Recently, two disputes involving China's WTO-plus obligations have attracted great attention: China – Raw Materials and China – Rare Earths. In China – Raw Materials, China resorted to WTO environmental protection exceptions to justify its violation of the export duty elimination obligation outlined in paragraph 11.3 of the Protocol on the Accession of the People's Republic of China, which is clearly a WTO-plus obligation. However, China's recourse was rejected by the panel and then by the Appellate Body, as will probably happen in China – Rare Earths. This article looks into the interpretation and finding of the applicability matter in the DSB reports in China – Raw Materials and further discusses the general applicability issue of environmental protection exceptions to the violation of WTO-plus obligations. As rebuttal to the DSB reports, this article argues that omissions or silence in paragraph 11.3 do not necessarily mean rights waiver, especially when the right involved is the essential right to justify the violation pursuant to environmental protection exceptions provided in Article XX(b) and (g) of the GATT. Also, it is illogical to refer to GATT generally when the WTO-plus obligation in paragraph 11.3 does not have any corresponding rules in GATT. More generally, with consideration of the nature of the environmental protection exceptions in Article XX and the conclusion process of the Protocol, as well as with consideration of the sustainable development objective of the WTO and the politically sensitive matters concerned in China – Raw Materials, China should not be deprived of the right to defend its violation of the export duty obligation in China – Raw Materials. Although the discussion in this article is mainly based on China's WTO-plus obligations, its reasoning may also be extensively applied to that of other acceding members if suitable.

Recent cases before the ICC raise the question of on behalf of which entities crimes against humanity can be committed. Interpreting the ‘organizational policy’ requirement in its context, this article argues that in principle crimes against humanity can be committed pursuant to or in furtherance of a policy of any organization that has the capacity to orchestrate a widespread or systematic attack against a civilian population. It is shown that this does not broaden the scope of the crime indefinitely but that concrete requirements defining such entities are found in the contextual elements of crimes against humanity.

This article explores the structural link between international law's long-standing doctrinal commitment to commerce and its inability to act decisively on behalf of the environment. One of the fundamental rights the early authors of jus gentium discovered was the right to engage in commerce. Francisco de Vitoria, Alberico Gentili, and Hugo Grotius each drew on and applied a providentialist theory of commerce. The doctrine held that Providence distributed scarcity and plenty across the earth so that peoples could not be self-sufficient, but would need to go in search of one another in order to acquire what they lacked. Commerce imagined in its pure form of reciprocal, mutually beneficial exchange would be the means to bring separated mankind to friendship. The embrace of the providentialist doctrine by these early exponents of the law of nations, carried forward by Emer de Vattel, set the stage for international law's longstanding commitment to international commerce, viewed (despite all the distortions) as a virtuous activity that tends to the common good. The doctrine's additional legacy was the installation of a view of nature as commodity. The providentialist doctrine of commerce, adopted by the early authors of international law, remains embedded in the structure of international law and cannot easily be dislodged. Until this doctrine is dislodged, however, international law will continue to be hobbled in its ability to address the urgent task of protecting the natural environment.

Accession to the World Trade Organization (WTO) is viewed as a major step in the development of a state, and the commitments made by acceding states are often interpreted as a symbolic commitment to international economic and political community. However, as a subject of scholarship, WTO accession is under-theorized – there has been no sustained academic attempt to build a theory that accounts for the complexity of the accession process. Traditional, positivist approaches can point to increasingly onerous terms of accession, but fail to probe past Article XII's one-dimensional concept of ‘the acceding state’ negotiating with ‘the WTO’. This perspective dislocates the accession process from the broader political, economic, and legal reforms that involve both state and non-state actors. This article examines the role of these actors as epistemic communities, and argues that these epistemic communities engage in a series of dialogues about the nature of law and the legal system in the acceding state.

This article discusses the Rwandan Law 18/2008 on genocide ideology in the light of international human rights standards. In order to put the genocide ideology law into context, it sketches a brief overview of the post-genocide scenario. Because of the influence that provisions restricting freedom of expression aimed at fighting negationism might exert on testimonies during genocide trials, it pays particular attention to the transitional justice strategies adopted in Rwanda. Finally, it assesses the law on the genocide ideology against the background provided by the measures implemented in some European countries to deal with the phenomenon of negationism.

Destination states of irregular migration aim to prevent arrivals by controlling their borders outside their territory, specifically on the high seas. This practice may best be described as the de-territorialization of border control at sea. The de-territorialization impacts the applicable legal framework, in particular the safeguards to which individuals submitted to the control activities are entitled. This article posits that the principle of non-refoulement is a fundamental yardstick for the de-territorialization of border control and applies wherever competent state authorities perform border control measures. The argument develops in four steps. After outlining the content of the principle of non-refoulement, this article defines maritime borders and elucidates their functional nature. It then outlines how the principle of non-refoulement applies at sea and translates into a ‘principle of non-rejection at the maritime frontier’. The article finally highlights the principle's legal and practical consequences in the context of de-territorialized border control.

This article concerns the concept and practice of international(ized) constitutions, which have become characteristic of situations where there is deep international involvement in peacebuilding efforts. The process and nature of internationalized constitutions challenge traditional ideas about sovereignty, self-determination, and constitutions. While they reinforce the importance of constitutional documents themselves as an indicator of sovereignty, internationalized constitutions simultaneously legitimize a high degree of external influence in the creation and even implementation of that document. This article argues that internationalized constitutions are not inherently legitimate or illegitimate, but have the potential to be either in any given situation. Internationalized constitutions in Iraq and Kosovo are used as case studies to investigate how the dilemmas of internationalized constitutions have played out in two recent scenarios.

The Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke the inadimplenti non est ademplendum rule to justify breaches of their own obligations under the same treaty.

International economic law (IEL) is now at a crossroads regarding the reconfiguration of the international economic order. Many scholars regard the multilateral trading system as a major legal achievement and agree that the World Trade Organization (WTO) has performed as expected with respect to the 2008 crisis. By contrast, the recent financial crisis has demonstrated the inability of the international financial architecture to ensure financial stability. However, this article will review the strength of the multilateral trading system and the challenges that it now faces regarding its main goal (the stability of trade relations). A material reform in the mode of a horizontal expansion in order to protect societal values other than trade liberalization seems to be needed if we want the WTO to be up to the tasks and demands flowing from global governance. Similarly, this article will analyse the current structure of the international financial system as well as the elements that would need to be changed in order to achieve the aim of financial stability. To accomplish that end, an institutional reform in the mode of a vertical expansion of IEL is proposed. Global governance and normative coherence have been used as the theoretical tools to unveil the similarities stemming from the functions performed and the need for transformation that both areas of IEL have in common. The reform proposals submitted for both areas of law would introduce a meaningful step from negative regulation towards a more positive approach to regulation.

What a difference a good textbook would have made twenty years ago, when the first judges embarked upon the adventure of creating a new international criminal procedure. Of course, back then there was little to draw upon other than domestic criminal systems. Fast forward twenty years, and a series of international(ized) criminal tribunals and courts have created a rich and sprawling body of international criminal procedural law. So rich, in fact, that it threatens to overwhelm the practitioner or scholar struggling to make sure that he or she has not overlooked anything important. So the recent series of books devoted to the topic of international criminal procedure is welcome indeed. The present book review surveys and compares four of these volumes.

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.

For the first time in the history of international criminal justice, victims of mass crimes have been granted the status of so-called ‘civil parties’ at the Extraordinary Chambers in the Courts of Cambodia (ECCC). This status grants them – at least theoretically – the right to participate in the proceedings as a formal party with broad participatory rights similar to the those of the defence and the prosecution. While the ECCC is exemplary in how it has addressed the issue of victims’ participation, practical necessities and judicial skepticism have led to significant changes in the civil party mechanism and continuously constrained participatory rights. First, changes in the ECCC's Internal Rules have significantly altered the original civil party mechanism and led to a form of victim participation similar to the one practised at the International Criminal Court (ICC), thus departing from the true meaning of a partie civile. Judicial decisions by the ECCC's judges, as well as changes in the Internal Rules, have abrogated the strong civil party mechanism that was originally anticipated in Cambodian criminal procedure law. Second, the practical challenges surrounding victim participation have been enormous. The Court itself was struggling due to lack of funding and lack of prioritization of a meaningful outreach program for victims and civil parties. The ECCC's Public Affairs Section (PAS) and the Victims Support Section (VSS) held the responsibility of reaching out to the general Cambodian population. However, it was Cambodian NGOs that ultimately established a collaborative outreach system and collected more than 8,000 Victim Information Forms (VIFs). All these efforts notwithstanding, only political willingness and a Cambodian discussion of how to deal with the vast number of perpetrators beyond a handful of criminal trials, can lead to a process of coming to terms with one's past.

In almost 20 years of existence, the World Trade Organization (WTO) has managed to be at the forefront of public discussions on international organizations (IOs). Transparency in the WTO decision-making has been on the agenda of the multilateral trading system for several years. Pressures from developing countries, non-governmental organizations (NGOs) and the civil society in particular have led to significant improvements towards more openness and participation in the WTO decision-making. This article posits the WTO within the current debates about more institutional transparency in IOs. It discusses the current features of good governance in the WTO decision-making and the consensus rule in particular, in an attempt to identify the pros and cons of this voting tradition in a modern IO. It also discusses the recent selection of the new WTO Director-General. A central insight of the paper is that input and output transparency of the WTO could be further enhanced by increased, managed participation of NGOs. As the WTO is gradually becoming a genuine IO in terms of membership and gets involved in global discussions relating to finance, climate change, or poverty eradication, public scrutiny will only increase and thus improved governance is an irreversible process. However, divergences in the views of WTO Members as to the proper scope of WTO input and output transparency will most probably lead to extended negotiations. Some thoughts about the future prospects of and possible avenues for the WTO system are also identified.

In the last issue a number of articles were published from a symposium held at University College Dublin on integrating a socio-legal approach to evidence in the international criminal tribunals. The articles focused on specific socio-legal projects carried out in the field of evidence within the international criminal context, and on how such research can enrich our understanding of international criminal law and practice. The articles in this issue focus on certain neglected areas of research and on some of the challenges posed by conducting empirical research in this field.

The validity of historic or ancient title to territory has been tested in numerous international judicial proceedings, both in the International Court of Justice and in international arbitration. Historic title usually originates in ancient normative systems, including tributary, feudal, sultanate, and Islamic systems that predate the Western international legal system. Nevertheless, the rules against which historic title has been tested in international judicial proceedings generally require that the original titleholder be a state or a central authority that exercised territorial sovereignty over a defined space to the exclusion of other sovereign powers. The rules that apply specifically to these ancient normative systems, where allegiance to authority was personal or religious rather than territorial, have been seen as irrelevant compared to the more contemporary determinations of historic title. The only exceptions have been the French medieval customary norm frankalmoign, which the international arbitral tribunal in the Minquiers and Ecrehos case cited as evidence that the English king exercised territorial sovereignty over the disputed islands, and the personal allegiance of the Orang Laut to the Sultan of Johore, coupled with the recognition accorded to the latter by the great maritime powers, which the International Court of Justice in Malaysia v. Singapore found sufficient to prove the historic title of Malaysia over Pedra Branca/Pulau Batu Puteh and Middle Rocks. The principles by which historic title were adjudicated in these cases appear to be the same principles by which the Western powers dealt with the claims of the People's Republic of China and Vietnam to the Paracel Islands and the Spratly Islands, not only during the colonial period but also after the Second World War. This analysis suggests how the International Court of Justice or an international arbitral tribunal might, if given the opportunity, resolve these South China Sea disputes. Readers might also find this analysis to be particularly relevant to other disputes involving historic title, including the East China Sea disputes, although the focus of this article is on the South China Sea disputes. States and other commentators are left to rely on their own preferences and allegiances in reaching their own normative conclusions using the novel analysis provided by this article.

When an international criminal tribunal establishes its headquarters in a state, its legal relationship with that state must be carved out. This legal relationship has the potential to exclude the applicability of human rights protection by curtailing the host state's jurisdiction in parts of its territory. Despite this, there is little clarity as to when when such curtailment should arise. This problem is illustrated by the situation regarding witnesses at the International Criminal Court, which has recently been the subject of decisions of the Hague District Court and of the European Court of Human Rights. These two courts disagree on the threshold at which the human rights issues engaged by the situation are brought under the jurisdiction of the Netherlands. This article submits that the European Court in Djokaba Lambi Longa v. The Netherlands set the threshold for jurisdiction under the Convention too high. In applying easily distinguishable previous case law, and failing to take into account all relevant facts, the Court's finding of inadmissibility is unconvincing. The Dutch Court, on the other hand, took a broader approach from which the European Court of Human Rights could learn. Ultimately the two decisions give contrasting interpretations of the relationship between the ICC and its host state, which could have wider ramifications.

This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.