Taking the opportunity of this LJIL special lecture, Professor Alter provides an interdisciplinary retrospective that explains, defends and critiques six common visions of international law: The naïve political scientist’s expectations about international law as a fixed reflection of political choices; the legal formalist and structural theorist who believes that formal rules, institutions, and processes should generate similar outcomes in different parts of the world; the Western centric scholar’s notion that one can draw general lessons based on European and American experiences; the liberal internationalist who believes that multilateral processes generate consent based agreements and outcomes; the law and society scholar whose focus on the local can minimize international structural elements; and the international legal sociologist who believes that meanings and practices constitute international law. After reflecting on what each vision captures and misses about international law, Professor Alter identifies the policy stakes of residing within a vision. While we need to draw from multiple visions to understand the hybridity of international law, we also need to understand the implicit presumptions of each vision, as these presumptions generate contradictory prescriptive recommendations.

In 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

International law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.

As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

This article examines the usefulness of an encounter with queer theory to contribute to the peaceful resolution of armed conflicts, to question the traditional frontiers of international law, and to lay the groundwork for envisaging different forms of peace and peace-making. In a field where, arguably, little genuine progress has been made to resolve armed conflicts and to address underlying forms of violence, queer theory can reinforce a pluralistic understanding of law and suggest much-needed unsettling and creative approaches. The article focuses on queer theory’s specific critique of the construction and normalization of hierarchies, categories, and identities, which almost always – whether explicitly or implicitly – lie at the heart of armed conflicts and frame peace negotiations, without ever being truly reconsidered. Moreover, queer theory allows appreciating both peace and law beyond predetermined categorizations and as aspirational endeavours that are constantly evolving. Through a dialogue between two figures, which imagines what Peace and qt* might want to tell each other, this article also attempts to queer the standard academic format and to question the dominant forms of expression and knowledge-production in academia.

Litigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law.

This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.

The article discusses the complicated situation of post-German cultural property held within Poland’s borders after the Second World War. On 2 August 1945, ‘the Big Three’ decided a new layout of power within Europe. They reached an agreement that Silesia, Pomerania, the Free City of Danzig (Gdańsk), and part of East Prussia (Regained Territories) along with all the property which had been left on site, should be a part of Poland. One of the post-war priorities of the Polish Government was to regulate the legal status of post-German cultural property left within these newly-delineated borders. Although the Second World War ended in 1945, there was still a threat that the majority of post-German property could be devastated, destroyed, or even looted. There are some documented cases where such cultural property was seized inter alia by the Red Army and then transported to Russia. Since 1945, Russian museums have exhibited many of these pieces of art. This article addresses the question concerning the legal status of post-German cultural property in light of public international law. Furthermore, the article responds to the question, whether Poland is entitled to restitution of post-German cultural property looted from the Regained Territories.

About half a million Cambodians have attended hearings or outreach activities about the Extraordinary Chambers in the Courts of Cambodia (ECCC) since public hearings began in 2009. Countless more have watched the trials unfold on television, and increasingly on social media. To date, the majority of conversations around the legacy of the ECCC have come from international scholars focusing on the legal impact the trials may have. This article instead presents the often-missing views of Cambodian youth about the Tribunal. It also, more broadly, explores the ECCC’s impact on education and young people’s understanding of history. Based on research carried out with university students, this article argues that the contribution of the ECCC to education has often been overlooked and is in fact one of its most significant legacies. In Cambodia, government and non-government organizations, as well as academic institutions, have the unique opportunity to incorporate testimony, footage, and documents from the ECCC into their programmes, greatly adding to the existing repertoire of Khmer-language resources dealing with the past. The result is a more well-rounded programme of transitional justice and reconciliation than the court alone could have provided, and certainly a higher level of external resilience than would have occurred had the court been located outside of Cambodia.

Many of the conflicts that have led to the creation of hybrid tribunals were identity-based conflicts – people who identified as members of one tribe, race, ethnicity, or religion used these distinctions as grounds to attack and persecute another group who often responded in kind. This reality means that the criminal justice processes that take place in the wake of such conflicts must take issues of identity seriously to be effective. This article uses the notion of framing contests to examine different identity-based responses to international justice. Defenders of the tribunals seek to portray them as impartial observers while critics paint them as illegitimate outsiders. Because hybrid tribunals have identity considerations as features built into them, they are better suited to promote their own legitimacy in these framing contests. These features include the personnel they use, the witnesses they call, the strategies their prosecutors deploy, and their local outreach programmes. Each of these tools can be used to frame the tribunal as a legitimate means to promote criminal justice and thereby advance the values of transitional justice.

In this article, I explore the concept of resilience and its relevance for evaluating hybrid court design and the impact of hybrid courts in societies that have experienced periods of mass violence or repression. I begin by tracing the evolution of the concept of resilience from the fields of materials science and ecology to human responses to natural and human-made disasters. Then, I examine the implications of how one defines the concept for the policy recommendations that should be provided to the architects and staff of hybrid courts. From there, I assess how the way one conceives of resilience shapes the assessment of the circumstances under which hybrid courts are more likely to be beneficial for violence-affected societies. I conclude by reflecting upon the utility of adopting resilience language in the study of hybrid courts. Resilience may be seductive conceptually because it provides a vision of empowerment and autonomy for victims and affected communities. However, resilience thinking is also consistent with neoliberal prescriptions that are contrary to the realization of the type of emancipatory justice that many hybrid court advocates seek.

The article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.