One of the most striking trends in contemporary international law (IL) scholarship is the turn to empirical research methods. Some see this as sign of progress, whereas others call for caution or even show hostility. With a view to the future of IL scholarship, however, all sides in this at times heated debate seem to have considerable problems keeping a clear focus on the key question: What are the implications of this empirical turn in terms of philosophy of legal science, of the social understanding of IL, and, not least, of the place of doctrinal scholarship after the alleged Wende? What is needed, we argue, in order to answer this question is not yet another partisan suggestion, but rather an attempt at making intelligible both the oppositions and the possibilities of synthesis between normative and empirical approaches to law.

Based on our assessment and rational reconstruction of current arguments and positions we outline a taxonomy consisting of the following three basic, ideal-types in terms of the epistemological understanding of the interface of law and empirical studies: toleration, synthesis and replacement. This tripartite model proves useful with a view to teasing out and better articulating implications of and interrelations between positions. As such the model: i) provides a framework to better situate arguments about the role of empirical studies in IL; ii) helps identify real epistemological stakes in order to overcome ‘trench wars’ – or worse: absence of dialogue and genuine argument; and iii) thus ultimately contributes to the development of a genuine basic science-of-law.

The terminology regarding remedies in the field of international responsibility is far from uniform, either in literature, as well as in case law, diplomatic practice etc.. This state of affairs is bound to have its impact on the codification of state responsibility by the International Law Commission. Was this ‘terminology-problem’ tackled by the International Law Commission and its Special Rapporteurs?

In this article I excavate and critique two dominant images of the international lawyer that emerge from the oeuvre of Martti Koskenniemi. In doing so, I hope to briefly shake the faith critical international legal thought so often invests in the potential of the subject. The first image is of the critical subject that emerges from From Apology to Utopia. She also happens to be a projection of the critic, governed by both elitism and unhappiness, for whom freedom is always both a constant and overarching possibility, and yet always embodied in a fleeting moment. By way of critique, I question whether this critic(al subject) may not unwittingly embed the very aspects of liberal legal and political thought that she seeks to challenge. The second image is of the professional lawyer, left on the shores of pragmatism. She emerges from my reading of Koskenniemi's The Gentle Civilizer, the 2005 Epilogue and his Kantian texts. She is constructed as Koskenniemi's critique is domesticated, taking a last, and perhaps futile, refuge in an ethics that is needed to buttress an identity which can aid international law's moral regeneration. Koskenniemi's writings urge today's international lawyers to put their sense of identity into question; this article asks which identities (and their possibilities) he embeds as he does so.

This article seeks to demonstrate how the Agreement on the Privileges and Immunities of the International Criminal Court relates to other documents of international law and thereby contributes to the independent functioning of the Court. In particular, it argues that the Agreement provides some duplication, but more importantly, the necessary extension, elaboration, and interpretation of the Rome Statute with regard to privileges and immunities. In comparison with other conventions on privileges and immunities of international organizations, the article concludes that the Agreement provides some important unprecedented provisions, but that the overwhelming part of the Agreement on Privileges and Immunities constitutes standard provisions for such agreements.

The law relating to state succession played a small but important role in the World Court's recent decision in Gabčíkovo-Nagymaros. Hungary's argument that the 1977 Treaty had not survived the transition from Czechoslovakia to Slovakia notwithstanding, the Court found that the 1977 Treaty had continued to be in force. Hungary presented several arguments relating to succession: the absence of consent; and that only certain rights and obligations (but not the Treaty itself) had survived. The present article analyzes these arguments in context and concludes that the Court came up with the right decision, but through a process of reasoning that is less than fully convincing.

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

The recent judgement on the merits in the Oil Platforms case has brought a long-standing dispute before the International Court of Justice to a close. This article critically analyzes some of the most interesting topics raised in this judgement, not least the fact that it was harshly criticized by a very high number of judges in their individual opinions. The issues discussed – such as the role of self-defence law within the confines of an ‘FCN treaty’ or the notion of ‘freedom of commerce’ – merely point to higher-level problems of a theoretical nature which cause our confusion as to substantive law.

Humankind’s exploration and use of outer space are first and foremost limited by the obligation of non-appropriation. This prohibition, with an aim to prevent conflicts arising from competing territorial claims, does not extend to the exploitation of abiotic resources in space. Recent state practice has shown a clear trend of regarding such exploitation as a freedom of exploration and use of outer space. The future international legal regime should prohibit property claims over natural resources in place on celestial bodies, avoid the controversial issue of ownership, co-ordinate the resource activities of different entities by a stage-specific and priority-right-based mechanism, and harden the obligations of capacity-building and co-operation. The ideas of parallel system and monetary benefit sharing should not be discarded although resistance from major space-faring countries is foreseeable.

On 8 July 1991 Qatar filed an application instituting proceedings against Bahrain in respect of certain existing disputes between them relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibai and Qiťat Jaradah, and the delimitation of the maritime areas of the two states. The case has been entitled by the Court the Maritime Delimitation and Territorial Questions Between Qatar and Bahrain case. The application is in four sections: I. Geographical and Historical Background;II. The Subject of the Disputes; III. Efforts to settle the Disputes; and IV.Jurisdiction.

An unlimited right of non-self-incrimination of witnesses before international criminal tribunals exists only during the pre-trial investigation (Article 55 ICC Statute); during trial the right is not unlimited, as the witness can be compelled to answer any question, either on the basis of an ex ante assurance of non-use of the evidence against him/her coupled with an assurance of confidentiality (ICC Rule 74(3)(c)) or on the basis of a guarantee of non-use without an explicit assurance to that effect (ICTY/ICTR Rules 90(F)). It is doubtful whether these rules are compatible with the principle nemo tenetur se ipsum accusare since this principle protects not only the accused but also the witness from a criminal prosecution which is based on her own statements.

In his well-written and well-argued paper ‘International Toleration: Rawlsian versus Cosmopolitan’, Kok-Chor Tan raises the important question as to where the limits of toleration are to be drawn. This is an important issue not only from the perspective of international law, but also for any domestic society. Toleration is never an automatic element or quality of any society, but has to be defended against the ever present danger of intolerance and repression. This is especially the case in the post-9/II era with regard to Islam, as it is not always easy to separate serious analysis of this religion from outright prejudices against its believers. With regard to Islamic minorities, the present attitude of some ‘Western’ majorities does not always reflect an attitude of respect, although this is not often admitted. It is not argued that Islamic minorities and other immigrants should adapt to the culture of the majorities because minorities have to give in to majorities on the basis of democracy; instead, it is claimed that Western majorities live in accordance with universal values. As Western societies have incorporated universal values formulated for the first time in the age of Enlightenment, they can rightly require from immigrants and minorities that they give up part of their values and identities without any real loss on their side. In forcing immigrants to adapt to Western values, majorities are merely liberating them from outdated particularistic codes and worldviews, thus enabling them to be free in accordance with truly universal values. This, obviously, is a peculiar way of understanding the Enlightenment, not with Kant as a perpetual challenge (‘we do not live in an enlightened age, but in an age of enlightenment’), but as something that is achieved and stably embodied in ‘our’ Western societies. Immigrants and minority members can reasonably be asked to identify with such societies. Although such a demand to assimilate might at first glance be seen as testifying to intolerance, in reality this is not the case. Why should we allow others to live in error? In the face of truth, toleration is a superfluous virtue. It goes almost without saying that this view, which is deemed by some as Enlightenment fundamentalism, contradicts the spirit with which Locke and Spinoza in the seventeenth century proclaimed the superior value of tolerance. They argued that all religions claim for themselves to be the one and only true religion and that the best attitude among the contenders of different beliefs would be one of tolerance: nobody can prove convincingly to the other side of the religious divide the truth of his own religion and the falseness of all other religions; and since ‘no man can conform his faith to the dictates of another (since) all the life and the power of true religion consists in the inward and full persuasion of the mind’ (Locke), the use of earthly powers is inappropriate and unjust.

In February 2006 Judge P. H. Kooijmans retired from the International Court of Justice after having served a full nine-year term. The article focuses on the manner in which Peter Kooijmans has performed his task as a judge by taking a close look at his most significant individual opinions. It focuses on three aspects of his contribution to the work of the Court: settling disputes, applying legal logic, and the development of international law.

The Leiden Journal of International Law (‘LJIL’) has always endeavoured to promote diversity and interdisciplinary enquiries in the international law epistemic community. Interdisciplinarity and diversity, albeit necessary in the long-term to refresh and update the discipline, raise numerous questions and epistemic challenges in the short-term. On the initiative of Jean d'Aspremont and Larissa van den Herik, today continued under the present editorship, these challenges have been at the heart of past LJIL editorials.

The rules of treaty interpretation are ordinarily met with scepticism not only by critically-minded international law theorists, but also by mainstream international legal scholars who otherwise believe in international law’s normative power. The objective of this article is to inquire whether, despite their much-discussed shortcomings, the rules of treaty interpretation have any ‘cash value’ in the sense given to this expression by one of the founding fathers of the philosophy of pragmatism William James, in other words, whether they make any practical difference. To do so, this article revisits the traditional understanding of the rules of treaty interpretation and argues that they cannot directly bridge the gap between the signifier and signified, but rather are designed to impose a ‘common discipline’ with respect to the admissible means that can be used in treaty interpretation.

This article establishes the normative connection between Japan’s responses to regional hegemonic order prior to the nineteenth century and its subsequent engagement with the European standard of civilization. I argue that the Japanese understanding of the ‘standard of civilization’ in the nineteenth century was informed by the historical pattern of its responses to hegemony and the discourse on cultural superiority in the Far East that shifted from Sinocentrism to the unbroken Imperial lineage to the national-spirit. Although Japanese scholars accepted and engaged with the European standard of civilization after the forced opening up of Japan to the Western world in the mid-nineteenth century, they did so for instrumental purposes and soon translated ‘civilization’ into a language of imperialism to reassert supremacy in the region. Through intellectual historiography, this narrative contextualizes Japan’s engagement with the European standard of civilization, and offers an analytical framework not only to go beyond Eurocentrism but also to identify various other loci of hegemony, which are connected through the same language of power.

International lawyers, especially human rights lawyers, praise the Nationality Decrees decision as a watershed in the progressive expansion of international jurisdiction. Reexamination of the case challenges this understanding. The case proves to have involved a confrontation between rival colonial conceptions: French stress on the intimacy of an imperial tuteur with its protégés versus British focus on consent to subordination. Reexamination also reveals the decision as highly restrained, rejecting a French call for a judicially formulated colonial code. The case's protagonists bequeathed a conflicted conceptual legacy concerning international authority and nationality policy in whose wake debates about today's new internationalism follow. [Un protectorat] reste encore, à quelques égards tout au moins, au dehors, en marge, de façon qu'il y ait un dernier effort, un dernier acte à accomplir pour que ce territoire, qui reste nominalement, par une subtilité juridique, séparé du territoire national, s'y touve enfin réuni.[A protectorate] remains, in certain respects at least, outside, in the margin; so that a final exertion, a final act remains to be performed; in order that this territory which remains by a legal nicety nominally separated from the national territory may be finally united to it.Alfred de Lapradelle, French Oral Argument, Nationality Decrees Case

This paper draws on some of the preliminary findings of a small pilot study which aimed to discover what evidentiary challenges a range of practitioners with experience of different international trials faced in the cases they were involved in, and what practices were developed to deal with these challenges. The findings in this study are based on the data collected from The Hague-based institutions, the ICC, the ICTY, the ICTY and ICTR Appeals Chamber, and the Special Tribunal for the Lebanon (STL). It is argued that professionals moving from institution to institution are engaged in a process of cross-pollination which itself influences the practices that develop, although a common understanding of certain evidentiary issues in international trials remains fragmented and at times elusive.

The recent investor–state arbitration claim of Piero Foresti, Laura De Carli and others v. Republic of South Africa considers the extent to which international human rights obligations might be compromised by investor protections. In this regard, the paper examines the investor protection known as fair and equitable treatment (FET). It addresses this treatment obligation in the context of the South Africa–Italy bilateral investment treaty, and its invocation by investors who feel wronged by South Africa's black economic empowerment policies. It analyses the main interpretative theories of the FET clause, and concludes that it is to be interpreted as a self-contained treaty standard. This sui generis approach to interpreting FET clauses more accurately reflects the intentions of the state parties. Such a view supports the conclusion that international human rights should be considered in the interpretation of the FET clause.

In his article on the implementation of international law by the domestic courts in the United States, Richard Falk focuses on the possible role of domestic courts with respect to the acts of foreign policy which may be contrary to international law. In general that role is limited. This is the same in Europe. Falk mentions efforts of individuals, to change national foreign policy by means such as the Russell Tribunal, boycotts of products, blocking of tracks and the occupation of buildings. Such activities also happen in Europe but rather with the intention to attract public attention than with the purpose to litigate in court. In Europe it is generally accepted that courts should not take policy decisions of that kind.