This article argues that a contemporary form of ‘cosmopolitan legality’ serves as an animating force behind contemporary practices of global civil society and global governance. The first part provides an account of the recent history of civil society engagement with the World Trade Organization. It observes that civil society groups have focused their collective efforts on issues relating to procedural legitimacy, including accountability, openness, and transparency, potentially to the detriment of efforts to bring about more fundamental change. In the second part of the article, various theoretical approaches to cosmopolitan legality are discussed, including their claimed Kantian origins, and are mapped on to the preceding discussion of the place of a global public sphere in global governance. Programmatic approaches that purport to mobilize cosmopolitanism in the service of either a political or legal project are ultimately rejected, and a provisional alternative reading is suggested.

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

This issue of the journal contains a special edition relating to sentencing at the International Criminal Tribunal for the former Yugoslavia (ICTY). The purpose of this special edition is to examine a critical aspect of the work of the ICTY, and one which might be said at this stage of work at the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), to be still in development. This issue contains articles by people well placed to bring different and diverse perspectives to this important issue, as well as an expertise across the fields of practice and academia.

The pronouncements of punishment for war crimes, crimes against humanity, and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) will be among its most important legacies for international law and international relations. The purpose of our research is to examine the judges' opinions on the determinants of punishment and, most especially, the data on sentences handed down by the trial chambers in order to understand which factors are the most powerful in explaining sentences. We find that there is a fair degree of consistency in the sentences conferred on the guilty. By systematically examining all the sentences both doctrinally and empirically we can see that sentences are premised on those critical factors that the judges are admonished to employ by the ICTY Statute and their own Rules of Procedure and Evidence.

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.

For years ICTY sentencing practice has deemed an accused's expression of remorse to be a factor in mitigation of sentence. This article examines whether the ICTY has adequately elucidated the theoretical and purposive basis for its reliance on this factor. It observes that, although the Tribunal has addressed from the outset the need to ensure that this subjective factor is not contrived, it has only belatedly identified the relationship between an expression of remorse and the fundamental sentencing objective of reconciliation.

The Bank for International Settlements (BIS), created in 1930 to handle German reparations from the First World War, has enjoyed a unique international legal position. This status was questioned when the Bank, in 2001, recalled its shares held by private parties. The resulting arbitral award settled the BIS's sui generis legal status, as well as making some important rulings about the application of state responsibility rules to international institutions in cases of expropriation. Additionally, the award provided needed insight as to the use of various methods of valuation of corporate assets in shareholder claims.

The proposed draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights addressed to transnational corporations are making their way through the human rights channels in the United Nations. A previous effort in the United Nations failed twenty years ago. The Norms would urge those firms to adhere to a long list of treaties on the environment, labour standards, human rights, and the like. They would enter into a field already occupied by numerous principles and guidelines generated by many different institutions with varying degrees of authority. The addition of these norms to that corpus seems of marginal utility.

The United States has an obvious interest in obtaining custody of and prosecuting and punishing those responsible for plotting terrorist attacks against it. The forcible abduction of suspects has in the past been a tactic favoured by it in order to obtain such custody; however, abductions are problematic, since they necessarily involve infringements of human rights, as well as the infringement of territorial sovereignty. Extradition is by far the more preferable means, since it ensures an adequate respect for human rights. However, various US policies relating to the treatment of terrorist suspects are likely to create obstacles to extradition.

Until the emergence of the Convention on Biological Diversity in 1992 and the FAO Treaty on Plant Genetic Resources in 2001, opinion had hardened in some quarters that the principle of a common heritage of mankind regulated international transfer of plant genetic resources. By a historical analysis of customary international law in the colonial age and the recent pedigree of the principle of common heritage, this article points out the fallacies in such arguments and contends that plants have always been subject to various national jurisdictions. It has to be conceded, however, that contemporary developments in the field of international law relating to plant genetic resources foretell the emergence of a regime of multilateral relationships governing access to plant genetic resources. If it is to depart from its unfortunate history, such a regime of multilateral co-operation would have to pay serious regard to the issue of equitable access to and sustainable use of plant genetic resources.

That the international system has changed dramatically in the years since the end of the Cold War has become a commonplace. But which changes are most profound, and what is their significance for international legal order? The last decade of the twentieth century generated dozens of books and articles hailing a transformed world order and interpreting its political, economic, and social consequences. We have more distance now. The first years of this century have underscored the significance of changes in the structure of international affairs – but they also demonstrate how difficult it is to interpret them with confidence.

In this presentation I shall describe (i) a process of expanding the institutional frameworks of economic and social development that apply on a global scale principles found in the Anglo-American world; (ii) the reinterpretation of these institutional frameworks by ascribing to them a narrow – to a certain extent ideological – meaning which does not reflect the variety of meanings carried by those institutions in the Anglo-American world; and (iii) the undermining of sovereign decision-making by states in order to regulate economies and social systems in a manner that does not pose limitations to the expansion of the institutional framework as described above. This hegemonic programme of ‘globalization’ is at the heart of policies promoted by the United States and such international institutions as the International Monetary Fund (IMF) and the World Bank.

Among many goals which governments and individuals always pursue, the broadest and most common is security. It is the basic context in which most other values are enjoyed, in the expectation that they will last for a long time. However, the meaning of security has always been ambiguous. At the end of the twentieth century the world held great promise: the Cold War was over and we hoped to see a peaceful, secure future after the century of interstate conflicts, taking full advantage of globalization and minimizing its negative effects. Now, at the beginning of the twenty-first century, new challenges to security are looming over the horizon. We are facing today the emergence of a global society, which crosses national borders and makes the world closer economically and technologically.

The network of international economic, political, and social organizations established at the initiative of the first world constitute a nascent global state whose function is to realize the interests of the powerful states to the disadvantage of third world states and peoples. The evolving global state formation may therefore be described as having a neo-imperial character.

My thesis is that our problem is not a lack of law but a surfeit of law, that the situation of international political culture at the moment is not one in which we need to worry about making the legal culture more dense, rather that we should worry about finding sites and opportunities for increasing the possibility for politics, for contestation of the outcomes and procedures of the existing legal regime. The difficulty is how to do that. How does one build the possibility for politics, progressive or otherwise, in such a technocratic decision-making structure?

It would have been a good deal easier to write the summary of the events, given the extreme complexity, contradictoriness, diversity, and above all the richness of contributions, had I not listened to them.

Books and Articles in the Field of International Dispute Settlement (Summer 2003) Compiled by Ingrid Kost