In a late interview given to the French newspaper Le Monde, Michel Foucault discussed his dreams for a different style of criticism. ‘I can't help but dream about a kind of criticism’, remarked Foucault, in which one would ‘not try to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.’ This somewhat wistful, poetic thought resonates with more familiar Foucauldian notions regarding the use of theory as a ‘toolkit’ or ‘toolbox’. Common to both these tropes – critique as affirmation and theory as functional – is the desire for thought to be put to work rather than put on trial, for sentences to be brought to life rather than delivered. And yet this presents the would-be Foucauldian book reviewer – and more so where the venue is the impeccably juridical one of the law journal – with a series of alluring problems. How might one elaborate such a Foucauldian critique in a context where one is expressly called upon to judge? What would such a non-judgmental Foucauldian critique look like? Are juridical practices of critique readily susceptible to Foucauldian appropriation or subversion? This set of related questions is emblematic of a wider concern of mine which forms the subject matter of this review essay, namely the place of Foucault (if indeed he has one) in legal theory. How does Foucault, that fabled figure of postmodern antinomianism who supposedly announced the demise and ‘expulsion’ of modern law, relate to legal theory? What might it mean to bring Foucault's unruly poststructuralism ‘into law’? And with what possible effects?

Contemporary security practices pose a particular paradox in the relationship between law and norm. On the one hand, the institution of risk practices in advance of, and in place of, juridical decisions appears to have become the technical resolution of choice to the politics of targeted security in the ‘war on terror’. The risk calculus makes possible an array of interventions – from detention, deportation, or ‘secondary’ security to asset freezing and ‘blacklisting’ – that operate in place of, and in advance of, the legal thresholds of evidence and decision. And yet, this article demonstrates, it is not the case that law recedes as risk advances, but rather that law potentially both authorizes and contests specific modes of risk management. As risk practices in the war on terror operate on and through a distinctive and novel terrain of the uncertain future, the capacity of juridical intervention to contest the exposure of people to dehumanizing technologies itself faces new potentials and limits.

Current endeavours to develop a ‘realistic’ concept of international law should take into account that there is not only one reality. It does not suffice to admit that reality can be perceived from different angles. Rather, a realistic account of modern society has to acknowledge that we can no longer speak of the ‘world’ or ‘reality’ as a singular entity. Perspectives matter; they construct their own, distinct objects of cognition. A ‘New Legal Realism’ is deliberately new, legal, and realistic only insofar as it is conceived as an understanding of how (international) law creates its own realities.

It is commonly agreed that international criminal law (ICL) is a ‘hybrid’ legal culture, which mixes the legal traditions of the common law and civil law. However, the precise nature of this legal culture remains a contentious legal and theoretical issue. The paper identifies the two dominant models of ICL within these debates as either a clash of cultures or a sui generis system, and shows how neither satisfactorily engages with the concept of legal culture itself. To address this problem, the paper develops a new account of ICL as a global legal culture. The paper first identifies the distinctive ‘cultural logic’ of ICL, drawing on the example of recent developments in sexual violence offences. It then examines how ICL takes a global legal form, which ‘globalizes’ liberal legal culture. Finally, the paper shows how this process of making the legal culture of ICL ‘global’ creates its cultural contradictions, but also enables the possibility of making a new legal culture at the international level.

The article analyses the approach concerning the rules of attribution of conduct to a state followed by the ICJ in the Bosnia v. Serbia case, and contrasts it with that of the International Law Commission. How far the Court modified its own jurisprudence in this field of law is also addressed. Moreover, the question will be discussed of whether the standards applied in the Court's decision are appropriate, considering the needs of the international community regarding the harmful action of private actors conspiring with states.

The arrest of the Chilean general Augusto Pinochet Ugarte in London in 1998, and decisions in UK, Spanish, Belgian, and other European courts supporting his extradition, opened new hope that prosecutions of international crimes in national courts under universal jurisdiction laws might prove a viable strategy for combating impunity. Complainants brought cases in a number of European countries, most notably Spain and Belgium. In Spain, the Supreme Court eventually cut back on the reach of the universal jurisdiction law by superimposing the requirement of a nationality tie to the forum, as well as modifying other prior jurisprudence. In Belgium, the courts grappled with issues of immunity and the ability to initiate proceedings in the absence of the defendant. Under US pressure the Belgian legislature eventually narrowed and weakened the law. The article traces these developments, and concludes that advocates need to be more strategic in choosing both the number and type of cases they present under theories of extraterritorial jurisdiction. The primary criterion, the author argues, should be the potential for the extraterritorial case to catalyze anti-impunity efforts in the territorial state.

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.

This article argues for amending the Rome Statute to remove the state or organizational policy requirement from the classification of crimes against humanity. After a brief look at the requirement itself, the article presents arguments to show how the policy loophole creates an accountability loophole in international criminal law, and how removing it both resolves inconsistencies in the Rome statute and facilitates prosecutions for international crimes. The article's final section examines and responds to leading arguments for keeping the policy requirement. The article is intended to show how the policy requirement limits international criminal law's scope in unwelcome ways and to challenge the use of state or organizational policy as a dividing line between domestic and international crimes.

In this commentary to Matt Halling's paper, the author takes issue with Halling's proposal to amend Article 7(2) of the Rome Statute with regard to the ‘policy element’. Halling's view of plugging ‘loopholes’ in the Rome Statute in abstracto is met with a voice of realism. The author's realism is expressed on different levels and can be summarized in the following questions. As to the need for an amendment of Article 7(2), how realistic are the scenarios presented by Halling? Do they really call for an amendment? As to the function and role of the court, why expand the Court's mandate when it can only prosecute a handful of cases at any one time? As to the Court prosecutorial policy, does the Court need a fine net when it has limited resources and a mandate that requires it to focus on those who bear the greatest responsibility?

Intellectual clashes over the nature of international law have been raging throughout the traceable history of the discipline. Naturalists, positivists, idealists, pragmatists, formalists, realists, and so forth, have striven to put forward and defend credible paradigms of international legal order. The common characteristic of each new wave of criticism has been its unsettling disposition. It arrived stridently with questions and doubts, often seeking reform and often reconceptualization and transcendence. A second common characteristic, notably in the post-enlightenment period, has been the marginalized position of the debate on the merit of each new wave, within and outside legal academia. Indeed, debate over unsettling questions seems to have been exempted from the habitual professional responsibilities of the overwhelming majority of international lawyers. Existential anxieties of this sort have been relinquished to that class of academics usually referred to as jurisprudes or legal theorists. ‘Practicing’ international lawyers, so it is often argued, need not concern themselves with ‘theory’. Their mission is to provide tangible answers to practical problems and, for this task, ‘theoretical’ debate is irrelevant: its outcome is indeterminate, abstract, and, thus, of limited usability. In some cases ‘theoretical’ even becomes a pejorative term, synonymous with counter productive or parasitic.

Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation performance payments, and private protected area agreements – reveal an ongoing and intensifying transnational attempt to use private contracts to address some of the most pressing issues of common concern. This article draws on fairness theory in both contract and international environmental law to argue for law's relevance in interpreting conservation's call for contracts.

This article examines the relationships between representations and operations of sovereignty in natural resource governance. We advance a ‘political ecology of sovereignty’, examining the participation of non-state actors in resource governance processes. We particularly argue that processes of integrating subaltern populations through mapping local ecological knowledge can modify effective governance practices while nonetheless reproducing the legibility of state sovereign authority and its territorial boundaries. Exploring the Enbridge Northern Gateway pipeline in Canada, we suggest that state jurisdictional authority is secured through incorporating indigenous interests as a delimited geography of tradition. Examining the Hatgyi hydroelectric development along the Thai–Burmese border, we argue that the territorial boundaries of those nation-states are rearticulated through the governance of this transboundary development. Through these cases, we demonstrate how the insertion of local knowledge works not only to reconfigure effective governance processes but also to reinforce the effect of state sovereignty in new ways.

This article sets out the major tenets of new materialism and maps out its implications for international law. It considers what new materialism might offer for those of us working within international law in the way of new insights, resources, practices or politics. It first sets the contours of new materialism within the broader material turn. It then elaborates three main tenets of new materialism’s methodology, theory, and ontology: its attention to matter in its physicality; the embedded and entangled subject; and the vitality or agency of objects. The article focuses on how new materialist work might help us to understand, first, subjectivity and second, power and accountability in international law. It concludes that new materialist approaches offer important and compelling insights, working against entrenched categories and structures that continue to perpetuate or excuse violence and harm in international law’s doctrines and practices. These insights provide resources for rethinking power and subjectivity, and the role these play in international law. However, those of us working to consider how we can respond to pressing crises of justice and coexistence within international law may find new materialism most powerful when brought into relation, and deep conversation, with more structural methodologies. Notably ‘older’ (Marxist or historical) materialisms grasp embedded power relations and deep-rooted systemic harms in more concrete ways. This is, the article concludes, a conversation that international law scholars are well placed to contribute to, deepening both ‘old’ and ‘new’ materialist insights for international law.

‘What is politics?’ is an omnipresent question in Hannah Arendt's work and one which is broadly explored in countless publications. ‘What is law?’, in contrast, is a question which has not been of much interest to Arendt scholarship to date. There is a good reason for this: Arendt's engagement with law seems not to be systematic but, rather, episodic and sporadic. However, on the basis of three different discourses – historical, political-theoretical, and legal-philosophical – I shall point out that Arendt's dealing with legal questions takes place on a continuous basis and should be regarded as crucial for a proper understanding of her thoughts. I shall argue that with her shift from the Greek conception of law as nomos to the Roman lex, Arendt seeks to de-substantiate the concept of law and to highlight the relationship-establishing dimension of law. Both attempts are important for overcoming the dichotomy of law and politics within constitutionalism and for paving the way to a different understanding of legal rationality which seeks not to isolate law from the political sphere but rather to interact with it.

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.

Witness proofing – or witness preparation – has been common practice at the ad hoc criminal tribunals but was prohibited in the first trial before the International Criminal Court (ICC) (the Lubanga case). The ad hocs have robustly defended the practice, claiming that it assists the efficient presentation of evidence and enhances the truth-finding process. This article examines the way in which the ad hocs have allowed the process to become an integral feature of their procedural regimes without sufficient examination of these apparent merits. The ad hocs appear to have accepted that prohibiting the parties from rehearsing, practising, and coaching evidence was in the interests of justice, but yet – in the uncritical acceptance of the benefits of proofing – have sanctioned practices which are impossible to distinguish. The Lubanga case represented a welcome attempt by the ICC to examine proofing and its attendant risks and, for the reasons outlined in the article, the chambers arrived somewhere close to the right decision.

This article focuses on the reasoning employed by the International Court of Justice in its Advisory Opinion rendered on 22 July 2010 with respect to the most formidable legal impasse of the accordance with international law of the unilateral declaration of independence: the lex specialis that applied at the critical date, and which the Court affirmed continues to apply to Kosovo, as established by the United Nations Security Council in its Resolution 1244 (1999). The Court's analysis of the applicable lex specialis is questionable. Its analysis was coloured by the narrow approach it took to answering the question it was asked to address. It queried an unambiguous factual qualification made by the General Assembly, and it disregarded factual qualifications made by the Secretary-General, his Special Representative, and indeed all relevant actors. It failed to uphold the legally binding provisions of Security Council Resolution 1244, and it did not qualify as unlawful or invalid an act of a subsidiary body of the Security Council that was undertaken in excess of authority and contrary to the fundamental provisions of that Resolution. The resolute conclusion of the majority of the Court that the unilateral declaration of independence did not violate international law seems to read as a declaration of ‘independence from international law’.

Article 5 of the Statute of the International Criminal Court verifies the four most serious crimes to the international community as a whole upon which the Court shall have jurisdiction. Though it includes the crime of aggression the Statute lacks a definition of that crime. The purpose of the article is to offer a sustainable definition. It discusses the constitutive elements of the crime, focussing on the crucial points in a debate that has been actively engaged in for the past 50 years. Certainly, the crux of the matter lies in the role the Security Council should play in this regard. […] there has been a persistent undercurrent of opinion expressive of the view that there is no fixed limit to the possibilities of judicial settlement; that all conflicts in the sphere of international politics can be reduced to contests of a legal nature; that the only decisive test of justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law.H. Lauterpacht

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.