Emotions play an important role in cognition and have a significant and all too often neglected influence on (international) law-making processes. Fear, in particular, can be a driver of reasoning and decision-making. Fear of terrorism / immigrants / health threats / food contamination / environmental hazards – to give a few notable examples – influences the perception of risks associated with these issues and consequently impacts international policy- and law-making. International law rules and doctrines are often adopted – if not overtly justified – on the basis of fear and other emotions. This article aims to explore how fear – as both an individual and collective emotion – may affect decision-making processes, be determinative of normative outcomes, and shape security policies at the domestic and international levels. This approach deviates from traditional rationalist understandings of law and emphasizes the role of emotions in apprehending the nature and functioning of legal processes. Hopefully, this exploration will open up interesting avenues for further research on the role of emotions in international legal processes.

In the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, the International Tribunal for the Law of the Sea (ITLOS) was called upon to clarify the existence of its advisory jurisdiction as a full Tribunal under the UN Convention on the Law of the Sea (UNCLOS). ITLOS unanimously upheld its advisory jurisdiction, yet its reasoning is not convincing. ITLOS’s interpretation of Article 21 of its Statute appears unpersuasive. The article discusses the interpretation of Article 21 ITLOS Statute pursuant to the rules on interpretation of the Vienna Convention on the Law of Treaties (Arts. 31–33). First, the article addresses the article's textual reading, and criticizes the Tribunal's interpretation of the term ‘matters’. Second, the article considers the interpretation of Article 21 according to the subsequent practice of the parties, argued by some states but not addressed by ITLOS. Third, the travaux préparatoires of the UNCLOS are examined, with a view to understanding whether the drafters intended the Tribunal to have advisory jurisdiction. Fourth, the six authentic texts of UNCLOS are compared in order to highlight potential differences that may help understand the exact meaning of the provision. Fifth, the article discusses the relationship between advisory jurisdiction and state consent. The conclusion is that the basis for ITLOS's advisory jurisdiction under UNCLOS seems weak. Some general considerations conclude the article, together with a possible solution that takes stock of ITLOS's decision.

Despite its not being an entirely new debate in international law and international relations, the nexus between human rights and non-state actors has become a highly relevant topic of scholarly research, as witnessed by the three works under review, published in 2005 and 2006. When Andrew Clapham published in 1993 Human Rights in the Private Sphere, in which he already questioned the public/private divide of human rights law, the book was then categorized as both ‘adventuresome and timely’. Some fifteen years later, an analysis of this topic can no longer be called ‘adventuresome’, but the timeliness remains beyond doubt.

Hitherto, the ‘African part’ of the history of international law has often been limited to the (critical engagement with) ‘the acquisition of Africa’ since the 1880s and questions of ‘state succession’ and international borders following independence starting in the 1950s. In this historical narrative, the dominance of colonialism is evident. It seems that ‘Africa’ as a narrative concept in international legal history remains tied to abstract contrasts such as ‘foreign domination’ versus ‘independence’, or ‘exploitation’ versus ‘development’. However, if twenty-first century writings about ‘international law in Africa’ and its histories remain shaped by this perspective, historians may lose sight of issues, questions, or ideas formed in historical Africa that do not fit into this preconceived dichotomous matrix. After discussing methodological challenges, this article asks for other ‘contacts’, other arenas of ‘internationality’ and international law in Africa’s pre-colonial past. These contacts reach back very far in history. Three arenas are mentioned: the Red Sea area and Ethiopian-Arab relations; the Indian Ocean rim; and finally, the case of nineteenth-century Ethiopia.

Focusing on some undertheorized aspects of Article 31(3)(c) of the Vienna Convention on the Law of Treaties, the present article aims to reassess critically the anti-fragmentation function generally assigned to this provision. The high hopes associated with the harmonizing potential of Article 31(3)(c) are usually based on a reading of this provision as requiring the interpreter to take into account not only rules applicable between all of the parties to the treaty, but also those applicable only between some of the parties. However, this reading does not seem to be confirmed by the interpretive approach suggested in this article. On the other hand, the use of Article 31(3)(c) in judicial settings raises a structural problem inherent in the international judiciary. The analysis undertaken along these lines suggests that the optimism that Article 31(3)(c) has recently provoked should be qualified in some important respects.

International criminal law has made impressive strides over the past twenty years. The 1990s and 2000s saw the establishment of ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), the coming into being of the permanent International Criminal Court (ICC), and the birth of several internationalized ‘hybrid’ jurisdictions, notably the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). However, the dynamic development of international criminal law into a new branch of public international law has also led to some problems and confusion. The rules and principles developed by the newly founded international criminal tribunals have sometimes seemed at odds with accepted views on public international law more generally – raising fears about the ‘fragmentation’ of the law. Perhaps the best-known example of this is the controversy over the ‘overall-control’ test developed by the ICTY Appeals Chamber in the Tadić case to determine under which circumstances armed forces may be considered to be acting on behalf of a third state, rendering an internal armed conflict international. The Tadić test differed from the ‘effective-control’ test developed by the International Court of Justice (ICJ) in the Nicaragua case and confirmed in the Bosnia Genocide case, where the ICJ specifically rejected the ICTY approach. Also more generally, the discussion on ‘fragmentation’ and international criminal law continues; recently, Elies van Sliedregt set out in these pages her vision of legal pluralism in international criminal law.

In the early 1990s, two former members of the Afghan secret service applied for a residence permit in the Netherlands. Their request was denied on the basis of the exclusion clause of Article 1F(a) of the Vienna Convention Relating to the Status of Refugees. There were serious reasons for suspecting that the men had committed war crimes during the Afghan civil war of 1979–92. In 2000, the immigration authorities transmitted the files of the two men to the public prosecution office, which initiated prosecutions in 2003. At the trial, defence counsel raised various preliminary challenges. They argued that the case should be declared inadmissible since relying on the immigration files would violate the nemo tenetur principle and the right against self-incrimination enshrined in Article 6 of the European Convention on Human Rights. Furthermore, the court had no universal jurisdiction over violations of Common Article 3 of the Geneva Conventions since there was no international rule mandating a right to universal jurisdiction over war crimes committed in non-international armed conflicts. The Hague District Court dismissed the defence challenges and eventually convicted the Afghan nationals to 9 and 12 years' imprisonment. The Hague Appeal Court endorsed most of the findings of the District Court and confirmed the convictions and sentences. The reasoning underlying the decisions, both at first instance and at appeal, raise questions particularly with regard to universal jurisdiction. In this article the defence arguments are explored and the reasoning of the courts is analysed.

On 2 April 2015, the full International Tribunal for the Law of the Sea (ITLOS) rendered its first advisory opinion in reply to a request of the Sub-Regional Fisheries Commission regarding illegal, unreported and unregulated fishing. Unlike any other court or tribunal with advisory competence, including the Seabed Disputes Chamber, ITLOS’ advisory jurisdiction is not explicitly enshrined in its constituent instrument, but was rather asserted in the Tribunal’s, homemade, rules of procedure. In spite of strong objections from various states, ITLOS affirmed a broad advisory jurisdiction ratione materiae and personae, and found that there were no compelling reasons to exercise its discretionary power to dismiss the request. The request and the Tribunal's handling thereof raise interesting questions regarding the opportunities and risks inherent to, and the outer limits of, the advisory jurisdiction of international courts and tribunals. This contribution takes a look at the advisory jurisdiction of the full Tribunal, having regard to the experiences of other international courts and tribunals.

This article sets out two case studies to examine the evolving reality of ‘boat migration’ and the intersecting legal frameworks at play. Our analysis takes a systemic integration approach to reflect on the complex dynamics underpinning responses to the phenomenon in Australia and the Central Mediterranean. The regime that governments purport to act under in any given instance reflects the way they choose to frame incidents and possibly exploit legal gaps in, or contested interpretations of, the relevant rules. The ‘closed ports’ strategy adopted by Italy and Malta against the MV Lifeline and the detention-at-sea policy pursued by Australia are investigated from the competing perspectives of what we call the ‘security lens’ and the ‘humanitarian lens’ to demonstrate how a good faith interpretation of the applicable (if apparently conflicting and overlapping) norms can (and should) be mobilized to save lives, and how that goal is unduly undercut when security concerns trump humanitarian interests.

The present article discusses the historical and theoretical parameters of the right of visit on the high seas. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas, which is conceptualized mainly as of a negative nature, namely as ‘the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities’. This prohibition is arguably challenged by the recent extensive practice of interdiction of vessels on the high seas to counter threats such as international terrorism and transnational organized crime at sea. Accordingly, the historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum are canvassed. Drawing valuable insights from this historical survey, it is possible to revisit this controversy and ascertain the role of interference on the high seas in the legal order of the oceans of the twenty-first century. It is posited that the rationales behind the contemporary right of visit reflect the old-fashioned mare clausum arguments and that they fall under three general categories, namely the maintenance of international peace and security, the protection of the bon usage of the oceans, and the maintenance of welfare and ordre public of the states and of international society.

Independence and impartiality of the judiciary is a conditio sine qua non for confidence in, and the authority and success of, any judicial procedure. This article takes a close look at the voting patterns of the judges of two influential international tribunals: the International Court of Justice and the European Court of Human Rights. To what extent do national judges (and judges ad hoc, in particular) vote consistently with the position of their national governments? By conducting a factual analysis of the voting behaviour of the judges, the present paper aims at drawing some tentative conclusions on the fulfilment of the requirements of independence and impartiality in the operation of these two distinguished courts. Of all influences to which men are subject, none is more powerful, more persvasive or more subtle than the tie of allegiance that binds them [judges] to the land of their homes and kindred and to the great sources of the honors and preferments for which they are so ready to spend their fortunes and to risk their lives.

The approach of Indian courts towards international law has been consistently evolving. Initially, the Indian constitutional framework provided a flexible basis for the application and use of international law, the reasons for which could be seen in the socio-political context of India as a developing country. India, for its part, continued to argue that it remained essentially at the periphery of the mainstream international law, as it had no role in formulating some of the basic principles of international law. For the Indian courts the first substantive encounter with international law emerges in the context of several territorial-related issues. The socio-political context forms the next phase, for the Indian courts to have recourse to diverse international legal norms relating to the environment and human rights and applying them as a persuasive tool. Later, the development context brings a complex array of commercial, environmental, and other related international legal norms into the Indian legal system. For Indian courts, in the present context, the correct sourcing and identification of international legal norms and their application remain a huge challenge. The majority of the legal systems of developing countries for varied historical reasons continue to treat international law as an exotic legal tool to be used sparingly, perhaps only to broaden the interpretation of or sustain a comparable domestic legal norm.

This article considers the effectiveness of rights-based approaches to the problem of world hunger. Given that inadequate food supply may be the result of complex, structural problems outside the control of particular staes and authorities, can advocacy based on the right to food significantly improve world food security? To answer this question, this article considers one particular structural factor which contributes to world hunger, namely the operation of the international economic system. It concludes that, at both a theoretical and a practical level, human rights discourse is ill-suited to achieve the fundamental structural change to this system necessary t improve food security. This represents a significant limitation on the effectiveness of the right to food. As a result, an alternative legal approach is suggested, namely using a legal principle of ‘food sovereignty’ to ensure that the international system as a whole operates to support the food needs of its population.

In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

An increasing number of international law scholars over the last few years have started to turn their attention to the study of political economy. To what extent can this trend be considered an indication of an underlying ‘disciplinary turn’? How should one understand the phenomenon of disciplinary turns? The answer we propose to this question in this article proceeds from the assumption that not all disciplinary shifts follow the same logic. Unlike the linguistic or the historical turn, the turn to political economy in contemporary international law does not represent an exercise in inter-disciplinary exploration. The concept of political economy used in international law has very little to do with the actual discipline of political economy. It is much more diffuse and unfocused in theoretical terms. What gives it its essential sense of identity is not any form of distinct methodological orientation, but rather its basic usefulness as a potential marker of critical self-distancing vis-à-vis the mainstream international law tradition and its ideological function as a mediating device for the expression of a deep-seated concern about the structural injustices of modern capitalism.

The Permanent Court of Arbitration adopted Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment on 19 June 2001. These Rules seek to address fundamental lacunae as identified by a panel of environmental law experts and the member states of the Permanent Court of Arbitration. This article discusses some innovative provisions of the Environmental Rules and concludes that arbitration under the Environmental Rules could have some advantages over adjudication, and that the Environmental Rules can increase access to justice functioning as a tool for interpretation of existing agreements; possibly mending some of the fragmentation of international (environmental) law. The article also offers an examination of present systems and scenarios for how the Environmental Rules may lead to direct environmental improvement.

One of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community's decision-making processes. This has, out of necessity, had an impact on the empowerment of cultural rights, enhancing their justiciability. Substantial progress has been made both at a regional and international level. Yet not all thresholds have been reached. The International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case law. Despite its multicultural composition, it is only with great difficulty that the Court examines questions related to culture. However, a thorough examination of the jurisprudence of the ICJ reveals that opportunities to take cultural rights seriously have arisen more than once. Recent judgments of the Court reveal the emergence of a certain trend calling for a culturally sensitive understanding of legal issues brought to the Hague. This article submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of human and cultural diversity, as well as for the survival and livelihood of indigenous peoples. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, in accordance with Articles 36 and 60 of its Statute, may be a fruitful pathway for the Court to follow in order to resolve international disputes.

Since the start of its operations 10 years ago, the International Criminal Court has dealt with a number of challenges to the admissibility of cases before it. Some of the challenges were mounted by territorial states that had jurisdiction over the cases. Others were mounted by accused persons. The Court, acting on its own initiative, has, on a number of occasions, also considered issues of the admissibility of cases before it. It has done this, in the main, at the pre-trial stages of proceedings. Some of the cases arose out of state or Security Council referrals. Others arose out of the Prosecutor's initiated investigations. In the course of dealing with these matters the Court has endeavoured to strike a balance between the states’ right to exercise their sovereignty through national proceedings, on the one hand, and the interests of the international community to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’, on the other. In the process of doing so the Court has also developed some practices and generated an impressive body of jurisprudence, the subject of this article. The jurisprudence evinces the Court's readiness to assume jurisdiction over a case in situations where there is clear inaction on the part of the national authorities. The article, which is a critical exposé of that jurisprudence, endorses this stance as a veritable antidote to impunity for atrocity crimes.

This article examines the evolution of military operations by the Economic Community of Western African States (ECOWAS) and the South African Development Community (SADC) over the last three decades. By looking at constitutional (treaty) developments and organizational practice, it questions whether these sub-regional organizations have displaced the primacy of the United Nations Security Council (UNSC) in matters pertaining to international peace and security, as foreseen in Articles 24(1) and 103 of the United Nations Charter (the UN Charter). The relevance of this question is underscored by the fact that ECOWAS and SADC have engaged in various peace operations since the 1990s. The article concludes that, since all the interventions under discussion were underpinned by the consent of the recognized government, it would be premature to suggest that the practice of African sub-regional organizations amounts to the emergence of a new customary right to engage in ‘first-instance enforcement action’.

Litigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law.

This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.