The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question. What is meant by the claim by the European Court of Justice that the European Com-munity Treaties have created “a new legal order of international law”1 or, more radically, “a new legal order”?2 Is EC law to be regarded as a particularly effective system of regional international law, or has it been created as, or mutated into, an entirely new species of law? If there are indeed two legal orders, to what extent are they still capable of cross-fertilisation? What about “European Union law”? Have the Treaty on European Union and now the Treaty of Amsterdam eroded the dichotomy between the two legal orders of public international law and EU law? Is public international law itself taking on some of the characteristics which have made EC law an attractive as well as an effective system for regulating relations between sovereign States? Are the two streams converging?

In the LaGrand case, the United States found themselves for the second time within three years before the International Court of Justice dealing with the death penalty imposed on foreign nationals in the United States.1 In contrast to the earlier case filed by Paraguay, the German-sponsored LaGrand case survived the provisional measures phase and went on to the merits stage. In its judgment of 27 June 2001, the Court largely affirmed all four German submissions and ruled that the United States had violated international law.

One of the asserted advantages and goals of the unification of substantive law lies in the prevention of ‘forum shopping’,1 ie the lawyer's act of seeking the forum that is most beneficial to his client's interest.2 This has been pointed out not only in discussions on unification of law in general,3 but also in discussions on specific international uniform contract law conventions, such as the United Nations Convention on Contracts for the International Sale of Goods4 (hereinafter CISG),5 the Geneva Convention on the Contract for the International Carriage of Goods by Road6 (hereinafter CMR)7 and the UNIDROIT Convention on International Factoring8 (hereinafter IFC).9

International law recognizes two mechanisms for the protection of individuals in case of violations of peremptory norms affecting individuals: invocation of State responsibility erga omnes and diplomatic protection. While they share some fields of applications and are both based on some measure of indirect injury, there are important differences between these two mechanisms. This paper analyses and discusses these differences and similarities, and concludes by demonstrating that the essential distinction is to be found in the legal interest in the claim and the nature of the claim. The traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection (exhaustion of local remedies and nationality of claims) are not applicable to invocation of responsibility erga omnes. This paper will argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim. In the interest of enhancing protection of individuals against violations of peremptory norms, the simultaneous existence of these two mechanisms should be welcomed.

This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.

The technique of ‘evolutive interpretation’ is well known in public international law.2 It is particularly associated with treaty regimes like that of the European Convention on Human Rights (ECHR).3 The currency of this technique of interpretation has, however, been less evident in general public international law. It is not insignificant therefore that the International Court of Justice (ICJ), in a case about navigational and related rights has now made unambiguously clear that, where the parties have used generic terms in a treaty, aware that the meaning of the terms was likely to evolve over time, and where the treaty is one of continuing duration, the parties as a general rule must be presumed to have intended those terms to have an ‘evolving meaning’.4

Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.

Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—

(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or

(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,

are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

The United Kingdom (‘UK’) has indicated its intention not to opt-in to two proposals from the European Commission aimed at further developing the Common European Asylum System through the replacement of existing instruments on asylum procedures and reception conditions. The purpose of the European Union (‘EU’) amendment process is to establish rules that more closely align the legal framework for asylum in the Member States so that asylum seekers receive the same higher standard of treatment in any Member State in which they choose to make their application, and to address criticism that the Directives are incompatible with human rights obligations. The UK asserts that its asylum procedures satisfy the standards imposed by its obligations under international and European law, and does not view further harmonization of asylum matters at EU level as necessary or appropriate. Its decision not to opt-in raises issues regarding sovereignty, subsidiarity, the rule of law and European integration. This article will explore these issues, as well as provide an overview of select provisions from the proposals in light of UK asylum policy.

A new statutory right for Parliament to control the ratification of treaties for the United Kingdom has recently entered into force.1 The topic of ‘Ratification of Treaties’ may have attracted fewer headlines than some others originally proposed for inclusion in the Constitutional Reform and Governance Act 2010 (the CRaG Act),2 but reform in this area succeeded, with cross-party support, and is now in operation.3 These new statutory provisions replace the ‘Ponsonby Rule’ in the UK.

An earlier note in this series' gave an account of the normalisation of relations between the United Kingdom and Argentina and the establishment of co-operative arrangements relating to fisheries in 1990. The present note focuses on the establishment of co-operative arrangements for seabed resources in 1995. It also gives a brief account of the extension of maritime jurisdiction around South Georgia and the South Sandwich Islands in 1993. First, in order to set the co-operative arrangements for seabed resources in context, a brief recapitulation of the cooperative arrangements for fisheries and their operation in practice since 1990 will be given. The map appended to the article illustrates and enlarges on the text.

The second half of the twentieth century saw major improvements in the legal regime for fisheries management. This notwithstanding, the deep seas remain largely unregulated under international law, until recently only being covered by the general environmental and management provisions found in UNCLOS. In light of this regulatory gap, this article evaluates the potential law-making effects, if any, of the FAO Deep-Sea Fisheries Guidelines, a voluntary instrument designed to provide States with a regulatory framework for the management of their deep-sea fisheries. It considers how the Guidelines may inform, interpret and influence the content of the general high-sea obligations in UNCLOS. Despite the vagueness and generality of those provisions, some indication of their substantive content has been given in recent decisions, particularly the South China Sea Arbitration. By assessing their compatibility, and their level of acceptance by the international community, this article argues that the FAO Deep-Sea Guidelines are beginning to have a law-making effect by providing an authoritative interpretation of the general high-sea obligations found in UNCLOS relating to deep-sea fisheries.

This article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.