The terminology regarding remedies in the field of international responsibility is far from uniform, either in literature, as well as in case law, diplomatic practice etc.. This state of affairs is bound to have its impact on the codification of state responsibility by the International Law Commission. Was this ‘terminology-problem’ tackled by the International Law Commission and its Special Rapporteurs?

Moiwana Village is the second case to be decided by the Inter-American Court on Human Rights against Suriname in which the victims are members of an ethnic community that descends from ‘Bush Negroes’ or ‘Maroons’, namely escaped former slaves who established new autonomous communities in the eastern part of Suriname. In contrast to its prior judgment, in Moiwana the Court shows a striking evolution in its case law regarding the treatment of ethnic or group rights. This approach, which may be traced back to previous case law on the rights of indigenous communities, affords an enhanced protection to members of an ethnic community in the light of their disadvantaged position as a vulnerable group and taking into account the ancestral traditions followed by the community. After the Moiwana case, the Court decided Yakye Axa and Yatama, two cases regarding indigenous and ethnic communities in which this tribunal consolidated its approach towards the protection of these vulnerable groups.

The recent judgement on the merits in the Oil Platforms case has brought a long-standing dispute before the International Court of Justice to a close. This article critically analyzes some of the most interesting topics raised in this judgement, not least the fact that it was harshly criticized by a very high number of judges in their individual opinions. The issues discussed – such as the role of self-defence law within the confines of an ‘FCN treaty’ or the notion of ‘freedom of commerce’ – merely point to higher-level problems of a theoretical nature which cause our confusion as to substantive law.

This article seeks to demonstrate how the Agreement on the Privileges and Immunities of the International Criminal Court relates to other documents of international law and thereby contributes to the independent functioning of the Court. In particular, it argues that the Agreement provides some duplication, but more importantly, the necessary extension, elaboration, and interpretation of the Rome Statute with regard to privileges and immunities. In comparison with other conventions on privileges and immunities of international organizations, the article concludes that the Agreement provides some important unprecedented provisions, but that the overwhelming part of the Agreement on Privileges and Immunities constitutes standard provisions for such agreements.

The law relating to state succession played a small but important role in the World Court's recent decision in Gabčíkovo-Nagymaros. Hungary's argument that the 1977 Treaty had not survived the transition from Czechoslovakia to Slovakia notwithstanding, the Court found that the 1977 Treaty had continued to be in force. Hungary presented several arguments relating to succession: the absence of consent; and that only certain rights and obligations (but not the Treaty itself) had survived. The present article analyzes these arguments in context and concludes that the Court came up with the right decision, but through a process of reasoning that is less than fully convincing.

This article investigates T. O. Elias's constructions of past and future Africas in Africa and the Development of International Law. It locates Elias within Nigeria's educated elite and its oscillating constructions of past and future Africas, and turns specifically to Elias's romanticized African past of the great medieval empires as a source of legitimacy within the broader ‘development’ of international law. The article works through his depiction of ‘customary’ law in Nigeria and how the African past maintains its presence in current law, and then addresses Elias's depiction of the future represented by new pan-African institutions. Finally, the article discusses Elias's depiction of a liberating future or ‘modern’ international law – the move from consent to consensus – in which Africa seems important only within the broader population of new states, and how his conception of international law – citing Jenks and Jessup, Friedmann and Falk – with its commitment to law's reflection of society, fits comfortably within the traditions of a modern sociological jurisprudence.

On 19 November 2012, the International Court of Justice gave its judgment concerning the Territorial and Maritime Dispute between Nicaragua and Colombia. This judgment includes several important issues which need serious consideration, such the as legal status of maritime features, the interpretation and application of Article 121 of the UN Convention on the Law of the Sea, the methodology of maritime delimitations, the role of proportionality in maritime delimitations, and the impact of the judgment upon third states and effect of Article 59 of the ICJ Statute. Focusing on these issues, this contribution aims to analyse the judgment of 2012 from a viewpoint of the international law of the sea, in particular, the law of maritime delimitation.

Humankind’s exploration and use of outer space are first and foremost limited by the obligation of non-appropriation. This prohibition, with an aim to prevent conflicts arising from competing territorial claims, does not extend to the exploitation of abiotic resources in space. Recent state practice has shown a clear trend of regarding such exploitation as a freedom of exploration and use of outer space. The future international legal regime should prohibit property claims over natural resources in place on celestial bodies, avoid the controversial issue of ownership, co-ordinate the resource activities of different entities by a stage-specific and priority-right-based mechanism, and harden the obligations of capacity-building and co-operation. The ideas of parallel system and monetary benefit sharing should not be discarded although resistance from major space-faring countries is foreseeable.

An unlimited right of non-self-incrimination of witnesses before international criminal tribunals exists only during the pre-trial investigation (Article 55 ICC Statute); during trial the right is not unlimited, as the witness can be compelled to answer any question, either on the basis of an ex ante assurance of non-use of the evidence against him/her coupled with an assurance of confidentiality (ICC Rule 74(3)(c)) or on the basis of a guarantee of non-use without an explicit assurance to that effect (ICTY/ICTR Rules 90(F)). It is doubtful whether these rules are compatible with the principle nemo tenetur se ipsum accusare since this principle protects not only the accused but also the witness from a criminal prosecution which is based on her own statements.

The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders. To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards. This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions. However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings. In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions. This has occurred with respect to the Tribunal's adherence to the principle of equality of arms. In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered. In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions.

We introduce this symposium of articles by explaining the notions of hard and soft law, and reviewing UN developments on business and human rights in this light. We move to a more detailed discussion of existing hard law, particularly the state duty to protect, before examining examples of fulfilment of that duty via the domestication (especially the judicialization) of human rights norms for business. We also note the many pitfalls in contemporary approaches, before examining how the proposed legally binding instrument might address those pitfalls. We conclude with commentary on how soft and hard norms to date have failed to grapple with corporate power, the issue which animates the need for a business human rights debate in the first place, before introducing the articles to follow.

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

To date, analyses of gender justice at the International Criminal Court (ICC) have focused primarily on critiques of, and shifts within, the Office of the Prosecutor. This article takes a different approach by focusing on the ICC’s judiciary. We being by arguing that state parties can and should do more than electing a balance of male and female judges – they can also ensure gender-sensitivity on the Bench by supporting candidates with expertise in gender analysis, and by backing judges who bring a feminist approach to their work once elected. Next, we explain the concept of the ‘feminist judgment-writing’ and suggest that this method offers a useful framework for embedding gender-sensitive judging at the ICC. To illustrate this argument, we highlight opportunities for ICC judges to engage in gender-sensitive judging in relation to interpreting the law, making findings of fact, and deciding procedural questions. The final section of the article discusses how best to institutionalize the practice of gender-sensitive judging at the ICC.

The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.

International lawyers, especially human rights lawyers, praise the Nationality Decrees decision as a watershed in the progressive expansion of international jurisdiction. Reexamination of the case challenges this understanding. The case proves to have involved a confrontation between rival colonial conceptions: French stress on the intimacy of an imperial tuteur with its protégés versus British focus on consent to subordination. Reexamination also reveals the decision as highly restrained, rejecting a French call for a judicially formulated colonial code. The case's protagonists bequeathed a conflicted conceptual legacy concerning international authority and nationality policy in whose wake debates about today's new internationalism follow. [Un protectorat] reste encore, à quelques égards tout au moins, au dehors, en marge, de façon qu'il y ait un dernier effort, un dernier acte à accomplir pour que ce territoire, qui reste nominalement, par une subtilité juridique, séparé du territoire national, s'y touve enfin réuni.[A protectorate] remains, in certain respects at least, outside, in the margin; so that a final exertion, a final act remains to be performed; in order that this territory which remains by a legal nicety nominally separated from the national territory may be finally united to it.Alfred de Lapradelle, French Oral Argument, Nationality Decrees Case

The present article traces the developments with respect to questions of admissibility of claims brought before the European Commission of Human Rights and the European Court of Human Rights by private individuals. It would appear that over the years, the Commission and Court have dealt with an increasing number of cases, and have extended the scope of the infringement they permitted themselves to make on the domestic jurisdiction of states members to the European Convention of Human Rights.

This paper draws on some of the preliminary findings of a small pilot study which aimed to discover what evidentiary challenges a range of practitioners with experience of different international trials faced in the cases they were involved in, and what practices were developed to deal with these challenges. The findings in this study are based on the data collected from The Hague-based institutions, the ICC, the ICTY, the ICTY and ICTR Appeals Chamber, and the Special Tribunal for the Lebanon (STL). It is argued that professionals moving from institution to institution are engaged in a process of cross-pollination which itself influences the practices that develop, although a common understanding of certain evidentiary issues in international trials remains fragmented and at times elusive.

In February 2006 Judge P. H. Kooijmans retired from the International Court of Justice after having served a full nine-year term. The article focuses on the manner in which Peter Kooijmans has performed his task as a judge by taking a close look at his most significant individual opinions. It focuses on three aspects of his contribution to the work of the Court: settling disputes, applying legal logic, and the development of international law.

The use of criminal law in border control has gained increasing and warranted scholarly attention. International criminal law is no exception, although the orientation of the debates in international law is different from that at the national level. While scholarship on domestic border control is characterized by a deep scepticism of the use of criminal sanction, the focus in international criminal law has been on the exclusion of individuals suspected of involvement in an international crime from the protective sphere of refugee law. The divergence of this scholarship does not fully account for how responses to allegations of involvement in an international crime are often embedded within domestic immigration laws, making concerns regarding domestic border control relevant for discussions in international criminal law. To examine these domestic entanglements, this article analyses an independently generated dataset of 122 cases in 20 countries concerning 102 individuals alleged to have participated in the 1994 genocide in Rwanda. This dataset enables an empirical analysis of the role that international criminal law is playing in their extradition, deportation or domestic prosecution. It argues that these cases are underpinned by plural types of expressive work. They communicate not only an ongoing commitment to recognizing the universal wrong of genocide, but also more ambiguous messaging about what constitutes a fair trial in Rwanda, who constitutes a ‘criminal migrant’ and, to a Rwandan audience, the transnational penal reach of the Rwandan state.

In his article on the implementation of international law by the domestic courts in the United States, Richard Falk focuses on the possible role of domestic courts with respect to the acts of foreign policy which may be contrary to international law. In general that role is limited. This is the same in Europe. Falk mentions efforts of individuals, to change national foreign policy by means such as the Russell Tribunal, boycotts of products, blocking of tracks and the occupation of buildings. Such activities also happen in Europe but rather with the intention to attract public attention than with the purpose to litigate in court. In Europe it is generally accepted that courts should not take policy decisions of that kind.