This article focuses on the evolution of the concept of legal order in Carl Schmitt's thought and in particular on the spatial perspective he developed in his internationalist thought. In order to grasp its relevance, it is necessary to understand it in relation to the theoretical problems and concepts which underlie Schmitt's oeuvre. For this reason the first part of the article focuses on the theoretical problem of the possibility of a legal order in a plural context, trying to assess the distinctiveness of Schmitt's thought in relation to his contemporaries and to the approaches and schools of thought with which he is often associated. The second part then examines the evolution of his constitutionalist output, something which is fundamental to an understanding of his internationalist thought. The third part then focuses on his internationalist thought, and in particular on the theory of the nomos, which represents a synthesis of his whole thought.

This paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.

John J. Kirton and Michael J. Trebilcock (eds.), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance, Aldershot: Ashgate Publishing, 2004, ISBN 0754609669, 372 pp.

Amid the proliferation of international judicial and quasi-judicial bodies, worries about the possible fragmentation of international law are increasing. Such fears, however, may be misplaced. A close examination of the jurisprudence of nine international judicial bodies, looking specifically for instances of explicit reference to one another's decisions, shows the practice to be widespread, of variable frequency and covering both procedural and substantive issues. Taken in conjunction with other scholarship about the similar treatment of important doctrines across all (or most) bodies, this study suggests that unity, not fragmentation, may emerge from the proliferation of international courts and tribunals.

The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.

State-centrism is a key concept in discussions of sovereignty, justice, and the global political order and of changes within that order. Thus we routinely hear: ‘that analysis is far too state-centric!’ Or: ‘earlier approaches were marred by excessive state-centrism, and need to be reconsidered in the light of contemporary circumstances’. Or even: ‘I'm state-centrist and proud of it’. This article brings into focus some of the themes associated with state-centrism in international legal writing, and suggests something of the limits of this way of framing issues. It also raises the possibility that these themes may provide clues to certain characteristic and apparently deep-rooted, but not always clearly recognized, anxieties on the part of those who work in this field. Borrowing a phrase from Harold Bloom, the article refers to these as anxieties of influence.

This article provides a framework for systematically analyzing the practice, function, and consequences of human rights references in investment arbitration. In recent years, investment arbitration witnessed an enormous increase of references to external sources. References to human rights are especially interesting as they defy the alleged inherent conflict of investment and human rights, as well as the presumed fragmentation of international law. By applying both quantitative and qualitative approaches, I analyze how and why human rights references are employed in investor-state arbitration and, ultimately, whether they are able to remedy the legitimacy crisis of investment arbitration.

The empirical analysis is based on 46 awards, which include explicit references to human rights instruments. In the first part, this article examines which human rights instruments are referenced in investment arbitration and how the disputing parties as well as the tribunal engage in human rights referencing. In the second step, the article identifies two strategic functions of referencing human rights: guidance in the determination of substantive provisions and argumentative practice. This article further argues that, from a comparative law perspective, references may help to overcome the indetermination of investment treaties, provide for the balancing of investment and non-investment concerns, and ensure cross-regime consistency. In the third step, this article elaborates on whether those presumed benefits of referencing human rights can be confirmed on the basis of empirical results. It remains to be seen whether the ‘pick and choose’ approach of human rights references is capable of uncovering this legitimating potential.

As the glow that accompanied the kinetic judicialization of the field of international criminal justice has faded over time, scholars have increasingly turned to expressivist strands of thought to justify, assess, and critique the practices of international criminal courts. This expressive turn has been characterized by a heightened concern for the pedagogical value and legitimating qualities of international criminal courts. This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between three strands of expressivism: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts. Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which concerns whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.

This article explores how Luxembourg and Nauru put their sovereignty to use in order to become global players in what can be considered extraterritorial landgrabs – the turning of the deep seabed and outer space into realms of commercial exploitation. It shows how the international legal framework puts states, however small, into a position to facilitate private enterprises’ endeavours to obtain extraterritorial exploitation rights. The article further enquires into the public interest justifications put forward by governments to legitimate their support for the expansion of private resource extraction into the deep sea and outer space. It finds that these justifications are very tenuous; that governments refer to vague notions of economic growth and benefits that may accrue from extraction to an undefined humanity while it remains unclear whether their own populations will obtain any concrete gains. Both case studies illustrate how states, on the basis of international law, facilitate the expansion of private value extraction, thus perverting the redistributive ambitions that may once have motivated the negotiations of the United Nations Convention on the Law of the Sea and the Outer Space Treaty.

This paper argues that the concept of the civilian is a specific way of viewing non-combatants that can be traced to the First World War. Before the war, non-combatants were seen by the law and the prevailing culture as citizens. The citizen was potentially and probably aggressive, bound to the fate of his or her state and, therefore, granted only minimal protection by law. The war, however, brought technological changes and a propaganda effort that transformed these citizens into a civilian population. Civilians were essential to the war effort, which meant that they were a target. Yet, at the same time, they were feminized, described as vulnerable and deserving of protection. This cultural shift influenced the way in which the laws of war were understood, leading to the replacement of the traditional categories of law with a military/civilian distinction in the 1923 Hague Draft Rules of Aerial Warfare. In this way the concept of the civilian entered international law.

The present article deals with international law problems that have arisen in the process of legal clarification of the state crimes committed during the Soviet occupation in the three Baltic states. Following the restoration of their independence in 1991, the Baltic states have sought to establish the historical truth about the mass crimes committed during the Nazi and Soviet occupations – Estonia's International History Commission recently published its first report which is analyzed in this article. Moreover, the courts in the Baltic states have convicted deporters of 1941 and 1949 for crimes against humanity and/or genocide. By discussing different definitions of ‘genocide,’ the author attempts to answer the question whether the general context of the Stalinist mass repressions in the Baltic states permits to qualify the occupant's policy as ‘genocide.’

This quantitative study analyses the sentencing practice of the International Criminal Tribunal for the former Yugoslavia (ICTY). The sentencing process is only loosely regulated by the ICTY Statute, and consequently it is not clear how judges exercise their broad discretionary sentencing powers in practice. By analysing the existing case law, legal factors influencing the sentencing decisions are examined. The extent to which the selected factors predict sentence length is tested in a multiple regression analysis. The analysis suggests that the sentence can be to a large extent predicted by legal criteria. The number of offences and the rank of the offender are the strongest predictors of sentence length in the model.

International law and Marxian theory both emanate from nineteenth-century progressivism. Although Marx had no interest in international law, many aspects of his work are very relevant for it. Where (modern) international law became secular and focused on states and human rights, (early) Marxian theory would claim that its secularization did not go far enough. Instead, statehood and individual rights appear as forms of political theology. Today, deconstruction carries on some of the heritage of Marxian dialectics. The task, however, is to move from doctrinal critique to progressive practice. In this, the theory of hegemony provides the best available account of how that can be undertaken without losing the ambition of the law's universality.

The essay argues that the absence of an international treaty definition of aggression in international law should not preclude the prosecution of its perpetrators. Two legal regimes of responsibility, namely the prohibition against aggression as an international wrongful act and the crime of aggression have been entangled. Once one separates the criminal liability of individuals from state responsibility, a definition of the crime of aggression can be seen. According to the author, the contours of such a new definition contain the requisite degree of certainty for judicial approaches instead of merely political approaches. Consideration is also given as to whether conspiracy to wage a war of aggression may also be regarded as a separate crime within international criminal law.

As a result of the perception that trials at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) are too lengthy, a discernible shift in the trial practice of the ICTY is occurring, with a greater emphasis on the role that the judges play in controlling the proceedings. While the first few trials at the Tribunal closely resembled common law criminal trials, the level of control being exercised by the Trial Chambers in recent cases is moving more in the direction of the civil law approach. As a result, a truly mixed jurisdiction, that is, one that contains elements of both the common law and the civil law, is emerging. This evolutionary process will be examined in the context of: (1) The Rules of Procedure and Evidence and amendments thereto concerning case management; (2) examples of case management under the amended Rules; and (3) the future evolution of the ICTY.

How should international law deal with the uncertainty arising from the rise of irregular forms of warfare? In the past decade, this question has been the topic of several reports produced by international groups of experts in the field of conflict and security law. The most recent examples include the study on the notion of the ‘direct participation in hostilities’ under the auspices of the International Committee of the Red Cross, and the Tallinn Manual on cyberwarfare prepared at the invitation of NATO. In this article, we discuss the Tallinn Manual, showing how experts faced with uncertainty as to the law's precise scope and meaning construct legal interpretations, legal definitions, and institutional facts and norms that can be used to make sense of a contingent world. At the same time, we argue, this absorption of uncertainty produces new uncertainty. Consequently, the power of experts does not reside in their knowledge, but in their control and management of uncertainty and non-knowledge.

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.

This article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.

In the Armed Activities on the Territory of the Congo case the International Court of Justice has – for the first time in its history – found a state to have violated the prohibition of the use of force in Article 2(4) of the UN Charter. For the first time also, the Court has discussed the scope of self-defence directly under Article 51. In this article the focus lies on this aspect of a wide-ranging judgment. In finding that Uganda had violated the Charter, the Court kept to its jurisprudence constante; it did not bow to ‘post-11 September’ pressure to extend the logic of Article 51 to private actors. This article discusses the merits of the scholarly claims for both sides, but warns of drawing conclusions for the Court's future jurisprudence – the apparent unity among judges may have to do more with the case rather than the wider issue.

This essay explores the legal thought of Hannah Arendt, and is one of the first to do so. Having presented an Arendtian view on law and its relations to politics, it subsequently discusses how an Arendtian view might yield insights on some topical international issues, in particular the much-discussed issue of constitutionalism in international law.