This article presents an analysis of the role and content of proportionality under contemporary international humanitarian law governing the means and methods of warfare (jus in bello) and is designed to present a legal analysis of proportionality to help provide a context for state practice. The events of Operation ‘Cast Lead’ and the reactions of the international community may be instrumental in determining the role assigned to proportionality in the context of armed conflicts. A study on jus in bello proportionality with reference to Operation ‘Cast Lead’ offers a contribution to a further development of the concept of proportionality and to resolving some of its controversial issues concerning its role and content in order to improve the current compliance of the principle.

The territorial scope of the jurisdiction of the International Criminal Court was an issue which was hotly debated prior to the adoption of the Rome Statute. Yet, in the first 10 years of the Court's operation the negotiators' concerns with regard to a jurisdictional overreach seem to have been misplaced. To date, the interpretation and application of Article 12(2)(a) of the Rome Statute – the key provision in this context – have remained uncontroversial. This practice, however, has left certain important questions untouched, and particularly the issue of jurisdiction in cases of the partial commission of a crime on State Party territory. In this context, the question is how little of an international crime should take place on State Party territory for the ICC to have jurisdiction. It is hereby suggested that in order to answer this question, the Court may have recourse to the jurisdictional rule of reason developed by Francis Mann in the context of his work on state jurisdiction and antitrust law. In this context, it is suggested that the Court would have jurisdiction over any case or situation that would have a sufficiently strong connection with the territory of a State Party. The meaning of a ‘sufficiently strong connection’ – an essential ‘reasonableness’ approach, showing the absence of an abuse of rights or arbitrariness – would then need to be specified on a case-by-case basis.

García Amador, the first Special Rapporteur on the topic of state responsibility, was of the view that in international law, special circumstances denote situations of exemption from the secondary rule which attaches disadvantageous consequences to breach of obligation under any primary rule. By contrast, his successor, Roberto Ago, advanced the notion that the exceptional circumstances characterise situations of exemption from the obligations arising out of primary rules. In departure from both conceptions, James Crawford, the last Special Rapporteur on the law of state responsibility, submitted that it is only after having established that a certain course of behaviour is contrary to the terms of a prohibition that it becomes possible to enquire whether the actor had a justification for acting as he did. If affirmative, the conduct in question is to be regarded as conduct which neither conforms with the obligation nor constitutes a violation thereof. If negative, then the act amounts to an unjustified wrongdoing and accordingly forms the basis for the operation of the various disadvantageous consequences envisaged by the law of international responsibility. This contribution first examines the process of the development of the notion of exceptional circumstances in the edifice of the law of international responsibility ex delicto. It then shows that from the three competing conceptions, only that advanced by Ago proves capable of accurately accounting for the circumstances of consent, self-defence, and the legitimate application of a countermeasure.

The Asser Institute has asked me to speak in English, here in The Hague before a Dutch audience. Permit me to linger for a moment over this phenomenon.

International law as it applies to armed conflict necessarily treads a fine line between irrelevance to and complicity in its subject matter. The emergence of this body of law has been slow and painful, its foundational irony being that the treaty establishing the basis of modern international humanitarian law – the Nuremberg trials – was signed by the Allies on the same day that the United States dropped its second atomic bomb on Japan. This uncertain beginning, combined with the central role that nuclear weapons came to play in Cold War foreign policy, render it hardly surprising that the legal status of this most devastating class of weapons remained unclear for over half a century and is likely to remain so for some time to come.

The various provisions of the General Agreement on Tariffs and Trade (GATT) envision import regulations being triggered because of features or characteristics of products seeking entry into a country's customs territory, not because of the processes utilized in producing or harvesting such products. The origins of this emphasis on products rather than processes dates from at least the GATT decision in the Belgian Family Allowances case, and was explicitly articulated in the well-known and controversial 1991 GATT panel decision in United States – Restriction on Imports of Tuna from Mexico. The precise language of the panel decision in that latter case provided that import measures must be designed to regulate the imported item because of its features or characteristics ‘as a product’, and not because of ‘harvesting’ techniques that may have been employed in gathering or collecting the item. Obviously, this product rather than process oriented approach makes it difficult for non-product based national environmental laws to pass muster under the GATT. By excluding such laws from the ambit of what the basic substantive provisions of the GATT permit in the form of import regulation, national governments are forced to seek the protection of the exceptions of GATT Article XX. These, however, have been very narrowly construed, with the impression given being that of unreceptivity to measures aimed at protecting the environment.

Civil liability for environmental damage is currently very much the centre of attention. Many countries and international organizations have recently adopted rules in this field or are in the process of doing so. Almost without exception, these rules concentrate on creating a liability regime for damage caused by pollution that is the result of incidents which took place before their entry into force. The problem of damage that is the result of so-called historic pollution — primarily cases of soil contamination — was mostly left outside the range of these regulations. Until recently that is. Last year specific legislation on liability in cases of historic soil contamination was adopted in the Flemish region of Belgium and in the United Kingdom. Other countries like, for example, Denmark are studying the subject. The Netherlands has much greater experience with this type of legislation. It goes back to the Interim Soil Clean-up Act of 1983. The experiences with this act are reflected in a new legal regime for cleaning up contaminated land that came into force in 1994. The objective of this article is to reflect on these Dutch experiences.

One of the most difficult topics in both American and European procedural law is the jurisdictional reach of courts over defendants in tort and contract actions. This has become particularly evident with the exponential increase in the use of the Internet as a communication and marketing device. Questions regarding the proper forum in, for example, defamation actions or consumer disputes present difficult questions for both American and European courts. The European Union's adoption of a new Regulation for cases filed on or after 1 March 2002 (the ‘Brussels Regulation’) presents an opportunity for fresh examination of this important topic.

The adoption of the Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order (Seoul Declaration) by the 62nd Conference of the International Law Association (ILA) in 1986 set the seal on eight years of hard work by the ILA's Committee on Legal Aspects of a New International Economic Order (NIEO Committee). However, it certainly did not mark the end of the Committee's efforts.

Themis is blind. The law is the same for wealthy and poor alike. Access to the court is open to all equally. The standard used applies to all equally. Fine ethical postulates, but not free of magniloquence. The law is for sale at a price, and a high price. In the field of law the asking of a price also produces inequality. For some time now the Dutch legislator has attempted to eliminate this discrimination by the use of aids. The person of nil assets who wishes to assert his rights or to defend them deserves support, at least financial support. However, this activity of the legislator has not remained free from scepticism and criticism. Dutch nationals have the right to support, thus, not litigants in general. In various legal provisions aliens, in principle, are excluded from that right. In various places in civil procedural law aliens are discriminated against -albeit financial discrimination. The core of the argument expounded below lies in two of those places: where in principle persons are excluded from free legal assistance (whether in or out of court); and where in principle they are excluded from cost free access to the courts.

The Netherlands has traditionally supported a three-mile limit for the breadth of the territorial sea. Even when, especially after the Second World War, a large number of states laid claim to territorial sea limits exceeding three miles, the Netherlands continued to adhere to the position that any unilateral extension of the territorial sea to twelve miles or more was inconsistent with international law. This position, which was defended both before and during the First and Second United Nations Conferences on the Law of the Sea (1958 and 1960), was consistent with the dominant Dutch interest at that time, viz., keeping the breadth of the territorial sea to a minimum, with as few exclusive fishing rights as possible beyond this limit.

The codification of international law concerning the non-self-governing territories has proceeded through three distinct phases in this century. Article 22 of the Covenant of the League of Nations contained the notion that the well-being and the development of dependent peoples was the sacred trust of civilization. This concept legally applied only to the mandated territories, but in fact embodied the then current philosophy of the colonial powers. It implied that the territories should not be exploited for the benefit of the administering authorities; it was, however, a fairly static view, which did not even indicate to what end the “development” was to lead.