The defendant in international trials is presumed innocent until proven guilty but is often judged by the ‘court of popular opinion’ even before the trial begins. This article provides reflections on how the image of a malevolent individual emerges with regard to those brought/to be brought before international courts. In such a situation, coming before the Court and subsequently being convicted or acquitted can mean little. It is coming before the Court that is, in itself, the end of the line. The manner in which the International Criminal Court has functioned has contributed, both advertently and inadvertently, to the maintenance of the image of the defendant as a malevolent being. Specifically, the purposes of historiography and the ever present discourse of deterrence, breed the suspicion that this ‘demonizing the defendant’ effect might be endorsed by the manner in which the Prosecutor has popularized the Court and it's functions and aims. This is a conflict that gets to the heart of international criminal law. It is the dilemma of how one must simultaneously fulfil two of the law's essential aims: to presume innocence (and thus abide by a fundamental tenet of international criminal law) and to deter, educate and pacify (and thus for the law to have a reason to exist).

The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

It is now standard in contemporary international law commentary to note that the latter part of the twentieth century has seen a move away from the traditional understanding of international law as fundamentally based on the consent of states. As just two examples, customary international law has in some contexts become more influential than treaties and human rights obligations are now recognized as often binding states even when they have signed no treaty acknowledging their existence. Treaty interpretation, by contrast, has remained focused upon the parties to a treaty, with even textualist approaches to treaty interpretation justified as the best means of ascertaining the intent of the contracting states. The purpose of the present article is to highlight the existence of a subset of treaties for which even a teleological approach to interpretation fails to capture the central importance for the treaty of entities other than the contracting states. These ‘power-conferring treaties’ do not merely entrust tribunals with the power to effectively fashion the means by which a treaty's goals should be achieved. To varying degrees, they grant control of the treaty itself, including, at times, both its enforcement and the very meaning of its terms, to entities other than the contracting states. As a result, the traditional emphasis in treaty interpretation on the ‘object and purpose’ of the treaty, and the precise language in which the treaty is written, will fail to generate an interpretation that faithfully captures the manner in which the treaty genuinely functions. The article then illustrates the potential impact of the power-conferring nature of a treaty through an analysis of the meaning of the term ‘investment’ in the International Convention for Settlement of Investment Disputes. This is one of the most controversial topics in contemporary international investment law, with an enormous impact upon the jurisdiction of ICSID arbitral tribunals. It is argued that recognizing the power-conferring nature of the ICSID Convention provides an enhanced understanding of the way in which this term should be interpreted.

On 30 December 1994 in Geneva, the four major players in world trade -the United States, the European Union, Japan, andCanada - accepted the Agreement Establishing the World Trade Organization (WTO Agreement).The entry into force of the Agreement on 1 January 1995 brings both expanded and improved trade rules and greatly improved enforcement. We have entered a new era in international dispute settlement. This brief article discusses the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 of the WTO Agreement, the negotiating process that led to it, and the implementation of the Understanding in the United States.

International Space Law forms one of the most recently established branches of international law. Its progressive development requires effective means to settle disputes at an international level. A generally accepted system to settle disputes on space law matters peacefully would not only benefit the world community by reducing tension in international relations, but would also appear to be indispensible for an increase in the reliability and credibility of this new field of international law.Moreover, enhanced trust in the existing system of international regulation of space activities could facilitate the willingness of nations to extend and elaborate this specific field of international law. Establishment of an effective mechanism for dispute settlement in international space law could positively influence the general subject matter of peaceful settlement of international disputes by setting an example for international relations in the increasingly dependant world of modern times.

This article argues in favour of broadening the trade and environment debate in the World Trade Organization (WTO) to include a developmental perspective. WTO litigation involving environmental regulation touches upon the issue of global justice and the power asymmetries structurally embedded in the global economy. The recognition of the WTO as a legitimate global institution, therefore, depends on its ability to reconcile the respect for the right to regulate with the need to give due regard to the interests and concerns of foreign constituencies affected by domestic regulation. By imposing other-regarding obligations, WTO law can act as a mechanism of external accountability of powerful states vis-à-vis affected foreigners, especially where asymmetric relations and different stages of economic development are involved. The article applies this framework to analyze the legal reasoning of the Appellate Body in the US-Tuna II dispute between the US and Mexico – a dispute illustrating the complex intertwinement between economic, environmental and developmental issues. It concludes that the use of the concepts of ‘even-handedness’ and ‘calibration’ under Article 2.1 of the Technical Barriers to Trade Agreement and Article XX of the General Agreement on Tariffs and Trade did not enable the Appellate Body to strike an adequate balance between the right to regulate and external accountability. While in the original report the Appellate Body used ‘even-handedness’ to impose only a minimal level of external accountability on the US, in the compliance report, the Appellate Body has gone too far by failing to defer to the US risk assessment amidst scientific controversy and uncertainty.

The United Nations Claims Commission (UNCC) was set up by the UN Security Council to process claims submitted by victims of the war between Iraq and the Coalition Forces (1990–1991). From an institutional point of view, the UNCC is a curious creation, assuming the form of a hybrid between an administrative claims procedure and an international tribunal. This article will highlight some of the difficulties with the institutional model chosen and focus on the institutional, as well as the normative legitimacy of the UNCC, whereby particular attention is devoted to Iraq's participation in the procedure.

The ICTY Trial Judgment in the Prosecutor v. Tihomir Blaškić is the first judicial decision to explicitly address unlawful attack charges. This article reviews the judgment focusing on how the trial chamber addressed individual criminal responsibility, unlawful attack charges, the crime against humanity of persecution, and the relationship between the two offences. The author observes that the decision contains little legal analysis but a review of the factual findings sheds light on legal assumptions. In particular, the findings indicate a willingness to accept that indiscriminate or disproportionate attacks might provide evidence of attacks essentially directed against civilians, a tendency to regard ad hoc ill equipped resistance to an attack as equivalent to no resistance, and a tendency to evaluate the lawfulness of an attack on the basis of what happened after the attack as well as during the attack.

This article addresses the question stated in its title by considering not only the role of national courts but also the roles of national legislatures and executives. That emphasis is called for because most of international law most of the time operates through national, rather than international, institutions and in particular through the executive and the legislature. Before I get to those national institutions, I consider two undisputed propositions of law, the varying characteristics of rules of international law and the impact of those characteristics on different national constitutional and legal systems.

In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.

When it first encountered the Genocide Convention in its 1951 Advisory Opinion, the International Court of Justice recognized that the treaty reflected the ‘most elementary principles of morality’. Its provisions were to be read broadly, in light of the Convention's transcendent object and purpose. This expansive approach stands in contrast with the narrow interpretation of Article IX in the recent Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This article is a commentary on the retroactive obligation to punish genocide under the Convention with regard to acts occurring prior to its entry into force for that state. It concludes that the Court's narrow interpretation of its jurisdiction ratione temporis raises wider questions for its contemporary jurisprudence, namely, whether it will interpret human rights treaties enshrining fundamental values any differently than other international instruments.

In the South China Sea Arbitration initiated by the Philippines against China, the Chinese (Taiwan) Society of International Law (CSIL) submitted an amicus curiae brief to the Annex VII arbitral tribunal established in accordance with United Nations Convention on the Law of the Sea (UNCLOS). This article first analyzes the definition and legal nature of amicus curiae status, then introduces cases involving amicus curiae in the International Court of Justice (ICJ) and UNCLOS dispute settlement mechanisms. By analyzing relevant statutes and rules of procedure, this article assesses the acceptance of amicus curiae submissions by international courts or tribunals, in different dispute settlement mechanisms. Finally, the article describes the significance of the amicus curiae brief submitted by CSIL to the arbitral tribunal, concluding that the South China Sea Arbitral Tribunal did take the amicus curiae submission into account, but exercised caution in its consideration.

The 1993/1999 Belgian Law on Universal Jurisdiction allows for prosecution before Belgian domestic courts regardless of the nationality of perpetrators or victims, the place where the breaches were committed, or the presence on Belgian territory of the alleged perpetrators. Is universal jurisdiction contrary to international law? Is universal jurisdiction in absentia permitted under Belgian law and under international law? What is the relationship between universal jurisdiction, as exercised by a national court, and the Statute of the International Criminal Court? This article provides an overview of the Belgian legislation and its future with regard to international law and the Statute of the International Criminal Court.

Justus Lipsius (1547–1606) was among the most famed intellectuals in his time, but was largely forgotten during the Enlightenment. Intellectually, he stood at an important crossroads, his thought incorporating both late Renaissance traits and precursors of the early modern age. In this article I give a brief intellectual background to Lipsius's thought before concentrating on his thought regarding the lawful interaction between polities, with a focus on lawful government, dissimulation, war, and empire. I then detail the way in which Lipsian thought critically informed later theory and practice. It contained an eclectic mix of divine law, natural law, and positive human law, with some elements borrowed and popularized from earlier writers and others being more original. In the end, his work stands out both as an important inspiration for later theorists and practitioners, and as an example of the many idiosyncrasies and possible trajectories that early international law could have adopted.

The Bank for International Settlements (BIS), created in 1930 to handle German reparations from the First World War, has enjoyed a unique international legal position. This status was questioned when the Bank, in 2001, recalled its shares held by private parties. The resulting arbitral award settled the BIS's sui generis legal status, as well as making some important rulings about the application of state responsibility rules to international institutions in cases of expropriation. Additionally, the award provided needed insight as to the use of various methods of valuation of corporate assets in shareholder claims.

The discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court's ruling had been profoundly influenced by Serbia's fragile domestic politics and hence this worked silently to constrain the Court's rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole.

In January 1996, tension escalated in the south-eastern Aegean as a result of Turkey's challenge of Greek sovereignty over the Imia rocks. Turkish ‘journalists’ from the newspaper Hurriyet occupied the Greek rocks and took down the Greek flag. This led to a build-up of Turkish and Greek naval forces near the rocks, thus creating a potential source of armed conflict. The tension was reduced after diplomatic intervention by the United States. However, there was a surprising absence of initiative on the part of the European Union in spite of the fact that the external borders of one of its member states had been challenged. The following will be a very brief account of the incident and the arguments of both parties, as evidenced primarily by their respective verbal notes.

Like all rules of customary international law, those existing in the field of international investment law are binding on all states. According to the theory of the persistent objector, however, a state is not bound by a rule if it objected to it in the early stages of its formation and continued to do so consistently thereafter. This paper analyses the different grounds of criticism that have been raised against the concept. We found that there is only very weak judicial recognition of the concept, that there is no actual state practice supporting it, and that it is logically incoherent. Specifically, this paper argues that the concept should not be successfully used in investor–state arbitration proceedings to prevent the application of a custom rule by an arbitral tribunal. This is essentially because of the great importance of the few custom rules existing in that field and the fact that they represent universally recognized values.

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

Teck v. Pakootas revisits the infamous Trail smelter, which made history in public international law. This more recent case should be set to make history as well, due to the manner in which the issue of extraterritorial exercise of jurisdiction was handled. The substantive result reached in the courts seems fair, reasonable, and appropriate: a notorious polluter, Teck Cominco Metals Inc., is called to account by the United States Environmental Protection Agency and required to study the feasibility of cleaning up a site it contaminated by dumping effluents in a transboundary river over the course of several decades. Yet, both courts that examined this case on the merits failed to understand the ramifications of this extension of the Environmental Protection Agency's jurisdiction across the Canada–United States border. This article begins with a doctrinal analysis of jurisdictional rules in private and public international law, and then proceeds to evaluate those rules with the help of insights from scholarship on global administrative law and international public authority.