The deep relation between the colonial past and contemporary international law has been convincingly established. Scholars from diverse backgrounds, employing a variety of approaches, have shown the multifaceted ways in which the colonial enterprise occasioned the birth of doctrines and practices that are still in common use. The conference that occasioned this symposium, the last of the project History of International Law: Between Religion and Empire, directed by Martti Koskenniemi, was held in Helsinki in October 2016 and approached the issue of the colonial legacy of international law from the point of view of specific histories. The ‘techniques of empire’ raised at the conference encompassed colonial governance in the broadest sense, looking at practices, norms and normative systems, doctrines and concepts, and events. The case studies making up the articles featured in the symposium treat subjects as diverse as the experiences of colonialism have been, assuming an array of forms. Even so, from the multiplicity of techniques certain patterns and themes emerge.

At the end of the nineteenth century, China found itself torn between its imperial past and its nation-state future. By the time it became a Republic in 1911, China had to redefine its territory in new national sovereign terms. Until then its territory had been inscribed in more malleable frontiers and boundaries within the normative framework of the so-called ‘tribute system’. The article shows how, applying the new legal techniques of empire learned from the West, the Chinese central government, wherever possible, attempted to expand its new sovereign domain in territories like Tibet, Xinjiang, and Mongolia, where, according to international law, all the prerequisites existed for national self-determination and independence. In the context of opposing British and Tibetan claims, the Chinese appropriation of international law in the Republican period (1911–1949) helped China not only to assert itself in the international domain as a sovereign state, defending itself against Western imperialism, but also to pursue its own fictional imperial claims over Tibet, without which the Communists’ ‘liberation’ of Tibet would have not been possible. The paper highlights the interplay of imperial techniques based on international law, the relativity of this legal language, and how the strategies of empire are not only a prerogative of the West, but can be quickly adopted by those who have been subjected to them, resulting in a vicious circle.

In November 1945, the British colonial authorities convened a court martial of members of the Indian National Army, which had fought alongside the Japanese in the Asia-Pacific War. Three defendants were charged with ‘waging war against the King’ – the equivalent of treason, set out in Section 121 of the Indian Penal Code.

At the heart of the case was the question of allegiance. The chief defence counsel, Bhulabhai Desai, had the task of presenting a legitimate – i.e., non-treasonable – exception to the duty of allegiance to a state during a war. Drawing on Hobbesian themes, Desai insisted that a specific event – the fall of Singapore – had convinced the surrendered Indian troops of the British Army that Britain was no longer capable of protecting their interests. Further, he questioned the very premise of the ‘waging war against the King’ charge, by arguing that during a war of liberation the justice of the challenger eclipsed the security of the challenged.

Desai's approach influenced Radhabinod Pal, who would take these arguments to the International Military Tribunal for the Far East. Pal, like Desai, took as his starting point the differing interests of the powerful states and their colonies. He argued that the Allies’ motives for creating the new charge of ‘crimes against peace’ were highly suspect, considering their own history of violence towards the non-Western world. Would it not potentially immobilize the struggle against colonialism? And, pace Hobbes, could not a colonized state's duty of allegiance to the society of states be relinquished?

The article explores the demise of the ‘colonial war’ category through the employment of French colonial troops, under the 1918 armistice, to occupy the German Rhineland.

It traces the prevalence of – and the anxieties underpinning – antebellum doctrine on using ‘Barbarous Forces’ in ‘European’ war. It then records the silence of postbellum scholars on the ‘horror on the Rhine’ – orchestrated allegations of rape framed in racialized terms of humanity and the requirements of the law of civilized warfare. Among possible explanations for this silence, the article follows recent literature that considers this scandal as the embodiment of crises in masculinity, white domination, and European civilization.

These crises, like the scandal itself, expressed antebellum jurisprudential anxieties about the capacity – and implications – of black soldiers being ‘drilled white’. They also deprived postbellum lawyers of the vocabulary necessary to address what they signified: breakdown of the laws of war; evident, self-inflicted European barbarity; and the collapse of international law itself, embodied by the Versailles Diktat treating Germany – as Smuts warned, ‘as we would not treat a kaffir nation’ – as a colonial ‘object’, as Schmitt lamented.

Last, the article traces the resurgence of ‘colonial war’. It reveals how, at the moment of collapse, in the very instrument embodying it, the category found a new life. Article 22(5) of the League of Nations Covenant (the Covenant) reasserted control over the colonial object, furnishing international lawyers with a new vocabulary to address the employment of colonial troops – yet, now, as part of the ‘law of peace’. Reclassified, both rule and category re-emerged, were codified, and institutionalized imperial governance.

Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals for binding international treaties by leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyber opinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term ‘norms’. This article argues that the reluctance of states to engage in international law-making has left a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and the Tallinn Manual project. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similar to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of inter-state cyberspace governance or a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve strategic and political goals.

This article argues in favour of broadening the trade and environment debate in the World Trade Organization (WTO) to include a developmental perspective. WTO litigation involving environmental regulation touches upon the issue of global justice and the power asymmetries structurally embedded in the global economy. The recognition of the WTO as a legitimate global institution, therefore, depends on its ability to reconcile the respect for the right to regulate with the need to give due regard to the interests and concerns of foreign constituencies affected by domestic regulation. By imposing other-regarding obligations, WTO law can act as a mechanism of external accountability of powerful states vis-à-vis affected foreigners, especially where asymmetric relations and different stages of economic development are involved. The article applies this framework to analyze the legal reasoning of the Appellate Body in the US-Tuna II dispute between the US and Mexico – a dispute illustrating the complex intertwinement between economic, environmental and developmental issues. It concludes that the use of the concepts of ‘even-handedness’ and ‘calibration’ under Article 2.1 of the Technical Barriers to Trade Agreement and Article XX of the General Agreement on Tariffs and Trade did not enable the Appellate Body to strike an adequate balance between the right to regulate and external accountability. While in the original report the Appellate Body used ‘even-handedness’ to impose only a minimal level of external accountability on the US, in the compliance report, the Appellate Body has gone too far by failing to defer to the US risk assessment amidst scientific controversy and uncertainty.

On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

Over the past few decades, states have granted greater independence and authority to international courts, yet still retain their ability to control who sits on the bench. This article examines how governments use their power of judicial nomination and appointment in the context of the International Court of Justice (ICJ) and assesses the relative influence of three factors on states’ vote choices for ICJ candidates: the candidates’ probability of (in)sensitivity to political considerations; their qualifications; and the role of interstate politics. Drawing on a new dataset of candidates nominated for election to the ICJ between 1949 and 2010, we demonstrate that electing states base their initial vote choices largely on the same set of factors within both bodies that elect ICJ judges: the United Nations General Assembly and Security Council. In particular, professional experiences signaling a probability of insensitivity to political considerations reduce a candidate's expected vote share. A candidate's qualifications, on the other hand, do not appear to make a considerable difference in winning more votes. Finally, the amount of support during the nomination stage is highly correlated with vote share, suggesting that considerable screening occurs prior to nomination and that the number of nominations received facilitates co-ordination of vote choice across states.

One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.

Are historians or other country specialists needed in the investigation and prosecution of crimes under international law? Experiences at international tribunals, from the Nuremberg Trials to the present, offer different answers to this question. This article argues that country specialists are indispensable and demonstrates how, time and again, in international or national settings, practical necessities have led to structural models in which lawyers, investigators and country specialists work together. A ‘best practices’ model for interdisciplinary investigations adopted by a group of national and international prosecution units is presented in detail. When creating new international tribunals, the UN did not incorporate this model. What is needed for future tribunals is a structural framework of the Office of the Prosecutor, which includes country specialists.

This article analyzes the 9,203 citations made by the International Criminal Court (ICC) in its cases involving Sudan. To date, few empirical studies have assessed the citation practices of courts and even fewer of international courts. The data is rich. It reveals, for instance, the changing nature of the Court's citations over time, the disproportionate distribution of citations among chambers, the potential impact of party pleadings on citations, and the allocation of citations to previous rulings of the Court, other international tribunals and domestic courts. The article also explores possible explanations for the patterns that emerge and assesses what the patterns may mean for the Court. Unlike most other citation analyses, the study provides the additional benefit of having categorized the citations based on their function, distinguishing for instance between citations that the Court uses to help it decide legal and factual issues, and those it does not.