For years the majority of those individuals publicly indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remained at large due to a lack of co-operation from states whose assistance was required to effect their arrest. In order to assist in this regard, various operations have been undertaken since 1997 by which UN and regional missions have taken steps to assist the ICTY in the difficult task of bringing accused before the Tribunal in The Hague. Such steps were taken in the case of Stevan Todorović, who was captured and transferred to The Hague by means of an operation shrouded in secrecy and alleged to have involved illegal behaviour on the part of the NATO-led Stabilization Force. The following article discusses the nature of Todorović's arrest (based on the limited facts available) and his various attempts to have his indictment dismissed due to the nature of his arrest. In so doing, it considers the state of the law regarding the appropriateness of an international judicial body proceeding with the trial of an individual brought before it by potentially illegal means. Although a plea agreement was reached in the case, with the result that the judicial consideration of the issues is limited, important issues are nevertheless raised in the arguments of the Office of the Prosecution and the defence counsel which are likely to recur in similar cases in the future

The present article identifies a tension between the two main mandates of the UN's administration of East Timor: community-building on the one hand and human rights promotion on the other. While originally planned to accompany each other, in practice the goal of human rights promotion took over, perhaps on the basis of the thought that serious community-building presupposes that a catalogue of human rights (including enforcement machinery) is in place. This thesis, however, is debatable, and it is even thinkable that an emphasis on human rights forms an obstacle to community-building.

In November 1994 the International Criminal Tribunal for the former Yugoslavia (ICTY), indicted its first accused, Dragan Nikolić. It was not until over five years later, however, in April 2000, that he was finally arrested and transferred to The Hague. The circumstances of his arrest – which reportedly featured his being violently abducted from his home in the Federal Republic of Yugoslavia (FRY) by Serbian criminals before being transferred to the NATO-led Stabilization Force in Bosnia and Herzegovina and, ultimately, to the ICTY in The Hague – were the subject of a pre-trial motion. Nikolić's defence counsel asserted that the nature of his capture was such that the appropriate remedy was to dismiss the charges against him and order his return to the FRY. They made this assertion despite an admission, for the purposes of the motion, that the captors lacked any connection with SFOR or the ICTY. The trial chamber rejected the motion. In reaching its decision, the trial chamber considered fundamental issues about what constituted an illegal capture for the purposes of the ICTY and, without explicitly doing so, appeared to reject the view of the Court in Eichmann that a person may not oppose his being tried by reason of the illegality of his capture.

For years ICTY sentencing practice has deemed an accused's expression of remorse to be a factor in mitigation of sentence. This article examines whether the ICTY has adequately elucidated the theoretical and purposive basis for its reliance on this factor. It observes that, although the Tribunal has addressed from the outset the need to ensure that this subjective factor is not contrived, it has only belatedly identified the relationship between an expression of remorse and the fundamental sentencing objective of reconciliation.

The International Criminal Court has a different mandate – exercise of criminal jurisdiction over individuals – from most international organizations. It may help to develop the law of international organizations concerning structure and internal operations, relationships with states, and relationships with other international organizations, as well as concerning relationships with individuals. The ICC assigns its judicial and quasi-political functions appropriately. Notably, the power to make agreements is divided functionally among the judicial and prosecutorial Organs and the Assembly of States Parties. The relationship between the ICC and states that are not parties to its Statute is far more important to the ICC than to most international organizations. Where situations are referred to the Court by the United Nations Security Council, such states may be required to cooperate with the Court because of their duties under the UN Charter. Other situations require agreement to cooperate by the non-party state.

The recognition of Baltic independence in 1991 led to a number of challenges in their relationship with Russia. The legal status of large Russian-speaking minorities in Latvia and Estonia, the unresolved border questions, and the particular situation of Kaliningrad have proved to be the most pressing of these. This article tries to link these topical political issues with international law practice on state continuity. It refers to competing visions of Baltic statehood and its political and legal consequences, particularly in the context of the forthcoming enlargement of NATO and the EU.

The quest of extending the role of tribunals beyond its traditional mission of justice to embrace the difficult need of reconciliation after mass atrocities has revealed itself to be challenging. This difficulty is most clearly illustrated in the case of the ICTR, whose mission is to bring about Rwandan reconciliation through justice. The implementation of this mission that was doubted by some members of the Security Council, including the Rwanda itself, at the time of setting up the ICTR is becoming a difficult experiment, with positive results but also with some negative outcomes capable even of undermining the aimed objective of national reconciliation. The problem of co-operation between the Tribunal and Rwanda, the difficulties of circumscribing individual responsibility without condemning the whole community, the problem of singling out and punishing some criminals and leaving the rest unpunished, the abuse of pardon and clemency, and finally the absence of the victim in a criminal process pretending to restore his situation are some of the difficult problems hampering the proclaimed mission of reconciliation assigned to the ICTR. This article is an attempt to analyse these problems and their impact on national reconciliation in Rwanda.

The Bank for International Settlements (BIS), created in 1930 to handle German reparations from the First World War, has enjoyed a unique international legal position. This status was questioned when the Bank, in 2001, recalled its shares held by private parties. The resulting arbitral award settled the BIS's sui generis legal status, as well as making some important rulings about the application of state responsibility rules to international institutions in cases of expropriation. Additionally, the award provided needed insight as to the use of various methods of valuation of corporate assets in shareholder claims.

In the relationship between the Netherlands and the International Criminal Court distinction must be made between the position of the Netherlands as party to the Statute and the special position of the Netherlands as host country. Seen from a political perspective, this distinction is not always obvious, but from a legal perspective it is useful because it helps to show that legal problems and objections raised either do not exist or are solved more easily. As far as the preparations for the actual functioning of the Court are concerned, the legal infrastructure in the host country is largely in place.

In Resolution 1373 the Security Council laid down a series of general and abstract rules binding on all UN member states. In doing so, the Council purported to legislate. This article discusses whether it is entitled to do so. In the light of the Charter and the past practice of United Nations organs, it argues that the Council can only exercise its Chapter VII powers in response to specific situations or conduct. In enacting Resolution 1373 the Council acted ultra vires. The article looks at the circumstances in which such an extension of the Security Council's powers might be acceptable, but concludes that unilateral attempts by the Council to legislate would be destructive of the international legal order.

The proposed draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights addressed to transnational corporations are making their way through the human rights channels in the United Nations. A previous effort in the United Nations failed twenty years ago. The Norms would urge those firms to adhere to a long list of treaties on the environment, labour standards, human rights, and the like. They would enter into a field already occupied by numerous principles and guidelines generated by many different institutions with varying degrees of authority. The addition of these norms to that corpus seems of marginal utility.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Winter 2002–3)

On 3 December 2001, the International Tribunal for the Law of the Sea (ITLOS) issued an Order in response to Ireland's request for the prescription of provisional measures in accordance with Article 290 of the United Nations Convention on the Law of the Sea (UNCLOS). In its request, Ireland alleged violation by the United Kingdom of numerous provisions of UNCLOS. The scope of provisional measures requested by Ireland included, among others, the immediate suspension by the United Kingdom of the authorization of the Sellafield Mox Plant and a guarantee of no movement of radioactive substances or materials or wastes that are in any way related to the plant into or out of the waters of the Irish Sea. This article reviews the background to the dispute between Ireland and the United Kingdom over the operation of the Sellafield Mox Plant. It focuses on the various jurisdictional challenges raised before ITLOS and critically assesses the conclusions reached by the Tribunal in its Order.

The African Union marks a new era in institution-building in postcolonial Africa. It is conceived as an aspect of Africa's response to the challenges of globalization and regional integration. It is also part of the historic quest for deeper African unity. This discussion focuses on the political and contextual dynamics behind this development, and assesses its significance for the project of African integration. While offering no extensive examination of all the core provisions of the Constitutive Act, particular attention has been paid to some key principles. It is argued that the African Union represents a significant departure from the political, legal, and institutional framework of the OAU, and is predicated on a range of principles that reflect new thinking and approaches among the African states.

The United States has an obvious interest in obtaining custody of and prosecuting and punishing those responsible for plotting terrorist attacks against it. The forcible abduction of suspects has in the past been a tactic favoured by it in order to obtain such custody; however, abductions are problematic, since they necessarily involve infringements of human rights, as well as the infringement of territorial sovereignty. Extradition is by far the more preferable means, since it ensures an adequate respect for human rights. However, various US policies relating to the treatment of terrorist suspects are likely to create obstacles to extradition.

This article examines the different approaches of European and US policy makers to the use of force in a changing world. The truths and fallacies pertaining to these approaches lead the author to believe that the absence of a common view among the permanent members of the Security Council on what constitutes a threat to international peace and security in order to use force can have a debilitating effect on international security. For this reason the author argues that, rather than endlessly debating how old rules should be applied to new threats, what is needed is a determined effort on both sides of the Atlantic to forge a new framework for the use of force.

The jurisdiction of the International Tribunal for the Law of the Sea to hear applications for the prompt release of vessels and crew was recently invoked by the Russian Federation against Australia in the Volga case. In determining whether the bonding arrangements set by Australia were ‘reasonable’ under Article 73(2) of UNCLOS, the Tribunal clarified several issues regarding prompt release applications, and most significantly, held that non-financial conditions and ‘good behaviour bonds’ were not permissible. In rendering its decision, the Tribunal adhered to the ‘guiding criterion’ of balancing the interests of the flag state and coastal state in determining the reasonableness of the bond. It is submitted that this test is inappropriate, and that this decision will create difficulties for coastal states seeking to control illegal fishing.

Until the emergence of the Convention on Biological Diversity in 1992 and the FAO Treaty on Plant Genetic Resources in 2001, opinion had hardened in some quarters that the principle of a common heritage of mankind regulated international transfer of plant genetic resources. By a historical analysis of customary international law in the colonial age and the recent pedigree of the principle of common heritage, this article points out the fallacies in such arguments and contends that plants have always been subject to various national jurisdictions. It has to be conceded, however, that contemporary developments in the field of international law relating to plant genetic resources foretell the emergence of a regime of multilateral relationships governing access to plant genetic resources. If it is to depart from its unfortunate history, such a regime of multilateral co-operation would have to pay serious regard to the issue of equitable access to and sustainable use of plant genetic resources.