On October 4,1991 the parties to the Antarctic Treaty adopted the Protocol on Environmental Protection to the Antarctic Treaty. This Protocol contains a prohibition for the duration of fifty years of all exploration and exploitation of mineral resources in the Antarctic. The Wellington Convention, which was adopted in 1988 and was intended toregulate the exploitation of minerals,can now be considered dead and buried. Apart from the prohibition on minerals activities, the Protocol sets out a number of rules and regulations to control the activities in Antarctica in a more stringent way than before. This article analyses the Protocol and compares the ‘severeness’ of the rules with the degree of control in the Wellington Convention. It seems likely that states are less willing to accept heavy bureaucratic measures if the road to minerals development is cut off. For issues like dispute settlement, environmental impact assessment, the creation of new institutions and liability, the articles in the Protocol are compared with the corresponding articles of the Minerals Convention. Furthermore this article contains some suggestions on how the current plans to protect the Antarctic environment can be improved.

The international legal entitlement by which a state constitutionally designates its name, or a province therein, involves a unilateral act. Where, however, another state wishes to choose the same appellation, as is the case with the former Yugoslav Republic of Macedonia (FYROM), the matter can only be resolved by reference to the first user and the maxim prior in tempore potior in jure. The first user must provide evidence of continuous use and of protest in those cases where the same appellation was appropriated by a third state. Under such circumstances the entitlement becomes exclusive, rather than concurrent, because the prior user may be said to possess a sound historic title, such that has been recognized by international judicial bodies to determine acquisition of territory, effective administration, historic bays, and so on. The exclusivity of the entitlement is further reinforced by analogy with general principles derived from the law of trademarks. At a practical level, the application of the international law of geographical indications clearly demonstrates that the designation ‘Macedonia’ cannot be used for a significant number of products originating in FYROM, since the Greek province of Macedonia has for a long time branded and registered such products. This will create insurmountable problems for producers in FYROM when they try to brand their goods under the country's constitutional name. A change of name, particularly through the compromisory use of a compound, would alleviate legal, political, and financial concerns.

This article analyses the ICJ, one of the most eminent actors of the international legal regime, as an actor of the international tax regime. So far, the ICJ’s role in tax dispute resolution has been a blind spot in the literature.

The descriptive part of this article first discusses the case law of the PCIJ and ICJ that considers – albeit incidentally – questions of taxation. These tax-related cases are categorized as (i) ‘wrongful taxation’ constituting the subject matter of the dispute; (ii) taxation as evidence for a ‘genuine link’ between the state and a national; or (iii) taxation as an ‘effectivité’ to prove the de facto exercise of state authority over a given territory.

The second half of the descriptive analysis assesses the Court’s jurisdiction over tax disputes. Tax treaties usually lack compromissory clauses. Yet, there are a number of jurisdictional bases that vest the Court with the competence to sit over hypothetical tax treaty disputes, although certain reservations may render the Court’s jurisdiction residual to other means of tax dispute settlement. Further, Article 344 TFEU possibly precludes EU member states from initiating ICJ proceedings concerning tax treaty disputes with other EU states.

The second, normative part of this article contemplates the Court as a future ‘World Tax Court’. It briefly addresses (i) possible effects of the ICJ’s hypothetical involvement in tax disputes; (ii) whether the ICJ might have a future role in tax dispute settlement in light of recent developments; and (iii) whether it is even desirable to involve the Court in tax disputes.

International investment tribunals often use the language of ‘rights’ to characterize foreign investors’ claims against host states, evoking the language of human rights and, in some cases, appearing to conflate the two concepts. We investigate the cognitive framing of the relationship between investor rights and human rights in investor-state dispute settlement (ISDS), as characterized by investment tribunals. We first establish that arbitrators (and scholars and counsel) tend to characterize investor claims as rights claims in general and property rights claims in particular, even if this normative basis is far from precise. Second, building on behavioural economics and cognitive psychology, we argue that this characterization places human rights considerations at a structural disadvantage in ISDS. Investor rights are perceived by arbitrators as endowments that are possessed and that risk being lost, while the human rights of host state populations are viewed as aspirational demands that might only be fully realized in the future. Thus, governmental actions interfering with investments are perceived by arbitrators as actual losses, while competing human rights claims are perceived as potential gains or demands. Following prospect theory, the former (certain losses) will usually be weighed more heavily in a decision-making calculus than the latter (possible gains). This loss–gain frame provides a cognitive explanation for the prevalence of arbitral decisions that prefer investor claims over human rights, a phenomenon that is highly problematic in times in which the legitimacy of the ISDS system rests on its ability to consider the rights of non-investors.

Even though Article 23 of the 1982 Convention on the Law of the Sea explicitly acknowledges the right of innocent passage through the territorial sea to nuclear vessels, many coastal states have recently forbidden or submitted to authorization the passage of ships carrying radioactive materials: this reveals a trend towards a more restrictive concept of “innocent passage.” As to straits used for international navigation and archipelagic sea lanes, the ius communicationis is still prominent and every measure that might prejudice the navigational rights of nuclear ships would not be consistent with the Montego Bay Convention.

Environmental harm is of increasing concern to peoples and states all over the world, whether in relation to ensuring access to healthy air, water, food, and sustainable livelihoods, or coping with the diversity of challenges posed by changing climates and ecologies. While international lawyers have focused on crafting solutions to environmental problems, less attention is paid to the disciplinary role in fostering harmful and unsustainable behavioural patterns. Environmental issues are usually relegated to the specialized field of international environmental law. This project explores instead the role of nature in the general discipline, arguing that the natural environment is a determinative factor in shaping international law, and that assumptions about nature lie at the heart of disciplinary concepts such as sovereignty, development, economy, property, and human rights.

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.

The ICC's Regulation 55, which allows the Trial Chamber to modify the legal characterization of facts in the final judgment, has been used too often and too carelessly. Recharacterization must not exceed the facts and circumstances described in the charges, but material facts and their legal qualification are like communicating vessels; changing the latter affects the former (and vice versa). In their application of Regulation 55 to date, chambers have underappreciated this, treating cases as if they have blurry factual boundaries where material facts can be swapped, neglected, or created at will. This article is not a plea for abolition of Regulation 55, though, but explores which modifications are permissible, and finds that when comparing a change regarding the contextual elements or (sub)categories of crimes to a change regarding the mode of participation the latter is most problematic and often detrimental to the rights of the accused.

This article compares and contrasts the interpretation of the Lusaka Ceasefire Agreement 1999 by the International Court of Justice, the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone by the Special Court for Sierra Leone, and the General Framework Agreement for Peace in Bosnia and Herzegovina by the European Court of Human Rights. In doing so, it critically analyses the approach of the three different tribunals and attempts to explain the differences identified on the basis of the jurisdictional scope of each tribunal and the substantive law each has been tasked to apply. This comparison is both substantive and procedural. The article then examines the impact of these three tribunals on two specific aspects of the rule of law: legal accountability and legal certainty, both internationally and in the countries under examination. It is argued that, while these tribunals have enhanced legal certainty and accountability on the international level, any contribution they have made to the domestic rule of law has been questionable.

A number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.

International criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

The Treaty of Rome, establishing the European Economic Community (hereinafter: the Treaty), does not provide for a system of Community-wide merger control and authorization.The anti-trust provisions of the Treaty are only concerned with distortion of competition resulting from certain restrictive agreements (Article 85) and with abusive behavior of undertakings in a dominant position within the common market (Article 86);concentrations like mergers, which may as well affect the internal European market, are not explicitly mentioned. To a certain extent however, the European Commission has in fact won the power to control large-scale mergers as a result of the European Court's decision in Continental Can (1973).

This article is part of the ongoing efforts to write a critical history of international arbitration in commercial and investment matters. It examines the ways in which the Spanish crown and its concessionaries set up a mechanism to settle legal disputes pertaining to the transatlantic slave trade. The transformation of asientos de negros from limited royal contracts to large-scale monopolies awarded to foreign chartered companies during the sixteenth, seventeenth and early eighteenth centuries was accompanied by the creation of an international commercial arbitration system. Why was this system set up, how did it work, and what was its faith? The overall aim of the article is to invite international lawyers to rethink the history of international arbitration and pay closer attention to the ‘private’ dimensions of formal and informal imperialism. It also attempts to bridge the historical investigation and contemporary commentary. In the conclusion, I argue that this study allows us, in a mirroring effect, to question the idea that today's dispute settlement mechanism was conceived as a means to ‘depoliticize’ international investment law. What the introduction of arbitration achieves is to place some fundamental questions out of sight. Today, as in the past, arbitrators work from within the system; their work rests on a series of unspoken – and yet highly political – premises about the organization of economic life and the distribution of values.

This article focuses on two key aspects of the Keraterm case before the ICTY. The first is Duško Sikirica's acquittal of the crime of genocide. The Trial Chamber's construction of the phrase “destruction in part of a group” is critically examined and compared to the reasoning of a differently constituted Trial Chamber in the Krstić case. The second key aspect of the Keraterm case is the decision by all three defendants to enter into plea agreements with the Prosecutor at a relatively late stage in the trial. This article discusses the rules governing plea agreements, general sentencing factors and the extent to which guilty pleas have resulted in a pattern of lighter sentences in the jurisprudence of the Tribunals.

Straddling both the centres of (European) power and the shifting dynamics of the post-Ottoman world in a quest to guarantee private rights through public international legal redress, the PCIJ Mavrommatis case provides a rich resource for interrogating the extent to which international law during the League period could speak for voices on the edge of empire. In this article, historical consideration of the regimes of empire and Mandate form the backdrop to an exploration into how international legal discourse (re)configured the relationship between the core and the periphery, especially for those peoples awaiting the promise of self-determination and sovereignty. The figure of a lone Greek investor and his dashed hopes in the newly created Palestine Mandate is the backdrop to this tail of ever-shifting interpretations of public and private rights, of speech as well as silence before and beyond the Peace Palace.

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

The adoption of the Statute of an International Criminal Court in July 1998 is widely regarded as a major step forward in international criminal law. The United States, however, does not share this point of view in all respects. It particularly fears that the Statute will allow prosecution of American peacekeepers for political instead of legal reasons. This article examines the provisions of the Statute in the light of that fear. It concludes that not only is such a fear unjustified, the United States position may have disastrous consequences for efforts in peacekeeping.