This article examines the tensions within the international drug control system which are putting the until now consensual position in regard to the prohibition on drugs supply and use for anything other than medical and scientific use – the Vienna Consensus – under strain. The article examines a number of areas where policy stress is leading to controversy about potential violation of international drug control treaty obligations by states parties. Drawing a comparison with earlier periods of stress when drug control fell under the League of Nations, it suggests that what appears to be occurring is a shift in the Vienna consensus, and that the drug conventions are sufficiently flexible to permit resulting shifts in practice, although reform would be preferable.

This article examines Roger Fisher's scholarship in international law in the decades prior to the publication of Getting to Yes. Fisher engaged with the same major questions as other international law scholars during the Cold War, but his scholarship was distinguished by the degree to which he grappled with the cutting-edge social science of the mid-century. Even as Fisher collaborated with game theorists and nuclear strategists to understand the theory of conflict, he maintained a critical view of the basic assumptions of game theoretic analysis – defending certain normative elements of the methodology even as he denied its descriptive claims. Subsequent work sought to generate robust descriptions of the role of law in international decision-making during crises. Fisher's normative and descriptive studies of the role of law in such crises led directly to Getting to Yes, creating a body of ‘meta-game theory’ that situated formal studies of conflict within a lawyer's understanding of dispute resolution. Fisher's engagement with social scientists helps illuminate current methodological debates in international law by highlighting the stakes of these theoretical questions and the tensions between scholarship and practice in international law.

This article examines the debate on the use of force ‘from the periphery’, both in the geographical sense and outside the mainstream discourse. It offers an alternative reading of the evolution of the law on the use of force, starting not with the end of the Cold War, but with the process of decolonization. My argument is that this reading is missing from the debate framed as an opposition between a restrictivist and an expansionist camp. Yet it is crucial if one wants to understand the normative pull that is left of legal concepts such as non-intervention, aggression, and self-determination.

In this article I excavate and critique two dominant images of the international lawyer that emerge from the oeuvre of Martti Koskenniemi. In doing so, I hope to briefly shake the faith critical international legal thought so often invests in the potential of the subject. The first image is of the critical subject that emerges from From Apology to Utopia. She also happens to be a projection of the critic, governed by both elitism and unhappiness, for whom freedom is always both a constant and overarching possibility, and yet always embodied in a fleeting moment. By way of critique, I question whether this critic(al subject) may not unwittingly embed the very aspects of liberal legal and political thought that she seeks to challenge. The second image is of the professional lawyer, left on the shores of pragmatism. She emerges from my reading of Koskenniemi's The Gentle Civilizer, the 2005 Epilogue and his Kantian texts. She is constructed as Koskenniemi's critique is domesticated, taking a last, and perhaps futile, refuge in an ethics that is needed to buttress an identity which can aid international law's moral regeneration. Koskenniemi's writings urge today's international lawyers to put their sense of identity into question; this article asks which identities (and their possibilities) he embeds as he does so.

This essay is a friendly response to the colloquium on From Apology to Utopia (FATU). It restates the way critical research examines the exercise of power through analysis of (legal) language. Attention is directed especially to the empowering and enchanting effects of the law. The main point has to do with the continuing power of structuralism as a form of legal analysis.

International law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs, however, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterize the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.

This article critically examines the dynamics between public health, intellectual property, and international trade in the context of the TRIPS Amendment and its theoretical implications in international law. The article suggests that international efforts in the TRIPS 2003 Waiver and 2005 Amendment addressing public health concerns have not been very successful due to the birth defect of TRIPS, i.e., hoping a private-rights-in-nature regime could accommodate public interests in health concerns. TRIPS’ birth defect further reveals itself in post-TRIPS development and contributed to the failure of the TRIPS Waiver and Amendment due to the resulting practice fragmentation and procedural hurdles in domestic compulsory licensing administration. Moreover, the TRIPS Amendment raised a fundamental theoretical issue, i.e., how the WTO as an international organization in public international law can regulate compulsory licensing of intellectual property rights as private rights – in particular the proprietary right to remuneration – while recognizing that TRIPS grants no positive rights. The paper suggests that the key to the issue is the treatment of private rights in public international law. It is submitted that the TRIPS Amendment has no legal basis in international law due to its unwarranted intrusion into members’ domestic affairs and individuals’ private proprietary rights. The article thus calls for alternative thinking about the TRIPS Amendment, in particular to leave administration of compulsory licensing fully with domestic authorities as it is in the Paris Convention.

This article examines the challenges surrounding the enforcement of decisions of international courts, using the Caribbean Court of Justice (CCJ) as the fulcrum of the analysis. When sitting in its original jurisdiction, the CCJ adjudicates claims arising from the Revised Treaty of Chaguaramas and the operation of the Caribbean Single Market and Economy. However, there is no clear route for the enforcement of original jurisdiction decisions. The Agreement Establishing the CCJ leaves the issue of enforcement to the states themselves, who in turn have either failed to enact enforcement legislation or have provided for enforcement to be carried out ‘in like manner’ as the decisions of domestic courts. This phraseology raises the spectre of the Crown Proceedings Act and its legislative progeny which bar the pursuit of enforcement proceedings against the state. Several solutions to this enforcement conundrum are discussed, ranging from a regional enforcement treaty, akin to the New York Convention, to enforcement at common law using the Fick case, with the merits and demerits of each examined in turn.

The International Court of Justice (ICJ or the Court) continues to hear and determine the contentious cases submitted to it, keeping up what has been referred to as an acceptable ‘cruising pace’. After recalling the extent to which the demands on the Court have increased, and the practical means available to it have been greatly extended, the author (following up an earlier article on the subject in the Netherlands International Law Review) examines the Court's recent case-law (decisions given since 2010) to show how each decision, besides furthering settlement of the specific dispute, has contributed to the enlargement or development of international law. Attention is concentrated, however, on particular questions: the role of peremptory norms (jus cogens); interpretation of treaties; questions of jurisdiction (including the problem of the existence of a justiciable dispute in each case); and certain incidental proceedings contemplated by the Court's Statute and Rules, namely provisional measures and intervention under Articles 62 and 63 of the Statute.

In the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, the International Tribunal for the Law of the Sea (ITLOS) was called upon to clarify the existence of its advisory jurisdiction as a full Tribunal under the UN Convention on the Law of the Sea (UNCLOS). ITLOS unanimously upheld its advisory jurisdiction, yet its reasoning is not convincing. ITLOS’s interpretation of Article 21 of its Statute appears unpersuasive. The article discusses the interpretation of Article 21 ITLOS Statute pursuant to the rules on interpretation of the Vienna Convention on the Law of Treaties (Arts. 31–33). First, the article addresses the article's textual reading, and criticizes the Tribunal's interpretation of the term ‘matters’. Second, the article considers the interpretation of Article 21 according to the subsequent practice of the parties, argued by some states but not addressed by ITLOS. Third, the travaux préparatoires of the UNCLOS are examined, with a view to understanding whether the drafters intended the Tribunal to have advisory jurisdiction. Fourth, the six authentic texts of UNCLOS are compared in order to highlight potential differences that may help understand the exact meaning of the provision. Fifth, the article discusses the relationship between advisory jurisdiction and state consent. The conclusion is that the basis for ITLOS's advisory jurisdiction under UNCLOS seems weak. Some general considerations conclude the article, together with a possible solution that takes stock of ITLOS's decision.

Arbitral tribunals have traditionally encountered difficulties in drawing the distinction between jurisdiction and admissibility. The various approaches range from the rejection of the concept of admissibility in arbitral proceedings to an overly expansive interpretation of the concept of admissibility so as to include aspects of jurisdiction. With BG Group v. Republic of Argentina, the US Supreme Court has further complicated the problem in what has become the first decision in its history on the interpretation of a bilateral investment treaty. The present article sets forth a test for distinguishing jurisdiction from admissibility which is in line with international jurisprudence and takes due account of the normative and institutional particularities of international investment arbitration proceedings.

The present symposium follows on from a forum held at the University of Oslo on 11 September 2015 during the 11th Annual Conference of the European Society of International Law. This forum, sponsored by the ESIL Interest Group on Peace and Security, was particularly successful and led to a very interesting debate between the members of the European Society of International Law. The Leiden Journal of International Law has today the pleasure to publish, after the usual process of peer review, the complete and updated versions of the four papers presented during this event.

The development of the Common European Asylum System (CEAS) has often revealed the tight interrelation between refugee law, humanitarian law and international criminal law. It has been argued that the latter bodies of law have, in fact, played a major role in the development of most key concept of the European Union asylum acquis.

Drawing from the judgment issued by the Court of Justice of the European Union (CJEU) in Diakité, this article aims to prove that this assumption is not always true, especially with reference to the interpretation of specific concepts of international humanitarian law (IHL) and, in particular, the controversial notion of ‘internal armed conflict’. In tackling the sensitive issue of clarifying the meaning of ‘internal armed conflict’ in order to investigate the grounds to warrant subsidiary protection under the Qualification Directive, the Court provided an autonomous interpretation that goes beyond IHL, thus offering another occasion to investigate the interrelation between international law and the EU legal order.

While contributing to the ongoing debate on the relationship between international law and the EU legal order, the article will consider the impact of the Court's reasoning on the EU asylum acquis, and will consider whether disconnecting the Qualification Directive from IHL, instead of producing further fragmentation of international law, may contribute to its defragmentation, conceived of as a harmonic co-ordination of different branches of law.

The legal argument of intervention by invitation has been used by all 11 states intervening in Iraq (nine members of the US-led coalition, Russia, and Iran), by Egypt for its airstrikes against ISIL in Libya, and by Iran and Russia for their interventions in Syria. To the extent that these consensual military interventions targeted ISIL and other UN-designated terrorist groups, their legality has not been challenged by any state. Strong criticisms marked nonetheless military operations undertaken by invitation, but not targeting ‘terrorist groups’, such as the alleged Russian strikes against the ‘Syrian moderate opposition’. The arguments advanced by intervening states seem to confirm the purpose-based approach of intervention by invitation. They did not claim a ‘right to intervene in a civil war’, but relied on the existence of both a request by the government and a legitimate purpose: fighting ISIL and other terrorist groups. The different reactions also show unwillingness by the international community to recognize a general right of intervention in a civil war. Turning to the strikes of the US-led coalition in Syria, it is impossible to rely on the legal basis of ‘intervention by invitation’. The controversial theory of ‘passive consent’ could be used to some extent – but not after September 2015 when Syria denounced these strikes as a ‘flagrant violation’ of its sovereignty. The current efforts of the international community to find consensual solutions to the dramatic conflicts in Syria, Libya, and Iraq could offer new possibilities of consensual interventions against ISIL and other terrorist groups.

On 2 April 2015, the full International Tribunal for the Law of the Sea (ITLOS) rendered its first advisory opinion in reply to a request of the Sub-Regional Fisheries Commission regarding illegal, unreported and unregulated fishing. Unlike any other court or tribunal with advisory competence, including the Seabed Disputes Chamber, ITLOS’ advisory jurisdiction is not explicitly enshrined in its constituent instrument, but was rather asserted in the Tribunal’s, homemade, rules of procedure. In spite of strong objections from various states, ITLOS affirmed a broad advisory jurisdiction ratione materiae and personae, and found that there were no compelling reasons to exercise its discretionary power to dismiss the request. The request and the Tribunal's handling thereof raise interesting questions regarding the opportunities and risks inherent to, and the outer limits of, the advisory jurisdiction of international courts and tribunals. This contribution takes a look at the advisory jurisdiction of the full Tribunal, having regard to the experiences of other international courts and tribunals.

The newest convention of the Council of Europe requires states parties to criminalize all activities related to the trafficking in human organs. It is the first international agreement specifically aimed at addressing this form or criminal trade. Trafficking in human organs is mostly a transnational criminal enterprise: the article highlights how contracting states will have to face specific problems in prosecuting offences committed in foreign countries. The effectiveness of the convention depends on the parties’ determination in solving such problems and in avoiding taking advantage from some reservations that – though admitted by the convention – could undermine its possible value as a means of combating transnational crime.

As the list of contentious cases concerning issues of state responsibility brought before the International Court of Justice (the Court) continues to grow, a closer consideration is demanded of the most common remedy granted by the Court – the declaratory judgment. In particular, while the Court continues to issue declarations intended to constitute ‘appropriate satisfaction’, it also appears that the Court is – or is attempting – to use declarations more creatively in certain circumstances. This immediately provokes a question as to not only the proper role of declaratory judgments, but also whether and to what extent variations in the nature of the obligations owed by states, or the nature of their internationally wrongful acts, gives rise to a coherent differentiation in the remedies granted by the Court.

On 23 September 2014, the United States of America sent a letter to the Security Council justifying the launch of an air campaign against the Islamic State of Iraq and the Levant (ISIL) on Syrian territory. In this letter, the US referred to a formula that appeared a few years ago in certain scholarly writings: the ‘unwilling or unable’ test. The aim of this article is to show that this test has not been accepted by the international community of states as a whole in the Syrian case. It is also to stress that such an acceptance would lead to a radical transformation of the jus contra bellum regime, one that a large majority of states is probably not ready to accept.