The article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.

This article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

This study examines the major legal, institutional, operational, and administrative aspects of the international property-related interventions in post-conflict Bosnia and Herzegovina and Kosovo. The establishment of international mass claims proceedings to restore or compensate for property rights lost due to ethnic discrimination and cleansing is a milestone for the protection of the rights of refugees and internally displaced persons. The case studies demonstrate that far-reaching international intervention and law enforcement do indeed effectively function if the international community engages in a sustainable and co-ordinated manner and provides sufficient funding.

This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexico's action, the article focuses on Avena's place in the Court's provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJ's perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Court's order for the United States in the context of developing international norms on capital punishment and the due process standards governing its implementation in states that continue to practise it.

The quest for a constructive solution to the situation in Chechnya is a challenge of the greatest importance. The prospects are examined against a review of the historical background of conflict and suffering. Solutions would have to be based on some form of autonomy within the Russian Federation, providing for extensive self-government in relation to education, culture, use of local languages, measures to protect the environment, local planning, economic development, local policing functions, and housing, health, and other social services. But there are other matters which must be shared with the central authorities. Optimal divisions of functions between autonomous Chechnya and the federal authorities will take time had has to proceed step by step. The role of international agencies in achieving and guaranteeing this result is examined.

This presentation is twofold. The first part shows that the Nicaragua case played a significant role in reconciling the Third World with the International Court of Justice and, more generally, in revitalizing the Court. In the second part, the author, who was counsel for Nicaragua in that case, casts an eye as external analyst on the judgments of 1984, about which he has some reluctance, and 1986, which he largely approves of, even though Nicaragua did not win 100 per cent and some points may be debatable.

Over the course of the nineteenth century, the question of state responsibility for injuries done by rebels to foreign nationals, or ‘aliens’, in its territory became an important one for international law. Initially, it was common for disputes regarding such responsibility to be resolved through diplomacy, backed up, not infrequently, by the threat and even the use of force. Later it became a matter which also led increasingly to arbitration; beginning around the middle of the nineteenth century a growing number of arbitral tribunals dealt with claims against states for injuries done to aliens by rebels. From the first, established in 1839, there followed a series of 40 mixed claims commissions which touched on state responsibility for rebels. Nearly three-quarters of these arbitrations involved a Western state against one of the new Latin American republics. In this article, I explore how intervention in Latin America, and particularly its turn to arbitration, produced the highly-contested doctrine of state responsibility for rebels. Reading this history in the context of decolonization, capitalist expansion and economic imperialism in Latin America, I argue that the doctrine of state responsibility for rebels was produced out of and used to manage the transition from old colonialism to new imperialism in the region so as to guarantee foreign trade and investment. Understanding this history, I argue, helps us to put back together the pieces of alien protection which fragmented after 1945 and illuminates how international law continues to protect foreign investment against rebels in the decolonized world.

The article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

Does the International Court of Justice have the power to indicate legally binding provisional measures? On the basis of the provisions of the UN Charter and the Statute of the International Court of Justice, it seems unlikely that the Court is bestowed with such a power. An alternative argument, which regards interim protection as a general principle of law, thus giving it binding force, is also not without difficulties. The situation seems to be clearer, however, when states declare in a treaty their intention to be bound by the provisional measures indicated by the Court. The argument considering provisional measures as a ‘moral obligation’ will be examined as well.

The enquiry into international legal personality in the following article is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described and explained, in order to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international) legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law.

In July 2001 the Human Rights Committee of the International Covenant on Civil and Political Rights issued a General Comment on the possibility of member states derogating from human rights in case of emergency. Basing its analysis on the issue of limitation of fair trial rights during a state of emergency, this article suggests a critical analysis of the reasoning, rather than the conclusions, of the Committee. Expanding arguments developed by monitoring bodies of the American and European Conventions on Human Rights, the author suggests alternative reasoning according to which the right to a fair trial is inalienable. She argues in particular that this right constitutes a guarantee necessary to the effective enjoyment of all human rights, the preservation of legality in a democratic society, and the effectiveness of the principle of separation of powers.

International criminal procedure (ICP) has fluctuated uncertainly between common- and civil-law procedural principles. Consensus on the principles underlying ICP is needed to ensure consistent standards of justice. The article begins by comparing criminal procedure in common- and civil-law systems, and describes the theories underlying the trial and judicial role in these systems. It then compares ICP to civil- and common-law criminal procedure. This comparison establishes the scope of judicial powers that can be exercised by international criminal judges. These powers differ from those exercised by both common- and civil-law judges. The article concludes by arguing that ICP is based on a new theory of the trial: the theory of ‘tempered adversariality’.

One of the central components of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is its victim assistance and environmental remediation provisions (known collectively as the Treaty’s ‘positive obligations’). While there is much to celebrate about efforts to remedy the damage caused by nuclear weapons, the way the TPNW distributes responsibility for this work is troubling. Under the Treaty, the primary responsibility for fulfilling the positive obligations is placed on the states parties that have individuals under their jurisdiction who are affected by the use or testing of nuclear weapons and areas under their jurisdiction or control that have been contaminated by the use or testing of nuclear weapons (‘the affected states’) despite the fact that, often, these were not the states responsible for detonating the nuclear weapons. This article examines and critiques the reasons the Treaty’s drafters placed the main responsibility for victim assistance and environmental remediation on affected states. It argues that the rationales underpinning these provisions rest on shaky grounds, and that the Treaty’s approach has potential negative ramifications for nuclear disarmament and understanding the history of the use and testing of nuclear weapons. Further, it explores how the Treaty may play into worrying broader dynamics in public international law whereby the Global North is frequently absolved of responsibility for the harms it causes while the Global South is saddled with obligations to redress an array of harms.

The statute of the newly established international criminal court provides for command responsibility; the vicarious liability of civilian and military officials for the internationally proscribed conduct of their subordinates. The interpretation of this provision requires an understanding of the doctrine's complex and convoluted evolution. The Geneva Protocol of 1977 created a measure of uniformity. The Geneva Protocol, along with the Delalić decision of the trial chamber of the Criminal Tribunal for the Former Yugoslavia, likely will inform the interpretation of command responsibility under the statute of the International Criminal Court.

This article focuses on the correlation between the secondary objectives of the European Central Bank (ECB) and the right to a healthy environment. Whereas the primary mandate of the ECB is maintaining price stability, the applicable law also envisages secondary objectives, such as supporting economic growth and sustainable development. Crucially, however, there is an emerging scientific literature suggesting a trade-off between economic growth and environmental sustainability. This results in a balancing problem: To what extent environmental protection and sustainability can be balanced with economic growth within the ECB’s monetary policy? This article aims to analyse this issue with a specific focus on legal implications in terms of the right to a healthy environment. This study reveals the failure of the member states to comply with the international obligations under the right to a healthy environment in shaping the law of the ECB.

“[…]for in the international community the rule of law generally ranks second after politics.”

“Basis van goede verstandhouding kan slechts het recht zijn. Recht alleen kan goede houdingen bestendigen, geschillen voorkomen of bevredigend oplossen. Onrecht, geweld en anarchie voeren tot ondergang, omdat er kiem van destructie zit in al wat niet rechtens is.”

Rights and obligations connected with intellectual property and liability will influence the commercial exploitation of outer space by private entities. Whilst international space law facilitates private enterprise participation in space endeavour, additional action has been taken, on national as well as multi-national level, to provide the business community with the necessary incentives to play their role in the commercialization of space activities. The situation and legal developments described in this article mark the very beginning of a movement towards the consolidation and diversification of commercial space exploitation.