In July 2001, a few years after my first encounter with the intersection of criminal law and international law at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), I asked the following question at a lecture at Melbourne University:

While the political will to pursue war criminals was first lacking, is there, as some seem to fear, a danger that it will become relentless? If so, what effect will that have on the integrity of the complex aspirations and methodologies of criminal law as an instrument of social control in a democracy?

After 11 September of the same year, the question acquired added acuity as I assumed that it would be not just war criminals but also international terrorists that the criminal law framework, domestic and international, would now be pursuing. I obviously was gravely mistaken in my concerns. The pursuit of terrorist suspects seems to have little to do with criminal or international law as we know it. Hence the real questions: What is it then about? Under what legal framework, if any, does it purport to operate and who is accountable to whom?

This Keynote speech examines the implications of the multiplying of judicial institutions and the deepening of international law. Overlapping jurisdiction issues already exist among international courts and tribunals. This raises the question of ‘Whose view prevails?’ But the deepening of international law also requires any given court to ask itself, ‘Which of the many norms now developed are applicable?’ Alternative plausible applicable norms could lead to different solutions. It is ever more apparent that that law is more than ‘bright rules’ that simply need to be applied. This speech discusses potential solutions that have been proposed, such as instituting a judicial hierarchy, using certain provisions of the Vienna Convention on the Law of Treaties, and invoking a hierarchy of norms. It closes with a call for international judges to regard the multiplication of institutions and applicable norms as an opportunity rather than a problem, to read each other's judgments, respect each other's work and try to preserve unity unless context dictates otherwise.

This paper assesses whether English law recognizes a concept of negotiorum gestio. Claimants intervening in other' affairs and seeking restitution or reimbursement of expenses are often labeled ‘officious’, and disallowed relief. That, however, gives a misleading impression of English law. English law does recognize a concept of negotiorum gestio, which while very different to that found in German law, has parallels to versions found in other Civilian systems. It provides a cause of action to recover the intervenor's expenses, and any loss suffered during the intervention. It also provides a defence to the intervenor's intentional torts, although negligent intervenors will remain liable for their negligence

The purpose of this article is to address two related false assumptions, or myths. The first is an assumption of public international law. It is the myth that the history of international law is one of progressive expansion, of increasing concern in public international law with matters traditionally considered private or internal to States, and that this expansion is a relatively recent phenomenon.1 The second is an assumption of private international law. It is the myth that private international law is not actually international, as it is essentially and necessarily a part of the domestic law of States.2 These assumptions, taken together, constitute the myth that public and private international law are discrete, distinct disciplines, with independent, parallel histories. This article addresses these myths through an analysis of the role played by international law theory in the history of private international law.

This paper considers under what circumstances, and for what reasons, an international tribunal may want to range beyond the primary text of a treaty to determine its ‘correct’ meaning; such extraneous legal material potentially including rules of customary international law, other treaties between the parties, general principles of law, and documents of a ‘soft law’ nature. The paper suggests a variety of ‘mechanisms’ by which a tribunal may undertake a broader interpretative approach, though all ultimately raise the same inevitable tension between accusations of judicial activism and counter-arguments of inflexibility and insularity. Nevertheless, many tribunals and individual judges continue to utilize such techniques, particularly noticeable in some recent environmental disputes. The paper will conclude with a note of caution; that though such interpretations are becoming an increasingly significant part of modern judicial decision-making—something that is generally to be welcomed—tribunals must concurrently take care to ensure that they remain within the accepted parameters of the adjudicative function.

European farm policy has undergone radical change in recent years, culminating in the Agenda 2000 reforms to the Common Agricultural Policy agreed in 1999 and then their Mid-Term Review in 2003. In particular, subsidy payments have been substantially ‘decoupled’ from production and switched decisively towards providing income support for farmers under a new ‘single farm payment’ scheme. These reforms have been predicated upon the need to win acceptance for Community farm subsidies in the Doha Round of WTO negotiations. This article examines the new law of the Common Agricultural Policy against the background of the domestic support reduction commitments contained in the 1994 Uruguay Round Agreement on Agriculture. It questions the extent to which the single farm payment scheme fulfils the requirements for ‘green box’ exemption from such commitments. Options for the re-negotiation of the Agreement on Agriculture are discussed, including measures to improve the justiciability of its terms and to exclude discriminatory and trade-distorting domestic support. The article also considers the implications of the recent WTO Appellate Body Decisions in United States—Subsidies on Upland Cotton and European Communities-Export Subsidies on Sugar. It concludes that the Community will have difficulty gaining acceptance for its reforms among WTO Members. Whatever the legitimacy of its subsidy regime within the framework of the current Agreement on Agriculture, the emergence of a strong negotiating position among developing countries, posited on opposition to the volume of farm support maintained by the Community and United States, may present even greater obstacles to the conclusion of a new Agreement on Agriculture in the Doha Round.

Constitutionalism is a deeply contested but indispensable symbolic and normative frame for thinking about the problems of viable and legitimate regulation of the complexily overlapping political communities of a post-Westphalian world.1

The role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.

The current international law applicable to the cooperative development of petroleum resources imposes few procedural requirements on States. In the event of a failure to agree, they may choose to make further efforts at developing cooperative arrangements, or go ahead independently anddevelop the resource. Recent bilateral agreements in the North Sea and the Caribbean seek to move beyond the cooperation established under bilateral delimitation treaties. They indicate a willingness to design innovative legal frameworks in which different, sometimes diverging interests may be managed. Nonetheless, early experience suggests that, in the event of a breakdown, unilateral action may follow.

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

The purpose of this article is to consider the scope of the jurisdiction of the European Court of Justice in the field of the Common Foreign and Security Policy, as set out in the Treaty on European Union. Pursuant to Article 46 TEU, the ECJ has virtually no competence over foreign policy and security matters—although some limited scope for judicial supervision may be derived from the combined effect of this provision with Article 47 TEU, which prevents encroachment by EU law on Community competence, with respect both to reviewing the choice of legal basis and to determining any violations of EC policy-making procedures. It is submitted that the absence of judicial control over the exercise of powers by the Union and its Member States in this area of potentially sensitive action does not guarantee the preservation of the institutional balance established by the EU Treaty. It may also prove incompatible for individuals to have a legal remedy in the event of a breach of directly effective CFSP provisions.

Until relatively recently the question of whether it is possible to get damages for breach of an exclusive jurisdiction clause was very rarely considered by the courts and had attracted little academic interest. But when considered alongside recent developments in cases covered by the Brussels regime, the subject becomes of potentially much greater practical significance. The main purpose of this article is to consider how the newly developing common law principles might apply in that context.

Fifty years after the foundation of the European Communities, the single market for insurances has not yet become a reality. Despite the harmonization of insurance supervision law, insurance companies still essentially refrain from cross-border activity when it comes to small commercial and consumer risks. Since this finding is usually attributed to the lack of common rules on insurance contracts, this article sets out to lay the foundation for the harmonization of the corresponding national laws. By providing a comparative analysis of two of the most pervasive issues in consumer insurance contract law, the article proves that common law and civil law are not as far apart as commonly assumed. It thus refutes the widely held belief that the insurance contract laws of common law and civil law countries are too different to be harmonized.

On 14 December 2004, Australia announced the institution of a ‘Maritime Identification Zone’, extending 1000 nautical miles from its coast and involving the identification of vessels seeking to enter Australian ports, as well as vessels transiting Australia' Exclusive Economic Zone. This Article analyses the legality of these security measures under the UN Convention on the Law of the Sea, new developments through the International Maritime Organization and the Proliferation Security Initiative. The implications of prescribing and enforcing identification requirements on the high seas and in the EEZ, the impact on maritime boundaries and avenues for dispute settlement are all explored.

In December 2004, Parliament's Joint Committee on Human Rights added its voice to the call for a greater parliamentary role in the making of treaties. In its report on Protocol No. 14 to the European Convention on Human Rights, the Joint Committee included a one-page chapter on ‘Increasing Parliament's involvement in the adoption of human rights treaties’, expressing the view that it was desirable for Parliament to become more involved prior to ratification on the grounds that effective parliamentary scrutiny would serve to ‘enhance the democratic legitimacy of human rights obligations incurred… by the Executive pursuant to the prerogative power.’1 Motivated by this concern, the Committee has undertaken, on its own initiative, an extensive review of the UK's treaty commitments in the human rights field with a view to securing greater parliamentary support for these obligations through the mechanism of public scrutiny.2

This article provides a thorough analysis of the employment contract in comparative European private law and Community law. It argues that a common concept of employment contract should prevail in European private law. In that respect, the autonomous and broad interpretation which has been given to the term ‘worker’ in Community law could be a basis for adoption of an autonomous concept of the employment contract in European private law.

A fair trial is a basic element of the notion of the rule of law,1 and the principles of ‘due process’ and ‘the rule of law’ are fundamental to the protection of human rights.2 At the centre of any legal system, therefore, must be a means by which legal rights are asserted and breaches remedied through the process of a fair trial in court, as the law is useless without effective remedies.3 The fairness of the legal process has a particular significance in criminal cases, as it protects against human rights abuses. Hence, constitutional due process and elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved.4

Private international law deals with problems that arise when transactions or claims involve a foreign element. Such problems are most frequent in a setting that allows for the growth of international relationships, be they commercial or personal. Economic integration provides such a setting and allows for the free movement of persons, goods, services and capital across national boundaries. The facilitation of factor mobility resulting from economic integration and the concomitant growth in international relationships results in problems which call for resolution using the tools of private international law. An economic community cannot function solely on the basis of economic rules; attention must also be paid to the rules for settling cross-border disputes. Consequently, considerable attention is given to the subject within the European Union (EU)1 and other economic communities.2

The new legal order in European asylum is being shaped by a key document: the Directive on minimum standards for the qualification and status of third-country nationals as refugees and persons otherwise in need of international protection and the content of the protection granted (hereinafter the Qualification Directive). The Qualification Directive was adopted by the Council of the European Union on 29 April 2004.2 It entered into force on 20 October 2004, that is 20 days after its publication in the Official Journal.3 The Member States have until 10 October 2006 to implement its provisions into national legislation.4 Meanwhile, they have a duty not to adopt measures contrary to it.5 For those countries that have already implemented the Qualification Directive, such as France,6 the judiciary will need to ensure compliance with it.7

This article considers how armed opposition groups fighting in an internal armed conflict are bound by the rules of international humanitarian law despite not being party to the relevant treaties. It assesses a number of explanations—customary international law, general principles of international humanitarian law, rules governing treaties and third parties and claims to succession—and argues that each has limited value. The ability of the state to legislate on behalf of all its individuals is considered the best explanation. This principle is explored and objections to it are countered. This article also examines the expressed commitment of armed opposition groups to the rules of international humanitarian law.