The role of subsequent state practice in the procedural law of treaties, and in the determination of consent in the implementation of treaties have become the subject of much scholarly debate in recent times. The UN International Law Commission has devoted copious amounts of study time into these issues under the distinguished guidance of Georg Nolte as Special Rapporteur. Ph.D. theses and research

While obligations erga omnes have increasingly been referred to in the jurisprudence, the legal consequences of those obligations are not adequately clarified in international law. Thus this article explores the legal effects of obligations erga omnes in general international law. After an examination of the criteria for the identification of obligations erga omnes, this article considers three possible

The question concerning the relationship between the United Nations and the International Criminal Court proved controversial during the drafting of the Rome Statute. While some delegates were concerned about the impact of this relationship on the independence and operations of the Court, others viewed it as key to ensuring the acceptance of the Court. Two decades after the adoption of the Rome Statute

One of the controversial issues in international investment law disputes has been the interpretation of ‘necessary’ in the non-precluded measures (NPM) provisions in bilateral investment treaties (BITs). investor-state dispute settlement (ISDS) tribunals have employed different methodologies to interpret ‘necessary’ in the NPM provisions ranging from using the customary international law defence of

This article begins from the observation that there have been a number of developments in international investment law-making and the jurisprudence of investor-state dispute settlement tribunals involving the protection of the environment and human rights. As for law-making, this article explores the evolving substance of international investment agreements as well as regulatory developments in the

Reparations represent a key element to redress the suffering caused to victims of armed conflict. Taking into account the predominantly non-international nature of contemporary armed conflicts and the fact that armed groups represent half of the participants, it seems legitimate to question whether reparations should also be provided by armed groups. From the victims’ perspective, the suffering caused

The Dutch Supreme Court’s Urgenda judgment breaks new ground. It is the first court to order a State to reduce its GHG emissions. The State has to reduce its GHG emissions by at least 25% before the end of 2020. A series of important issues have been considered in review: can human rights serve as a basis for the injunctive relief sought?, the role of the precautionary principle, the need for a consistent

Cultural objects have a special, protected, status because of their intangible ‘heritage’ value to people, as symbols of an identity. This has been so since the first days of international law and, today, there is an extensive legal framework to protect cultural objects and to prohibit looting. Despite this, for as long as demand exists and profits are high, cultural objects continue to be looted,

On 23 January 2020, the Government of the Netherlands adopted a Royal Decree concerning the Establishment of a Dutch National Group at the Permanent Court of Arbitration. The Decree aims to provide fairness, transparency and consistency in terms of the composition of the national group and its function of nominating candidates for election to international courts. This contribution puts the Dutch national

Unlike the ICTY and ICTR Statutes, the Rome Statute of the ICC provides in Article 75 for various forms of court-ordered reparations for the victims of heinous crimes that fall within the jurisdiction of the Court. The ICC, however, does not have any ‘penal enforcement authority’ of its own, nor does it have the authority to enforce its reparation orders or orders to freeze or seize the accused’s property

The investor’s due diligence has become a significant factor in determining whether the legitimate expectations of an investor give rise to protection under the FET standard. This is especially relevant when an investor’s claim for the protection of its legitimate expectations is based on the stability of a regulatory framework. The investor’s due diligence in the context of the FET standard goes beyond

In 2016, the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO) made important strides towards the regulation of emissions from international aviation and maritime transport. This was partially catalysed by the ‘ultimatum strategy’ of the European Union (EU), where the Union persistently threatened to take unilateral steps in the absence of multilateral action

This article addresses the issue of the uniform and autonomous interpretation of private law conventions, including of private international law conventions, from the perspective of their Contracting States, particularly their judiciaries, and of the international organizations. Firstly, the author analyses the use of standard uniform interpretation clauses, and the origin of such clauses, in the context

The Judgments Convention establishes a list of jurisdictional filters, at least one of which must be satisfied for the judgment to circulate. One of those is the implied consent or submission of the defendant to the jurisdiction of the court of origin. While submission is a common jurisdictional basis in international litigation, its definition and treatment vary significantly across states, whether

The Hague Judgments Convention 2019 makes the classic distinction between private law matters within its scope (civil or commercial matters) and public law matters outside its scope. It also follows the same position in relation to State immunity used in the Hague Choice of Court Convention 2005 (see Art. 2(5) in 2019 and 2(6) in 2005). The innovative parts of the 2019 Convention relate to the exclusions

The Hague Conference on Private International Law has signed the Final Act of a new international convention designed to circumvent the usual obstacles to the international circulation of judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters aims at mitigating uncertainties and risks associated with international trade and other civil

The public policy exception is inherently a fluid device. Its content is basically left to each State. A shared public policy is an exception. Therefore, the obligation of uniform interpretation, as provided in Article 20 of the 2019 Judgments Convention, will have an inherent limit here. Moreover, the Convention leaves some important issues, including procedure, to national rules. Each requested State

The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with

The Hague Judgments Convention, which facilitates the recognition and enforcement of foreign judgments, provides for several grounds for the refusal of recognition, including refusal based on insufficient notification. While this ground for refusal of the Judgments Convention seems quite similar to those applied in other conventions, the comparison shows that there are several differences between the

In July 2019, after many years of work and lengthy negotiations, the Members of the Hague Conference on Private International Law concluded the historic 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Judgments Convention’). One issue of particular focus in the later phases of the negotiations of the Convention was what, if any, judgments

The article begins with the context in which a Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments was first proposed in 1992. It then traces the history of the Hague negotiations, both from within those negotiations and in regard to important developments outside the negotiations, through the completion of the 2005 Convention on Choice of Court Agreements and

On the 2nd of July 2019 the negotiations on the HCCH Judgments Convention were successfully concluded. Since then, scholars’ attention concerning this new instrument has grown exponentially. This contribution seeks to explore some of the open issues that were discussed in the negotiation process but remained open in the final text, such as, in particular, the application of the Convention to pecuniary

This article attempts to provide an overall assessment of the current process of strengthening the human rights treaty body system in the light of the implementation of UN General Assembly Resolution 68/268 of 9 April 2014. While demonstrating the positive developments achieved so far, the authors examine the current challenges of the strengthening process, namely the controversial effects of the solution

In recent years much jurisprudential affection has coalesced around the concept of the Anthropocene. International lawyers have enlisted among the ranks of humanities and social science authors embracing this proposed scientific time category, and putting it to work. This essay draws on sources from a range of fields including legal anthropology and critical legal theory in re-examining the reception

This article provides an analysis of the Dutch Supreme Court judgment in the Mothers of Srebrenica case, placing it in its context, and comparing it with earlier and related decisions, in particular the judgments in the cases of Nuhanovic and Mustafic. The Mothers of Srebrenica is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the

The provisions on obligations under insurance relationships included in Article 7 of the Rome I Regulation are relatively complicated. However, although individual insurance contracts have their own legal regime in each Member State, only a few national legislators have decided to lay down the consequences of concluding a group insurance agreement. The Rome I Regulation does not include any special

Since 2009, there has been a serious antiparathesis between the African Union (AU) and the International Criminal Court (ICC), which, according to the AU, has principally concerned unjustified ICC prosecutions against African dignitaries. This has led certain African ICC parties to announce their withdrawal from it, while the AU adopted the so-called ‘ICC Withdrawal Strategy’ in January 2017. This

Upon its inception on 17 July 1998, Africa had the largest number of states supporting the ICC. Fast forward to 2018, Africa now represents the single largest regional bloc threatening mass withdrawal from the ICC. The genesis of the sour relationship between the ICC and African states has its roots in one main issue—the indictment and arrest warrant issued against President Omar al Bashir of Sudan

This article intends to consider what the new generation of FITs might signify for our understanding of public law. Rather than modelling international public law or questioning its legitimacy derived from national public law (or one independently generated), I want to focus on a ‘public law’ thread running through all of this. The analysis here traces the transliteration of investment protection arbitration

The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing conversation on the very nature of international law. In this context certain foundational aspects may be labelled as the system’s ‘constitutional processes’. The primary argument presented in this article is that principles and ‘general principles

This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It places that within the AU’s rejection of the International Criminal Court’s (ICC) arrest warrants for African Heads of States that are not party to the Rome Statute and a more general protection of incumbents. It argues that the enthusiasm for establishing

It is a widespread notion, perhaps even a truism, among international legal scholars that international law went from a pre-World War II ‘States-only’ framework to the recognition of the international legal personality of individuals during the second half of the 20th century. This changed role of the individual and other non-State actors in the international legal system is a common starting point

International investment law as it is currently being transformed in the European Union (EU) proves to be an ideal test case for assessing global constitutionalism—whether it is in fact occurring and, if so, the direction of this process. While economic rights are protected by the laws of the EU, many of these rights were protected by bilateral treaties before internal mechanisms existed. The EU is

It is a truth universally acknowledged that states can consent to the military presence of other states on their territory. This is better known as intervention by invitation. Yet many issues surrounding this concept remain unclear or are too easily accepted, e.g. its name and its place within the rules of jus ad bellum. This article seeks to clarify and resolve these issues. First, an analysis is

This article employs a mixed methodological approach to evaluate non-disputing party (NDP) participation by means of amici curiae submissions in investment disputes settled by the International Centre for the Settlement of Investment Disputes (ICSID). The work presents and analyzes statistics on NDP participation in ICSID cases in order to investigate whether amicus submissions are a suitable vehicle

In this article I use the notion of ‘plot’ to uncover where in their texts international legal scholars are ‘present’, directing readers toward a particular conclusion about the meaning of law. I use Peter Brooks’ Reading for the Plot, in which he understands plot as ‘the design and intention of narrative, what shapes a story and gives it a certain direction or intent of meaning’ (p. xi). In short

Since the fourth Tuareg rebellion in January 2012, followed by a military coup in March of the same year against the democratically elected government of Mali, the Malian state and the greater Sahel region have hitherto become a political and security challenge of seemingly unmanageable proportions for the international community. Following the classification of the situation by the UN Security Council

Around the world many survivors of so-called ‘historical’ abuses persist in seeking truth and justice decades after rights violations have been perpetrated. Recognising that prolonged impunity may cause victims’ suffering to intensify over time, the United Nations Committee Against Torture stated in its General Comment No. 3 that victims of torture or ill-treatment must be enabled to access comprehensive

Within the legal framework of the EU, the Member States have remained competent to regulate who qualifies as a national. As nationals of a Member State are simultaneously EU citizens and enjoy the right to intra-EU mobility, it is the Member States who, through their Nationality Laws, determine who is to be classed as an EU citizen and who enjoys the right to intra-EU mobility. This article explores

Scholarly debate, legal rules and policy on dual nationality suffer from a fatal flaw: the various situations of dual nationality are conflated in one single category, linked to a single policy. This article argues that the debate would win in clarity if the various situations were untangled. In order to demonstrate the need for more discrimination in situations of multiple citizenship, two cases are

Nationality is the legal bond between a person and a state that connotes full and equal membership of the political community. Yet, in the practice of states, not everyone who is admitted as a national enjoys the full package of rights attached, nor the same security of status. The phenomenon of inequality among citizens is particularly apparent when examining the question of how protected the legal

This contribution maps recent global trends regarding the grounds for acquisition of citizenship by descent and by birth on a particular territory. Questions of nationality law have traditionally been part of the State’s reserved domain. However, it will be seen that some of the trends regarding citizenship acquisition by ius sanguinis and ius soli can be attributed to the inroads made by international

The principal way in which formal citizenship status is acquired is on the basis of birth, whether by descent (ius sanguinis) or territory of birth (ius soli), and most people retain their citizenship of birth for life. Yet birthright citizenship laws have received less attention than naturalisation procedures. Drawing on GLOBALCIT data on citizenship laws in 177 countries in 2016, and indicators of

Nationality came during the nineteenth century to be regarded as conferring an entitlement to diplomatic protection by the national government. Powerful States used the rules against weaker ones to enforce rights of their nationals who had failed to secure justice through local remedies. Changes in the international order had the effect of diminishing the effectiveness of this practice. But the reduction

This article has two interrelated aims. First, the article goes beyond law and places the discussions on nationality in the broader literature on citizenship, also drawing on social sciences, political theory and moral philosophy. The ensuing conceptual, historical and multi-disciplinary account highlights the long pedigree of the idea of citizenship, the manifold conceptions of citizenship that have

This article considers contemporary predicaments of nationality rights against the background of reflection on Arendt’s phrase ‘the right to have rights’. Addressing the right to a nationality, the right not to be arbitrarily deprived of one’s nationality, the right to change one’s nationality and the right to naturalize, it argues that Arendt’s concerns remain live ones for us and indicates what conception

In international child abduction cases, two international legal frameworks interact with each other. On the one hand, the Hague Child Abduction Convention provides that the abducted child must be speedily taken back (unless an exception applies); which is seen as being in the best interests of the child in general. On the other hand, the UN Convention on the Rights of the Child provides that the best

AbstractWhile legal and policy frameworks are based on a clear distinction between public and private security actors and functions, the reality on the ground in Indonesia reveals that there is a high level of corporate capture of public security services, including the military and police, who often operate alongside private security companies (mainly local, though there is some evidence of an emerging

Based on analysis of a large number of recent domestic court cases on matters of customary international law (2000–2014), this article demonstrates that, rather similar to the International Court of Justice, domestic courts do not normally identify customary norms of customary international law on the basis of the textbook method of ascertaining a general practice accepted as law. Rather, they tend

This article engages in the exercise of measuring the ‘degree of judiciality’ of the Non-Compliance Mechanism under the Aarhus Convention by looking at the legal effect of its findings and recommendations and considering, amongst other things, the effect of Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties. The article also looks at the procedure of the hearings before the Compliance

The geographic footprint of contemporary warfare often challenges the existing understanding of the term ‘non-international armed conflict’, a term not defined in international humanitarian treaty law. This article examines whether the opening lines of Common Article 3 of the Geneva Conventions include a geographical requirement. Controversy surrounds this question which until recently has received

This article provides a critical reading of the judgments of The Hague District Court and especially The Hague Court of Appeal in the case of Mothers of Srebrenica v. the State of the Netherlands, which concerned the liability in tort of the Dutch State for facilitating the massacre of Bosnian Muslims in 1995. It engages with the courts’ considerations regarding the attribution of conduct to the State

This article explores the effects of paradigm shifts, that is the transition from the law enforcement paradigm to the war fighting paradigm and vice versa, on the rules on the use of force for military operations. The concept and main elements of rules of engagement are explained, followed by an analysis of applicable law and its effect on the use of force in each of the two paradigms. Particular attention

In the Netherlands, the Dutch criminal court in The Hague (hereinafter: ‘Netherlands International Crimes Court’ or ‘NIC court’) is assigned to try international crimes, and to provide compensation to victims of such crimes. Whereas it has specific criminal laws at its disposal to try international crimes, it applies ‘regular’ Dutch civil law to assess claims for compensation. Yet compensation for

A Saudi Arabia-led coalition is supporting the Yemeni Government with military means against the Houthis in Yemen. Part of those military operations are naval operations off the coast of Yemen that aim to stop the influx of weapons meant for the Houthis. It is viewed that these naval enforcement measures, often termed blockade, have a severe impact on the dire humanitarian situation in Yemen. As the

In the last decade amicus intervention has become increasingly prevalent in investor-state arbitration. As part of a generalized drive towards transparency, amicus briefs are now routinely submitted in high-profile investor-state arbitrations, which are closely related to public interest issues. Philip Morris v. Uruguay is a notable example of such arbitrations. However, it is often argued that amicus

The West Bank and the Gaza Strip came under Israeli occupation in 1967. Both territories had been under constant Israeli control since then, until Israel decided to withdraw its land forces and settlements from the Strip in 2005. Whereas the occupied status of the West Bank still remains uncontested, the status of Gaza after the disengagement is less clear. This article addresses the question whether

Due to the growing globalisation of financial markets, non-EU market operators which act outside the EU are increasingly causing direct harm to European investors. This issue, and its relevant impact on investor protection, has already been considered by the European legislature at the substantive level. This article seeks to demonstrate that, at the private international law level, the Europeanisation

In this article, I argue that international law has a major structural crack: the limited international legal capacity of non-states, and a high threshold of attribution to states. A great deal of international conduct thus remains unregulated. I further explain that this is not only a gap in responsibility but in fact a gap in international legal regulation. The law of international responsibility

States have captured the imagination of international legal scholars, to the extent that for a variety of non-state actors (NSAs), statehood may appear to be the ultimate prize. This contribution sheds some light on how the epistemic community has come to venerate the state as the structural embodiment of politico-legal order, as ‘the hero’ in international law narratives and how, nevertheless, NSAs