The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.

During the two-and-a-half decades while Lithuania has been a party to the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has decided five Lithuanian cases. They all (perhaps but one) raised controversial issues not only of law but also of those pertaining to matters non-legal: psychology, politics, history and so on. There had been follow-ups to most of them, allowing for consideration as to the merits and disadvantages of the respective judgments. These cases are narrated on in their wider-than-legal context and reflected upon from the perspective of their bearing on these issues and of the lessons they taught both to Lithuania, as a respondent State, and to the Court itself.

To analyse the advantages of mediation as a means of resolution of private competition disputes, it is helpful to look backwards to the underlying principles upon which modern mediation has been built. The principles that now guide leading mediation institutions in Europe are still based on the foundation that was laid by the methods of principles negotiations, written down in Getting to Yes: Negotiating Agreement without Giving In, by Fisher and Ury.

After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?

The promotion of private regulation is frequently part of better regulation programmes. Also the Better Regulation programme of the European Union (EU) initiated in 2002 advocated forms of private regulation as important means to improve EU law-making activities. However, for various reasons the ambition to encourage private regulation as a genuine governance response to policy issues has remained a paper reality. This contribution asks whether and to what extent the 2015 EU Agenda on Better Regulation provides renewed guidance on how private regulation might be integrated in EU law-making processes. To that end, it builds on previous (empirical) research conducted on European private regulation and reviews the principal policy documents constituting the new EU agenda on better regulation. It is argued that while the new agenda addresses a number of the shortcomings of the old programme concerning the conceptualization and practice of private regulation in the EU, it still falls short of providing principled guidance on how private regulation can be combined and integrated in EU law-making.

Focus on whether a criminal chamber in a reformed African Court represents progress or retrogression relative to advances made in the Rome Statute shifts attention from the similar foundation of the two courts on an epochal bifurcation between the worst human rights abuses and quotidian wrongs. This bifurcation compromises our understanding of how abuses are related, what we should do about them and how we should go about studying them. It is at the core of aspects of the International Criminal Court (ICC) that have come under severe criticism. It also imperils the criminal chamber of the nascent African Court.

Statutory interpretation is quickly becoming the primary function of our courts. Ambiguity, unexpected scenarios, and drafting errors in legislation compound this challenging task, obliging many judges to turn to debate transcripts and other legislative materials in search of our elected representatives’ intent.
Legislatures are intrinsically the products of the societies that create them, however, with each possessing a diverging structure and rules of procedure. These institutional differences affect bills’ drafting, consideration, and passage, and represent the mechanical process of how legislative bargains are translated into binding statutory text.
Through the lenses of the United Kingdom Parliament and the United States Congress, the fundamental logic behind these institutions’ legislative bargains will be explored, assessing the impact of procedure and the interests that shape the enacting process. Parliamentary tradition emphasizes the foundational role of Her Majesty’s Government in managing virtually all legislation, maintaining a unity of purpose without compromise, amendment, or purposefully ambiguous provisions. Conversely, unique procedures and the multiplicity of veto players within Congress necessitates that compromise is a de facto requirement for passage. The diverging logic behind these legislative bargains offers powerful evidence that institutional characteristics have a dispositive impact on the utility of legislative materials in statutory interpretation.

This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.

There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories.

At the heart of the European Union legal order lie values directed collectively to the idea of European integration. As a body with significant governmental and lawmaking powers, the Union also presents itself as an institution based upon the rule of law. The Union ‘constitution’ therefore expresses both regulatory powers direct­ed towards European integration as well as rule of law principles whose scope of application is limited by the terms of the Treaties. In this article I consider how this distinctive amalgam of values operates as a constitution for the European Union, by comparison with domestic constitutional values within the Member States. I also consider how Union constitutional demands condition and inform the legal practices of the Court of Justice. Here I identify the interpretive effects of superior Union laws –‍ the core Treaty objectives as well as rule of law principles found within the General Principles ‍– as of particular significance in developing the legal influences of the entire Union project of integration.

Negotiation can be thought of as the tool that facilitates conflict engagement and resolution. As part of, and yet different from, conflict theory, negotiation theory has had a separate parallel development in the last 30 years. The challenges for negotiation theory in the future are similar to those found in the broader conflict theory – ensuring that negotiation theory can be implemented by practitioners; making sure that negotiation theory draws upon a multitude of disciplines; and includes theories, experiences and culture from around the world. The development of negotiation theories in law schools – where communication to resolve disputes is part of the job description – highlights the importance of pracademics and demonstrates how we need effective theories to engage in conflict.

This article is a personal reflection on the development of the field of conflict resolution/peace and conflict studies from the perspective of the classroom: how what is thought necessary to teach has changed as the field has grown and reacted to often turbulent political change

This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” conflict resolution theory and the problematics of developing universal theory in highly contextualized and diverse sets of conflict sites. The limits of “rationality” in conflict resolution is explored where feelings and ethical, religious and other values may be just as important in conflict engagement and handling.

In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.

The Central European constitutional democracies were created by the political and constitutional transition of 1989. However, twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional background of revolutionary transition. It shows that the achieved structures and rules do not prevent political communities from realizing the full promise of democracy. Second, this analysis attempts to explore how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. This section focuses on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland.