Debates surrounding the second Iraq war have prompted a range of commentators to diagnose the death of the law on the use of force, to call for its adaptation to the globalization of threats and the problem of so-called failed States, or to assert the need to defend the UN Charter framework. In this article, we look behind the shrill rhetoric of the post-invasion commentary and invite a sober assessment of the current situation. Our aim is not to evaluate in detail the legality of the Iraq war. Others have done so thoroughly.1 Rather, we are interested in exploring whether we are truly at a turning point for international norms and institutions governing the use of force. If we do confront a ‘fork in the road’, as suggested by Kofi Annan in his address to the UN General Assembly on 23 September 2003,2 what changes to legal institutions and structures are required, and what new claims should we resist?

The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals. This episode must be put in context. Democracies must defend themselves. Democracies are entitled to try officers and soldiers of enemy forces for war crimes. But it is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis. One tool at hand is detention without charge or trial, that is, executive detention. Ill-conceived rushed legislation is passed granting excessive powers to executive governments which compromise the rights and liberties of individuals beyond the exigencies of the situation. Often the loss of liberty is permanent. Executive branches of government, faced with a perceived emergency, often resort to excessive measures. The litany of grave abuses of power by liberal democratic governments is too long to recount, but in order to understand and to hold governments to account, we do well to take intoaccount the circles of history.

On 11 September 2001 commercial passenger jets hijacked by suicide commandos were flown into the Twin Towers of the World Trade Center in New York. As the Towers imploded and collapsed, the death of several thousand people was witnessed live on television screens throughout the world. Those attacks, together with that on the Pentagon and the failed attempt that ended in Pennsylvania, aroused profound indignation and led to immediate reactions against the perpetrators or their protectors and sponsors, and more generally against international terrorism.

In the 1996 Hamlyn Lectures, under the title Turning Points of the Common Law, I examined four great cases where the House of Lords set the law of England, and consequently the law of most of the English-speaking world, on a new course by reversing decisions of the courts below. They were Salomon v Salomon & Co Ltd1 (insistence on separate identities of company and controlling shareholder); Woolmington v Director of Public Prosecutions2 (discovery of a golden thread about onus of proof in English criminal law); Hedley Byrne & Co Ltd v Heller3 (qualified acceptance of duty of care in tort to safeguard against economic damage); and Anisminic Ltd v Foreign Compensation Commission4 (affirmation that material errors of law by administrative bodies are alwaysredressible by courts).

I am deeply conscious of the fact, as I consider the subject of torture, that I have led a very sheltered life. I have never been tortured. I have never seen anybody being tortured. Nor have I ever met anyone who has undergone this dreadful practice. But I cannot say that I have never met anyone who has had anything to do with it. The Cyprus emergency was at its height during my period of national service. My attempt to persuade the military authorities that my knowledge of classical Greek was a suitable qualification for me to be sent to the island to act as an interpreter was unsuccessful. I was sent instead to serve with an infantry battalion in the British Army of the Rhine in West Germany. I did not think so at the time as we endured one of the coldest winters in living memory in Nordrhein-Westphalia, but I was to discover later that this may well have been the better option. When I went up to university I met someone who had indeed been sent to Cyprus. He had acted as an interpreter when Greek Cypriot members of the Eoka organization were being interrogated. Conscious of the constraints of the Official Secrets Act, he never revealed to me the details of what was done to them during this process. But I had the distinct impression, as we talked, that he had been revolted by it and that things were done which were and would always remain a scar on his memory.

The UNCITRAL Model Law on Procurement of Goods, Construction and Services,1 adopted in 1993/4, provides a template for reforming regulatory systems on public procurement. A decade on, UNCITRAL is now considering a review.2 This is timely for several reasons, not least because of new purchasing practices, especially in electronic procurement, and the increasing need for harmonization with other international norms. In this context, the present article offers a critical appraisal of the Model Law as a global standard for public procurement.

Article 4 of the Rome Convention determines the law governing a contract in the absence of choice by the parties. Despite its practical importance, and several decisions of the Court of Appeal, the correct construction of Article 4 remains unclear. This article considers the existing approaches and the Commission's proposal for reform, ventures to suggest an alternative, and analyses the recent cases in this light.

In September 2002 seventeen whales were stranded off the coast of the CanaryIslands at a time when NATO was testing its active sonar system designed to detect silent enemy submarines.1 The suggestion has been made that the use of sonar caused these whales to strand. In fact, sonar is just one of a variety of anthropogenic undersea sounds which, scientific research increasingly suggests, impacts negatively on marine biodiversity. Pollution of an acoustic nature is currently omitted from traditional works on the protection of the marine environment and is as yet the subject of very little jurisprudential discussion.2 However the topic, which has received scientific attention for over 30 years, has recently been identified as acause for concern and consequently, for action, within the parameters of a number of global and regional environmental instruments.

During the 1990s many Commonwealth legislatures enacted ‘class action’ or ‘representative proceedings’ legislation.1 The main justification for these initiatives was to increase access to justice for claimants particularly where the injury was widespread but the harm suffered by any particular individual was small. Much of this legislation built on developments in the United States, which had developed a sizable jurisprudence in the area. ‘Mass torts’, those defined as having a large impact engaging multiple claimants, have often formed the cause of action in US class actions. A review of the website ‘Big Class Actions‘,2 which lists over one hundred current suits in the United States, is instructive on how the class action industry has grown in that country.

The core provisions of the Rome Convention on the law applicable to contractual obligations are deceptively simple: a contract is governed by the law chosen by the parties (Article 3(1)); to the extent that the parties have not made a choice, a contract is governed by the law of the country with which it is most closely connected (Article 4(1)). However, within these provisions there are a number of problems. First, Article 3 provides that the parties’ choice may be either express or ‘demonstrated with reasonable certainty from the terms ofthecontract or the circumstances of the case’. This gives rise to potentially difficult questions about what constitutes an express choice and uncertainty as to the dividing line between, on the one hand, cases where the parties have made a choice (albeit not an expressone) and, on the other, cases where the parties have not made a choice at all. Secondly, the general principle in Article 4 is supplemented bya presumption (in paragraph 2), 1 which may, incertain circumstances, be disregarded (under paragraph 5). The operation of the presumption is problematic and the relationship between Article 4(2) andArticle 4(5) controversial.

Coping with refugees arriving by sea is a problem that has existed for a number of years.1 Throughout this period the crux of the matter has remained the same, reconciling the humanitarian plight of refugees and asylum-seekers with the destination States' concerns about illegal immigration, mass migrations of people, and the costs of asylum. The boarding of the Tampa by Australian SAS troops in August 2001, in order to prevent the disembarkation of 433 asylum-seekers on Christmas Island, has once again brought into sharp focus the acute tension created between competing legal norms, and between moral and legal considerations. What are the rights of vessels and people in distress under the 1982 Convention on the Law of the Sea and other maritime agreements? How do commercial considerations affect the obligation to assist those in distress at sea? What are the rights of refugees under the 1951 Refugee Convention and other human rights instruments? What are the powers of a coastal State to protect itself from threats to national security in its coastal waters? This article examines the legal obligations incumbent upon coastal States and flag States in respect of asylum-seekers rescued at sea and seeks to answer these questions. It goes on to suggest that the law in respect of search, rescue, and refuge is highly unsatisfactory because a number of key obligations are poorly defined and inadequately implemented. It alsoseems clear that insufficient weight is given to humanitarian considerations. Finally, consideration is given to possible solutions to the problem.

For 70 years the 1929 Warsaw Convention,1 which came into force in 1933, governed supreme, in its numerous permutations, virtually all international carriage of passengers, baggage and cargo throughout the world and, thanks to voluntary adoption by States, also much of their domestic carriage, albeit with modifications. It was not until 1999 that nations concluded at Montreal the Convention for the Unification of Certain Rules for International Carriage by Air2 designed to replace it. The latter came into force on 4 November 2003, by coincidence also 70 years after the entry into force of Warsaw.3 A new era in the law of international carriage by air has begun.

The study of penalty clauses1 is a rewarding area of comparative research. The most cursory of examinations reveals the diametrically opposed theoretical positions of contemporary legal orthodoxy in France and England. Asearch for the rationale behind this theoretical divergence gives insight not only into the broader conceptual and substantive differences between the two jurisdictions, but, importantly, their many similarities as well.

There are several reasons, pertaining to both the development of a generallyapplicable framework and the elaboration of issue-specific approaches, why it is timely to reflect on whether liability regimes are an appropriate tool for international environmental protection. At the level of general norms, the International Law Commission (ILC) appears to have arrived at a crossroads, as it must decide whether and how to approach further work on liability for transboundary environmental harm. At the same time, discussions about issuespecific liability regimes have proliferated. Indeed, it seems that few multilateral environmental agreements (MEAs) can be negotiated today without running across the liability issue in one way or another. The issue often divides Southern delegations, which tend to push for the inclusion of liability regimes, and Northerndelegations, which tend to resist. But the disagreement is not just a matter of policy and politics. There is also a lively debate in the literature about the pros and cons of international liability regimes. All the more reason, therefore, to assess whether engaging in the laborious task of developing a liability regime is a good investment of scarce negotiating resources. The goals that animate the quest for environmental liability are important ones: to make polluters pay for the environmental costs of their activities, to compensate innocent victims, to protect the environment, and, in certain contexts, to protect developing countries against environmental risks. The key question is whether, given these sensibilities, the approach makes sense.

Family law may not be an area one immediately associates with the European Community but in recent years it has rapidly emerged as an important element of the ever-expanding portfolio of the Justice and Home Affairs Directorate General.1 Facilitating the circulation of family law orders through the harmonization of private international law rules is viewed in Community circles as essential if the free movement of persons is to be guaranteed within the European Union.2 The merits of this policy and the manner in which the transformation of the Brussels II Convention3 into a Council Regulation4 was used to acquire wider competence in respect of family law matters have both previously been considered.5 In the present paper such policy considerations are left aside to allow for a detailed analysis of those rules which deal with divorce and their effect on English and Scottish law.

As with other legal systems based on a separation of powers, the World Trade Organization is marked by a degree of tension between its political organs and its quasi-judicial organs, in particular the Appellate Body. In late 2000 this tension spilled out into the public domain, when the Appellate Body announced a procedure for the filing of amicus curiae briefs in the EC-Asbestos case.1 The question of public participation in WTO dispute settlement proceedings is sensitive to many WTO Members, and in expressly encouraging the submission of amicus briefs in this way the Appellate Body was felt to be overstepping its functions.2 In the end, this dispute settled with a draw, the Appellate Body deciding that it had no need to consider any of the amicus briefs submitted in that particular case, and yet still maintaining that panels and the Appellate Body have the right to take unsolicited amicus briefs into account, should they so choose.

On 12 September 2001 the Commission of the European Communities published its Proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention relating to the status of refugees and the 1967 protocol, or as persons who otherwise need international protection1 (Proposal).

Fortunately it is still startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land, (per Jackson J, Shaughnessy v United States ex rel Mezei 345 US 206 (1953))

International courts and tribunals have played a predominant role in the development of the law of maritime delimitation.1 In fact, since the North Sea Continental Shelf cases of 1969, eleven judgments concerning maritime delimitations were given by international courts and tribunals. Owing to the richness of international decisions, one may currently speak of ‘case law’ in the field of maritime delimitations. Thus it is indispensable to consider the evolving process of the law of maritime delimitation on the basis of the practice of international courts and tribunals.

In 2001 Ireland commenced litigation against the United Kingdom (UK) over the construction and operation of a plant to produce mixed oxide fuels at the Sellafield nuclear complex in north-west England. This litigation, which had been only partially concluded at the time of writing, raises a series of fascinating and often complex issues of both international and EU law. These include the potential for overlapping jurisdiction between different international tribunals; the division of competence between the EC and its Member States in relation to participation in treaties; and the use of litigation as a strategy for settling inter-State disputes. The aim of this article, apart from giving a snapshot of the position that the increasingly tortuous course of this litigation had reached by January 2004, is to explore these issues. The article begins by setting out the background to the litigation and giving a quick overview of its course so far. It then explores in more detail the questions of overlapping jurisdiction of international tribunals and of EC law raised by the litigation, before concluding with a few, rather speculative, thoughts about Ireland's choice of litigation as a strategy.