Diplomatic law is one of the oldest areas of international law. Long before States could be said to be the subjects of international law, primitive societies felt the need to maintain relations with one another through an envoy. In due course this resulted in the principle of inviolability of the envoy. When permanent diplomatic missions were established in the 15th century, this principle of inviolability was extended to include the residence and household of the envoy. The evolution of diplomatic law since then has closely mirrored the development of international law in general. A striking example is the creation of permanent missions to international organisations since the First World War. The signing of the Vienna Convention on Diplomatic Relations in 1961 and several other conventions in subsequent years marked the climax of this development.

“By applying norms in a uniform and consistent manner, the court insures the equal administration of justice which is, of course, at the heart of any rule of law system”. Judged by this function the contemplated Benelux Court, whose task it is to promote uniformity in the application of legal rules common to Belgium, Luxemburg and the Netherlands (Art. 1(2) ) is no less a judicial organ than any true court. Some doubts may be entertained as to whether its function of resolving basic conflicts is equally prominent. In the final analysis, the Court's judicial activity does help to solve conflicts but, apart from its role as an administrative tribunal, the Court's task remains strictly indirect, that is by way of preliminary review. It does not hand down judgments directly binding upon the litigant parties. This somewhat reduced role is allied to the peculiarity of the legal order, or rather the entire system, within which its work has been charted. This system is the Benelux Economic Union whose basic instrument, the Union Treaty of 3 February 1958, does not mention that it is a common market; in fact, it materially resembles the European Common Market. Its juridical structure is, however, a strictly intergovernmental one and its decisions are taken by unanimity (Art. 18) which features are characteristic of an international organization whereas a supranational organization is provided with an organ capable of issuing “real” decisions without admitting of the direct intervention of the governments concerned.

One of the fears mentioned most often in regard to the ending of border controls within the European Union is that it will make it easier for transnational terrorists to perpetrate their cross-frontier crimes. And this despite the fact that there are within the Treaty of European Union (hereinafter TEU) mechanisms designed to meet the problem. The defenders of open borders would point to the Third Pillar of the TEU as showing how the Member States have agreed in international conclave to fight transnational terrorism. However, this reference to an international agreement ignores the fact that the attitude of States towards transnational terrorism, even States within Europe, has hardly been rigorous in the past. This article looks at the effectiveness of international measures taken to combat transnational terrorism and the reasons that lie behind the limitations found within those laws. While the relaxation of border controls may be ‘the spark that lit the fire,’ the effectiveness of international anti-terrorist agreements in general is of such fundamental relevance that some consideration is due this wider question in order to determine possible future strategies towards transnational terrorism, whether within the European Union or beyond. It is these more fundamental issues that are the focus of this article.

This contribution commemorates the award of the tenth ever Nobel Peace Prize to Tobias Michael Carel Asser on 10 December 1911, and examines his life and his lasting contribution to scholarship and practice in private and public international law. After a biographical sketch, it considers the scholarship of TMC Asser, including his part in the foundation of the Revue de droit international et de législation comparée, and his international institution-building, particularly his role in the foundation of the Institut de droit international, the International Law Association, the ‘Hague Conferences on International Private Law’ (which ultimately became the international institution of the Hague Conference on Private International Law), the Permanent Court of Arbitration, and the Hague Academy of International Law. It also explores his legal and diplomatic practice, for example his important role as a Dutch delegate at the 1899 and 1907 Hague Peace Conferences. The article concludes with a reflection on Asser's contribution to public and private international law, and concludes that while he was no doubt a very talented scholar, it was the combination of this with his skills and initiative as a negotiator, diplomat and international institution builder which secured his reputation and his legacy.

The Iran-United States Claims Tribunal (hereinafter, the ‘Tribunal’) established by virtue of the Claims Settlement Declaration of 19 January 1981 has:

‘the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of that national's claim, if such claims and counterclaims are outstanding on the date of this Agreement, whether or not filed with any court, and arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriation or other measures affecting property rights …’

This contribution focuses on a particular aspect of the broader current debate on the accountability of international organizations, on the rather unexplored question whether and to what extent international organizations are bound by national law and may become accountable for not complying with it. While it is largely accepted that States may act on a private law level being subject to rules of national law and ultimately becoming accountable before national courts or other accountability mechanisms, it is more questionable whether the same is true for international organizations.

A review of scholarly writings on the subject and an extensive analysis of the actual case-law by international as well as domestic courts and tribunals produce the following findings: While national private law, such as contracts or torts, is regularly deemed applicable to international organizations, it is far more uncertain whether national public law, such as health and safety legislation, building regulations, or labor law legislation, is binding upon international organizations.

Many international organizations claim that the application of such national rules might interfere with their independent functioning and that internal staff, safety, and other rules and regulations should be applied instead. However, where such internal law of international organizations falls short of generally accepted standards, serious accountability gaps may occur.

On 27 June 1986 the International Court of Justice passed judgment in the case concerning military and paramilitary activities in and against Nicaragua. Because of a reservation that the United States had made when it accepted the jurisdiction of the Court, the Court could not pronounce a decision regarding the dispute insofar as it concerned multilateral convertions. As a resuld of this, the Court was compelled to base its judgment largely on rules of customary international law and general principles of law. The rules of customary law which were relevant for the judgment corresponded to a significant extent, as regards their content, to the rules of treaty law which the Court was unable to apply, such as the prohibition on the use of force of Article 2, paragraph 4 of the Charter of the United Nations. This led the Court to indicate in precise terms how rules of treaty law and rules of customary law which have a corressponding content can co-exist and how the existence of rules of customary international law can be established in general. In addition, the Court examined in some detail the existence and content of certain specific rules of customary international law.

In previous volumes of this Yearbook, the present author has put on record a series of events under the common denominator of “reaffirmation and development of international humanitarian law applicable in armed conflict”. The latest event so recorded was the first session of the Diplomatic Conference on humanitarian law, held in Geneva at the beginning of 1974. At this session discussion of the two Draft Additional Protocols to the Geneva Conventions of 12 August 1949 prepared by the International Committee of the Red Cross (or ICRC) was commenced. A second session of this Conference has meanwhile been held, from 3 February to 18 April 1975, and a third session is scheduled to take place from 21 April to 11 June 1976. In view of the considerable amount of work already done at the second session, and assuming that the same constructive spirit which prevailed during this session wil persist during the next, it may confidently be expected that the 1976 session will suffice, at least, to finish the work on the first reading of the Draft Protocols. This will then provide an excellent opportunity to enter into some of the more salient features of the Draft Protocols, in the light of the amendments to them brought in the course of the Diplomatic Conference.

This article deals with repatriation. It is now generally agreed that repatriation should be considered the best of the durable solutions to refugee problems, if, of course, it is a feasible option. In view of the strength of the bond between a refugee and his country of origin, promotion of repatriation would seem to be advisable, unless it is clear that the returnee would face serious problems upon his return. Anyone who has a well-founded fear of being persecuted should, of course, be considered a genuine refugee, and it would be quite wrong to put any pressure on such a person to return to a country which he fled for legitimate reasons. The same would be true for the displaced person who left his country owing to man-made or natural disasters. In general, the stay abroad of refugees and displaced persons is not necessarily unlimited and due attention should therefore be paid to fundamental changes in the circumstances in the country of origin, and even to relevant acts of the person concerned.

The evolving nature of the climate change problem makes it challenging to govern it through a single set of rules fixed in time. Scientific insights into the causes and impacts of climate change are subject to constant changes. Further, the socio-economic and political conditions prevailing in different countries continue to alter over time. This chapter first assesses how the primary international legal response, the regime established by the United Nations Framework Convention on Climate Change, has sought to cope with these temporal challenges, and suggests that while various flexibility mechanisms are in place, the climate regime often finds it hard to adapt to changing conditions. In a second step, the chapter examines an alternative in the form of proposals that aim to make international climate change law more adaptive through a pluralist approach. The chapter critically reviews these proposals, and suggests that while the rigidities of the existing climate regime certainly need to be addressed, considerations of predictability and stability should not be sacrificed at the altar of flexibility. To conclude, therefore, the chapter explores the options for enhancing flexibility within the current architecture for international climate change law.

The conclusion and adoption of the Statute of a permanent International Criminal Court (hereafter ‘the Statute’) in Rome in July 1998 represented a turning point in the enforcement of legal norms regulating armed conflict. The establishment and functioning of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda represented an important first step in this area, and the work of these tribunals will prove of considerable importance to the interpretation and application by the ICC of the body of substantive law that it will apply. However, the separate treaty basis of establishment of the ICC means that it is clearly not part of the UN Organization which consists of the six principal organs specified in Article 7(1) of the Charter and their subsidiary organs. As such there is a very clear distinction in institutional terms between the ICC and the ICTY/ICTR that were both established by the UN Security Council as UN subsidiary organs pursuant to Chapter VII of the Charter. This differing basis of establishment raises the key issue of the nature of the relationship between the ICC and the UN.

This article takes Pieter Kooijmans’ 1964 book as the launching point for a discussion of contemporary issues relating to the legal equality of States in the context of immunity from suit. It assesses the strengths of the ‘Grundnorm’ of sovereign equality and examines whether it has any real role to play in providing answers to current problems, including whether immunity should be set aside in the face of claims that a foreign State or its agent has committed human rights violations. Close attention is paid to the 2012 Judgment of the International Court of Justice in the Jurisdictional Immunities of the State case. That Judgment demonstrates that sovereign equality has not yet been replaced as the generating principle of law in the realm of immunity. At the same time, there is an emerging alternative approach centered on the individual rather than the State.

Some states, the United States in particular, have allowed their courts to exercise universal tort jurisdiction over gross human rights violations, i.e., to hear complaints for damages by victims of such violations committed abroad. It is argued that, from a policy perspective, universal tort jurisdiction has some distinctive advantages over universal criminal jurisdiction; in particular, it may take victims more seriously. On the downside, it may possibly serve the function of morally condemning gross human rights violations less well.

From a legal perspective, concerns have been raised over the legality of exercising universal tort jurisdiction under international law. It is submitted nevertheless that the fact that only a limited number of states allow the exercise of universal tort jurisdiction is not fatal to the lawfulness of such jurisdiction under international law. These states may not provide for universal tort jurisdiction because they prefer criminal justice solutions, rather than because they consider such jurisdiction to be internationally unlawful. There is, in addition, no evidence of substantial international protest against assertions of universal tort jurisdiction. As a result, there is as of yet insufficient evidence of a customary international law norm outlawing universal tort jurisdiction having crystallized.

A scholar studying international law, as it is presented in the texts of international treaties and restatements of customary norms, could describe an ideal world. The United Nations Charter and other international instruments suggest a harmonious existence in which there is no use or threat of the use of force between States, where disarmament is complete, where international aid to developing countries enables them to satisfy the basic needs of their inhabitants, where international co-operation leads to social and cultural progress and where human rights are respected. Disputes over the application of rules of international law are settled by international tribunals or other peaceful means, and violations of law are sanctioned by the implementation of rules of State responsibility.

Ever since its origin in the early 1920s, open registry shipping has been the subject of much debate in international, governmental and industrial shipping circles. The first opposition came from labour unions in traditional maritime countries, whose members' jobs were threatened by the transfer of ships to Liberia, Panama and other open registry countries. Later, shipowners from a number of European countries persuaded their governments to take action against the unfair competition which in their opinion was presented by open registries. In the 1970s, developing countries called for them to be phased out, as they felt that the existence of open registries hampered the development of their merchant fleets.

Temporary commissions of inquiry have become more prominent over the past decade, with their establishment particularly noticeable in the context of the Arab Spring. Along with their increased prominence they have also displayed certain features of an adjudicative nature. Although primarily established as fact-finding bodies, their mandates now regularly include making assessments as to potential violations by particular entities of international human rights law and international humanitarian law. This chapter examines the impact that commissions of inquiry as temporary creations have had upon international law and, more specifically, upon international legal adjudication, in particular the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, and procedural fairness. While the temporariness of commissions of inquiry is in many ways unproblematic, this chapter identifies certain problems and examines the possibilities for the establishment of a permanent commission as a means to rectify some of the issues associated with their current temporary nature.

In response to Iraq's forcible occupation of Kuwait in the summer of 1990, the United Nations Security Council adopted twelve resolutions that year.

The legality and legitimacy of the Iraq war in 2003 has been widely discussed before, during and after the hostilities. Though hardly anyone questions the lack of a legal basis for the military operation in Iraq, it has been argued that other grounds could have justified the undertaking of military action. The political support of the Dutch government for the American-led invasion in Iraq needs to be understood along these lines. This contribution focuses on the legal and intellectual trends that can be observed preceding the support given to the 2003 war. These trends could be summarised as a move from legality towards legitimacy, from positive law to morality, broadly understood. The support of the Dutch government for the war can be interpreted as a reflection of a certain discontent with existing international law and of changing attitudes vis-à-vis the international order. The following questions will be raised in this contribution: What was really relevant in this context: the international legal order of the Charter of the United Nations or some other international order dominated by certain values other than the ones embedded in the Charter? Moreover, what kind of a war was the invasion of Iraq: a legal war on the basis of international law broadly understood or an ethical war in accordance with the criteria of the just war tradition? These questions will be dealt with from the Dutch constitutional perspective and from the perspective of ethics.