The development of the former USSR oil and gas resources presents considerable political and legal challenges, such as intergovernmental agreements, delimitation of borders, and jurisdiction over the energy resources (e.g., Caspian basin). In this respect the pipeline transportation and transit have become increasingly important issues. In view of Article 7 of the Energy Charter Treaty, the novel public international law obligation of states to facilitate and not to impede the transport of energy through pipelines, this article will briefly consider the possible international forums for the resolution of legal conflicts over pipeline transit in the former Soviet Union.

This article argues that the European Court of Human Rights (ECtHR) uses external references as a tool to enhance ‘constitutional justice’. This technique is illustrated by the Court's contribution to an important shift in migration law beginning in the late 1980s and resulting in an enhanced scheme for protection against expulsion in Europe. This shift reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’. The aim of the article is to contextualize the aforementioned shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding instruments issued by the Council of Europe and to other human rights treaties. In this regard, the case of protection against expulsion illustrates a particular feature of the Court's turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. This allowed the Court to develop a meaningful and comprehensive protection scheme in the first place. However, the article reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law, domestic decisions are reviewed with significantly less scrutiny. This limitation may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralization in the jurisprudence of the ECtHR.

This article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

This article examines the limits that academics from peripheral countries might encounter while trying to influence the decision-making process inside an international organization. Although there are different mechanisms whereby academia might influence non-academic debates, we highlight here the use of policy papers, in order to examine and discuss the non-textual barriers which might be faced by those academics. After an analysis of primary sources this article presents some pragmatic limits in the use of policy papers and discusses the consequences of this condition for the legitimation of international organizations. As such, relevant international organizations still seem to be unresponsive to some initiatives in particular: closed to the spontaneous participation of academia; and not willing to call for contributions from academic communities. This is particularly relevant for contributions from peripheral academia and other non-state actors, who lack the capability to disturb the traditional ideational power exercised by core (Western) countries and by state-centric ideology in current international law.

A critical analysis, considering first, the legal competence and propriety of the Court in giving an opinion pursuant to the dispute settlement machinery of the Convention on the Privileges and Immunities of United Nations, whereby advisory jurisdiction over disputes of the UN is equated to contentious jurisdiction between consenting states; and second, the effect in municipal law of a state's obligation to respect the UN Secretary-General's certificate that a UN expert is entitled to immunity from legal process. The Court preserves resort to local courts but requires communication of the UN certificate and immunity to be dealt with expeditiously as a preliminary issue.

A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases – the identification of the protected group and its members – resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the ‘building blocks’ of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review, and (2) to analyse the consequences of the consistent application of this model for the identification of the protected groups and their members.

After setting out the importance of the notion of an international community in contemporary treaties, International Court of Justice judgments and opinio juris, this paper claims that we need to turn to Cicero's works in order to appreciate a sense of what an international community is. Cicero was the first jurist known to recognize and elaborate a theory of the international community and this through his concept of jus gentium. Cicero's theory of jus gentium, I argue, was neither a positivist theory nor a natural law theory. Instead, jus gentium dwelt in an intermediate position between posited state laws and the laws of nature. I find a problem, however, in that Cicero exempts certain types of society from the guidance and protection of the jus gentium. I document examples of the sort of society so exempted. In order to understand why Cicero exempts such societies from the protection of the jus gentium, I argue, Cicero's theory depends on a primordial condition where human beings, living an animal-like existence, lack a language and reason. Cicero posits that human beings must leap from such a primordial condition into a civilized world where language is shared. Cicero associates a civilized world with communication, deliberation, reason, and law, particularly the jus gentium. His theory of jus gentium thereby hierarchizes societies and begs that we ask whether such a hierarchy remains presupposed in contemporary international law and international legal theory.

This Symposium Issue looks at how personal traits of international judges matter in their judging. The articles selected shed light on the ways that international judges’ personality, that is, their character differences and personal backgrounds, shape, control, or modify their conduct and their rulings. The articles in the Symposium reveal that individual international judges have different personal attributes and identities that affect: (i) different aspects of judicial reasoning, problem-solving and case management; (ii) the ways judges interact, deliberate and affect each other in collectively deciding cases; and (iii) the outcomes of international trials. This Symposium, therefore, looks beyond the traditional ‘legal formalistic’ understanding (prevalent also among international judges themselves) that judges – as impartial, rational, and mechanical decision-makers – simply apply existing, recognized rules or principles of law to the facts and questions before a court in the context of concrete cases without regard to any personal leanings and biases. It examines how and to what extent judges at international courts make their choices conditioned on their personal identity characteristics, and when such characteristics exhibit greater or lesser effects on their decision-making.

The Fishery Agreement concluded in 1992 between the European Economic Communities and the Republic oj Argentina provides an excellent example of the negotiating process leading to the conclusion of a treaty in the field of international fisheries. The Agreement shows how widely diverging interests and seemingly opposing views can be reconciled by two parties prepared to negotiate constructively and to develop a new generation of agreements. This article should be considered against the background formed by developments in the law of the sea. Particularly in the fields of the protection of the environment, the administration of resources and development policy, and the diverging interests that coastal states and ‘distant water fishing states’ have in these matters. To place the conclusion of this Treaty in the appropriate context, an overview of the structural and economic conditions of the fishery sector in Argentina and the European Communities will be given. Finally, the innovative technicalities of the new treaty will be discussed against this background.

The paper analyses the dynamic procedures that work during the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making that works for normative coherence in contexts characterized by co-operation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue that is crucial to reach normative coherence. Drawing on the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Also, the paper points out the predominance of normative coherence, as well as that of its ‘guarantor’, namely procedure that its author considers the cornerstone of legal certainty in the co-operative context of the international society.

No single political issue has engaged the ICJ more than that of South West Africa (Namibia). Over a period ranging from 1949 through 1971, recourse was had to the Court, both in its advisory and contentious capacities, on various aspects of the problem. Even today, after Namibia attained independence, the Court's jurisprudence and the saga of UN-Court relations in this matter continue to intrigue. This is because the questions raised have continuing relevance to many issues bearing on international law and international relations.

Much has been, and will be, written on the approach of the Court and of individual judges to a panoply of international legal questions raised in the course of the judicial proceedings. But, in fact, the long tale also offers researchers an enticing fountain of material on the role of law and adjudication in international relations, on the interaction between the UN judicial and political fora and, more broadly, between law and politics. This article focuses mainly on these latter, relatively neglected, aspects because it is with respect to these that the benefit of hindsight offers the ability to reassess and revise some of the earlier assumptions and to note some interesting paradoxes not readily discernible at the time. Perhaps revision of some of the axiomatic propositions long perpetuated in the field will offer better guidance to those seeking to enhance the role of international adjudication in world affairs.

By an application filed on 29 March 1994, Cameroon instituted proceedings against Nigeria, relying on the declarations under Article 36(2) of the Statute of the Court, made by both states without reservations. The dispute, according to the Application, related “essentially to the question of sovereignty over the Bakassi Peninsula”, where, “since the end of 1993”, the Nigerian troops were “occupying several Cameroonian localities”. Cameroon also requested the Court “to determine the course of the maritime boundary between the two states beyond the line fixed in 1975”. In an ‘Additional Application’, filed on 6 June 1994, Cameroon extended the subject of the dispute “essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad”, which had become the object of “the official […] claim […] by […] Nigeria quite recently, for the first time”; and also requested the Court “to specify definitely” the whole frontier line from Lake Chad to the sea, and to examine the two Applications as a single case. In its counter-memorial, filed within the prescribed time-limit (18 December 1995), Nigeria raised objections to the jurisdiction of the Court and the admissibility of the Cameroonian claims, whereupon the proceedings on the merits were suspended and the President of the Court fixed 15 May 1996 as the time-limit within which Cameroon might present its observations on the Nigerian objections.

This essay recounts the protracted history of the proposal to create a UN High Commissioner for Human Rights, from the days of Cold War controversies and divisions until the post ultimately came into being after the World Conference on Human Rights (Vienna, 1993). While early proposals perceived the High Commissioner as an independent authority receiving complaints and lending good offices, the envisaged role of the High Commissioner progressively evolved over the years – with the setting up of a great variety of treaty-based and charter-based implementation procedures – to encompass comprehensive policy-planning and global human rights advocacy. Thus, as the UN official with principal responsibility for human rights activities, the High Commissioner became firmly embedded in the structure of the UN organization. This paper further underscores the catalytic role of non-governmental organizations in consistently pushing forward the high commissioner project, as it finally emerged in an atmosphere of high expectations.

Some books present such a wide variety of perspectives and so many interesting themes and topics in a particular area of law that it is rather difficult to write a comprehensive but at the same time concise review article about them. Consequently, such books run the risk of remaining unobserved or unattended, however valuable may be their contribution to the development of that area of law. Something like that threatened to happen to the volume of papers that was edited by Sari Kouvo and Zoe Pearson and published in 2011. Writing the book review remained for rather a long time on my to-do list, because reading it had incited me to reconsider my own answers to some foundational questions about feminism, about law, and about the ‘and’ that seems so firmly situated between these two concepts. In fact, feminism and law have been at the core of my professional activities since I finished law school in 1983, so for some thirty years for me these two things were closely connected. I thought that I knew very well what I was doing and why! Reading this book – and having agreed to review it – made these questions manifest and urgent to answer. The book, in short, invokes much (self-critical) thinking about the why and how of any engagement with feminism and (international) law, which is a first reason to recommend it to anyone who stands open for such an endeavour. After a brief description of its structure and content, I will discuss just a few of the many thought-provoking materials in this volume and some of my preliminary reactions to them.

This article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceedings ought not to undermine the value of finely reasoned arbitral decisions grounded in law and justice. It also argues for a contextual assessment of ICA that extends beyond the debate over ‘judicialization’.

Using global illustrations and ICA developments in Australia as an initial guide, this article suggests that balancing party autonomy, accountability, efficiency, and fairness in ICA can help resolve these growing criticisms of ‘judicialization’. Ultimately, the reform of international arbitration should take place within a framework of ‘international best practice’ that is both analytical in nature and functional in operation. As such, ICA should not only be affordable and expeditious, it should serve as a legitimate and effective method of resolving international commercial disputes. In addition, it should balance the virtue of transparent proceedings against the need to respect the confidences of the parties.

The bombing of Kosovo was a crude manifestation of a clash of immanent world-views. The negative of a pre-1945 horizontal and bilateral international structure by a post-1945 vertical and multilateral structure is beginning to produce a new structure, a structure of international social order, a third dimension which contains and surpasses the other two. The International Court, itself an institutional relic of an horizontal and bilateral world, is not well placed to assert social responsibility over the arrogant public-realm power which is being wielded in the name of international social order.

Judges of the International Court of Justice (ICJ) are prominent jurists of high merit. However, little is known about certain extra-legal factors of the candidates that guide states in their selection and appointment process. This article focuses on examining extra-legal factors that matter for states in the selection process. Such extra-legal factors demonstrate that elections of candidates to the Court constitute another aspect of a broader political struggle to define the meaning of international law. The article situates the discussion on the selection process in the broader context of the discussion on biases in international law to suggest that the election of candidates to the Court becomes both an instrument and a procedure for controlling the discourse. The characteristics of the judges thus matter as a proxy to control the production and direction of such discourse. This article then explores the ways in which some states have greater strategic advantage in the selection and election processes that enables them to control the discourse to define the meaning of international law effectively.