Global constitutionalists argue that the international legal order can only be meaningfully construed as having an objective, value-based purport. There is, however, something hybrid about the constitutionalist argument, as constitutionalists espouse a normative agenda whilst at the same time setting out to ground their approach in positive international law. It is contended that to avoid both this foundational problem and the charge of utopianism, and as a rejoinder to positivistic arguments for the denial of objective purport, constitutionalists are forced to reason along indirect, transcendental lines. Thus, constitutionalists are to be construed as avouching global values as necessary conditions for making sense of existing international legal practice, rather than merely invoking direct, positivistic evidence and/or mere normative arguments to ground their position. Moreover, it is submitted, first, that global constitutionalists would do better by adopting a less objectivist stance as regards global values, as on the ideal-agent theory of value. Second, it is argued that even though there might be room for so-called constitutionalist ‘mindsets’, these fall short of establishing the objective purport of the international legal order. Third, d'Aspremont's positivistic argument contra objective purport is construed as (also) an argument to the effect that the rules and architecture of the international legal order only warrant the existence of Hobbesian interests as necessary conditions for making sense of it. The constitutionalist case for objective purport, then, hinges on the issue of whether constitutionalism is necessitated by considerations as regards the intelligibility of international legal argument, by explanatory desiderata regarding trends in international law-making, and as a viable response to the problems posed by fragmentation, deformalization, and international legal scepticism.

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist’, are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

Since 2006, the Leiden Journal of International Law (LJIL) has been dedicating a series of special issues of its Articles section to the theme ‘International Law and the Periphery’. This issue marks the fourth in this series.

This article considers the relationship between the United Nations and its member states in view of the Security Council's assertion of legislative powers. It claims that the exponential growth in UN powers at the expense of the powers of its member states cannot be arrested by legal means, because of the nature of the UN system and the absence of legally enforceable criteria and compulsory dispute-settlement mechanisms. For this reason, it proposes a different approach to law-making in the area of international peace and security – one that is built around the principle of subsidiarity, as reflected in Article 2(7) of the UN Charter. The role of the principle of subsidiarity in this respect is to determine which authority is best suited to exercise legislative power and how such power should be exercised in order to attain the objective of peace and security more efficiently. It is thus contended that the principle of subsidiarity promotes co-operative relations between the United Nations and its member states by protecting the latters' jurisdictional authority from unnecessary interference.

Fragmentation discourse provides a rare opportunity for international lawyers to review what has gone and what is to come: it is, in short, a chance to learn lessons of the past. The subjects and the looking glass, so to speak, are the International Law Commission's Report on the Fragmentation of International Law and its author, Martti Koskenniemi. It is the conclusion of this paper that the legal world's approaches to fragmentation, reflected in the ILC Report, represent a deficiency in ethical responsibility. The author not only considers the Report to be naturally inhibited by the institutional environment in which it was constructed, but furthermore finds that the Report's rule-centric approach to a polarized discourse results only in the propagation of ethical deficiencies that define the classical approaches to fragmentation: constitutionalism and legal pluralism. The Report's formalistic approach is one that attempts to find a middle ground between the stated polarities and, in doing so, it not only advances the myths of a system and of coherence in international law, but enables the preferences that define proliferating tribunals. The very same preferences continue to disable the ethical and political emancipation of the legal professional. The author believes the future of international law can no longer remain chained to rule-centrism against political preferences, but rather lies in the study of the legal professional. International law is a project that requires the rediscovery of our consciously enlightened professionals. This not only requires the development of a professional pluralism but the understanding that professional existentialism is not a reward, but rather the transpiring mindset of noble objectives.

This article explores the League of Nations' role in state formation in Third World or peripheral states and its legacy for contemporary understandings of Third World sovereignty. It examines Iraq under British Mandate, and UN and Coalition of the Willing interventions. This research was prompted by the international-law community's outrage when the Coalition invaded Iraq in March 2003. While the invasion was seen by many as an affront to international law, there was also something faintly familiar about the Coalition's reasoning for the invasion. This feeling of déjà vu escalated once regime change was followed by lengthy nation-building. The idea of recreating Iraq was not a new one. The British were tasked with something similar under the League of Nations Mandate System. UN interventions into failed states also attempt comparable transformations. Indeed, the more one contemplates international law's interventions in Iraq, the less shocking the Coalition's invasion becomes. It starts seeming foreseeable and even inevitable.

It is now standard in contemporary international law commentary to note that the latter part of the twentieth century has seen a move away from the traditional understanding of international law as fundamentally based on the consent of states. As just two examples, customary international law has in some contexts become more influential than treaties and human rights obligations are now recognized as often binding states even when they have signed no treaty acknowledging their existence. Treaty interpretation, by contrast, has remained focused upon the parties to a treaty, with even textualist approaches to treaty interpretation justified as the best means of ascertaining the intent of the contracting states. The purpose of the present article is to highlight the existence of a subset of treaties for which even a teleological approach to interpretation fails to capture the central importance for the treaty of entities other than the contracting states. These ‘power-conferring treaties’ do not merely entrust tribunals with the power to effectively fashion the means by which a treaty's goals should be achieved. To varying degrees, they grant control of the treaty itself, including, at times, both its enforcement and the very meaning of its terms, to entities other than the contracting states. As a result, the traditional emphasis in treaty interpretation on the ‘object and purpose’ of the treaty, and the precise language in which the treaty is written, will fail to generate an interpretation that faithfully captures the manner in which the treaty genuinely functions. The article then illustrates the potential impact of the power-conferring nature of a treaty through an analysis of the meaning of the term ‘investment’ in the International Convention for Settlement of Investment Disputes. This is one of the most controversial topics in contemporary international investment law, with an enormous impact upon the jurisdiction of ICSID arbitral tribunals. It is argued that recognizing the power-conferring nature of the ICSID Convention provides an enhanced understanding of the way in which this term should be interpreted.

This article explores whether Turkey is the continuing or a successor state of the Ottoman Empire. This is a question that attracts particular attention in the context of the contemporary political debate on ‘neo-Ottomanism’. After the analysis of past debates on succession and continuity, the Ottoman Empire's legacy is considered in light of the international case law, especially the 1925 Ottoman Public Debt Arbitration. Arguments of the international doctrine in favour of and against the Ottoman continuity thesis are also explored and tested by reference to comparable cases. The peculiarity of the transitional period from the Empire to the Republic, where two governments and two constitutions coexisted, is crucial to understanding the transmission process of the legal personality. Despite the undeniable ambiguity of the issue, the conclusion tilts towards the continuity argument. Potential positive and negative, as well as legal and political, implications of continuity, including those related to delictual responsibility, are discussed at the end.

The Kosovo Advisory Opinion gave rise to responses that suggest that the Court went too far, or not far enough, depending on one's perspective. In this article, the authors argue that the Court should either have done nothing or gone all the way. By accepting an inadequately drafted question, the Court was necessarily going to give an inadequate answer. This article adopts a strict approach to the legal nature of the question and considers that the ICJ should have declined its competence, not as an exercise of its discretion, but as a preservation of its core judicial function, which does not include primarily the conduct of non-state entities. Going further, the authors suggest that the Court could have rephrased the question and sought to establish the international responsibility of the United Nations, and, ultimately, of Kosovo, which, it is argued, is in fact implicitly recognized by the Court, both politically and legally.

The present article discusses the historical and theoretical parameters of the right of visit on the high seas. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas, which is conceptualized mainly as of a negative nature, namely as ‘the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities’. This prohibition is arguably challenged by the recent extensive practice of interdiction of vessels on the high seas to counter threats such as international terrorism and transnational organized crime at sea. Accordingly, the historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum are canvassed. Drawing valuable insights from this historical survey, it is possible to revisit this controversy and ascertain the role of interference on the high seas in the legal order of the oceans of the twenty-first century. It is posited that the rationales behind the contemporary right of visit reflect the old-fashioned mare clausum arguments and that they fall under three general categories, namely the maintenance of international peace and security, the protection of the bon usage of the oceans, and the maintenance of welfare and ordre public of the states and of international society.

International legal scholarship to date has largely neglected the donor-driven dynamics of international criminal justice. This article advances what I term ‘donors’ justice’ as an analytic frame for interpreting the work of international criminal tribunals. Donors’ justice is defined as third-party financial support for tribunal activity. It imports market rationalities into the field of criminal accountability, which assume overlapping discursive, political, and economic forms. The Special Court for Sierra Leone provides a case study of the implications of donor-driven logics for international criminal justice, particularly the material problems of insecure funding and the ethical problems of limited personal jurisdiction.

Supported by Athens and Ankara, and implemented largely by the League of Nations, the Greek–Turkish population exchange uprooted and resettled hundreds of thousands. The aim here was not to organize plebiscites, channel self-determination claims, or install protective mechanisms for minorities – all familiar features of the Allies’ management of imperial disintegration in Europe after 1919. Nor was it to restructure a given economy and society from top to bottom, generating an entirely new legal order in the process; this had often been the case with colonialism, and would characterize much of the Mandate System in the interbellum. Instead, the goal was to deploy a unique legal mechanism – not in conformity with European practice, but also distinct from most extra-European governance regimes – in order to resolve ethno-national conflict by redividing land, reshaping national identities, and unleashing new processes of capital accumulation.

On 30 November 2010, the International Court of Justice issued its decision in the merits phase of the Ahmadou Sadio Diallo case. This decision turned on the questions of whether the DRC had violated Mr Diallo's human rights and his rights as a shareholder and manager in two corporations he owned in the DRC. This paper analyses the decision of the Court in the light of the choices it made and the methodology it applied, and demonstrates that both issues raise fundamental questions. The Court's decision on Mr Diallo's human rights is often ambitious to the detriment of clarity, whereas the part of the judgment dealing with corporate rights does not seem to move beyond its 1970 predecessor in Barcelona Traction. While understandable, this is also regrettable and the consequences for individuals doing business and/or residing in foreign countries may be substantial.

The ‘Abyssinia Crisis’ of 1935–36 – in which one League of Nations member (imperial Ethiopia) was annexed by another (Fascist Italy) – presents one of the clearest twentieth-century illustrations of international law's ‘progress narrative’. International lawyers are encouraged to draw a salutary lesson from the crisis: namely that Ethiopia's sovereignty – and, indeed, the peace of the entire world – might have survived the 1930s if only international law had been properly enforced. Yet, the assumption upon which this lesson depends – to the effect that Ethiopia's only discursive contribution to the crisis was passively to regurgitate the relevant clauses of the Covenant – is profoundly ideological. For this assumption effects a double suppression: erasing Ethiopia's strategic construction of a hybrid, partially Abyssinian international law from the discipline's memory; and concealing from scholarly view the possibility that Ethiopia's annexation might have resulted from actions that were in accordance with, rather than in violation of, interwar international legal norms regarding sovereignty and the use of force.

In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

The present symposium follows on from a workshop held at the University of Cambridge on 2 September 2010 by the Interest Group on Peace and Security (IGPS) of the European Society of International Law, in collaboration with the Centre for International Security and European Studies (CESICE) of the University of Grenoble II and the International Law Centre of the Université Libre de Bruxelles.

The moral and legal debate over the separation of jus in bello from jus ad bellum generally assumes that the law of war supports this separation and the concomitant doctrine of ‘equality between belligerents’, also known as the ‘duality’ or the ‘symmetry’ principle. This article examines the Nuremberg-era precedents and legal scholarship, as well as more recent legal and scholarly material, and argues that the general assumption is wrong and that the arguments supporting the radical legal separation of the two jus's are unconvincing.

Straddling both the centres of (European) power and the shifting dynamics of the post-Ottoman world in a quest to guarantee private rights through public international legal redress, the PCIJ Mavrommatis case provides a rich resource for interrogating the extent to which international law during the League period could speak for voices on the edge of empire. In this article, historical consideration of the regimes of empire and Mandate form the backdrop to an exploration into how international legal discourse (re)configured the relationship between the core and the periphery, especially for those peoples awaiting the promise of self-determination and sovereignty. The figure of a lone Greek investor and his dashed hopes in the newly created Palestine Mandate is the backdrop to this tail of ever-shifting interpretations of public and private rights, of speech as well as silence before and beyond the Peace Palace.

The objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

Bert Swart passed away on 17 February 2011, at the age of 69.

We lose in Bert a great and loving friend and colleague. Those who knew him personally will remember his kindness, generosity, and modesty. Bert spoke with a soft voice and was genuinely interested in and friendly to others.