Inter-state disputes on human rights issues have been a far from exceptional phenomenon. During the Cold War the human rights question deeply divided the countries belonging to the Western and the communist blocs. Relations between developed and developing countries quite often have been heavily strained by controversies on human rights. But even within a group of countries belonging to an alliance or a homogeneous regional organization, human rights issues from time to time have been the cause of serious difficulties; e.g., the human rights record of Greece and Portugal within NATO and that of Greece and Turkey within the Council of Europe. Hardly ever have such disputes been subjected to third party dispute settlement machinery, even if such machinery was available. Most human rights treaties have a so-called procedure for state complaints, although in most cases acceptance of such a procedure is optional for the state parties. Only under two treaties, the European Convention on Human Rights and the UN Convention on the Elimination of All Forms of Racial Discrimination, it is mandatory for any state party against which a complaint by another state party is made, to submit itself to such a procedure. In most cases the procedures are of a fact-finding and mediatory character.Again, only under two (regional) treaties, the European and the American Convention on Human Rights, the initiating of such a procedure may lead to a binding decision.

The financial collapse of the International Tin Council (ITC) in 1985 raised three fundamental legal questions. Firstly, whether the granting of legal personality to an organization under international law by means of an international agreement always carries with it the limited liability of the organization. Secondly, it must be asked whether agreements to establish an international entity based on the statutes of international law are never subject to national jurisdiction. And thirdly, consideration is needed of the precautions to be taken in the future in order to avoid this kind of financial collapse. The answers to these questions have to consider that the international organizations have changed the emphasis of their activities from the perception of sovereign duties over the economic field where they rely on trust and cooperation with private enterprises. Due to this situation a distinction must be made between acts of state and activities under civil law. There is no principle at all in international or private law according to which the granting of international personality or legal capacity involves sole liability. Also the Act of State doctrine is not suited to protect the FTC or its member states from recourse to the court by private creditors in the case of civil acts. To realise the aim of creating a new and more equitable economic order and to improve the necessary credit standing, the statutes of the internationalorganizations must also contain improved control mechanisms.

The variety of notions of responsibility and liability, used by many publicists, continues to be a source of confusion. It would, therefore, be very clarifying to introduce one meaning for one concept and, thus, use the notions as the ILC defines them. The survey of the several 1LC reports on responsibility and liability shows that the concepts have become more and more interrelated. A different approach might be needed on the subject of international liability in order not to diminish the usefulness these rules can have within the environmental fiel.

The admissibility challenge of the defence in Katanga has raised complex issues of litigation in the light of the practice of self-referrals and existing ICC jurisprudence. This article examines the Katanga Trial Chamber decision and its consequences from this perspective. It focuses on three themes that are of particular relevance, since they have a direct impact on the functioning of the Court and its different organs: (i) the timing for a challenge of the admissibility of the case; (2) access to information related to admissibility; and (iii) the role of the defence.

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

Scholars of the history of international law have recently begun to wonder whether their work is predominantly about law or history. The questions we ask – about materials, contexts and movements – all raise intractable problems of historiography. Yet, few scholars have turned to historical theory to think through how we might go about addressing them.

This article works towards remedying that gap by exploring why and how we might engage with historiography more deeply.

Section 2 shows how the last three decades of the ‘turn to history’ can be usefully read as a move from ambivalence to anxiety. The major works of the 2000s thoroughly removed the pre-1990s ambivalence to history, offering brief considerations about method. Recent efforts building on those works have led to the present era of anxiety about both history and method, raising questions around materials, contexts and movements. But far from a negative state, this moment of anxiety is both appropriate and potentially creative: it prompts us to rethink our mode of engaging with historiography.

Section 3 explores how this engagement might proceed. It reconstructs the principles and debates within conceptual history around the anxieties of materials, contexts and movements. It then explores how these might be adapted to histories of international law, both generally and within one concrete project: a conceptual history of recognition in the writings of British jurists.

Section 4 concludes by considering the advances achieved by this kind of engagement, and reflects on new directions for international law and its histories.

The watershed of the US-led invasion of Iraq in 2003 calls for new approaches to the theory of international law. Hardt and Negri's Empire is a focal point for the broadly postmodernist New Approaches to International Law, which celebrates an infinite variety of resistances to oppressive structures. This book is itself in need of deconstruction. Post-structuralism must give way to a framework of analysis that accepts a place for agency, and with it, responsibility, alongside social structures. Contemporary Marxist critique of international relations, coming mainly from the field of geopolitical international history, can combine with social democratic critique of the international economic system to attach firm responsibility for the material economic woes of international society to the United States. The militarism of US foreign policy is, in a Marxist critique, primarily a function of US economic contradictions. Law plays a role here as a coercive instrument of the state. This state is capitalist in operating globally a system of accumulation by dispossession. Where necessary it reinforces its operations with violence. However, international law, as an expression of the equality of nations, especially in their social needs, is honoured in the breach by such dispossession and violence.

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.

This article analyses the growing resistance to judgments of the International Court of Justice arising out of domestic law in Latin America, through a study of challenges to the authority of the Court’s judgments regarding territorial and maritime delimitation in the region. These challenges are based upon the ‘territory clauses’ found in many Latin American constitutions, which were used to set national boundaries following colonial independence. Territory clauses that once developed international law doctrines such as uti possidetis iuris are now being used against prevailing international law rules, in a process described in this article as ‘constitutional resistance’.

This article explains the nature of ‘territory clauses’ in Latin America, i.e., clauses that constitutionally define the national territory in reference to international law. It then describes the process of ‘constitutional resistance’, by which local authorities have used these clauses to oppose ICJ judgments, leading to various results, such as non-appearance in further proceedings, constitutionalizing exclusively favourable judgments, deferring the implementation of a judgment to the Constitutional Court or implementing only certain ICJ judgments, while creating legal barriers to the implementation of judgments that, in the State’s view, negatively affect their territory.

These challenges based on territory clauses are studied through prominent ICJ cases involving Nicaragua, Honduras, El Salvador, and Colombia. The article also explores how the lack of a strong territory clause eased the implementation of the Peru v. Chile judgment, and how the recent non-appearance of Venezuela in its current ICJ proceedings with Guyana, is partly based on constitutional justifications.

Following the judgment of the International Court of Justice in the Avena case, US courts have had a mixed record in applying the decision domestically. In this article, I examine the treatment by US courts of claims by criminal defendants alleging Vienna Convention violations, subsequent to the Avena judgment. First, I discuss the two limited decisions so far taken by the US Supreme Court regarding the Vienna Convention, and briefly explain several of the judicially-created rules that have prevented most US courts from reaching the merits of Vienna Convention claims. Next, I analyse the ICJ judgment in the LaGrand case, and provide an overview of the reception of that case by the US courts. After a summary of the Avena decision, I turn to the latest cases in which Vienna Convention claims based on Avena have been raised in US courts, focusing on the two most important decisions, and examining their contradictory rulings. As the US Supreme Court has now decided to hear an appeal in one of these cases, I conclude by arguing that the Supreme Court should take the opportunity to elucidate the role of the International Court of Justice in US law when the United States has consented to binding treaty interpretation by that court.

The first person to be sentenced by the United Nations ad hoc International Criminal Tribunal for the former Yugoslavia (Tribunal) was Dražen Erdemović, a member of the Bosnian Serb Army who had pleaded guilty to one count of a crime against humanity – murder – and another of violations of the laws and customs of war – murder. Erdemović was a soldier in the 10th Sabotage Detachment of the Bosnian Serb army and the charges against him arose in connection with the slaughter of Bosnian Muslim civilians in the United Nations ‘safe areas’ of Srebrenica and Potocari.

The nature of international criminal trial practice is integral to the perception of the legitimacy of international criminal justice. However, our understanding of what transpires within the trial chambers of international courts and tribunals (ICTs) comes primarily from the reports of judges, lawyers, and stakeholders within the system. This article argues that, while the vast body of international criminal justice scholarship barely draws on socio-legal research, empirical work can contribute to a more objective understanding of international criminal trial practice. It examines prevailing academic approaches to the study of international trial practice as a backdrop to the assessment of data from one of the most expansive empirical studies of international trial practice, undertaken during the second mandate (1999–2003) of the International Criminal Tribunal for Rwanda (ICTR). The findings illustrate significant variations in how judges in different Trial Chambers chose to exercise discretion, revealing the co-existence of two distinct modalities of practice in ‘proactive’ and ‘reactive’ Trial Chambers. Quantitative and qualitative data allow for an assessment of the efficiency of these modalities, revealing the critical role of the performance of the judge in the trial process. It is argued that these findings highlight the potential for further socio-legal research to motivate ‘light-touch reform’ within the international criminal justice system.

The question whether the International Criminal Court may use its review powers to determine the admissibility of a case during the arrest warrant phase has gone widely unnoticed in legal literature on the International Criminal Court. This article treats the question from different perspectives. It presents the different stages at which admissibility questions may arise in response to a state party referral. Then it analyses the first jurisprudence of Pre-Trial Chambers I and II of the Court on the treatment of the question of admissibility at the arrest warrant stage. The article concludes that the Court may, proprio motu or based on a Prosecutor's request, rule on admissibility questions during arrest warrant proceedings per Article 58.

Recently, the ICJ appears to have been taking into account the protection of human life in its indication of provisional measures. This raises the question of how and to what extent the human life element influences the criteria for indicating provisional measures. After considering the meaning of ‘irreparability’ in the Court's jurisprudence, the author analyzes recent case law in the light of a link between irreparable harm and those rights of the parties that constitute the subject matter of the dispute in judicial proceedings. In conclusion, the author criticizes the Court's recent approach towards indicating provisional measures, as it raises some problems concerning jurisdiction, as well as the binding character and the nature of provisional measures.

On 16 June 2004 Trial Chamber III of the ICTY issued a judgement on a motion for dismissal of charges in the Milošević case. Brought forward by the amici curiae appointed by the trial chamber, the motion for acquittal achieved limited success. While some allegations were dismissed, particularly with respect to the Bosnia Indictment, overall, the trial chamber found that the prosecution had led sufficient evidence to support each of the counts challenged in the three indictments against the accused. This article highlights some of the significant developments in the trial's first two years and the issues raised in the motion for acquittal, as well as the trial chamber's determination.

It is submitted in this article that transfrontier agreements (of a publiclaw character) between decentralized authorities can be considered as a kind of international administrative agreements. After investigation of the power to conclude international (administrative) agreements and their (assumed) binding legal force in public international law, the article concludes that transfrontier agreements between decentralized authorities are in principle of a national and not of an international public law character. This article is also focussed on (overall) legal bases for transfrontier cooperation between decentralized authorities. In this respect the European Outline Convention on Transfrontier Cooperation Between Territorial Communities or Authorities is important and will be discussed. The purpose of this convention, in force in several European states, is to provide a legal basis for transfrontier cooperation (of a public law character) between decentralized authorities. However in this matter states still consider additional norms necessary. In this respect two additional treaties have been concluded and will be discussed. The article concludes that these treaties not really are overall legal bases for the conclusion of transfrontier agreements between decentralized authorities.

As the clash of aspirations increased among European countries, a European ‘civil war’ started in 1914, which engulfed the whole world. With all the terrible destruction and loss of life, it was felt that an international organization must be established to avert war in future. At the Paris Peace Conference in 1919, the British government succeeded in gaining separate representation for its dominions, including India. This created a rather anomalous situation, since a dependency of a foreign power, a colony which could not control its internal affairs, was accepted as a sovereign state by an international treaty. Europe had hardly recovered from the First World War in the late 1920s when it drifted towards a second holocaust in 1939. India became a founding member of the United Nations in 1945, even though it was still under British rule, participating in the historic founding conference. But Indian national public opinion was neither very hopeful nor enthusiastic about the conference on the new international organization. Not only India, which was not even independent at that time, but Asian countries as such played a very small and insignificant role in the formulation of the UN Charter.

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.