Debates surrounding the second Iraq war have prompted a range of commentators to diagnose the death of the law on the use of force, to call for its adaptation to the globalization of threats and the problem of so-called failed States, or to assert the need to defend the UN Charter framework. In this article, we look behind the shrill rhetoric of the post-invasion commentary and invite a sober assessment of the current situation. Our aim is not to evaluate in detail the legality of the Iraq war. Others have done so thoroughly.1 Rather, we are interested in exploring whether we are truly at a turning point for international norms and institutions governing the use of force. If we do confront a ‘fork in the road’, as suggested by Kofi Annan in his address to the UN General Assembly on 23 September 2003,2 what changes to legal institutions and structures are required, and what new claims should we resist?

Every State in the modern world has a prison system, established and purportedly administered in terms of formal legal rules. Most such systems house both sentenced and unsentenced prisoners and have minimum standards and rules that are common to all prisoners. Although there is now a considerable body of international law that aims to provide a human rights framework for the recognition of the rights of all prisoners, the universality of the prison and the ubiquity of international human rights law have not meant that there is international consensus about what imprisonment should be used for and how prisons should be administered. The prison as a penal institution has remained firmly rooted in the nation State and in national legal systems. In this respect penal institutions are different from other detention facilities, most particularly those for prisoners of war, which have long been governed by the rules ofinternational humanitarian law.

The rapid expansion of international commercial surrogacy arrangements has created serious ethical and legal dilemmas with respect to the nationality and parentage of children conceived under such arrangements and the potential exploitation of surrogate mothers. This paper examines these dilemmas through the prism of international human rights law to assess whether a prohibitionist or permissive approach should be adopted with respect to this practice.

International lawyers and courts consider the principle of systemic integration to be a potential answer to difficulties arising from the fragmentation of public international law. This article questions the application of this approach in the context of human rights treaties. It is argued, first, that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and, second, that systemic integration may give rise to a less diverse international law.

The Convention on State Immunity adopted by the UN General Assembly in 2004 represents in treaty form a finished product of some 22 years of work 1 It indicates a consensus of State support for the restrictive doctrine of State immunity in its application to civil proceedings relating to commercial matters in national courts. It is a considerable achievement from the view point of the specialist lawyers and diplomats who have steered the project to UN endorsement.

The prohibition of discrimination, at least on grounds of nationality, has always been a constitutional principle of Community law. Such discrimination can take many forms, since Community law prohibits not only direct discrimination but various forms of indirect discrimination. Furthermore, the Court of Justice has indicated that where discrimination on grounds of nationality is in issue, the requirement of proof is not a heavy one on the complainant. All that is needed to place the burden on the respondent to justify the potentially differential treatment is that complainants show that the requirement applied to them is intrinsically likely, or susceptible by its very nature, to affect them adversely in comparison with the State's own nationals. The modern formulation of the prohibition of discrimination recognizes that protection from discrimination on grounds of nationality is central to the concept of citizenship of the Union. Advocate General Jacobs has said:

The fact that the International Criminal Court has not been granted universal jurisdiction exercisable proprio motu has often been criticized on the basis that it will leave some offences beyond its power to prosecute. This article investigates whether the drafters of the Rome Statute were necessarily wrong in deciding not to grant the court such jurisdiction. It concludes that to have given the Court universal jurisdiction would have been lawful under current international law, and would have provided a welcome reaffirmation of the concept. Still, the nature of the cooperation regime and of the Prosecutor's investigatory remit, would mean that such jurisdiction would be difficult, if not impossible, for the Court to use. As the Court has to operate in a world of sovereign States, not all of whom are sympathetic to it, the drafters' choice was a prudent one.

At its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (‘the Articles’), adopted by the International Law Commission (‘ILC’) in 2001. By Resolution 59/35, adopted by consensus on 2 December 2004 on the recommendation of the Sixth Committee, the General Assembly once again resolved to defer further consideration and any decision on the final form of the Articles, postponing the matter to its 62nd session in 2007. It also asked the Secretariat to prepare a compendium of jurisprudence and State practice to assist the Assembly in its consideration of the topic at that time.

The taxation of financial services is one of the most vexing aspects of a Value Added Tax (VAT). Conceptually, VAT should apply to any fee for service but where financial services are concerned there is a difficulty in identifying the taxable amount, ie the value added by financial institutions. As a result, most jurisdictions, including the EU, simply exempt financial services from VAT. Treating financial services as exempt, however, gives rise to significant legal and economic distortions. Consequently, a few countries have in recent years attempted an alternative VAT approach to financial services. Amongst these is Australia, which in 2000 introduced a Goods and Services Tax (GST) with a ‘reduced input tax credit’ system. This paper compares the current treatment of financial supplies, under a VAT-type system, in the EU and in Australia. The aim is to ascertain whether the Australian GST treatment of financial services is, as commonly thought, superior to the EU one, and consequently, whether introducing an Australian-type model should constitute a policy consideration for the EU.

International human rights law may serve as a language through which lawyers and others describe the harms resulting from corruption, but this approach has significant limitations as a legal framework. Despite a growing emphasis among scholars and practitioners on a human rights approach to the problem of corruption, this body of law does not provide a strong basis for addressing such conduct. International human rights treaties make no mention of corruption, and human rights treaty bodies have not brought conceptual clarity to the question of how corruption violates or undermines human rights. Given that human rights law binds States alone, it is also ill-suited to a phenomenon that typically occurs at the intersection of the public and private sectors. Even as a language for describing how corruption harms social and economic rights, human rights law has its limitations, some of which come into relief when compared with the field of development economics.

The global financial crisis has served to highlight serious weaknesses in global governance, revealing fault lines in the international financial architecture and its accompanying regulatory apparatus. Most glaringly, the spotlight has fallen on Credit Rating Agencies (CRAs)—key governance agencies in the pre-crisis domestic and international regulatory structures, and ones directly linked to the subprime mortgage debacle. The aim of this article is to provide a critical appraisal of CRAs as a mechanism of global governance in the light of their role in the subprime mortgage debacle and to evaluate the case for stricter regulation of CRAs. In this respect, special emphasis is placed on the recent EU attempt—by way of a new Regulation on Credit Rating Agencies—to bring rating agencies within the regulatory fold. It is argued that while the EU Regulation has serious implications for the operation of CRAs within the Community, the reform measure is potentially illustrative of a growing dissonance between EU and US responses to global governance issues more generally.

‘[Securitisation led to the belief among many that] poor quality assets … assembled as a portfolio … could somehow by alchemy be converted into something stronger than they were’.1

‘The crap had become cake.’2

‘In January 2008, there were 12 triple A-rated companies in the world. At the same time, there were 64,000 structured finance instruments, like CDO tranches, rated triple A.’3

This article considers the influence of teachings of publicists on the development of international law. The category of ‘teachings of publicists’ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ‘ordinary’ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ‘influence’. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.

This article studies the normative activity developed by the Security Council (SC) in recent years, particularly in the fight against terrorism. This legislative activity has aroused a great deal of controversy both among scholars and the States. Is the SC acting ultra vires? Has it revealed a new form of creating of international norms, which overrides definitively States' consent as the only material source of international law? This contribution tries to answer these questions by investigating the scope of the SC powers in the Charter, their historical background and the reaction of UN Member States towards its Resolutions. After this analysis, it is submitted that the SC does have a legislative capacity, but with important legal, political and practical limits.

The dyadic rule–exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorised in the literature. This article argues that we should understand exceptions from a deontological perspective as permissions that affirm governmental regulatory capacity and thus limit the scope of the commands set out in the treaty. This characterisation of exceptions has both symbolic and practical implications, of which this article discusses two: determining the exception's applicability as a preliminary matter rather than as a defence, which would in turn permit consideration of regulatory purpose at the point of obligation; and whether the applicability of an exception is properly a question of merits or jurisdiction.