The question whether external actors have a right of intervention within a sovereign state which is committing grave violations of human rights assumed particular significance in the case of the civil conflict that began in Libya in February 2011. Within the international response to the Libyan regime's attacks on its population, the Arab League, the United Nations and NATO favoured the use of military force, whereas the African Union favoured a political solution to the crisis. This article considers the question of African Union intervention within the framework of the concept of ‘responsibility to protect’. It argues that the reason why the African Union did not act militarily in Libya was that it lacks the will to confront incumbent leaders, something which undermines the organization's ability to provide effective solutions to African crises.

On 14 November 2011 professor Johannes (‘Hans’) P. Verheul passed away at the age of 83 at his home in Voorburg (The Netherlands). Hans Verheul was member of the Board of Editors of the NILR from 1969 to 1990.

Party autonomy provides certainty and predictability to the parties, reduces litigation costs, promotes the prompt assertion of jurisdiction by a court, and simplifies case management between different countries. However, the existence of an exclusive jurisdiction clause cannot completely extinguish conflicts of jurisdiction. Common law countries traditionally adopt discretionary instruments, such as forum non conveniens and anti-suit injunctions to tackle conflicts of jurisdiction. Both instruments work together in common law countries to create a balance between international comity and effective case management. The application of these two instruments, however, has been questioned in the European Union (EU). This article examines conflicts of jurisdiction in the Brussels I Regulation and particularly focuses on the effect of the European approach in cases involving a jurisdiction clause. It is submitted that the current Brussels regime in dealing with conflicts of jurisdiction and choice of court agreements demonstrates three weaknesses: procedural certainty takes priority over party autonomy; mutual trust and comity override justice in individual cases; and an artificial fragmentation of the internal and international market. It is expected that situations will be improved after the proposed amendment in the Recast Proposal and the Presidency Amendment is adopted, which provides harmonised choice of law rules to decide on the material validity of a jurisdiction clause and the negative kompetenz-kompetenz rule to decide on the preliminary issue of an exclusive choice of court agreement. Although the proposals do not accept the common law instruments to tackle conflicts of jurisdiction in cases with exclusive jurisdiction clauses, it may not be necessary to insist that forum non conveniens and anti-suit injunctions be adopted where a proper approach has been established to ensure the effectiveness of an exclusive jurisdiction clause and to provide for the priority of the courts in deciding on its validity. However, the European lawmaker should pay specific attention to the improvement of the functioning of the Regulation in the international context to tackle conflicts of jurisdiction in choice of court agreements involving a third country.

After a conceptual examination of global values and their role in international law, this article examines the role of the United Nations, especially the General Assembly, in the translation of globally shared values into legally binding international commitments. This process already commenced with the United Nations Conference on International Organization, held in 1945 in San Francisco, where the UN Charter was born. The way this process functions is illustrated by using the global value of social progress and development as an example. First, it is shown how this value ended up in the UN Charter in 1945. This is followed by a description of this value's evolution, especially the inclusion of a ‘sustainability element’, which took place at the General Assembly and various global conferences organized under the auspices of the United Nations.

This article examines the extent to which state officials are shielded from foreign jurisdiction by functional immunity when they stand accused of committing international crimes. It argues that the development of the principle of individual responsibility for international crimes should be understood as posing a limit to the operation of the rule of functional immunity. States have agreed that international crimes, even when committed within the context of the ostensible exercise of state authority under international law, do not qualify as official acts for functional immunity purposes since they can no longer be solely attributed to the state and not to the official personally. The article thereby takes issue with the increasingly popular conceptualization of functional immunity in terms of an act of state immunity, in which attribution, rather than exclusive attribution, is the controlling notion. It does acknowledge that international law may pose limits on the competence of national courts to establish jurisdiction in certain circumstances, but proposes to undo the discussion of the shackles of immunity law and to recognize the operation of an alternative, less far-reaching legal principle.

Given the importance of the rights at stake (the right to life, the prohibition of torture and cruel treatment and the right of individual petition as such) it is crucial that states respect provisional measures by human rights adjudicators. Many factors play a role in compliance and it is often difficult to disentangle them. Yet it is clear that whatever reasons states may have for occasionally disrespecting provisional measures, in those cases they will try to legitimise their own actions and at times even to undermine the standing of the provisional measures or of the adjudicator ordering them. This article discusses the concept of provisional measures, including their purpose and the convergence in their use by the various adjudicators. It argues that human rights adjudicators, other authorities and NGOs are in the best position to follow up on non-compliance if the provisional measures ordered are as persuasive as possible. For a great part this persuasiveness hinges on the nature of the rights to be protected by provisional measures. ‘Core rights’ play a key role in the decision whether or not to order such measures. Moreover, core rights underlie the convergence in decision-making on the binding nature of provisional measures. In addition, this binding nature in itself obviously enhances the persuasive force of provisional measures. Moreover, it is argued in this article that in most human rights systems maintaining persuasiveness also means maintaining a relation to the claim on the merits. In other words, provisional measures cannot yet be seen as a free-standing tool. This is particularly important in the European system, where certain states appear to be intent on undermining the Court's authority to order provisional measures.

Much has been said about the potential of the World Bank's Inspection Panel to contribute to the normative development of international law. Yet, empirical evidence to contest or affirm this potential has been scarce. This article situates the Panel as a body that operates within a ‘system of quasi-judicial oversight’, and expounds the Panel's development of normative standards in three areas: the compliance review process, international human rights and public participation in decision-making. The article concludes by restating the Panel's normative potential in the light of its institutional realities as a body functioning in a ‘quasi-judicial oversight system’.

On 2 April 2012, it was thirty years ago that an armed conflict between Argentina and the UK erupted. The conflict lasted two and a half months and was fought in the South Atlantic region. At the heart of the conflict was the sovereignty dispute over the Falklands-Malvinas. By coincidence or not, a series of events occurred on the eve of the anniversary which has put the dispute once again in the spotlight. The persistence of the dispute over the centuries, the current absence of sovereignty talks between both states while the dispute is heating up, coupled with the earlier 1982 breaches of international peace, make it not only timely but also necessary to revisit the question of the Falklands-Malvinas and to investigate how international law rules and mechanisms could facilitate a peaceful settlement of the dispute. The focus of this article will be on the UN as an international organization established and endowed precisely with the task of facilitating the peaceful settlement of international disputes that are likely to endanger international peace. The article provides a historical record of the UN actions in relation to the question at hand and offers some overarching observations on the adequacy of the UN in facilitating the settlement of territorial disputes.

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.

This paper examines whether Turkey should be considered under international law as the ‘continuing’ state of the Ottoman Empire or whether it should instead be deemed as a ‘new’ state. This question of ‘state identity’ is central to any discussion on Turkey's responsibility for internationally wrongful acts committed by the Ottoman Empire against the Armenian population before its disintegration. We will analyse some of the criteria that have been used in international law to determine whether two entities are in fact ‘identical’. We will focus on one determinant factor: whether what is left of a state's territory following a significant reduction in its size is the ‘essential’ part of the state (or its nucleus) that existed before its disintegration. This paper also analyse the capital role that recognition by other states plays on matters of state identity and continuity. Finally, we will examine several provisions of the Lausanne Treaty, two international arbitration cases (Ottoman Public Debt case, 1925; Lighthouse Arbitration case, 1956) and a Dutch municipal court decision (1925) all dealing with the question of continuity between the Ottoman Empire and Turkey.

The United Nations Human Rights Committee is a body of 18 independent experts (including a member from the Netherlands, Professor Cees Flinterman) who are tasked with monitoring compliance with the provisions of the 1966 International Covenant on Civil and Political Rights (in force 23 March 1976). The Committee deploys four principal activities – periodic examination of State Party reports, interpretation and progressive development of the provisions of the Covenant in the form of General Comments, and adjudication of individual complaints under the Optional Protocol, as well as follow-up procedures. This article analyzes the Committee's second General Comment on Article 19 of the Covenant, which stipulates freedom of opinion and freedom of expression. In 52 paragraphs the General Comment systematically examines, defines and delimits the concepts contained in the three subparagraphs of Article 19, basing itself primarily on the Committee's concluding observations upon examination of State Party reports and on the case-law in response to petitions under the Optional Protocol. The Committee highlights the primacy of freedom of opinion, recognizing that it is crucial for a democratic society that persons have access to truthful, reliable and pluralistic information, including through the internet, in order to develop a personal opinion whose expression must then be protected by law. The Committee notes, however, that whereas it is inadmissible to impose any restrictions on freedom of opinion, there are certain responsibilities that attach to the exercise of freedom of expression, namely the respect of the reputation of others as well as considerations of health, morals and national security. The Committee holds that so-called ‘memory laws’ as well as blasphemy laws are incompatible with Article 19 and that defamation laws must strike a balance between competing rights and interests. Paragraph 49 of the General Comment clearly affirms the right to hold non-conformist historical views and the right to be wrong. While it is not the function of lawyers or judges to establish what historical truth is, Article 20 of the Covenant imposes an obligation on governments to prohibit incitement to racial hatred or violence, the criminalization of which requires narrow definition of the elements of the crime.

The international regulatory system for the oceans is to a considerable extent dependent upon the effective exercise of flag state responsibilities but general concerns have been raised that some flag states are not fulfilling their international obligations under the international law of the sea.

This article examines the issue of institutional reactions by international organizations against the flag state that has failed to discharge flag state responsibilities, with a view to establishing under what conditions actions may be taken under international law. It analyzes the constitutive instruments and practice of bodies concerning the conservation and management of fisheries resources, three different types of institutions involved in the supervision of the implementation of treaties concerning ship safety, marine environmental protection, maritime labour and maritime security, and the potential role of the United Nations Security Council and the United Nations General Assembly. On the basis of the findings in the above analysis, the article discusses legal requirements for institutional reactions to the flag state that has failed to discharge flag state responsibilities, examining both the internal rules of organizations and general international law, including the Articles of the International Law Commission on Responsibility of International Organizations.

This article addresses R. O'Keefe's 1999 publication entitled ‘The Meaning of “Cultural Property” under the 1954 Hague Convention’. There the author made two points regarding the protection of ‘cultural objects and places of worship’ in the 1977 Additional Protocols to the Four Geneva Conventions of 1949 that have been commonly shared by legal scholarship and practice. First, he claimed that despite the divergences between the definitions of cultural property in the 1954 Hague Convention and the 1977 Additional Protocols, the spectrum of cultural property they covered was exactly the same. Secondly, he held that the Additional Protocols awarded a higher regime of protection to cultural property for not being subject to imperative military necessity. This article reconsiders and qualifies these statements. It argues that while both instruments tackle objects which represent each party's national heritage, their scope of application differ since the 1954 Hague Convention cannot cover places of worship that constitute the spiritual heritage of peoples per se. This, we will see, has resulted in its own different consequences in international practice. It also aruges that it is erroneous to maintain tout court that the 1954 Hague Convention offers a weaker regime of protection for cultural property. From a closer look at the relationship between the concepts of ‘military objectives’ and ‘imperative military necessity’, a distinct and more nuanced conclusion follows: the 1954 Hague Convention offers stricter guarantees against the likelihood of acts of hostility aimed at cultural property. This article continues a scholarly debate initiated by O'Keefe, casts some clarity on issues that seem to trouble the ICTY, and challenges the mainstream interpretation given to the protection of cultural property under the two Additional Protocols.

This article addresses the need for uniform jurisdiction rules in cross-border contractual disputes and attempts to put it back on the diplomatic agenda. It seeks to explain why the traditional approach to international jurisdiction in contract disputes should change its focus from the outdated general jurisdiction approach to a more pragmatic step-by-step approach taking into account the commercial nature of contractual relations. Among the many aspects of and explanations for the different approaches to international jurisdiction, this article will concentrate on the idea that the principal foundation of jurisdiction in international contract disputes should be based on the economic allegiance of the defendant. In an attempt to bridge the gap between the different approaches to jurisdiction, the article argues that the way forward for uniform jurisdiction rules in contract disputes should be activity-related jurisdiction and proposes a set of rules principally establishing jurisdiction on the basis of the defendant's fixed place of business or the defendant's substantial business activities in relation to the contract. The proposed set of rules is also put in the light of a series of recent ECJ decisions dealing with the forum contractus rule of Article 5(1) of the Brussels I Regulation and two major US Supreme Court decisions on ‘doing business’ and ‘transacting business’ jurisdiction rendered in 2011.

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, The Falklands/Malvinas conflict and the Iraq War 1990-1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.