Fragmentation of international law is a phenomenon that has been discussed ever since the ILC in 2000 decided to add to its programme of work the topic ‘Risks ensuing from the fragmentation of international law’. Koskenniemi, in a paper published in this journal, was one of the first to address fragmentation in legal literature. In 2006, he finalized a voluminous report on ‘Fragmentation of International Law’, providing for means and ways to cope with fragmentation.

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

As a concept, ‘ethnicity’ has been informing the notions of the ‘self’ as well as the ‘other’ since antiquity. While in ancient Greek it referred to the ‘other’ in a derogatory sense, in the Romantic literature of the nineteenth century, ethnicity came to depict the self-image of the nation. Although, in contrast, the liberal self-image refers to ethnicity only in the instrumental sense (as a tool for regulation without attributing any real value to the notion), ethnicity remains salient in both the liberal and conservative versions of nationalism to identify the backward ‘other’ – the minority – within the nation. Against the backdrop of the nineteenth-century discourse on ethnicity, this paper explores how the notion of ethnicity having the image of ‘otherness’ as well as ‘backwardness’ shapes the liberal perception of ‘minority’ and ‘minority protection’ in the post-Cold War context in three different ways. First, I argue that ethnicity informs the perception of the minority as the ethnic ‘other’. Second, the individualist response to minority protection paradoxically endeavours to remove ‘ethnicity’ from the concept of ‘minority’. And finally, in the post-Cold War European scenario, it is again the ethnic ‘otherness’ that rationalizes a differentiated minority protection mechanism for the West and the East within Europe.

Stability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases – the identification of the protected group and its members – resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the ‘building blocks’ of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review, and (2) to analyse the consequences of the consistent application of this model for the identification of the protected groups and their members.

As a result of the extension of the jurisdiction of the Court of Justice of the European Union over the former third pillar (Police and Judicial Cooperation in Criminal Matters), several cases were referred to the Court for interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters, especially the ne bis in idem principle. This principle was also addressed in the case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the Supreme Court of the United States. While addressing the problem at international level, this article focuses principally on the case law of the Court of Justice of the European Union and the European Court of Human Rights in the field of the ne bis in idem principle, concisely presenting the legal framework, findings of the Courts, and some conclusions on the interpretation of the principle. The study also analyses the absence of uniformity in interpretation and the use of different criteria in addressing identical situations by different courts, or even by the same court, concluding on a (seemingly) fortunate approximation in interpretation at European level.

In the case concerning Jurisdictional Immunities of the State, the ICJ held that rules of jus cogens did not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of a jus cogens character generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules of jus cogens and procedural rules of immunity are involved.

The potential for conflicts of norms is particularly great in modern international law. Yet until now, the International Court of Justice has said very little as to what it considers a conflict of norms. The opportunity to do so arose in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). There, it was argued that granting Germany sovereign immunity in proceedings before Italian courts involving civil claims for violations of international humanitarian law (IHL) committed by the German Reich between 1943 and 1945 would come in conflict with prevailing peremptory (jus cogens) norms of international law. In its 3 February 2012 Judgment, the ICJ rejected this argument. In the present article, the author argues that the conceptions of conflict of norms underlying the Court's judgment and the dissent of Judge Cançado Trindade both have weaknesses. The author suggests an alternative framework to ascertain conflicts of norms. He then applies this framework to the rules of state immunity and the IHL rules breached by Germany, agreeing in the end with the conclusion reached by the majority of the ICJ that these rules did not conflict.

Since the late 1980s, governments have increasingly relied on the services of private military and security companies (PMSCs) in attaining their defence and foreign-policy objectives. States with advanced armed forces (notably the US and UK but also many others) have seen the outsourcing of various support functions, such as logistics or communications, as a way of cutting costs. Conversely, states with weak militaries (for example, Croatia at the time of the break-up of Yugoslavia and Angola during the civil war) have used PMSCs to boost their actual war-fighting capabilities. More recently, international organizations and non-governmental organizations have also turned to PMSCs, largely to ensure the safety of their humanitarian operations in zones of conflict.