On 6 September 2017, Professor Emeritus Frits Kalshoven passed away at the age of 93. I learned about his passing the day afterwards, and although in some ways it should not have come as a complete surprise given his age, it had a very deep emotional impact on me. This was not only from the perspective of an international humanitarian lawyer, since in this moment we lost one of the most respected scholars of the field, someone whose expertise as an academic as well as whose impact as a practitioner can only be described in the highest praise. The great Jean Pictet wrote in his foreword to the Liber Amicorum for Frits Kalshoven that he stands in the long tradition of Dutch legal scholars ‘who, since Grotius, have greatly added to the fame of their country throughout the world’. But an even more important reason for this great feeling of loss was that we had to say good-bye not only to a great scholar, but also to a wonderful human being, a role model, a true humanitarian, a man who despite his numerous achievements remained humble and kind until the end, someone who inspired generations of colleagues, experienced lawyers and young students, in their way to apply, research and disseminate International Humanitarian Law.

This article explores the structure of the legal protection of refugees in Europe today. To this end, it will contrast historical arrangements providing protection to refugees, namely church asylum in the late Middle Ages and refuge for religious minorities, with the current European refugee regime, that is the Common European Asylum System (CEAS), in particular the Dublin system. The central claim of this article is that a basic condition for the legal protection of refugees is the existence of multiple jurisdictions, which in turn caters for competition for jurisdiction. The official logic of the CEAS, however, endorses harmonization, unity and the hierarchy of jurisdictions rather than a competition between jurisdictions. This partially explains the difficulties under the CEAS in organizing the protection of refugees through law. In policy terms, this article supports calls for reconsidering the Dublin Regulation, since through the ‘single jurisdiction’ approach Dublin hampers the legal protection of refugees.

This article provides a framework for systematically analyzing the practice, function, and consequences of human rights references in investment arbitration. In recent years, investment arbitration witnessed an enormous increase of references to external sources. References to human rights are especially interesting as they defy the alleged inherent conflict of investment and human rights, as well as the presumed fragmentation of international law. By applying both quantitative and qualitative approaches, I analyze how and why human rights references are employed in investor-state arbitration and, ultimately, whether they are able to remedy the legitimacy crisis of investment arbitration.

The empirical analysis is based on 46 awards, which include explicit references to human rights instruments. In the first part, this article examines which human rights instruments are referenced in investment arbitration and how the disputing parties as well as the tribunal engage in human rights referencing. In the second step, the article identifies two strategic functions of referencing human rights: guidance in the determination of substantive provisions and argumentative practice. This article further argues that, from a comparative law perspective, references may help to overcome the indetermination of investment treaties, provide for the balancing of investment and non-investment concerns, and ensure cross-regime consistency. In the third step, this article elaborates on whether those presumed benefits of referencing human rights can be confirmed on the basis of empirical results. It remains to be seen whether the ‘pick and choose’ approach of human rights references is capable of uncovering this legitimating potential.

This article explores the conditions under which it is possible to bring claims based on non-international investment agreement (IIA) norms of international law in investment treaty arbitration. For that purpose, it analyzes in the first instance broad dispute settlement clauses incorporated in IIAs that make reference to the settlement of ‘any investment dispute’. Such clauses grant jurisdiction to investment treaty tribunals to hear non-IIA claims. However, at least two additional conditions need to be satisfied for the investor to bring a self-standing claim based on a non-IIA norm of international law. First, the non-IIA instrument (a contract or another international treaty) may include a dispute settlement clause envisaging exclusive jurisdiction in favour of another forum. Second, the investor's standing to bring a claim based on a non-IIA norm of international law depends on whether this norm attributes any legal entitlement in the benefit of the investor.

With the rise of a new generation of investment policies, upgrading existing bilateral investment treaties (BITs) is of significant interest to states. China has upgraded 28 per cent of its investment treaties in various ways. Two investment arbitration tribunals and one highest court at the seat of arbitration have recently rendered decisions favouring the application of old Chinese BITs over the upgraded ones. China's experience with upgrading BITs may provide general policy discourse and direction for other countries planning to upgrade their BITs. Using China's experience, this article categorizes different methods of upgrading BITs into the Coexistence Model (parties to an old BIT join existing or new free trade agreements or a regional investment agreement), the Replacement Model (replace an old BIT with a new one), the Amendment Model (amend an old BIT by a protocol) and the Joint Interpretation Model (make a diplomatic announcement to interpret a BIT). This article also discusses the benefits and challenges of each model and concludes with directions for future BIT upgrading.

The workload of the International Court of Justice in recent years has increasingly featured cases of disputes classified either as ‘territorial disputes’ or as ‘boundary disputes’, or otherwise involving the Court in considerations of the law relating to acquisition or transmission of territory, or to the creation, location and effect of territorial frontiers. The present survey analyzes the contributions to international law of the Court's decisions in these recent cases. Matters examined include the significance of the terms ‘boundary dispute’ or ‘territorial dispute’; the definition of what constitutes sovereign territory; titles and effectivités as bases for territorial claims; decolonization and the uti possidetis juris; use of natural features or of straight lines as boundaries; and relations across a frontier once established.

This article argues that the South West Africa Cases were brought to an ignominious end because the cases were about self-determination as much as they were about apartheid. For liberals like Judge Sir Percy Spender, the President of the Court, political systems based on majority rule looked suspiciously like authoritarian regimes modelled on the Soviet Union during the Cold War. It is submitted that, given the controversy surrounding self-determination in international law, Sir Percy wanted to avoid addressing the merits of the cases. Self-determination was the proverbial ‘elephant in the court room’ that Sir Percy wanted to avoid at all costs. This article builds upon earlier archival research on the South West Africa Cases by taking a closer look at Sir Percy's role in the cases and his views on self-determination. It is argued that what ‘killed’ the cases was Sir Percy's belief that Ethiopia and Liberia were seeking to ‘legalize’ self-determination with a view to further uniting the Afro-Asian bloc at the United Nations with the Soviet Union against the West.

Under contemporary international law, war crimes are conceived as particularly serious violations of the laws of armed conflict. Mere participation of rank-and-file soldiers in an unjust or unlawful war is generally not considered to warrant legal punishment. This position is based on the principle of equality between belligerents. During the last 20 years, this principle has been challenged by the so-called revisionist position in just war theory, as well as by certain scholars in international law. According to them, unjust or unlawful participants in armed conflict perpetrate serious wrongs. This article argues that their conduct is not only morally wrongful, but also that it should be criminalized under certain circumstances. On the basis of empirical research on cognitive biases, and on one of the leading accounts of legitimate authority in political philosophy, it argues that participation in war warrants criminalization only when the war is knowingly or manifestly unlawful. Furthermore, it claims that this position is not only sound at the level of deep moral principles, but that in fact it provides a persuasive reinterpretation of existing international law.