Additional opinions (AOs) – dissenting opinions, separate opinions and declarations, whether authored individually or jointly – are a distinctive characteristic of the ICJ’s jurisprudence. Few decisions of the International Court of Justice (the Court, ICJ) are delivered without any additional opinion attached to it. Yet, despite their ubiquity, there is still significant disagreement as to their relationship to the authority of the Court and its decisions. Although this disagreement is commonly attributed to the different approaches and attitudes traditionally associated with the ‘civil law’ and ‘common law’ traditions, few ask specifically why those traditions take the approach they do, and even fewer consider the appropriateness of the extension of those attitudes to the ICJ, which of course is neither ‘civil law’ nor ‘common law’. In this article, using the work of Mirjan Damaška, I offer a contextually coherent and contextually contingent understand of the theory and practice of additional opinions at the ICJ upon which engagement with this practice – by judges, scholars and practitioners – can be premised. This effort to understand the relationship between additional opinions and institutional authority will, by its very nature, lead to a broader enquiry into the very nature of institutional authority at the ICJ. Having explained the importance of AOs to the structural integrity of the Court’s authority, I will close this article by highlighting the role of various stakeholders when engaging with that practice to ensure that their institutional function is discharged.

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.

Despite the clear prohibition of rape by international law, no conventional or other international instrument defines this international crime or explains its relation to the international crime of genocide. This article reviews the recent precedent-setting judgments of the international criminal tribunals for the Former Yugoslavia and Rwanda which have sought to define rape in international law using different approaches. It also analyses the recent Akayesu Judgment of the Rwanda Tribunal. This is the first decision of an international tribunal to consider the question of whether rape can constitute genocide.

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.

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.

Lomé Conventions I (1975) and II (1979) were the first regional trade agreements (RTAs) between the European Community (EC) and the group of postcolonial countries in Africa, the Caribbean, and Pacific (ACP). Specialized scholarship offers rich analyses of those Conventions; however, little is known about the role of law and lawyers in their making, and their relevance for present-day debates about RTAs.

This article advances existing knowledge in two ways. First, it historicizes the more visible role of law in constituting Lomé as a legal regime for governing EC-ACP regionalism. It then argues that the Conventions were distinct from existing RTAs due to their unique centrality on social and economic development; and from present-day RTAs, because they were conceived not simply as instrumental to but also as constitutive of development.

Second, by historicizing the less visible role of law and lawyers in the Lomé regime, the article identifies that a specialist conception of South-North RTAs was refined to govern which ideas, projects, norms, and institutions were applicable to Lomé. This distinct conception – called the development framework – was critical in creating the conditions of possibility for decision-makers negotiate, interpret, and manage the Conventions.

Those findings challenge conventional wisdom on two grounds. They suggest that Lomé was unique not for embodying a new model but for consolidating the development framework’s dominance. They contest present-day understanding of RTAs as textual manifestations of a universal concept by demonstrating the existence of competing conceptions, which express distinct notions of RTAs’ purpose, content, and form.

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.

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.

“[…]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.”

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 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.

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.

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.

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.

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.

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.

In November 1994 the International Criminal Tribunal for the former Yugoslavia (ICTY), indicted its first accused, Dragan Nikolić. It was not until over five years later, however, in April 2000, that he was finally arrested and transferred to The Hague. The circumstances of his arrest – which reportedly featured his being violently abducted from his home in the Federal Republic of Yugoslavia (FRY) by Serbian criminals before being transferred to the NATO-led Stabilization Force in Bosnia and Herzegovina and, ultimately, to the ICTY in The Hague – were the subject of a pre-trial motion. Nikolić's defence counsel asserted that the nature of his capture was such that the appropriate remedy was to dismiss the charges against him and order his return to the FRY. They made this assertion despite an admission, for the purposes of the motion, that the captors lacked any connection with SFOR or the ICTY. The trial chamber rejected the motion. In reaching its decision, the trial chamber considered fundamental issues about what constituted an illegal capture for the purposes of the ICTY and, without explicitly doing so, appeared to reject the view of the Court in Eichmann that a person may not oppose his being tried by reason of the illegality of his capture.