This article focuses on a number of recent decisions of English courts addressing issues of international law. The starting point is the House of Lords decision in Kuwait Airways v. Iraqi Airways (2002) that effect would not be given in English law to a decree of the Iraqi state which breached international law. Subsequent decisions exploring the role of international law in the context of the justiciability of UK state action have failed to follow Kuwait Airways' lead unless required to apply international law by statute, usually the Human Rights Act 1998. Cases involving terrorism and human rights and attacks on the UK's stance and involvement in Iraq have revealed further questions about the role of international law in English courts and elsewhere. The article examines how subtle movement is taking place in the approach taken by English judges to matters of international law particularly in the context of human rights but that executive action in foreign affairs remains largely immune from judicial scrutiny.

This article reviews the procedures used to determine refugee applications. Using Kenya and Egypt as case studies, it discusses the basic international due-process considerations that should be observed when adjudicating asylum claims. Issues surrounding access to territory and procedural information, the competency of decision-makers, and legal assistance and advice in making applications are evaluated. Also examined are the nature of asylum decisions and the extent to which these outcomes promote appeal rights. It is contended that adjudication procedures fall considerably short of due-process guarantees. The article concludes that, in order to meet minimum standards, a comprehensive approach is required.

The concept of sources of law has only for a short time in history been confined to the formally adopted legal norms of statutory, conventional or customary nature. Such a positivistic and narrow notion can be confronted to an older layer of the concept, which has gained again some prominence in the twentieth century, whereby the sources encompass also all the elements which concur to the interpretation and development of the law. In this larger area, general principles of law play an important, albeit often invisible, role as catalysts of a law-in-movement. In particular, they offer a legal basis from which new legal doctrines or norms can be derived from case to case, in order to fit new social and legal needs. The evolution thereby remains at least partly anchored in the legal sphere, through the link with the legally connoted general principles, and at the same time strikes out to the changing needs in the social and political arena. Thus, general principles of law are particularly instructive elements of this type of dynamic equilibrium to be achieved. Their different functions, and especially their role as law-creating arguments, are put into limelight in this short contribution. These functions are illustrated more concretely through the example of the powerful principle of good faith.

The International Commission of Inquiry on Darfur concluded in its Report, dated 25 January 2005, that no genocide had been committed by the Government of Sudan. From the Commission’s perspective, the heinous atrocities committed in Darfur did not reveal ‘the intent to destroy, in whole or in part, the African tribal population’ on the part of the Sudanese government. Apparently, the Commission found that the subjective element of the definition of genocide, i.e., genocidal intent, was not complied with in the case of Darfur. This article examines the extent to which the Commission’s conclusion that genocidal intent had been missing on the part of the Sudanese Government is sufficiently well-founded. The content of the part of the Report that considers the question whether or not there was genocidal intent is critically analysed in the light of the components of genocidal intent. While analysing the elements the Commission adduced to show the lack of genocidal intent, the author discusses each relevant element of genocidal intent at length and reveals that there are contending approaches as regards the level of intent that is required to establish genocidal liability. Arguments are presented that indicate why the purposeful standard which the Commission resorted to is debatable and attention is given to a broader interpretation of genocidal intent, i.e., the knowledge standard. By means of her analysis the author demonstrates that the elements the Commission brought forward are, in general, insufficiently convincing evidence to prove the absence of genocidal intent on the part of the central authorities. They appear to be too superfluous, contentious and legally weak.

There is a substantial body of norms of international human rights law, both in international conventions and customs. However, the international mechanism to enforce human rights world wide is rather weak. On the other hand, domestic courts have remained largely unutilized as concerns enforcing international human rights law. This is primarily owing to different state perceptions concerning the interrelation between international law and municipal law, and the resultant diverging views they take to implement norms of international law in the state territories. This tends to weaken the international human rights enforcement regime. There is a need to emphasize the legal and binding nature of international obligations and to involve domestic courts to ensure compliance. The importance of and contemporary movement for the protection and promotion of human rights has further underlined this need. The increasing recognition of individuals as subjects of international law, especially international human rights law, has added new dimension. Invoking international human rights law in domestic courts, therefore, merits special consideration. Factors of state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation, appear to be impediments for direct application of international human rights law, for it is argued that as long as treaty-making is primarily executive prerogative, the legislature ought not to be by-passed in implementing treaties. However, to overcome these impediments, it is suggested that legislative approval precede ratification of treaties, or legislature effectively participate in the process of ratification. This will benefit the so-called ‘democratic deficit’ of the process of treaty-making, and facilitate direct application of international human rights law by domestic courts. Many countries of the world, especially in Continental Europe and Latin America, which hold a monistic view, are increasingly opting for this model of human rights compliance. This would greatly enhance the protection and promotion of human rights.

The article addresses the question which consequences the war on terrorism has for the practice of and thinking about humanitarian intervention. The discussions about the legality and legitimacy of humanitarian intervention reached their peak after the NATO bombardments against the Federal Republic of Yugoslavia to protect the Albanians in Kosovo in 1999. The terrorist attacks of 9/11, which led to the war on terrorism, however, changed the focus of attention. The central question for international lawyers is no longer whether states may use force to protect human rights, but whether the use of force in anticipatory self-defence is allowed under international law in view of new security threats. After describing humanitarian intervention after the end of the Cold War, the impact of the war on terrorism on the protection of human rights is analysed. Although some authors think that the war on terrorism can coincide with the protection of human rights, the present author is more pessimistic. Subsequently the concept of the responsibility to protect is discussed. The author concludes that this concept is less revolutionary as some authors claim it to be. Most importantly, it does not provide a legal justification for the use of force to protect human rights without permission of the Security Council. The last section of the article therefore investigates whether the principle of necessity can serve as a potential legal justification for an intervention for human protection purposes without Security Council authorization.

Is a Dutch court able to vary the terms of an English trust by applying English trust law if a Dutch court does not normally have such a wide discretionary power? Is a Dutch court able to apply a rule from Moroccan family law that designates the court itself as custodian if Dutch law does not confer such a task on a court? Is a Dutch court able, when it is asked to pronounce a divorce on the basis of Jewish law, to act in a religious capacity? These questions show possible limits of the judicial function in private international law matters. Private international law doctrine knows several theories that are intended to provide guidelines for answering these questions. After having explored those theories, the author concludes that at least three limits of the judicial function can be distinguished. If a Dutch court concludes that in applying the foreign law that has been designated by the Dutch conflict rules it would encounter one of these limits, then the court is not competent from a constitutional point of view to apply that foreign law, in conformity with the purpose intended by the foreign legislature. However, this does not mean that the court has no competence to give a decision at all. The author stresses that it is desirable, and sometimes even compulsory, that the court looks for an alternative decision to prevent parties from being sent home ‘empty-handed’.

This article is a prospective analysis of whether the established principles for delimitation of the continental shelf within 200 NM will apply for delimitation of outer continental margins. On the basis of the established normative jurisprudence of delimitations within 200 NM it can namely not be ruled out that the established equitable criteria and methods for delimitation, for finding an equitable solution, were solely set to prevail in delimitations within 200 NM.

Title commands delimitation and the title for the zone beyond 200 NM differ from the title within 200 NM. Wherein the distance criterion is the title for the zone within 200 NM, geological and geomorphologic criteria are the basis of the title for the legal continental shelf that extends 200 NM. Accordingly, the established normative principles in delimitation of continental shelves beyond 200 NM are susceptible to differ from the established prevailing principles within 200 NM and may have an important impact on delimitations in the continental outer margins.

In conclusion it is held that the established equitable criteria and methods in order to find an equitable solution in delimitations within 200 NM are likely not to apply mutatis mutandis for delimitations beyond 200 NM

Women all over the world have experienced discrimination and victimisation. However, the level of suffering women in Africa experience far exceeds imaginable proportions. Trapped between the unholy matrimony of poverty and harsh economic conditions, dictatorial regimes, religious beliefs, and cultural and traditional practices, women in Africa have been subjected to some of the worst forms of gender-based violence, abuse, victimisation, prejudice and oppression. Yet, women are at the same time the symbol of love and so central to the maintenance of African ways of life. The African Charter on Human and Peoples' Rights was criticised for its failure to maintain a proper balance between women's rights and African tradition. This article argues that the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) adopted by the African Union on 11 July 2003 to beef up the protection of women's rights on the continent is amenable to a similar criticism. While it deals with many important issues affecting African women, it fails to articulate a clear or consistent African approach to women's rights. As a result, it is difficult to reconcile the Protocol with the existing body of jurisprudence in the regional human rights system as developed under the African Charter and the African Charter on the Rights and Welfare of the Child.

On 21 October 2005 the EC Regulation on European Enforcement Order for uncontested claims became applicable. According to this Regulation a judgment of a court of a Member State can be certified as a European Enforcement Order in the Member State of origin. A certified judgment is to be enforced in another Member State without any need of an intermediate procedure for recognition and enforcement. The exequatur procedure from the Brussels I Regulation is abolished in certain cases. In the Member State of enforcement there are only very limited possibilities of refusal of enforcement of a certified judgment. In this article the Regulation is discussed, as well as the further possibilities of simplification of cross border enforcement of civil judgments in the European Union. It is argued that for a further simplification of cross border enforcement a harmonization of the procedural laws of the Member States is necessary.

This article is designed to provide a critical analysis of the successes and failures of the World Trade Organization (WTO) in certain key areas of international trade during its first decade. The WTO, which came into existence on 1 January 1995, celebrated its tenth anniversary in 2005, with the WTO officials claiming that the past ten years had been a success for the organization. Indeed, it has seen an expansion of its activities in recent years and has thus become one of the most important international organizations. Nearly 150 states, developed and developing, small and big, powerful and weaker, have now become members of this organization. Towards the end of 2005 a major WTO agreement, the TRIPS, was amended in favour of public health and full liberalization of trade in textile and clothing also became a reality in 2005.

However, the WTO, established as it was primarily to further liberalize international trade, is supposed to create a level playing field in a number of other key areas, including agriculture, in order for it to enable nations to compete on an equal footing across the board. Has the WTO lived up to its expectations over the past ten years? Has the level playing field become truly level in all major areas over the past decade? After examining these questions in some detail, this article argues that the WTO has limited success in some of the core areas and the playing field has not become as level as it should have been by the time it entered its second decade. The Doha Development Round of multilateral trade negotiations, which began in 2001, has not made any substantial progress.

The Sixth Ministerial Conference held in Hong Kong in December 2005, the closing month of the tenth anniversary of the WTO, failed to make a breakthrough. Although the failure in Hong Kong was not as disastrous as was in the third conference in Seattle in 1999 or in the fifth conference in Cancun in 2003, the deadlock witnessed in Hong Kong, especially with regard to the liberalization of trade in agriculture, has put the WTO itself at a crossroads. Since the Hong Kong meeting a series of deadlines for various stages of negotiations for moving the Doha Round negotiations forward have been missed. A formal meeting on 1 July 2006 of the Trade Negotiations Committee, which comprises the entire WTO membership, resulted in a failure. The WTO members could not agree on formulas for reducing tariffs and subsidies, various flexibilities, and other disciplines, especially on the liberalization of trade in agriculture. Achieving a truly level playing field should be about balancing the interests of various groups of states as well as the respective environments and interests of different traders and consumers living in different countries and the WTO has a long way to go to achieve this objective.

This article addresses the impact of politics and diplomacy upon the enforcement of international legal obligations through the example of non-violation complaints in the World Trade Organization (WTO). Although this remedy inherited from the past has always been criticized, both the scope and the effects of non-violation complaints upon the WTO dispute settlement system have been disregarded and misunderstood. Only a few WTO members have insisted on using this remedy to the detriment of the immense majority of WTO members for which non-violation complaints still represent an unaffordable luxury. Therefore, this article retraces the negotiation history of this remedy and its entire jurisprudence in order to demonstrate that the WTO dispute settlement system can neither undermine the results of negotiations reflecting the power struggle amongst sovereign nation-states, nor remedy their failure to negotiate by creating new legal obligations. As a result, the security and predictability of the WTO dispute settlement system is at stake, for WTO panels and the Appellate Body have been reluctant and unable to define the ambiguous legal concept of non-violation.

On 2 May 2006, the European Court of Justice (ECJ) rendered its decision concerning the EC Insolvency Regulation. In this case the underlying issue was a conflict between an Italian court and an Irish court. Both of them ruled that the centre of main interests was in their own Member State. The facts were as follows.