Hans Kelsen's vast body of work is perhaps one of the best examples of the unremarkable but important point that one's legal theory and methodological choices are intricately tied up with how one understands international law. Kelsen stands for a huge number of different positions, but chief amongst them must be his insistence on developing a ‘pure’ theory of law that accounted for the unique normativity of law, separate from empirical facts and causality on the one hand, and substantive theories of justice on the other. For Kelsen, the unique normativity of law is found within the legal system itself, in the idea of normative imputation – the ‘linking of a conditioning material fact with a conditioned consequence’. According to Kelsen, this specifically legal sense of ‘ought’ is an a priori category that allows us to correctly cognize the legal meaning of empirical data.

Before the 2015 annual meeting of the European Society of International Law, participants were notified of a ‘women in international law’ happy hour for exchanging ideas on ‘the improvement of representation of women’. At the convivial and well-attended event in Oslo, organizers thanked the men who were present, remarking that their support was not only welcomed but also necessary. This theme of inclusion resurfaced in side conversations about past conference panels on gender that noted the supportive role of senior male academics in audiences comprised primarily of women. Gender was mainly discussed along a single axis of male/female rather than intersectionally. Other categories of identity, such as ethnicity and nationality, remained on the sidelines of this event, which focused on the role of women within the field.

The Paris Agreement (2015) and the Rulebook (2018) introduce the terms ‘fair’ and ‘climate justice’ for burden-sharing and differentiation. The article analyses to what extent these terms amend the existing term ‘equity’ and the principle of common but differentiated responsibilities (CBDR).

The principle of CBDR is an open balancing concept with one clear requirement: Contracting parties contribute to climate protection to a different extent. The terms which appear to have normative weight (‘equity’ and ‘climate justice’), in international climate agreements, are limited to their procedural relevance. They aim at an equal participation in sub-institutions of the Paris Agreement or at making arguments for differentiation transparent. The term ‘fair’ focuses on the discourse on individual concepts of differentiation and on narrowing down common criteria in the long-run.

Considering the operationalization of differentiation beyond the terms, it becomes clear that criteria are hardly specified, not weighted against each other and that self-differentiation dominates pre-defined criteria, in particular within the central rules on mitigation and financial transfers. However, the Paris Agreement still specifies criteria with different relevance: Capabilities are followed by vulnerability and the responsibility for emissions.

After all, the prevailing procedural terms and rules of differentiation might give orientation, inspire subsequent decisions and the nationally determined contributions (NDCs). The more transparent the various specifications of differentiation are, the more the rules of differentiation can be narrowed. If the reference of criteria to individual states is possible, the Paris Agreement might be implemented effectively which allows for better compliance with the Agreement.

This article examines the reasoning and findings of the International Court of Justice in its judgment in Djibouti v. France on issues pertaining to the immunities and inviolability of state officials. While recognizing the Court's contribution to the clarification of certain aspects of the legal regime of the immunities and inviolability of state officials, the article emphasizes a number of points on which a clear response cannot be found in the judgment. Moreover, some concerns or doubts are raised about the way in which the Court dealt with certain issues regarding, in particular, the classification of immunities, their scope, their implementation, and the acts precluded by their operation. The Court's judgment clearly shows the complexities surrounding the legal treatment of numerous aspects of a topic which continues to be of the highest importance and sensitivity in international law and international relations.

The decision of the US Supreme Court rendered in NML v. Argentina has enabled the vulture funds to enforce in full their claims against the payments to be made by Argentina in favour of those holders who had tendered their bonds under a previous exchange offer. This scenario may have a disruptive impact on the functioning of the financial markets and endanger the restructuring processes of sovereign debt. The race to the courts by the vulture funds could be stopped under the UNCTAD Principles on Responsible Financing where the behaviour of those creditors who acquire debt instruments of sovereigns in distress and remain aloof from a restructuring to secure preferential treatment is marked as abusive. Unfortunately, so far the legal status of this abusive behaviour is unable to overturn the interpretation of the pari passu clause under New York law given by the US Federal Courts which stands at the base of the problem. To overcome this impasse the suggestion is to insert in the UN proposal of a multilateral legal framework for sovereign restructuring processes a specific provision qualifying as overriding a mandatory restructuring plan approved through a certain quorum which has received certification by the IMF. This qualification would serve the purpose of applying the plan to all creditors, and not just to those who register under the process. Moreover, this qualification would be considered as part of the public policy of the states participating to the UN proposal so as to block the enforcement of judgments rendered in non-participating fora.

The CSCE/OSCE is linked in public opinion to one of the following headings: Helsinki Final Act and Cold War; arms control and disarmament; crisis management and conflict prevention. This picture is not completely incorrect in that it indicates more than 20 years of CSCE/OSCE history. Being no more than a series of conferences from 1973 to 1990, the ‘old’ CSCE attempted to bridge East and West, and it mainly contributed to developing military aspects of security in Europe. Following the collapse of the former Eastern bloc, the ‘new’ CSCE, later renamed the OSCE, was called upon to assist in managing the epochal change involving the resurgence of regional crises, and it has been equipped with a fully developed organizational and instrumental structure to that end. The most prominent examples of CSCE/OSCE activity in the areas of conflict prevention, crisis management, and post-conflict peacebuilding, are places such as Bosnia and Herzegovina, Chechnya, or Albania.

The Spring Conference of the British Branch of the International Law Association exemplified to the authors some of the ways in which the ‘old’ encounters the ‘new’ in contemporary international law. Followed by a selective Bibliography of new-stream international legal writing, this Editorial tries to unravel the ‘interested distance’ maintained by the mainstream towards new trends in international legal scholarship.

In recent publications a rising tide of criticism directed against the International Criminal Tribunal for the former Yugoslavia (ICTY) is discernible, principally concerning whether or not the ICTY grants the accused a fair trial. The perceived lack of ability, or willingness, to satisfy the highest standards of human rights concerning the right of accused to a fair trial is regarded as a death-knell both for the broad acceptance of the ICTY's jurisprudence as well as the prospects for a permanent international criminal court. While most of the criticism centres around the interpretation and application of provisions of the ICTY's Statute and Rules of Procedure and Evidence addressing the right to a fair trial, some of it concerns the vigorousness with which ICTY officials insist upon the surrender of indicted persons. With all due respect these commentators, by applying norms that are not wholly applicable, misconceive the threat to the accused's fair trial rights.

From a due process perspective, the essential problem with the UN Security Council's targeted sanctions regime is the persistent lack of sufficient access to confidential material relied upon for the designation of targeted individuals. Despite the Security Council's efforts to amend the procedures of the sanctions regime, it is highly unlikely that this deficiency can ever be remedied within its present top-down structure. Therefore, this article proposes to decentralize the regime's designation procedure, to mitigate the problem of being unable to challenge or review confidential information and evidence, which underlies an individual's designation. Such an amendment would entail that the designation of a particular individual and the possible subsequent judicial review procedure would take place domestically, prior to a universal blacklisting by the UN Sanctions Committee. As a consequence, any confidential material relied upon could stay within the designating state, and would be shared only with courts and possibly special security-cleared advocates, within that domestic legal order. This would make it more acceptable for the relevant authorities to make such information available.

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.

Digital open-source evidence has become ubiquitous in the context of modern conflicts, leading to an evolution in investigative practices within the context of mass atrocity crimes and international criminal law. Despite its extensive promulgation, international criminal tribunals have had few opportunities to address the admissibility of user-generated open-source evidence. Through semi-structured interviews with experts and analyses of primary and secondary sources, this article examines the current standards and practices governing the use of user-generated open-source evidence. Current practices illuminate a number of gaps in the realm of digital open-source evidence in international criminal law. This article posits the establishment of a standing international, investigative mechanism as a solution to a need for increased standardization and co-ordination within the realm of user-generated open-source evidence. By standardizing the collection and use of such evidence, investigative bodies will be prepared to more effectively serve the international justice community.

In recent years, the academic field of international institutional law has taken a clear ‘constitutional’ turn. In this normative endeavour, liberal ‘rule of law’ ideals are being reinvigorated, translated and projected onto international organizations. This article trades this well-trodden path for a socio-legal inquiry into how the ‘rule of law’ is produced, practiced and performed in the everyday political and operational life of one specific international organization (the World Bank) during one contentious historical episode. To grasp what it means for ‘law to rule’, I argue, we need to expand our archives to the daily praxis of legality: the actors that embody it; the consciousness that drives it; the politics that rely on it; and the fragile institutional balances that give it meaning. Grounded in this pragmatist perspective, I retrace the intervention of legal expertise during the Bank’s turn to state reform in the wake of the Cold War. Descending from principles to practices, from norms to acts, from abstract heights to situated performances, the article not only strives for an enhanced understanding of the ‘rule of law’ within the World Bank, but also aims at a critical methodological intervention in the field of international institutional law.

The article reviews (i) the qualifications of judges of, and (ii) the distribution of seats in, the ICJ. (i) Since 1966 there has been only one judge elected who merely satisfied the requirement relating to highest national judicial office. It is clear that with the increase in the supply of competent public international ‘jurists’ from the developing countries and because of the increasingly complicated and specialized nature of international law national judicial office has become irrelevant and insufficient as a qualification. Recognized competence as a public international jurist should be the only valid criterion. On the other hand, the latter concept has been given an unwarranted and undesirable extension by the UN, especially in connection with candidates from developing countries. (ii) While, in keeping with Article 9 of the Statute, there is some agreed regional distribution of seats among the non-permanent members of the Security Council, equity seems to be disregarded, particularly among the non-Western European states, by rotation among states being ignored. This is not in keeping with the Statute.

The International Court of Justice's (ICJ) decision in the case of Croatia v. Serbia raises fundamental questions about the nature of genocidal intent. While the Court was careful not to make a clear departure from established case law on the matter, its emphasis on elements such as ‘pattern’ and ‘scale’ – at the expense of the role of individual intent – indicates that the majority on the bench adopted an interpretation which brings the legal concept of genocide closer to an abstract event of mass atrocity than to an act capable of commission even by select individuals. That, however, is an understanding which is not only alien to the traditional interpretation adopted by international criminal tribunals, but also unjustifiable under the established law of state responsibility. This article considers various aspects in the judgment which invite critique in that regard, but also analyses the way in which the ICJ has dealt with the coexistence of intent and certain motives – a crucial aspect of the case which has already been object of some controversy.

This article considers the law of maritime delimitation as applied by the Arbitral Tribunal in the 2014 Bangladesh v. India case. The dispute concerned the delimitation of the maritime boundary between the two states in the north-eastern part of the Bay of Bengal. The Tribunal's Award covers several important issues which require careful examination, such as the land boundary terminus, the delimitation methodology, the role of objectivity, predictability and transparency in maritime delimitation, and the impact of the established case law on the present delimitation procedures. The commentary analyses the Award from the viewpoint of the law of maritime delimitation and traces how the Tribunal applied and developed the methodology used in maritime delimitation. The key points where the Award advances the law of the sea concern the concavity of the coast as a relevant circumstance and the creation of grey area. The Tribunal made significant pronouncements on the continental shelf, especially, beyond 200 nm. It confirmed the concept of a single continental shelf and reasoned that legal regimes of the EEZ and the continental shelf are independent and separable. However, the creation of another grey area met with strong disagreement from Dr Rao. The author considers the Award and the Dissenting Opinion to argue that the adjustment of the equidistance line raises certain concerns and that the creation of grey area is permissible under UNCLOS.

When Peter Kooijmans took up his position as judge in the International Court of Justice on 6 February 1997, a formal end came to a career of about 30 years of teaching public international law in the Netherlands. This is why the Leiden Journal of International Law has asked me to write a few words about the work and person of Peter Kooijmans as a teacher of public international law, a task which I accepted with great pleasure, also on behalf of other staff members who have worked with Peter Kooijmans for many years.

The Rundu – Grootfontein Project, a project by which Namibia wants to divert waters of the Okavango river, may significantly affect the flow of that river through Botswana. The present paper discusses and tests rules of global and regional international watercourse law as to their applicability to the problems posed by the project. In this respect the UN Framework Convention on the Law of the Non-Navigational Uses of International Watercourses, as well as the Southern African Development Community Protocol on Shared Watercourses form the main focal point.

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.

The European Court of Human Rights found no violation of the Convention in its judgement in the complaints of the former East German political and military leaders Streletz, Kessler, and Krenz. All three were convicted and sentenced to terms in prison by German courts in relation to the deaths of East Germans who were killed in attempts at fleeing across the fortified border between East and West Germany. Nonetheless, the Court's decision constitutes a clear rejection of the Radbruch Formula, which served as a central line of reasoning in the decisions of the German courts in the cases. The author addresses the Court's rejection of the Radbruch Formula, focusing especially on the distinct historical and political circumstances that existed after World War II and in 1989.

Any legal system, including the international legal system, consists of rules that serve multiple purposes and functions that the legal system in question needs to perform in order to survive as a viable organism. Jurisprudence of national and international courts relating to areas such as responsibility, immunity, and dispute settlement has involved intensive discussions as to the nature and implications of the various categories of rules. Approaching this broad area, with its multiple components, requires careful differentiation of the nature of those various categories of rules, for the fact that the relevant classification of rules works in one area does not inherently make it workable in other areas, which is confirmed in practice. The most problematic issue remains the judicial application of jus cogens in relation to state immunities and the ensuing distinction between substantive and procedural rules. It is shown in this contribution that this artificial distinction does not reflect the functions international law actually accords to its various rules, and is instead a product of political and ideological preference to keep particular classes of plaintiffs out of certain jurisdictions.