Focusing particularly on the moment of decolonization, in this article I look at the paradoxes attending the endurance of the statist framework in conceptualizing territorial self-determination as well as in curtailing it. A range of protagonists in the decolonization drama, from the departing colonial powers to Third World nationalists to international jurists, have all clung to the modern nation-state as the means through which self-determination is to be realized. Against the enduring hold of the state, this article tries to foreground the ways in which the statist paradigm prematurely forecloses the self-determination options available to the nomadic communities of Western Sahara, and cramps debates about boundary and uti possidetis in Burkina Faso and Mali. In this vein the received categories of the territorially bounded state reach into the postcolonial imagination to discipline, codify, and produce ‘independence’. At the same time, however, the difficulties confronted by the boundary delimitation process in Burkina Faso and Mali suggest that the reach of the territorially bounded state is limited. It is limited by the sub-national and transnational complexities of people's lives, but also by the indeterminacy of cartographic documentation and the complexities of colonial and postcolonial bureaucracies. Rather, it is argued that international law has a contradictory relationship with decolonization, desiring the self-determination of the former colonies, while also harnessing the decolonization project to fulfil its own desires, ‘to reproduce the law's assumptions regarding the ends of freedom’.I am indebted to Doris Sommers for this formulation.

This article argues that a contemporary form of ‘cosmopolitan legality’ serves as an animating force behind contemporary practices of global civil society and global governance. The first part provides an account of the recent history of civil society engagement with the World Trade Organization. It observes that civil society groups have focused their collective efforts on issues relating to procedural legitimacy, including accountability, openness, and transparency, potentially to the detriment of efforts to bring about more fundamental change. In the second part of the article, various theoretical approaches to cosmopolitan legality are discussed, including their claimed Kantian origins, and are mapped on to the preceding discussion of the place of a global public sphere in global governance. Programmatic approaches that purport to mobilize cosmopolitanism in the service of either a political or legal project are ultimately rejected, and a provisional alternative reading is suggested.

In the perennial debate over whether the dependence of international law on power is complete or whether international law maintains some independence for itself, the latter position is increasingly and at best marginal. Here that direction of the debate is reversed. The very dependence of international law on power is integral to a relation of mutual dependence between them. It is in this relation that power constituently depends on an international law which, in its turn, contains a primal efficacy. That efficacy is illustrated in its countering the claims of American empire.

Biodiversity loss raises some of the most difficult issues of equity in international environmental law. Differential obligations have been developed as a means of enabling developed and developing countries to participate in the Biodiversity Convention. This article contends that the actual practices of these obligations have been cast narrowly, reinforce the existing politics and economics of biodiversity conservation, and are difficult to see and practise. They have been predominantly understood as obliging the transfer of funds and technology between states and as implicitly encouraging technology-based development pathways. The article calls for differential obligations to be reworked in environmental justice terms to encompass plural, alternative development pathways, such as creating local economies. It proposes that emerging market-based, community initiatives and the ecological footprint concept could help to provide ways to make differential obligations more workable.

Drawing from the Pinochet and Congo v. Belgium judgments, this paper addresses issues arising from the question of which courts (national or international?) are best suited to exercise jurisdiction over individuals accused of crimes against humanity, war crimes, or genocide. It begins by looking at the approach taken in the Statute of the International Criminal Court. It moves on to discuss established views on the matter in general international law and the opposing visions of this relationship depicted in the Pinochet and Congo v. Belgium cases. It closes by addressing the consequences of the prevalence of one or the other view for the future of international law and the prosecution of international crimes.

The outbreak of the ‘war against terrorism’ has provoked a deluge of images. It is uncommon for lawyers to think of the impact of the media on the production of law, yet a specific set of images has had a considerable impact on how legal issues surrounding the use of violence have been framed. The article seeks to explore this novel area by focusing on international humanitarian law and how it deals with the recurring question of prisoners. Some of the distortions the media community imposes on the law are uncovered, but the law's inherent malleability to such distortions is also underlined.

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

The author critically analyzes the judgement rendered by the ICJ on 14 February 2002, in the Arrest Warrant of 11 April 2000 case. The Court's reasoning is criticized for both its poor motivation in acknowledging the existence of a rule of customary international law, providing for absolute inviolability and immunity for incumbent ministers for foreign affairs before the national courts of other states, and for the rather theoretical manner in which the Court asserts that immunity does not amount to impunity. It is also regretted that the Court did not pronounce on the issue of universal jurisdiction, thereby missing a great opportunity to clarify a controversial but increasingly important issue of international (criminal) law.

This issue of the journal contains a special edition relating to sentencing at the International Criminal Tribunal for the former Yugoslavia (ICTY). The purpose of this special edition is to examine a critical aspect of the work of the ICTY, and one which might be said at this stage of work at the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), to be still in development. This issue contains articles by people well placed to bring different and diverse perspectives to this important issue, as well as an expertise across the fields of practice and academia.

The International Court of Justice has been exceptionally lucky to have had the services of Carl-August Fleischhauer for a full nine-year term.

It is hard to imagine a candidate with better qualifications. Immediately before coming to the Court Carl-August Fleischhauer had for a period of eleven years been the Legal Counsel of the United Nations. His period of tenure in this highly important but very difficult post was widely admired. He was greatly appreciated by his staff, and in turn gave considerable responsibility to those he especially valued, and was generous in his public acknowledgements of the work of his team. He exemplified the maxim that great leaders not only show the example to be followed, but also take care to express appreciation for work well done. With Fleischhauer, tactical wisdom in this matter fully coincided with his natural instincts as to how he wished to behave towards others. Fleischhauer was at the United Nations through particularly difficult and tumultuous years. His calm and careful advice allowed the United Nations to engage in certain new and imaginative activities, at the same time knowing that the legal basis for this ‘creative lawyering’ was meticulously sound. The morale at the Office of Legal Affairs was high – an equally important matter for a civil servant whether national or international.

The success of the International Criminal Tribunal of the former Yugoslavia in fulfilling its mandate turns on the justness of the decisions it renders. To ensure that its judgements are accepted by the international community as just decisions the Tribunal is directed by the Report of the Secretary-General to adhere fully in its criminal proceedings to internationally recognized human rights standards. This directive suggests that the Tribunal should adhere to the interpretation of human rights principles as understood by other jurisdictions. However, in some instances the Tribunal has, by virtue of its statutory requirements, been unable to follow those standards as understood by other jurisdictions and it has justifiably adopted a contextual approach to the application of certain human rights principles to its criminal proceedings. In other instances, however, the Tribunal has purported to adhere fully to certain human rights principles as adopted by other jurisdictions. This has occurred with respect to the Tribunal's adherence to the principle of equality of arms. In this instance, however, the Tribunal's purported adherence to that principle has led to a situation where that adherence has had a negative effect on the justness of the decisions it has rendered. In the following it is argued that with respect to the application of the principle of equality of arms the Tribunal should adopt a contextual approach if the decisions it renders are to be just decisions and are to have the appearance of being just decisions.

The 1993/1999 Belgian Law on Universal Jurisdiction allows for prosecution before Belgian domestic courts regardless of the nationality of perpetrators or victims, the place where the breaches were committed, or the presence on Belgian territory of the alleged perpetrators. Is universal jurisdiction contrary to international law? Is universal jurisdiction in absentia permitted under Belgian law and under international law? What is the relationship between universal jurisdiction, as exercised by a national court, and the Statute of the International Criminal Court? This article provides an overview of the Belgian legislation and its future with regard to international law and the Statute of the International Criminal Court.

The pronouncements of punishment for war crimes, crimes against humanity, and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) will be among its most important legacies for international law and international relations. The purpose of our research is to examine the judges' opinions on the determinants of punishment and, most especially, the data on sentences handed down by the trial chambers in order to understand which factors are the most powerful in explaining sentences. We find that there is a fair degree of consistency in the sentences conferred on the guilty. By systematically examining all the sentences both doctrinally and empirically we can see that sentences are premised on those critical factors that the judges are admonished to employ by the ICTY Statute and their own Rules of Procedure and Evidence.

This article considers the Randal Decision, in which the ICTY Appeals Chamber established a qualified privilege from testimony for war correspondents before the ad hoc tribunals. It sets out the various arguments advanced by Jonathan Randal in support of such privilege and the privilege as formulated by the Appeals Chamber. Finally, it analyzes the possible impact of the Decision and its possible application by the ad hoc tribunals, other international courts, such as the ICC, and domestic courts.

This case note focuses on two key aspects of the Vasiljević Judgement. The first one is the accused's acquittal of the charge of ‘violence to life and person’ under common Article 3 for the reason that the trial chamber was not satisfied that it constituted a crime under customary international law. The second aspect is the trial chamber's analysis of state practice to identify the definition under customary law of extermination as a crime against humanity.

According to classical legal positivism, the prerequisite to being selected as a judge on the International Court of Justice is legal expertise and high moral character–the personality of the judge is therefore merely the subject of idle curiosity. American Legal Realists understood that one could not explain past decisions or predict future decisions merely by extrapolating rules; account needed to be taken of history, culture, politics, economics, and the personality of the judge. As a person, Judge Oda is famous for his self-control in personal comportment. As a judge he is a study in independence, having produced an unmatched number of dissents and separate opinions. His contribution to international law will continue to influence us.

This article focuses on three specific legal developments arising from the Martinović and Naletilić Judgement of the ICTY. The first issue is the possibility of prisoners of war consenting to perform otherwise prohibited labour under Geneva Convention III. The second relates to the legal definition of occupation within the meaning of Geneva Convention IV. The third issue concerns the trial chamber's analysis of the discriminatory requirement as an element of the offence of persecution.

The implementation of the provisions of treaties and conventions is a duty arising from conventional and customary international law. In the case of the Rome Statute this duty is implied, since only by fulfilling it will states be able properly to comply with the obligation of complementarity. Moreover, the entire Statute is based on the assumption that states parties will in most cases be able and willing to investigate and prosecute crimes. Implementing the Rome Statute in Latin America is complicated by gaps existing in domestic legislation and the special characteristics of the legislation of civil law states.

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.

In the LaGrand case, the International Court of Justice seems to have created a clear precedent in favour of the binding force of provisional measures. This essay surveys the main lines of argument for and against the binding nature of provisional measures in the relevant literature, and discusses how the LaGrand case was argued in this context. The elation to be found in recent literature with regard to the ‘settlement’ of the issue of the binding force will be questioned by a discussion of the apparent adoption in international law of a system of precedents and stare decisis.