This article analyses the draft Hague Judgments Convention against the backdrop of arbitral jurisprudence. It points to certain problems that might arise in the Convention's functions. Although the draft Convention represents a significant improvement over the status quo in relation to international commercial litigation, it remains subject to a number of potential problems, in as much as it does not adequately deal with the issues of parallel jurisdiction, inconsistent verdicts, consent, or interim relief, which cause significant problems in commercial parties. In the worst case, these problems could lead to the convention not commending itself for adoption, which could have adverse consequences for commercial dispute resolution as a whole.

On 7 June 2004 Professor Maarten Bos passed away peacefully at the age of 87. Professor Bos's passing away not only signifies the loss of one of the Review's founding fathers and its Honorary Editor-in-Chief, but first and foremost a friend and an inspiring and eloquent scholar, an international lawyer and professor pur sang.

The old truism, that international law is not a suicide pact, is forceful in an age of destructive weaponry. Nevertheless strategically, there is little precedent for a major military offensive against a state that has not proximately used force against the interests of the belligerent state. Legally, while a number of legitimate justifications might permit the use of force, an appropriate international law doctrine, under which the United States could execute the military campaign it recently successfully launched against Iraq, does not currently exist. But that lacuna was seemingly plugged with the ‘Bush Doctrine’ that advocates pre-emptive strikes against rogue states and/or entities involved in terrorism. The so-called ‘Bush Doctrine’ articulates a new rule of international law that seeks to bring to life the doctrine of anticipatory self-defence as an appropriate means through which to combat terrorism (including states that actively support terrorism or that are themselves terror states in the sense of acquiring and stockpiling weapons of mass destruction).

Much of the history of twentieth century international law was shaped by efforts to reduce recourse to the use of force through the codification of a restrictive doctrine of ‘just war’. After September 11th, 2001, the US Administration under George W. Bush has sought to resurrect an expansive doctrine of just war, one rooted in broad moral, rather than restrictive legal, assessments of threats and punishments. Existing rules ask us to pause and inquire whether war is necessary and just. The debate over Iraq laid bare failings in these rules, requiring action. Yet the need to limit resort to war is as great as ever. Legal rules cannot prevent the use of force; nor can they prevent violations that states perceive to be in their fundamental interests. Rather, international law provides a framework against which states' actions are assessed, and imposes a heavy burden of justification. Is a given war justified as self-defense? Is a state asserting a need to create a new legal category of humanitarian intervention, based upon a responsibility to protect? Does it claim a threat to international peace and security that would normally require Security Council action? If international law is to offer meaningful criteria for and constraints on the resort to war, the recent tendency to merge different justifications for the use of force into one category of threat prevention must be resisted.

Courts are frequently confronted with complaints about unequal treatment of various sorts, varying from legislative acts limiting the rights of inheritance of illegitimate children, to unequal taxation criteria for property taxes. The need to assess different cases of unequal treatment against the equality principle places before the courts a difficult task. The equality principle demands that the courts examine the reasonableness and justifiability of each specific case of unequal treatment, however different the subject. In doing so, the courts need to respect both the discretion or freedom of the party that is responsible for the difference in treatment, and the interests of the person or group that is disadvantaged by it. In order to enable the courts to take account of all interests at stake in any relevant equal treatment case, some variation in the intensity of review is indispensable. In some cases, it is appropriate to exercise restraint in assessing the justification for an inequality in treatment, while other cases call for the strictest scrutiny. In this contribution, the various factors that are relevant to the determination of the appropriate level of review are identified on the basis of a comparative study of the case law of the European Court of Justice, the European Court of Human Rights and the US Supreme Court. In addition, a standard is offered to balance intensity-determining factors pointing in different directions.

Despite adoption by Regional Fisheries Organisations of numerous measures aimed at deterring, preventing and eliminating illegal, unreported and unregulated fishing, IUU fishing by vessels flagged in both member and non-member states continues. None of the reciprocal boarding and inspection schemes adopted by RFOs provides for a positive right of arrest, detention or prosecution by a non-flag state in the event the flag states fails or refuses to take such action itself. The law of countermeasures may, however, provide legal justification for at-sea measures including boarding, inspection and possibly arrest and prosecution by members of RFOs against non-flag vessels of both member and non-member states. Although by nature an exceptional remedy, where the criteria discussed in this article are fulfilled, countermeasures in the form of at-sea enforcement may be an effective, and legal, tool in the fight against IUU fishing.

In this article, the predominant approach to legal research on the rule of law is analysed, and three alternative approaches which enable empirical research are presented. All four approaches are then assessed by applying them to the Dutch practice of judicial rule-making by agreement. The current evaluation approach is shown to be limited in its analytical scope with regard to the actual workings of the rule of law through its lack of empirical grounding. It is unable to critically examine its own assumptions regarding this matter. The first alternative approach focuses on how legal arrangements affect the prevalence of some interests over others in society. This enables an analysis to be made of how social groups are favoured or disfavoured by different rule of law arrangements. The second alternative approach examines how law influences citizens' acceptance of their government and thus focuses on the legitimacy that the rule of law is often assumed to generate. The third alternative approach analyses the rule of law as a discourse. It asks the questions how power relations in society influence the content of the debate on the rule of law and how the content of the rule of law in turn influences power relations in society. The author claims that adopting a combination of these approaches and analysing the interrelations of the findings of these approaches leads to more fruitful rule of law research than continuing on the narrow path of the evaluation approach.

According to the doctrine of optional choice of law, civil courts ignore the foreign elements of a multistate case and apply their own substantive law, if neither of the parties has asserted that foreign law is applicable. The courts do not apply the choice of law rules of their own motion. The principal argument normally raised in favour of this doctrine is that it would serve the quality of the adjudication. The application of foreign law is a difficult task since, usually, the courts (and the local lawyers) lack the necessary expertise in applying another country's laws. Under an optional choice of law the problematic application of foreign law can be omitted if neither of the parties has invoked that law. In most European countries the doctrine has not been adopted. This article examines the question whether or not the introduction of an optional choice of law would be desirable in the Netherlands. It is argued that a duty for the courts to raise the choice of law issue ex officio is more in tune with the present developments in Dutch law regarding the respective roles of the parties and the judge in civil litigation. Moreover, there are other solutions available and conceivable to deal with the problems concerning the application of foreign law.

This article prospects some avenues of reflection on the rare, but interesting, case where two or more states are committed to a substantively equal obligation under different treaty instruments. To what extent can it be said, in such a case, that these states are bound by that treaty-rule in their inter se relations? It is clear that if the rule at stake reflects general customary international law, all states are bound by it, and no problem arises. But what if the rule is merely conventional? The article first explores the rather complex concept of ‘equal obligation’. The measure of that equality must be fine-tuned in several ways, since a similar text does not convey necessarily the same substantive obligation. The article proceeds to give some solutions to the problem posed at the inception, exploring the tension between the rule on privity of treaty (pacta tertiis nec nocent nec prosunt) and the rule of non-formality in treaty-law, i.e., that an obligation can be assumed in several informal ways, by looking at the substance.

The launching of the African Union on 9 July 2002 marked the turning of a new page in Africa's modern history. This is especially significant in the context of efforts by African nations to achieve deeper political unity and economic integration. The Constitutive Act of the African Union was adopted barely nine months after the adoption of the Sirte Declaration on 9 September 1999, by which African leaders decided to reorient the objectives of the Organization of African Unity to accelerate African integration as a pillar of the continent's collective response to the challenge of globalization. This article argues that while the speedy elaboration, adoption and ratification of the Act demonstrated the collective desire of African countries to accelerate the process of integration, this rush inadvertently precluded a serious debate on the nature and scope of integration entailed in the project of the African Union. The result was the adoption of a document regarded by some of its own signatories, for varied reasons, as an instrument lacking in substance and limited in its scope. These perceived inadequacies have necessitated the early amendment of the Act. However, it is argued here that these amendments will do nothing to hasten the pace of African political unity or economic integration, as they are largely symbolic. They do not deal with the substantive lacunae identified in the Act.

The article deals with Security Council Resolution 1540 (2004), of 28 April 2004. In it the Council, acting under Chapter VII of the Charter to keep weapons of mass destruction away from terrorists, imposed obligations on states. Brief observations on the concept of legislation are followed by comments on instances of near legislation by the Council and on Resolution 1373 (2001), of 28 September 2001, in which the Council, reacting under Chapter VII, and unanimously to the dreadful terrorist attacks of the 11th of that month, took measures fully comparable to legislation. Resolution 1373 (2001) imposed on states rules and principles already sanctioned by the General Assembly, which ties in with the lack of any trace of the preparatory work on the resolution, adopted so to speak instantaneously. In contrast, Resolution 1540 (2004), which imposed on states entirely new rules, arose from a protracted and officially mentioned process of private consultations leading to two open Security Council meetings, at which many states commented on the draft resolution under consideration, questioning its constitutionality and pointing to problems of interpretation and application it raised. Those issues, which did not prevent the unanimous adoption of Resolution 1540 (2004), are the main topic of the article.

The disputes relating to prompt release constitute an important part of the case law of the International Tribunal for the Law of the Sea. The frequency of the use of prompt release proceedings may be explained by the fact that illegal fisheries have increased owing to the exhaustion of biological resources. Considering that the exhaustion of renewable resources entails a serious problem, conflicts regarding illegal fisheries and the detention of vessels and crews will increase. This study examines the procedure for prompt release under Article 292 of the UN Convention on the Law of the Sea by focusing on the case law of the Tribunal. In particular, this study addresses the issues concerning substantive and procedural requirements provided in Article 292, locus standi, the relation between proceedings of the Tribunal and of domestic courts, and criteria for evaluating ‘reasonable’ bond.