This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.

Expanding now familiar debates about the impact of the ‘historical turn’ upon the field of international law, this article considers some of the different ways in which ‘turn to history’ scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law. We suggest that the anxiety over the sources of international law as the basic methodological precepts of the discipline has been a catalyzing element for a radical reengagement with the canon of international law, one with a significant impact on the field’s existing parameters and doctrinal limits. Within the three streams of scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created, and new issues, sources, subjects, and approaches can be explored. Yet, by opening up international law’s sources doctrine, reactionary causes and unjust ends may equally well be the result. This account is an attempt at diversifying the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques and epistemological foundations behind the history of international law as an evolving discipline, and of the different scholarly motivations of its specialists.

The 1996 Nuclear Weapons Advisory Opinion of the International Court has been both hailed and criticized on various grounds. However, one area, namely the Court's treatment of the distinction between the law regulating the use of force and the humanitarian law of armed conflict, has received relatively little attention. This author is convinced and concerned that the Court's treatment of this issue misconstrued the relationship between these two branches of the law, and in doing so potentially weakened any restraining influence the law of armed conflict might have on the potential use of nuclear weapons.

Article 8(2)(b)(iv), second alternative, of the Statute of the International Criminal Court lists as a war crime the launching of an attack that may cause excessive damage to the natural environment. The incorporation of this offence into the ICC Statute appears to be a great achievement, as it is the first time that such conduct has expressly been declared to entail individual criminal responsibility under an international treaty. It is, however, submitted that Article 8(2)(b)(iv), second alternative, of the ICC Statute, suffers from a serious lack of definition. In addition, the provision depends on an extremely high damage threshold which further complicates its application in practice.

This article analyzes the interactions between norms formally stemming from different orders and regimes so as to demonstrate how and to what extent the legal spaces composing the transnational legal sphere are intertwined. Furthermore, it addresses the consequences of the intertwinement and suggests a fresh approach to the traditional concept of legal orders: it stresses a norm-centered rather than system-centered understanding of the transnational legal sphere. It argues for a norm-based strategy in order to understand the phenomenon of intertwinement, analytically deducing the relationship of the legal orders from the relationship of the legal norms.

The powers accorded the prosecutor by the Rome Statute have been the subject of much recent debate. Critics contend that the ex officio powers for triggering jurisdiction allow for abuse. This however ignores the rigorous requirements of the Statute for the appointment of the Prosecutor. Moreover the limited danger posed is far outweighed by the need to provide for an independent, credible Prosecutor. The Prosecutor's power to forego investigation and prosecution where this serves the interests of justice has also been widely critiqued for inadequately accommodating amnesties in democratic transitions. It is argued that amnesties which adhere to internationally accepted guidelines are consistent with the interests of justice and that the prosecutor may therefore defer to domestically enacted amnesty processes.

The future of international law is uncertain. The long-hoped-for revitalization of international law and its institutional structures following the end of the Cold War now seems at risk from an increasing deformalization of, and neo-liberal disregard for, international law. Meanwhile European international lawyers are responding by reasserting a Kantian project for a global constitution under an international rule of law. In this article I attempt to position these recent claims that the international legal order is undergoing a process of constitutional transformation in the context of a long-standing connection, since at least the post-revolutionary nineteenth century, between the idea of a positive international law and the emerging structures of the European constitutional nation-state. If one can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law's promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law's embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy. In tracing similarities in concerns from the nineteenth century to the twenty-first, as well as repetitions in legal arguments, I suggest that the alternatives of American empire and a (European) vision of global constitutionalism are merely necessary oppositions, reflecting this broader tension underlying the discipline. Because lawyers avoid clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is a mainstream, liberal-juridical consciousness – rather than any explicit legal theory – which continues to sustain shared assumptions about international law's past, as well as a promise of a future liberal world order. The apparently opposing visions of future world order are merely different sides of the same coin: each reflecting back, but each ultimately sustained by the other.

This article discusses the possibility of the International Criminal Court's taking domestic investigations and prosecutions of crimes within its jurisdiction where states are unwilling genuinely to investigate or prosecute such crimes. In particular sustaining the admissibility of a case on the basis of the lack of impartiality or independence of national proceedings is subject to analysis. Whereas the lack of this due process guarantee is expressly considered in the Rome Statute as a ground for admissibility where it is meant to shield a person from criminal responsibility, it is not equally clear that a case can be declared admissible where domestic proceedings are or were unfairly conducted to the prejudice of the person concerned. On an analysis of the wording of the Statute, its object and purpose, and its ‘preparatory works’, the possibility of the Court's taking on domestic proceedings on the basis of their being intentionally unfair to the prejudice of a suspect or accused does not appear to have a strong legal basis. However, recent developments at the ICTY and the ICTR show the importance of such a possibility to the fulfilment of the mission entrusted to the ad hoc tribunals. This circumstance brings about crucial questions about the role of the International Criminal Court in the enforcement of international justice and its contribution to international peace and security.

This article examines the reasoning and findings of the International Court of Justice in its judgment in Costa Rica v. Nicaragua on issues relating to the effect of the passage of time on the interpretation of treaties. In arriving at the proper interpretation of the disputed phrase ‘for purposes of commerce’ in a Treaty of Limits between the parties, which entered into force in 1858, the ICJ followed a number of interpretative steps based on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which led the Court to conclude that the meaning of this phrase must be presumed to have evolved over time. The means and methods of interpretation employed by the ICJ to determine the effect of the passage of time on treaties are examined. More specifically, the question is raised whether the ICJ's approach to determining the evolutionary character of a treaty provision, based on an interpretative presumption, may not be considered unsatisfactory insofar as it does not appear to take full account of the actual common intention of the parties – the main task of interpretation.

Alejandro Álvarez's professional trajectory forces us to rethink the traditional modes of reading and writing the history of international law. Álvarez was central to the development of modern international law. He also happened to be a Latin American international lawyer. Should we interpret his work and life against the background of the intellectual and political history of Europe? Are the contexts that relate to the crisis of the European balance of power or the rise of nationalism the only ones that explain the emergence of a modern international legal discourse? This article situates Álvarez's scholarship within the intellectual, economic, and political history of Latin America. Interpreting Álvarez in the context of a genealogy of modernist Latin American thinkers illustrates the extent to which his work was part of a broader regional effort to appropriate European cultural artefacts in ways that granted them both a cosmopolitan and a distinctively Latin American character. Álvarez's modernism reinvented the meaning and uses of international law as a strategic foreign-policy tool in the interest of Latin American countries, a reinterpretation that contributed also to the construction of a Latin American identity and thought.

A new genre of scholarly writing has emerged in recent years in the field of what one can broadly call critical international theory. Its principal defining feature is an intense preoccupation with the phenomenon of the so-called ‘new world order’, which it tries to explain and describe through an analytical lens constructed primarily around two ideas: the idea of ‘empire’ and the idea of ‘imperial law’. In this article I attempt to provide a brief overview of this genre, which for the sake of simplicity I shall call henceforth the ‘new imperial law’ or NIL genre, and to reflect critically on its underlying ideological dynamics.

The ‘rule of law’ is a concept at the very heart of the United Nations (UN) mission declared its Secretary-General, Kofi Annan. What does the concept mean internationally? The paper considers its role in international adjudication; in the UN more generally; in terms of the acceptances of the compulsory jurisdiction of the International Court of Justice (ICJ); the difference between thick and thin definitions of the concept; equality before the law; the requirement of clarity and certainty by reference to interpretation of treaties and maritime delimitation; compliance by Governments with international law; and the peaceful settlement of international disputes; and concludes with the importance of personal qualities and professional qualities.

According to the ICTR, Emmanuel Bagambiki is an innocent man. The trial chamber and the Appeals Chamber have each unanimously acquitted the former Prefect of Cyangugu of crimes relating to Rwanda's horrific 1994 genocide. And on 19 July 2007 Bagambiki was reunited with his wife in children in Belgium, having been granted asylum a few days earlier. It is tempting to conclude that justice has been done in Bagambiki's case. That conclusion, however, would be too facile: Bagambiki was acquitted in February 2006, nearly 18 months before his family reunion. In the interim he lived in a safe house in Arusha paid for by the United Nations, wanted by Rwanda for trial on related charges and unable to convince Belgium that he posed no danger to its peace and security. Bagambiki, moreover, is one of the lucky ones: the nightmare of being free but having nowhere to go continues for two of his acquitted roommates in the safe house, Andre Ntagerura and Andre Rwamakuba, Rwanda's Minister of Transport and former Minister of Education respectively. Bagambiki's ordeal and Rwamakuba and Ntagerura's ongoing plight illustrate one of the basic problems facing international criminal tribunals: what to do with the acquitted. An acquitted defendant normally has two options: return to his country of origin, or find a third country that will grant him asylum. Both options, however, have been problematic for defendants acquitted by the ICTR and are likely to prove equally problematic for defendants who may be acquitted in the future by the ICC. This short essay explains why – and identifies what the international community should do about it.

This article examines the tensions within the international drug control system which are putting the until now consensual position in regard to the prohibition on drugs supply and use for anything other than medical and scientific use – the Vienna Consensus – under strain. The article examines a number of areas where policy stress is leading to controversy about potential violation of international drug control treaty obligations by states parties. Drawing a comparison with earlier periods of stress when drug control fell under the League of Nations, it suggests that what appears to be occurring is a shift in the Vienna consensus, and that the drug conventions are sufficiently flexible to permit resulting shifts in practice, although reform would be preferable.

Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ joint criminal enterprises (JCEs) and how to express their relationship with the relevant physical perpetrators (RPPs) of the crimes. The ICC addressed the issue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations – vertical and horizontal modes of liability – cannot be simply asserted; they must be defended at the level of criminal-law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defence and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle – a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin's theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.

The extraterritorial application of competition law on the basis of the effects doctrine of jurisdiction has long been controversial. An analysis of the assumptions which underlie the discourse of jurisdictional assertion leads, however, to the conclusion that the effects doctrine is the only principle on which competition law jurisdiction can reasonably be based.

Moreover, a form of qualified effects principle, founded upon the consent of the undertakings involved, would be supported by most, if not all, of the leading players in the competition law arena.

Taking up the torch from my fellow co-editors who have addressed substantive and methodological issues of international criminal law (ICL) in their contributions, I propose to turn to the current state and prospects of its scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship were the leitmotif of past editorials and its (changing) role was chosen as the theme of the latest LJIL symposium. The professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of scholarship vis-à-vis practice in ICL. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

This article discusses the law and practice of the International Organization for Migration (IOM), a little-known but important international organization. The article aims to illuminate what it is the IOM does; how it influences its member state practices while simultaneously working on member state assignments; and how this affects the dominant theory underpinning the law of international organizations, i.e., the theory of functionalism. The article concludes that the IOM takes functionalist thought to extremes, and in doing so makes visible the latter’s ideological nature.

Hans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

Like international legal scholarship, LJIL is in transition. Our colleagues, Larissa van den Herik and Jean d'Aspremont, who have shaped much of the role and plural identity of the journal over the past decade, in collaboration with our different sections, have passed leadership on to us, the new team of (co-)editors-in-chief. This editorial reflects on the changing role and function of scholarship in international law, a theme important to our predecessors and ourselves. This is to some extent a niche area. It has not received much attention in discourse. With some notable exceptions, legal journals are typically reluctant to address overarching meta-issues of discourse, i.e. issues of production of scholarship, the role of journals vis-à-vis other media, or the broader direction of the development of international legal scholarship. Such issues might be perceived as non-scientific by some. We feel that it is important to include such dimensions, including critical self-reflection on our discipline, in international legal discourse.