These days, a century after the famous Paris convention on comparative law, comparative legal research is booming. A large percentage of legal research – at least in the Netherlands – currently is conducted on a comparative basis. However, whereas the interest in conducting comparative legal research is growing, the interest i n how to carry out this type of research is diminishing. Applied comparative legal research is supposed to be ‘good’; discussions on how to carry out this type of research are considered a waste of time. I would agree wholeheartedly with the latter statement if there were a clear, crystallized and accepted theory, or if there were no need for a method at all. In my opinion, the latter statement thus must be rejected. Although, as is often said, ‘a lot’ has been written about the methods of comparative law, there is still no consensus on a theory of comparative law. Ideas on methodology are elaborated from different points of view and no unequivocal concepts are used. The idea that there is no need for a method denies both the academic character of comparative legal research and the fact that nowadays a great deal of comparative legal research is carried out by relatively young and – in the field of comparative legal research – inexperienced PhD students who would welcome some clear guidelines. As methods are simply lessons learned by people who have done something by trial and error, why shouldn’t one benefit from the lessons learned by others?

This contribution will focus on conflicts of treaties in public international law. The following question will be addressed: which of two treaties should be given priority according to public international law in the case of a conflict between those two treaties?

The intervention in Grenada in 1983 by a joint task force composed of US forces and soldiers of member States of the Organization of Eastern Caribbean States is the latest in a series of armed interventions carried out by members of the United Nations without being authorized by competent UN organs but nevertheless claiming to be non-violative of the UN Charter. The reason for this claim was allegedly (among others) that the interventions were ‘humanitarian’ in character. In this recent instance, the intervention was said by US officials to be necessary ‘to stop an authentic reign of terror’ ‘to assist in the establishment and the restoration of democratic institutions, particularly when they have been cruelly and violently destroyed’ and to ‘rescue others from bloodshed and turmoil and to prevent humankind from drowning in a sea of tyranny’

A central concept found in the 1907 Hague Regulations Respecting the Laws and Customs of War on Land is the notion of ‘belligerents’. The formal status of ‘belligerents’ or, in more modern terms, ‘combatants’, is limited to international armed conflicts. One of the crucial functions that the status fulfils relates to distinguishing those who are legitimate objects of attack from those who enjoy protection. Combatants are legitimate targets, while civilians are not, unless and for such time as they directly participate in hostilities. Civilians are defined as all those who are not combatants. Because the formal status of ‘combatant’ is limited to international armed conflicts, the principle of distinction cannot be conceptualized in the same way in non-international armed conflicts. Who, then, may be targeted in non-international armed conflicts and under what conditions and who is conversely immune from being made the object of attack and enjoys protection against the dangers arising from military operations by virtue of the status of ‘civilian’? This article argues that, in principle, members of armed forces of both state and non-state parties to a non-international armed conflict are legitimate targets and all those who are not such members are to be considered civilians. However, the practical operationalisation of the principle of distinction in this way faces a number of difficulties. Due to the variety and changing nature of organised armed groups, a more differentiated approach is required in striking a reasonable balance between military considerations and humanitarian concerns.

In recent years, counter-terrorism measures have notably reshaped the relationship between terrorist suspects and the state. In this context, the discourse surrounding the lack of a uniform and comprehensive definition of terrorism at the international level has reoccurred. In the course of this contribution, clear lines will be drawn between the lack of an international definition of terrorism and certain transnationally important domestic trends relevant to the definition and countering of terrorism. Each section will focus on a particular aspect of the debate surrounding the term ‘terrorism’ with the aim of contextualising the development of the definitional vacuum and its impact on state counter-terrorism particularly after 9/11. It will be argued that an internationally binding definition of terrorism might not in fact have an impact on state counter-terrorism measures and domestic definitions of terrorism. This contribution will conclude that in the context of domestic and transnational legislative developments following 9/11, even if a definition of terrorism existed in international law, in practice there is no certainty that states will comply with it both in times of normalcy and emergency.

Discussions on the necessity to reform UN human rights treaty monitoring have witnessed a new dynamism over the last five years. After extensive consultation about ways to strengthen human rights treaty monitoring the UN Office of the High Commissioner for Human Rights is expected to propose a new set of reform measures in 2012. This article aims to structure and analyse the different implemented and tabled streamlining and enhancement measures. It argues that a further reform of UN human rights treaty monitoring should take account of two fundamental considerations. Firstly, next to treaty monitoring other international human rights protection methods have gained significance over the last few decades. Today, judicial enforcement and political peer-to-peer protection through the UPR mechanism effectively condition the room for added value for treaty monitoring. Secondly, given that a case for such added value can still be made, it is significant that human rights monitoring mechanisms have not so far sufficiently been equipped, or equipped themselves to achieve structural domestic impact of their recommendations and views. This not only inherently hampers their impact, but also threatens support for their activities. In particular, prior requesting of specific input, clear indicators for what is compliant behaviour and what is not, and targeted follow-up to recommendations, all crucial aspects of ‘constructive dialogue’, have not been consistently institutionalised by treaty bodies. In this light the article outlines some concrete ways forward for a reformed reform agenda that could lay the groundwork for measures to sustainably strengthen UN human rights treaty monitoring.

On the evening of Friday 17 July 1998, the United Nations Diplomatic Conference of plenipotentiaries voted to adopt the Statute of an International Criminal Court which will have jurisdiction over persons who have committed the most serious crimes of international concern. The Secretary-General of the United Nations characterised this historical event as ‘a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.’ This marathon Conference achieved what several generations of lawyers and diplomats have tried to create: the foundations of a workable permanent International Criminal Court which satisfies the criteria of independence and aims at effectiveness and universality. According to the Preamble of the Statute, the international community affirms that it is determined:

‘That the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation, to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court…’

At its fifth extraordinary summit held in Sitre, Libya on 2 March 2001, the Assembly of Heads of State and Government (AHSG) of the Organization of African Unity (OAU), representing all the 53 member states, ‘solemnly and proudly’ declared the establishment of the African Union (AU). Following the deposition, by the Federal Republic of Nigeria, of the 36th instrument of ratification with the OAU General Secretariat on 26 April 2001, the Constitutive Act (the Act) of the AU formally came into force on 26 May 2001, in conformity with its Article 28.

The most important political priority of the European Commission in the recast of the Brussels I Regulation has been the abolition of exequatur. The policy to gradually abolish intermediate measures for the enforcement of judgments within the EUflows from the desire to enhance the free movement of judgments and the establishment of a genuine European area ofjustice. Whilst fundamental debate remained absent from the abolition of exequatur in several specific instruments, the abolition of exequatur including the grounds of refusal met with resistance during the negotiations on the recast of Brussels I. As a result of these negotiations, the new Brussels I Regulation – Brussels I-bis – will abolish the requirement to obtain a declaration of enforceability prior to enforcement, but will preserve the grounds of refusal at the enforcement stage. This article evaluates the discussions regarding the abolition of exequatur in the broad context of the EU regulatory and legislative framework, and analyses and assesses the new rules on cross-border enforcement in the Brussels I-bis Regulation. It seeks an answer to the questions (a) whether the new Regulation strikes the right balance between the premise of mutual trust and the need for national control over fundamental rights, (b) to what extent the new regime increases the rights of the judgment debtor while protecting those of the judgment creditor, and (c) whether the outcome of the Brussels I recast will or should have further repercussions for other instruments on cross-border enforcement.

The UNESCO Courier of November 1977 carried an article in which Karel Vasak, the Director of the Organization's Division of Human Rights and Peace, called for the recognition of a ‘third generation’ of human rights: solidarity rights. The idea of solidarity rights was not new, but Vasak was the first to attempt to provide these rights with a conceptually valid place in the whole catalogue of human rights. For this purpose, he chose an attractive and, at first sight, an appealing formula. He took as his starting point three basic concepts and three types of revolution. The first revolution was the French Revolution of 1789, with its motto, ‘Liberty, Equality, Fraternity’. In the course of this revolution it was, however, only the so-called freedom rights, the basic civil and political rights, which were actually realised. It was thanks to the Mexican and, in particular, the Russian Revolutions that a second generation of Human Rights gradually achieved universal recognition; these were the so-called equality rights: economic, social and cultural. We are currently experiencing a third revolution: the emancipation of colonized and dominated peoples, linked to total interdependence. One world or no world.

The question whether external actors have a right of intervention within a sovereign state which is committing grave violations of human rights assumed particular significance in the case of the civil conflict that began in Libya in February 2011. Within the international response to the Libyan regime's attacks on its population, the Arab League, the United Nations and NATO favoured the use of military force, whereas the African Union favoured a political solution to the crisis. This article considers the question of African Union intervention within the framework of the concept of ‘responsibility to protect’. It argues that the reason why the African Union did not act militarily in Libya was that it lacks the will to confront incumbent leaders, something which undermines the organization's ability to provide effective solutions to African crises.

In July 1998, a United Nations Diplomatic Conference in Rome voted to adopt the Statute of the International Criminal Court. Rules of Procedure and Evidence are now required to effectuate proceedings and trials in the Court itself.

When the UN Security Council (the Council) authorises military action under Chapter VII of the Charter, question marks arise concerning the legality and purpose of such operations. The contents of Chapter VII of the Charter are not literally being complied with, and States contributing to the force can be accused of using force in pursuit of their own national interests as opposed to the collective interests of the UN. When a State, or a group of States is authorised to use force to combat aggression, as against North Korea and Iraq, or to deal with threats to the peace, as in Somalia, Rwanda, Haiti, Bosnia, Zaire and Albania, there is also confusion as to whether the States in question are simply exercising their inherent rights of self-defence, or are operating under the cloak of the controversial doctrine of humanitarian intervention with the encouragement of the Council, or whether these are UN military operations somehow distinct from the forces of blue helmets that the UN is more famous for. Such confusion is further compounded by the new functions of the military option in the post-Cold War era. The collective security system that has evolved in practice is inevitable in a world where powerful States jealously harbour their military strength, thereby only allowing its collective use within a system that respects their interests. However, despite clear deficiencies, it is the contention here that UN-authorised actions are collective enforcement operations with a sound constitutional basis in the UN Charter. Internal regulation of such operations is ensuring UN control and a system of accountability to the Council. Practice shows that States regard these operations as serving the UN's purposes and not simply promoting national interests. This can only prove to strengthen the decentralised system and legitimise military action.

On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea handed down its first advisory opinion, namely, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area which concerns the responsibility and obligations of sponsoring states with regard to activities in the Area, i.e., the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction. Significantly this advisory opinion clarified the obligations of sponsoring states concerning activities in the Area. It will also provide important insights into, inter alia, the inter-relationship between the obligation of due diligence and the precautionary approach, the preferential treatment of developing states, the liability of sponsoring states and obligations erga omnes concerning activities in the Area. Thus the ITLOS advisory opinion is thought to make an important contribution to the development of the deep seabed régime. Focusing on these issues, this contribution will seek to examine the significance of and questions concerning the advisory opinion of 2011.

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter the 1979 Convention) was adopted unanimously by the United Nations General Assembly on 18 December 1979. It can be seen as the culmination of the work of the UN Commission on the Status of Women in its function of preparing international legal instruments on the status of women. The Convention brings together in a single international instrument the various international conventions already in existence which define the sphere of womens rights and brings into the legislative ambit many of the recommendations which have been adopted over the years by the Commission since its inception in 1946.

The rapid deterioration of the environment has become a threat to the survival of mankind and concerted action of all states is required in order to overcome the current problems. The perplexing question that arises is whether and how the notion of sovereignty can face up to the global environmental challenge? It is therefore important to reconcile the concept of sovereignty with the need for a global approach to problems of an environmental nature. This approach furthermore needs to take account of the dynamics of the North-South relationship. In this article the author introduces the notion of ‘custodial sovereignty’ as a solution to the problem.

The second of February 1992 marked the 21 st anniversary of the adoption of the 1971 Convention on Wetlands of International Importance, especially as Waterfowl Habitat, commonly known as the Ramsar Convention after the town in Iran where it was concluded. For those more familiar with modern concepts of majority, 21 December 1993 constituted the 18th anniversary of its entry into force. The period between these two dates witnessed a significant endeavour by the international community, through the signature at the Rio Earth Summit of the 1992 Convention on Biological Diversity, to establish a basic conceptual framework to underpin the various conservation initiatives embodied in the now substantial number of international treaties for the protection of wildlife. This framework, which was arguably already emerging in customary international law, emphasises a broad, threefold obligation regarding the conservation of ecosystems, of species and of genetic diversity within species. As each species, and indeed each individual member of that species, exists not in isolation but as a functioning unit within a wider ecosystem, it is axiomatic that the protection of natural habitats must continue to play a particularly crucial role in the global conservation effort.

In this article I discuss the legality of Israel's interception of the Mavi Marmara on May 31 2010. Although Israel's stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on May 31 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on May 31 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel's use of force to capture the vessel went beyond what was necessary in the circumstances.

This article studies the effects of invoking international necessity, to see whether it can be reconciled with an aspiring international rule of law. Any field of application in theory possible, the doctrine is here applied to uses of force, illustrated by humanitarian interventions, actions against international terrorism and the 2004 Construction of a Wall case. Relationships between circumstances precluding wrongfulness and the grounds for treaty termination is examined in light of international practice, studying necessity's impact on the stability of treaty regimes. The author concludes that international tribunals when applying necessity generally heed the rule of law, the stability of treaties and the elevation of overriding norms.

Necessity, if successfully invoked, is not perceived to alter substantive obligations. It cannot create a right to assume would-be illegal behaviour. As a result, necessity need not threaten international legal regime building, but may serve as a safety valve, allowing states to remain faithful to general norms, from which they are allowed to deviate only temporarily. In this manner, necessity can even contribute to the rule of law, thanks to its limited scope, constitutionalising emergency powers and subordinating them to pacta sunt servanda.