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In the summer of 2014 I attended a conference panel on international lawyers as public intellectuals. The academics on the panel talked about their twitter accounts, their blogs, their occasional radio and television appearances, and their opinion-editorials in major newspapers. The discussion really focused not on whether international lawyers should be public intellectuals, but on how they can do so, and what the ramifications of such public engagement can be. What struck me most, however, was a notable omission: no one on the panel or in the audience mentioned books as a medium through which public international lawyers might reach a mass audience. In reflecting on this omission I realized that academics in this field do not, for the most part, write books for a general readership. To the extent that public international lawyers reach a mass audience at all, they have chosen do so through other means – with some exceptions.
The ‘rule of law’ is a concept at the very heart of the United Nations (UN) mission declared its Secretary-General, Kofi Annan. What does the concept mean internationally? The paper considers its role in international adjudication; in the UN more generally; in terms of the acceptances of the compulsory jurisdiction of the International Court of Justice (ICJ); the difference between thick and thin definitions of the concept; equality before the law; the requirement of clarity and certainty by reference to interpretation of treaties and maritime delimitation; compliance by Governments with international law; and the peaceful settlement of international disputes; and concludes with the importance of personal qualities and professional qualities.
Both state-centrism and Eurocentrism are under challenge in international law today. This article argues that this double challenge is mirrored back into the study of the history of international law. It examines the effects of the rise of positivism as a method of norm-identification and the role of methodological nationalism upon the study of the history of international law in the modern foundational period of international law. It extends this by examining how this bequeathed a double exclusionary bias regarding time and space to the study of the history of international law as well as a reiterative focus on a series of canonical events and authors to the exclusion of others such as those related to the Islamic history of international law. It then analyses why this state of historiographical affairs is changing, highlighting intra-disciplinary developments within the field of the history of international law and the effects that the ‘international turn in the writing of history’ is having on the writing of a new history of international law for a global age. It concludes with a reflection on some of the tasks ahead, providing a series of historiographical signposts for the history of international law as a field of new research.
This article shows how the political, historical, sociological, and economic narrative of Ibn Khaldun influenced the conjunction of elements that were essential to the civilizing language promoted by European and American liberals in the nineteenth and twentieth centuries. The ‘standard of civilization’ has experienced a revival among critical legal scholars. These authors have reconstructed a historical process of ‘rise, fall, and rise’ of the ‘standard of civilization’, identifying its reappearance in an era of globalization and global governance with the current existence of a (neo-)colonial paradigm in international law and a (neo-)liberal global economy. This study is divided into three parts intended to examine in depth the precursory role of this Islamic thinker in the shaping of civilizing language. The first part examines Ibn Khaldun's life as a way of understanding his thinking on civilization. The second part explores the influence of Ibn Khaldun's work on the discourse surrounding the standard of civilization, by reintroducing the interpretation of Rafael Altamira (1866–1951). The third starts with Ibn Khaldun's writings on economic science and Joseph Spengler's (1902–1991) approach to his works. Several Islamic economic institutions and their influence on the state and concept of international society are examined. The revival of Ibn Khaldun's thinking is partly intended to fill an existing gap in the studies of medieval Islamic theorists. By examining his ideas about the socio-political and economic viability of a dynasty (or a civilization or a state), this article attempts to shed light on the intercultural origins of international law.
Current endeavours to develop a ‘realistic’ concept of international law should take into account that there is not only one reality. It does not suffice to admit that reality can be perceived from different angles. Rather, a realistic account of modern society has to acknowledge that we can no longer speak of the ‘world’ or ‘reality’ as a singular entity. Perspectives matter; they construct their own, distinct objects of cognition. A ‘New Legal Realism’ is deliberately new, legal, and realistic only insofar as it is conceived as an understanding of how (international) law creates its own realities.
This article responds to five pieces published in the previous issue of the Leiden Journal of International Law, extolling the virtues of a new legal realism. I first express some doubts as to whether an awful lot can and should be expected from yet another new approach to the study of international law; earlier approaches widely heralded have quietly disappeared from sight, sometimes without leaving much trace. Subsequently, I discuss the extent to which the new international legal realism conceptualizes its notion of empirical reality, followed by a discussion on which interests the new insights spawned by new legal realism are to serve.
This rejoinder responds to criticisms by Jan Klabbers and Ino Augsberg of ‘The New Legal Realist Approach to International Law’ (Leiden Journal of International Law, Volume 28:2, 2015). The New Legal Realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practised, and changes over time. In contrast with conceptualists, such as Augsberg, legal realists do not accept the priority of concepts over facts, but rather stress the interaction of concepts with experience in shaping law's meaning and practice. Klabbers, as a legal positivist, questions the value of the turn to empirical work and asks whether it is a fad. This rejoinder contends that the New Legal Realism has deep jurisprudential roots in Europe and the United States, constituting a third stream of jurisprudence involving the development of sociolegal theory, in complement with, but not opposed to, analytic and normative theory.
In this separate rejoinder to Jan Klabbers' and Ino Augsberg's comments to the articles in the symposium on New Legal Realism in International Law (Leiden Journal of International Law, Volume 28:2, 2015), we respond from the point of view of the European New Legal Realism (ENLR) as propounded in our initial contribution to the symposium. Agreeing with Ingo Venzke who wrote in his introduction to the symposium that ‘stakes are high’ in the debate over international law and methodology, we argue that both Klabbers and Augsberg, each in their own way, fail to take sufficiently seriously the ENLR challenge to doctrinal scholarship. We argue that Klabbers underestimates the evergreen and persistent character of this challenge when he portrays the current push for New Legal Realism as merely a whimsy fashion wave. And we argue that Augsberg's essentially Kelsenian defence of doctrinal scholarship is insufficiently robust because it inherits the excess epistemological liberalism of its underlying Neo-Kantianism.
Prepared as a working paper for the International Law Commission, this article discusses whether there can be said to be a general customary law of human rights, or whether any such customary law might be of a special nature.
The Haiti cholera claims are focused upon the UN's violation of the rights of individuals affected by the cholera outbreak to access a remedy. The UN's absolute immunity from jurisdiction of national courts is counterbalanced by its duty to provide alternative dispute resolution mechanisms for private law claims. The UN has not only failed to provide those alternative dispute resolution mechanisms, but has repeatedly stated that no claims are receivable in these circumstances. Here we set out that even if the UN is able to shield itself from private law claims by using the cloak of absolute immunity, the UN might be held responsible for human rights violations arising from the cholera outbreak in Haiti. This article is concerned with the broader issue of whether the UN has violated and continues to violate individuals' right to health in Haiti.
Five decades after the wave of independence of the 1960s, have all African territories been decolonized in accordance with international law? On the basis of the General Assembly and state practice, this study argues that only the continuing possession of African territories by colonial powers is contrary to the obligation to decolonize under international law. Thus, colonialism is still persisting in Africa with regard to the Glorious Islands, Mayotte, the Chagos, Ceuta and Melilla, the islands Alhucemas, Chafarinas, Leïla, and Peñon de Vélez de la Gomera. These territories belong respectively to Madagascar, the Comoros Islands, Mauritius, and Morocco. However, the obligation to decolonize under international law, which is premised on the existence of a colonial possession, does not provide any legal basis to claims directed against independent African states. Besides, the maintenance of boundaries existing upon the achievement of African countries to independence is not a case of enduring colonialism.
There is a lively discussion as to whether debts incurred by despotic regimes and used to the detriment of the population are legally valid. This article gives a brief introduction to the concept of so-called odious debts and argues that a legal solution is not only desirable, but feasible. Subsequently, international human rights are identified as the missing link between the behaviour of the debtor state and the assessment of individual debts. Consequently, a human rights-based mechanism for the prevention of odious agreements is developed, based on an international convention annexed to this article. The convention provides that a state is classified as odious debts-prone if it is responsible for serious and systematic violations of human rights or international humanitarian law, or if its public sector is governed by severe and systemic corruption. Agreements concluded with an odious debts-prone state are void, unless the agreement complies with principles of responsible contracting as developed in this article. Finally, the scope of application of the convention and possible state parties are specified.
The doctrine and case law on expropriation in international investment law is an unsettled area due to a variety of factors such as the diversity of interests between capital importing and exporting states, the divergence in legal, economic, and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active ‘treaty-maker’ in the universe of international investment arbitration, evidenced by its nearly 130 bilateral investment treaties (BITs), the notion of expropriation in these BITs is in a state of flux. This article scrutinizes the expropriation clauses in China's BITs, in particular, the Peru–China BIT and the Peru–China free trade agreement, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This article attempts, in a comparative context, to understand the underlying rationale for China's evolving stance on expropriation.
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
The attitude of African states towards judicial and arbitral settlement of disputes has substantially evolved since their accession to independence. The original reluctance to resort to the judicial settlement of disputes was due to a lack of trust in the system of ‘international law’ from which they were excluded prior to the UN Charter era and the rules of which were sometimes used to justify their colonization. There was also the issue of under-representation in international judicial or arbitral organs. That initial reluctance has more recently evolved into acquiescence at the universal level. Judicial institutions are also being established by the African states themselves.
Article 31(1)(d)1 of the Rome Statute of the International Criminal Court (ICC Statute) presents an important opportunity to reconsider the defence of duress in cases of unlawful killing. While the case of Erdemović has done much to substantiate the existence of the defence of duress at international law it appears to have curtailed the doctrine by interpreting it with reference to a strict form of proportionality characteristic of duress as justification. On the other hand, duress as excuse requires some measure of proportionality. This article will contend that the hybrid approach of Nuremberg Military Tribunals (NMTs), defined duress and the moral choice test primarily by reference to culpa in causa, not resorting to duress, and a ‘softer’ proportionality and in doing so, provided a more flexible and workable model for duress. Article 31(1)(d) of the ICC Statute, although an interesting attempt to find the balance between duress as excuse and justification, is a missed opportunity to redefine the defence in international criminal law. An alternative test for duress, with reference to the principles that emerged from the jurisprudence of the NMTs, is required in order to find the correct balance between duress as excuse and justification.
This article focuses on the approaches of international criminal judges to using external precedent, distinguishing between the appraisal-based and flexible approaches. On the one hand, the appraisal-based approach refers to uses of external judicial decisions which are preceded by an express legal appraisal. On the other hand, the flexible approach denotes a less stringent use of such decisions. It finds that, in a number of cases, international criminal judges have adopted a flexible approach to decisions and have assimilated them within the legal framework of the referring court or tribunal without the necessary adjustment. This may have important implications for the principle of legality and the fairness of the proceedings. The paper indicates that the adoption of either the appraisal-based or flexible approaches to external judicial decisions is not necessarily linked to the specific legal backgrounds of the judges involved, and different judges hailing from varying legal backgrounds have shifted between these approaches in different cases. This suggests that there is need for greater rigour in the judicial methodology for using external judicial decisions and, in particular, the importance of the appraisal-based approach to using such decisions, to ensure their the congruence with the legal framework of the referring court or tribunal.
Since the end of the Cold War, societies from the former Soviet Union and others throughout Eastern Europe, Africa, Asia, and Latin America have overthrown dictators and other authoritative rulers in the hope of allowing democracy, the rule of law, and human rights. In some cases, the change has been violent and drawn out, while in other cases the change has been quick and (more or less) non-violent. Regardless of whether the change has been violent or not, a crucial question during and after transition is: In what ways should post-authoritarian and/or post-conflict societies deal with their ‘evil’ past in order to ‘enable the state itself to [once again] function as a moral agent’? This question constitutes the very core of what is known as ‘transitional justice’ (TJ).
This doctoral thesis, now published as a monograph, provides a thorough analysis of one of the most crucial concepts of the modern law of armed conflicts (LOAC), namely military objectives. The concept is crucial because the targeting of such objectives is directly linked to the principle of distinction, which in turn is a cardinal tenet of LOAC. It requires that the belligerents must always make the distinction between civilian objects and persons on the one hand, and military objectives (persons and objects) on the other, and attack only the latter to the exclusion of the former (Article 48 of the Additional Protocol I of 1977 (AP I)). Thus, the concept of military objectives is cast amidst the protection of civilians during the conduct of hostilities (whereas Geneva Convention IV of 1949 concerns their protection outside the context of combat action). It stands to reason that this protection is an essential part of the modern law of armed conflicts. Moreover, it is only superficially surprising that AP I was the first treaty to generally define military objectives. In the nineteenth century, the civilian hardly appeared in the LOAC. It was at that time simply taken for granted that civilians were outside the reach of military action; they would not participate in it and concomitantly would be spared from attacks. The social environment of the past was such that military action and civilian presence were reasonably distinct: the battlefield was the pitch for military action, other areas were bluntly aloof from such action. The twentieth century completely changed these parameters. Air power allowed a belligerent to wreak heavy havoc into all the lands of the adverse party. Industrialization and modernization of the army made civilian objectives relevant from a military standpoint, in particular industrial plants. Finally, the difference between civilians and military personnel was blurred, since civilians participated in a variety of forms to military operations (guerilla warfare is but one of the most emblematic forms of such participation). All these factors, among others, explain that the majority of victims in modern armed conflicts are civilians, not rarely up to a proportion of 90 per cent.1 The question of military objectives remains also highly relevant when viewed from another perspective. It is a concept often applied in modern military campaigns, where air power is of the essence. However, it gives rise to uncertainties at least on two accounts. First, the definition is open-ended and contextual; it must be operationalized in single cases and this gives rise to legal uncertainty. Indeed, Article 52, § 2, AP I, the cardinal provision in this regard, provides only for criteria which have to be applied by the belligerent to single sets of facts in order to determine if an object is a military objective. Second, there are marked differences of interpretation between the US and the continental European conceptions of military objectives, especially in certain areas of targeting such as ‘economic targets’ (i.e. targets chosen for their economic value to the war-sustaining effort). Notwithstanding the relevance of the concept of military objectives, there is hardly a wealth of monographic treatment of the subject matter. Indeed, no monograph in the English language was directly and exclusively devoted to that notion before the present publication. This new monograph is thus more than welcome.