The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

The Case Concerning Avena and other Mexican Nationals before the ICJ again involved violations of the Vienna Convention on Consular Relations. The judgment seems to be a faithful copy of the earlier LaGrand judgment, but it is much less clear. In particular the Court's consideration of diplomatic protection, the nature of Mexico's claim, and the local remedies rule pose questions with respect to the development of international law. In considering these issues, this article aims to show why the Court should have paid more attention to the legal background of the case.

Taslim Olawale Elias's intellectual and juristic legacy remains unparalleled in many material respects. He left a remarkable body of work, as an African legal scholar in London in the years between the late 1940s and Nigerian independence, as a legal administrator while he served as Nigeria's first Attorney General and Minister for Justice, among his achievements as the dean of the new faculty of law at the University of Lagos, and as a national and international judge. Born on 11 November 1914 in Lagos, Nigeria, into a family of merchants, he began formal schooling at the age of 12, a fact that was greatly overshadowed by a prodigious academic performance and by the plethora of distinctions and accolades (including sixteen honorary degrees in four continents and a host of national and international honours) that he would acquire during his indefatigable study and practice of the law, and in his contributions to its evolution.

One of the objectives of the 1982 Convention on law of the sea (LOSC) is that the Convention will bring about an equitable and efficient utilisation of the marine resources. The Preambule states, inter alia, that special notice should be taken of legitimate Third World aspirations. In order to promote their socio-economic development many developing countries -among them various West-African states have directed their attention to the introduction of a resource related maritime zone regime since the 1970's. Several countries made proposals about an ‘Exclusive Economic Zone’. Many states were able to harmonize their position on essential elements of the regime which contributed to the rapid acceptance of the EEZ-concept in international law. The right to explore, exploit, conserve and manage all natural resources in an area not exceeding 200 nautical miles was acknowleged in Articles 56,1 and 57 of the LOSC. The wide support enjoyed by the EEZ concept did not occur in relation to maritime delimitation. Diametrically opposed views were held by the so-called pro-equidistance and pro-equity groups. Delimiatation conflicts between several African states could only be solved with the help of international arbitral tribunals. In order to reach an ‘equitable’ delimitation solution several factors were found to be of importance; a novum was the factor described as ‘the exercise of the right to development’.

The East-West detente has uncovered the importance of statehood for the international protection of peoples in international conflicts. The importance becomes obvious from a comparison between the legal position of the Kuwaitis with that of the Kurds and, more in particular, the Palestinians in that respect. The Gulf war urged the Security Council to enforce Iraq's compliance with the 1949 Fourth Geneva Convention. The Council has also taken the position that Israel should apply this convention de jure in the 1967 occupied Palestinian territories, albeit lessforcefully. This is partly due to the fact that the UN itself has caused confusion concerning the legal status of these territories. History shows that the Palestine Mandate should not be considered as indivisible in such a way that the creation of Israel automatically implied the termination of the mandate as a whole. The Palestine Mandate still exists for the area of the Arab state, defined in the General Assembly Resolution 181 (II) of November 29,1947, recommending a partition plan for Palestine. Subsequent resolutions of both the General Assembly and the Security Council imply that the Palestinian people can only claim the West Bank including East Jerusalem -hereafter referred to as the West Bank- and the Gaza Strip as its future territory. The Palestinian people appears to have resigned itself to this fact of life since its acceptance of Security Council Resolutions 242 of November 22,1947, and 338 of October 22,1973. In doing so it has stopped any further erosion of its claim to an independent state by virtue of its right to self-determination. Neither the Gulf war nor an international peace conference on the Middle East can alter the new situation one bit anymore. For the first time since 1947 the General Assembly is now in the position to keep the promise of self-determination towards the Palestinianpeople as well. The 1950 advisory opinion of the International Court of Justice on the international status of South West Africa gives it a good point of departure for assuming its full responsibility for doing justice to the right to self-determination of the Palestinian people. Legally speaking the role of the UN in the development of the International Peace Conference on the Middle East is crucial for the future of Israel and Palestine.

Tu quoque, meaning in Latin ‘you too’, is a fallacy of relevance which targets the hypocrisy of the arguer rather than the truth of the advanced argument.

In international criminal tribunals, defendants who advance the defence choose not to argue for their innocence, but rather seek to shift the spotlight on the crimes committed by the prosecuting authority or by the opposing side to the conflict, so as to delegitimize the entire prosecution as a form of ‘victor’s justice’. According to legal doxa, the argument has never been accepted in court. As a consequence, it has also been completely neglected within academia. Yet, the tu quoque defence is extremely powerful, as not only proven by its recurrent use over time, but also by its ability to turn trials into ‘show-trials’. This delegitimization of international prosecutions not only does impact the memory and reconciliation of war-torn communities, but also weakens the edifice of international criminal law.

‘The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment,’ written by Sienho Yee in 2004 is the only existing in-depth treatment of the defence. Departing from a critique of Yee’s theorization, this article attempts to fill the scholarly lacuna that exists around tu quoque. It departs from a critique of Yee’s theorization and questions whether the defence can be legally legitimate. The article concludes that the defence is legally void, but international criminal tribunals and academia must not disregard its underlying argument because of its political pertinence.

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.

To adjudicate a claim on individual criminal responsibility, the court has to establish objective and subjective links between the individual and the crime. This article studies the material (actus reus/objective) elements of the crime of aggression (conduct, consequence and circumstance) and suggests a reading that solves most of the conceptual and practical issues regarding criminal responsibility for this crime. The main contribution is an ontological distinction between the material act of use of violence and the act of aggression, which are both subsumed under the term ‘state/collective act’. The former is a consequence element and therefore is to be understood in its naturalistic meaning – a perceivable result of one’s action. The latter is a legal-evaluative notion and as such constitutes a circumstance that renders the violation of the prohibitory norm (the union of conduct and consequence) as being wrongful. This distinction is crucial for the system of attribution of criminal responsibility, as different mental (subjective) elements apply to consequences and circumstances.

This rejoinder responds to criticisms by Jan Klabbers and Ino Augsberg of ‘The New Legal Realist Approach to International Law’ (Leiden Journal of International Law, Volume 28:2, 2015). The New Legal Realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practised, and changes over time. In contrast with conceptualists, such as Augsberg, legal realists do not accept the priority of concepts over facts, but rather stress the interaction of concepts with experience in shaping law's meaning and practice. Klabbers, as a legal positivist, questions the value of the turn to empirical work and asks whether it is a fad. This rejoinder contends that the New Legal Realism has deep jurisprudential roots in Europe and the United States, constituting a third stream of jurisprudence involving the development of sociolegal theory, in complement with, but not opposed to, analytic and normative theory.

In certain quarters of the former Yugoslavia, the ICTY judgment issued on 30 June 2006 in Prosecutor v. Naser Orić has been strongly criticized for meting out a two-year prison sentence to the Bosnian Muslim wartime commander of Srebrenica. After a short sketch of the factual background which the trial chamber considered to be the pivotal sentencing factor, this note focuses on the legal issues underlying his conviction for having failed to prevent the murder and cruel treatment of a number of Serb prisoners. In particular, the trial chamber's interpretation of the standard of ‘reason to know’ of these crimes deserves attention. The judgment also gave rise to other significant developments, such as the approach to repeated prosecutorial violations of its disclosure obligations and an important clarification regarding the scope and nature of crimes committed by subordinates of a superior.

International treaties create a layer of law that is particularly hard to change: While modern treaties entail significant constraints on domestic law-making, amendments require a new consensus of state parties. This creates a conflict with a core aspect of democratic constitutions: the power of new majorities to revise the laws made by their predecessors. In particular, several obligations of international economic law, namely regulatory stability promises in investment protection treaties, but also criminalization requirements under the UN drug control conventions face critique for overly diminishing domestic policy space. How can democratic constitutions deal with those tensions? One approach that is common in some countries accepts a power to legislate in violation of treaty obligations. But denying treaties the quality as real law in the domestic sphere risks to undermine the benefits of the instrument without truly solving the democracy concerns. Instead, democratic constitutions can be read to entail certain standards for engaging in treaties, namely (i) procedure-related duties to include denunciation clauses and political reform mechanisms in the treaty, and (ii) the need to establish a substantive justification for treaty constraints on future domestic law-making by legitimate aims of international constitutionalism or co-operation.

In 2014 Japan’s Cabinet Order No. 302 declared the outer limits of its continental shelf beyond 200 nautical miles (OL) to the west and north of Oki-no-Tori Shima (Area 302). Oki-no-Tori Shima consists of two small, barren, and uninhabitable rocks in the West Pacific. The northern part of Area 302 is broader than what the 2012 recommendations of the Commission on the Limits of the Continental Shelf (CLCS) specify. A question arises whether Order No. 302 violates Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that the OL established by a coastal state ‘on the basis of’ the CLCS recommendations shall be final and binding. Another question is the role played by the CLCS in ‘assisting’ the coastal states to delimit their national jurisdiction so as to know where the Area (i.e., the Common Heritage of Mankind under UNCLOS Articles 1(1)(1) and 136) begins. The essential questions arising from Area 302 concern how well the UNCLOS mechanism can perform to safeguard the Common Heritage of Mankind through preventing encroachment thereupon by individual coastal states. This article looks at the context and explores the obligations implied by Article 76(8) for coastal states to ‘follow’ the recommendations in establishing the OL, with special reference to the northern part of Area 302. The article also examines legal consequences arising from a breach of these obligations.

The article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyond jus cogens and the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

With the rise of a new generation of investment policies, upgrading existing bilateral investment treaties (BITs) is of significant interest to states. China has upgraded 28 per cent of its investment treaties in various ways. Two investment arbitration tribunals and one highest court at the seat of arbitration have recently rendered decisions favouring the application of old Chinese BITs over the upgraded ones. China's experience with upgrading BITs may provide general policy discourse and direction for other countries planning to upgrade their BITs. Using China's experience, this article categorizes different methods of upgrading BITs into the Coexistence Model (parties to an old BIT join existing or new free trade agreements or a regional investment agreement), the Replacement Model (replace an old BIT with a new one), the Amendment Model (amend an old BIT by a protocol) and the Joint Interpretation Model (make a diplomatic announcement to interpret a BIT). This article also discusses the benefits and challenges of each model and concludes with directions for future BIT upgrading.

This article was prompted by the retirement of Dame Rosalyn Higgins as judge and president of the International Court of Justice in February 2009. It reviews her brilliant career as law professor, barrister, advocate before various international courts, and international arbitrator. The major part of the article deals with her role as judge and president of the ICJ and her impact on the elaboration and development of international law by the Court.

Allegations of human rights and humanitarian law violations by UN forces have highlighted the need for more clarity in this area. This requires a focus on human rights and humanitarian norms applicable to UN forces, and the question of responsibility for violations of those norms. To a large extent, these questions concern the relations between the UN, national contingents, and troop contributing states. What are their respective rights and obligations? In this paper it is submitted that the answer given to this question under international law differs from the one given in the specific legal framework and practice of UN forces.