Litigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law.

This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.

While much has been written about the formation of the International Criminal Court (ICC), less attention has been focused on the enforcement capability of the Court. As demonstrated by the history of the ad hoc international tribunals, one of the most pressing problems for international criminal courts is the arrest and the surrender of suspects, which often requires substantial bargaining between the court and the state in which the suspect resides. We develop a classification of the issues which have the greatest impact on the bargaining influence of the ICC to secure the arrest of indictees, and apply this classification scheme to a study of the four ongoing situations at the ICC in order to explore the bargaining environment in which the ICC operates. While many of the cases have features which should assist the ICC in bargaining with the state, the situation in Sudan represents the greatest challenge for the Court.

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

The right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within the jus ad bellum paradigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986 Nicaragua decision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

In the past ten years or so, several documentaries on international criminal justice have been produced, shown at film festivals, and used for advocacy and educational purposes. On some occasions, artists, humanitarian organizations, and the Office of the Prosecutor of the International Criminal Court (ICC) have worked closely together in the production of documentary films. Documentaries have thus become important tools for education and the spread of imageries of international criminal justice. So far, however, international legal scholars have largely shied away from researching cinematic representations of their field. In this article, I seek to remedy this by focusing on a family of four recent influential documentaries related to the ICC: The Reckoning, The Court, Prosecutor, and Watchers of the Sky. All four use similar modes of representation, narration and promotion and basically communicate the same message about the Court. My article critically analyzes how such artistic interventions have helped create specific images, stories, and sentiments.

This article concerns the concept and practice of international(ized) constitutions, which have become characteristic of situations where there is deep international involvement in peacebuilding efforts. The process and nature of internationalized constitutions challenge traditional ideas about sovereignty, self-determination, and constitutions. While they reinforce the importance of constitutional documents themselves as an indicator of sovereignty, internationalized constitutions simultaneously legitimize a high degree of external influence in the creation and even implementation of that document. This article argues that internationalized constitutions are not inherently legitimate or illegitimate, but have the potential to be either in any given situation. Internationalized constitutions in Iraq and Kosovo are used as case studies to investigate how the dilemmas of internationalized constitutions have played out in two recent scenarios.

Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.

This article deals with the legal aspects of the dispute between Hungary and Slovakia concerning a joint project of locks and power-stations, which had to be constructed in the Danube at Gabc ikovo and Nagymaros. Rules of treaty-law, environ-mental protection, good faith, reprisal and contributory negligence will be applied to assess whether Hungary was entitled to terminate the treaty and whether Slovakia could lawfully construct a provisional solution. Furthermore the significance of the case and its submission to the International Court of Justice is addressed.

For years ICTY sentencing practice has deemed an accused's expression of remorse to be a factor in mitigation of sentence. This article examines whether the ICTY has adequately elucidated the theoretical and purposive basis for its reliance on this factor. It observes that, although the Tribunal has addressed from the outset the need to ensure that this subjective factor is not contrived, it has only belatedly identified the relationship between an expression of remorse and the fundamental sentencing objective of reconciliation.

A certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

What would happen to our understanding of international law and its relationship with violence if we collapsed the distinction between our supposedly post-colonial ‘present’ and its colonial ‘past’; between the sovereign spaces of the twenty-first century global order, and the integrated, hierarchical space of fascist imperialism? I respond to this question through an investigation into the physical contours of a precise ‘imperial location’: 30°31′00″N, 18°34′00″E. These co-ordinates refer to a point on the sea-edge of the Sirtica that is occupied today by the Ra's Lanuf oil refinery, one of Libya's three most important such facilities. In the late 1930s, however, during Libya's period of fascist colonial rule, this was the point at which a state-of-the-art motorway, the Via litoranea libica, was crossed by a giant triumphal arch, the Arco dei Fileni. Through a chronotopic reading of the temporal, spatial and interpellative aspects of this point, its architecture and its history, I suggest that fascist lawyers, officials and intellectuals accepted a horrifying truth about the relationship between international law and violence – a relationship that twenty-first century doctrinal international law is loath to confront, concerning the inherently expansionist logic of the sovereign state, and the inevitably hierarchical ordering of the ‘international community’ which stems from it.

The subject-matter of this article is the Judgment of the International Court of Justice in the Gabčíkovo-Nagymaros case. Following an exposition of the relevant facts, it continues with a critical analysis of the Judgment of the Court. In addition to a brief analysis of the issues involving the law of treaties, the law of state responsibility, the law of state succession, and the treaty obligations of Hungary and Slovakia relating to the use of Danube water and the protection of its environment, it focuses on the rules and principles of general international law concerning the use of international watercourses and the protection of the environment that were applied by the Court in this case.

This article seeks to complicate conventional understandings of the way in which IMF conditionality operates in relation to North/South relations. It begins with a genealogy of how the Fund became involved in lending to the South and argues that the Fund was transformed from an essentially monetary institution concerned with the industrialised states to a surveillance organisation directed at providing information about the South to the North. The article then explores what discursive functions the Fund might be performing in the context of the relationship between North and South. In this regard the author identifies two major themes underlying IMF discourse, both of which suggest that an underlying sense of danger of the South is felt by the North, and that this sense of danger replicates older fears. The author then argues that the discursive practices employed to address these fears resonate with older discursive strategies and considers why the reoccurrence of these “technologies of empire” might be problematic. It concludes with some (tentative) suggestions about how we might productively disrupt the colonial continuum of which these discursive practices seem to form part. There is a disturbing tendency in the Western Academy today to divorce the study of discursive forms from the study of other institutional forms, and the study of literary discourses from the mundane discourses of bureaucracies, armies, private corporations, and nonstate social organizations. […] [I]f the postcolony is in part a discursive formation, it is also true that discursivity has become too exclusively the sign and space of the colony and the postcolony in contemporary cultural studies. To widen the sense of what counts as discourse demands a corresponding widening of the sphere of the postcolony, to extend it beyond the geographical spaces of the former colonial world.

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.

The sheer amount of non-state participation in the creation of the World Bank Environmental and Social Framework (ESF) is surely noteworthy. The aim of the Bank’s consultation was to get ‘global’ input and feedback, and with over 8,000 stakeholders from over 63 countries taking part, it is laudable. The extent of the participation challenges the positivist approach to international law-making, which views only states as having the power to make law and raises questions about how to legitimize such international soft-law making. Legitimacy is entangled with democracy, as scholars debate whether democracy is the required benchmark for decision-making processes at international organizations. This article uses deliberative democracy to analyse the ESF consultation process. Whilst, democratic legitimacy has been interpreted to mean inclusivity and participation, deliberative democracy raises a series of hard questions about equality and power that scholarship on global governance needs to grapple with. Although this participatory process at the World Bank challenges traditional narratives in international law, analysing it through a lens of deliberative democracy exposes the work that still needs to be done to discuss democracy in international decision-making.

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.

The ICJ has confirmed that, on the one hand, the customary status of the general rule of treaty interpretation in the Vienna Convention on the Law of Treaties makes it applicable to the constituent instruments of all international organizations, but, on the other hand, constituent instruments are ‘treaties of a particular type’ with special considerations. This article examines the resultant implication that the Court adopts an approach to constituent instrument interpretation that supplements or modulates the approach provided for in the Convention. In doing so, it examines both the Advisory Opinions that respond to direct questions of constituent instrument interpretation, as well as Opinions and Judgments in which a question of constituent instrument interpretation is incidental to a dispute with respect to another treaty or general international law. The article identifies nine interpretative propositions used by the Court: (1) sufficiently clear text is conclusive; (2) the text cannot be nullified; (3) working documents (travaux préparatoires) afford auxiliary interpretation; (4) consistent practice precludes contrived interpretation; (5) to be consistent, practice need not be unanimous; (6) consistent institutional practice is determinative; (7) purpose can supplement text, but cannot contradict practice; (8) practice is interpretation, unless institutionally overruled; and (9) interpretation cannot be gratuitous. It is argued that to the extent the Court diverges from the Convention, it in fact allows for a more efficient and effective approach to constituent instrument interpretation and accords institutional practice particular prominence.

The 2014 judgment of the International Court of Justice, regarding Whaling in the Antarctic, brought into focus scientific fact-finding in disputes before the Court. This article examines the Court's practice with respect to first, the mode of appointment and method of examining experts assisting the Court in fact-finding; and second, the standard of review employed in analysing a scientific fact to arrive at a judicial decision. In doing so, the article also refers to jurisprudence of the World Trade Organization to draw parallels and best practices therefrom. This analysis is aimed at structuring a coherent and predictable approach for scientific fact-finding before the International Court of Justice.

The article proposes an innovative theoretical framework outlining preconditions for Regional International Courts (RICs) to act as engines of supranationality in different institutional and socio-political contexts. In so doing, the article nuances the theoretical approaches to supranationality and supranational adjudication. The article focuses on the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ). Both courts have been branded institutional copies of the Court of Justice of the European Union (CJEU); they have even borrowed key jurisprudential principles from the Luxembourg Court with the goal of expanding the reach of Central American and Caribbean Community Laws. Yet, both the CACJ and the CCJ have thus far failed to foster supranationality in their respective systems. This is because the conditions allowing RICs to become engines of integration lie, for the most part, beyond the direct control of the judges, most notably, with other institutional, political, and societal actors, such as national judges, regional organs, legal and political elites, as well as academics. The article thus suggests that RICs can become engines of supranationality only to the extent to which they are supported by a set of institutional, political, and societal pre-conditions allowing for the concrete enforcement of the rulings of the RIC at the regional and national levels.

For years the majority of those individuals publicly indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remained at large due to a lack of co-operation from states whose assistance was required to effect their arrest. In order to assist in this regard, various operations have been undertaken since 1997 by which UN and regional missions have taken steps to assist the ICTY in the difficult task of bringing accused before the Tribunal in The Hague. Such steps were taken in the case of Stevan Todorović, who was captured and transferred to The Hague by means of an operation shrouded in secrecy and alleged to have involved illegal behaviour on the part of the NATO-led Stabilization Force. The following article discusses the nature of Todorović's arrest (based on the limited facts available) and his various attempts to have his indictment dismissed due to the nature of his arrest. In so doing, it considers the state of the law regarding the appropriateness of an international judicial body proceeding with the trial of an individual brought before it by potentially illegal means. Although a plea agreement was reached in the case, with the result that the judicial consideration of the issues is limited, important issues are nevertheless raised in the arguments of the Office of the Prosecution and the defence counsel which are likely to recur in similar cases in the future