822365642, 440 pp., $20.00 (pb).

Roger Brownsword (ed.), Global Governance and the Quest for Justice, Volume 4: Human Rights, Oxford: Hart Publishing, 2005, ISBN 1841134090, 225 pp., £22.95 (pb).

Simon Caney, Justice beyond Borders: A Global Political Theory, Oxford, Oxford University Press, 2005, ISBN 019829350X, 319 pp., £24.99 (pb).