The Cambodia Tribunal's co-investigating judges' first order, for the provisional detention of Duch, one of the suspects for the atrocities committed by the regime of Democratic Kampuchea in the 1970s, addresses the application of the doctrines of male captus bene detentus and abuse of process. The order, confirmed by the pre-trial chamber, states, relying on those doctrines, that Duch's unreasonably long prior detention, ordered by the Cambodian Military Court, does not bar his provisional detention by the Cambodia Tribunal. This article argues that the order is in accordance with applications of the relevant doctrines by the international criminal tribunals in similar cases, and that, absent involvement of the international or hybrid tribunal, abuse of process can, and should, only be successfully applied in case of torture or serious mistreatment of the suspect.

Collectives and their interrelations are central to international law. Legal relations between collectives can be analysed with reference to the classic account of Hohfeld without reducing those collectives to mere aggregates of individuals and without recourse to the legal fiction of treating the collective, for example the state, as a quasi-individual. The rights of collectives have been widely if not conclusively explored within international law, but Hohfeld's ‘field’ approach to legal relations enables the scrutiny of the range of relations, including immunities, liberties, powers, and disabilities, as well as claim-rights and the corresponding obligations in others. The main substantive topics for discussion are the legal relations of collective entities such as peoples and minorities, and closely related matters such as self-determination. Applying Hohfeldian analysis to international law highlights the centrality of international collective entities of which the state represents only one variety. The approach described here therefore takes account of the dethroning of the state within contemporary international law and contributes to the theorization of that development. Nearly one hundred years after its first appearance, Hohfeld's analytic scheme continues to generate insights for international law.

Nearly three decades after the Cold War, the present-day hostilities between India and Pakistan have shifted the focus of the threat of nuclear escalation to South Asia. It is in this context that this article seeks to assess the legality of India’s military nuclear doctrine under international law.

Academic literature on the use of nuclear weapons has largely shied away from discussing the legality of specific military doctrines or ‘policies of deterrence’ of the nuclear weapon states, treating them as issues of military strategy that are beyond the realm of international law. This article hopes to challenge that dichotomy.

Though several branches of international law are relevant to any discussion on nuclear weapons, this article shall only examine India’s nuclear doctrine through the lens of jus ad bellum. Specifically, this article shall focus on whether India’s nuclear doctrine constitutes a threat to use force, and if so, whether such threat is lawful. The article concludes that India’s nuclear doctrine can be construed to be a specific threat to use force against Pakistan, and that such threat may be unlawful for contemplating the disproportionate use of force.

This article examines the question of state succession to bilateral treaties. It analyses the work of the International Law Commission undertaken in the 1970s and criticizes the solutions it has adopted in the 1978 Vienna Convention on Succession of States in Respect of Treaties for different types of state succession. I will argue that it is incoherent for the ILC to apply, on the one hand, the solution of automatic continuity for bilateral treaties in the context of secession and dissolution of states, while adopting, on the other hand, the solution of tabula rasa for Newly Independent States. In any event, it is plainly unjustifiable to apply the principle of automatic continuity to bilateral treaties. Thus, while the tabula rasa principle was adopted by the ILC for multilateral treaties to protect Newly Independent States’ right to self-determination, the same solution was chosen for bilateral treaties for different reasons. The rule of tabula rasa was adopted because of the particular nature of bilateral treaties and the basic requirement that the other party to an original treaty must consent to the continuation of that treaty with a Newly Independent State. There are simply no logical reasons as to why the tabula rasa principle adopted for Newly Independent States should not also find application for all new states. Bilateral treaties do not automatically continue to be in force as of the date of succession unless both states that are implicated explicitly (or tacitly) agree to such a continuation.

A question such as this one usually results in a slightly incredulous smile on the addressee's face, as if it implies an assumption that there is time to spare in the life of an international lawyer faced with a myriad of interesting-looking publications. For a long time, writing a monograph used to be the keystone, the ultimate test, to join the academic ranks – yet today, universities grant PhD titles based on the writing of separate articles on a common theme and doctoral researchers are increasingly encouraged to choose this option, so as to ensure their ideas actually reach the intended audience. Arguably, today's academic audience is assumed not to have, or at least not to make, the time to read an entire book.

This article comments on Jörn Griebel and Milan Plücken's recent analysis in the Leiden Journal of International Law of the approach of the International Court of Justice to state responsibility in its judgment in the Genocide (Bosnia v. Serbia) case. The article also provides more general remarks on the law of state responsibility as it pertains to acts of non-state actors. In that regard, it discusses attribution based on de facto organ status and attribution based on direction and control, as well as whether, as a matter of policy, the law of state responsibility meets the needs of the modern world.

Since its modern inception in the 1960s, international environmental law (IEL) has faced three main challenges: (i) justifying the need for an international regulation of environmental issues (legitimacy); (ii) finding mechanisms to ensure compliance with IEL (effectiveness); and (iii) distributing equitably the benefits and burden of environmental protection (fairness). While it is nowadays possible to say that the legitimacy of IEL is no longer in question, the need to respond to challenges (ii) and (iii) has never been more pressing. This is particularly the case in the context of the redesign of the climate change regime (CCR), as the responses to (ii) and (iii) may conflict with each other. Industrialized countries who historically contributed the most to the artificial increase in greenhouse gases (GHGs) in the atmosphere have been matched, and even surpassed, in their level of GHG emissions by countries such as China, India, or Brazil, who are now being pressed to undertake real emissions-reduction commitments. Historically, however, none of these latter benefited from the emission laxity characterizing the nineteenth century and most of the twentieth century to further their development. While imposing specific emissions-reduction commitments on them would seem unfair, such commitments are nevertheless critical for the effectiveness of the regime both directly and indirectly (as without such commitments, industrialized countries may be reluctant to join or uphold a regime). The purpose of this article is to spell out in an orderly analytical manner the types of issue that must be addressed in seeking a balanced solution. This type of analysis can be conducted from several perspectives. The most directly relevant disciplines to deal with fairness considerations are admittedly ethics and political philosophy, and there is indeed a growing literature on climate fairness. Although this literature is briefly surveyed, the article focuses on the fairness dimensions of the existing legal arrangements or those currently being negotiated. There is a considerable gap between the theoretical approaches to climate fairness and the manner in which considerations of fairness operate in practice. This gap is mainly due to the need to account for political considerations or, in other terms, to balance fairness with political effectiveness. When such considerations are taken into account, the picture that emerges is quite different. The CCR is not built upon a single approach to fairness. Rather, fairness considerations are integrated through a patchwork of criteria used to distribute different objects (burden of emission reductions, emission rights, contribution to financial and technological assistance, and access to such assistance) among different actors situated at different levels.

This article examines private sector complicity in governmental corruption that violates economic and social rights. Although banks and multinational corporations typically play critical roles in facilitating the diversion of public revenues away from the provision of social services, the link between the private sector, corruption, and human rights violations remains underexplored. This article therefore examines this relationship and explores the viability of a standard for assessing the complicity of the private sector in such violations of economic and social rights. Ultimately, the state-centred nature of the international human rights system limits the utility of any complicity standard for non-state actors.

A continuing debate within international law research is whether there is an emerging international constitutional order. This journal devoted an issue to this discussion and there have been a number of books and articles written on the subject. Indeed, the philosopher Jürgen Habermas has recently joined the debate by writing an essay entitled (in the English translation) ‘Does the Constitutionalization of International Law Still Have a Chance?’ The essay reminds the reader of constitutionalism's original philosophical roots in Kantian cosmopolitanism. Habermas argues that the world dominated by nation-states ‘is indeed in transition towards the postnational constellation of a global society’. He contrasts this vision with the realist opinion that the taming of political power through law is only possible within a sovereign state and with a more recent view postulating a vision of a liberal world order under the banner of Pax Americana. In support of the Habermas position, it can be argued that as a result of the UN 60th Anniversary Summit's adoption of the international norm of ‘the responsibility to protect’, there is a trend towards constitutional values in our international system. As Anne Peters states, ‘[t]he most fundamental norms might represent global constitutional law.’

Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

This article offers one of the first comprehensive analyses of China’s emerging practice in subsidizing the low carbon energy (LCE) transition by using the new energy vehicles (NEVs) industry as a case study. It puts forward a fresh framework for this analysis by dividing the NEV value chain into three segments: upstream, midstream, and downstream. Based on this framework, it expounds a strategic shift of China’s subsidization strategy across the NEV value chain, that is, from disproportionately subsidizing the midstream segment that produces NEVs and parts to increasingly subsidizing the upstream and downstream segments to promote research and development (R&D) and expansion of NEV infrastructure and consumption throughout the economy. It argues that this shift mainly comes out of the evolution of China’s industrial policies and economic priorities, which will continue to play a decisive role in the future restructuring and transformation of the NEVs sector. This shift may also reflect China’s intention to reduce potential trade conflicts and maximize WTO-compliance but only to the extent that doing so would not unduly constrain its capacity to pursue its economic goals and industrial policies. In addition, while the WTO rules and jurisprudence may accommodate some of these subsidies (e.g., NEV infrastructure subsidies), the relevant rules will need to be further developed to provide more policy space for other types of subsidies used worldwide (e.g., R&D subsidies). Until then, it remains debatable as to whether the WTO provides sufficient room for countries to facilitate a green recovery in the post-pandemic era.

Russia’s full-blown invasion of Ukraine has reinvigorated the debate over international criminal law’s selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the ‘Ukraine moment’, others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law’s post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine’s liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious ‘Ukraine effect’ on international criminal law enforcement are less persuasive after the International Criminal Court’s decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.

Crimes against humanity were first defined, for the purposes of the Nuremberg Trial, in 1945. Since then, numerous international legal texts have incorporated the concept, the latest being the Rome Statute of the ICC, 1998. The different texts offer diverse definitions of crimes against humanity, which are traced in the article. Although the precise outlines of the crimes change from one definition to another, it is clear that the core has crystallized as an integral part of customary international law. In the Tadić case, the ICTY had to address several crucial issues relating to crimes against humanity. The judgments on appeal will serve as precedents for the removal of the linkage between crimes against humanity and armed conflict, the exclusion of isolated attacks against civilians and the irrelevance of the personal motives of the defendant.

The recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

For the first time in the history of international criminal justice, victims of mass crimes have been granted the status of so-called ‘civil parties’ at the Extraordinary Chambers in the Courts of Cambodia (ECCC). This status grants them – at least theoretically – the right to participate in the proceedings as a formal party with broad participatory rights similar to the those of the defence and the prosecution. While the ECCC is exemplary in how it has addressed the issue of victims’ participation, practical necessities and judicial skepticism have led to significant changes in the civil party mechanism and continuously constrained participatory rights. First, changes in the ECCC's Internal Rules have significantly altered the original civil party mechanism and led to a form of victim participation similar to the one practised at the International Criminal Court (ICC), thus departing from the true meaning of a partie civile. Judicial decisions by the ECCC's judges, as well as changes in the Internal Rules, have abrogated the strong civil party mechanism that was originally anticipated in Cambodian criminal procedure law. Second, the practical challenges surrounding victim participation have been enormous. The Court itself was struggling due to lack of funding and lack of prioritization of a meaningful outreach program for victims and civil parties. The ECCC's Public Affairs Section (PAS) and the Victims Support Section (VSS) held the responsibility of reaching out to the general Cambodian population. However, it was Cambodian NGOs that ultimately established a collaborative outreach system and collected more than 8,000 Victim Information Forms (VIFs). All these efforts notwithstanding, only political willingness and a Cambodian discussion of how to deal with the vast number of perpetrators beyond a handful of criminal trials, can lead to a process of coming to terms with one's past.

This article sketches the contours of a postcolonial genealogy of international organizations law. Contrary to conventional accounts, which remain strongly Eurocentric, the article claims that international organizations law did not emerge until the closing stages of the Second World War, and that its evolution was strongly influenced by the accelerating processes of decolonization that accompanied its birth. More specifically, the article argues that the emergence of international organizations law was spurred by a series of perceived problems regarding the adequacy of the international legal system in the aftermath of the end of formal colonial rule, in which the relations of power constructed through colonialism remained profoundly implicated. The politics of decolonization thus shaped the practice of international organizations, provided the catalyst for many of the foundational cases in international organizations law, and motivated much of its early doctrinal scholarship. Moreover, the article argues that the functionalist logic of international organizations law is deeply embedded in a postcolonial imaginary which, by supporting the division of the world into formally equivalent nation-states, ostensibly cuts against the hegemonic territorialism of colonial governance.

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.

The Rwanda Tribunal is an independent judicial institution established by the Security Council under Chapter VII of the UN Charter. It is the first international court having competence to prosecute and punish individuals for egregious crimes committed during an internal armed conflict. While the Government of Rwanda was a member of the Security Council and participated in the negotiations regarding the creation of the Tribunal, there were significant differences of opinion between it and the Council regarding the Tribunal's jurisdiction and competence. This article discusses the special features of the Rwanda Tribunal, as compared to the Yugoslavia Tribunal.

This article examines whether the ICC Prosecutor has complied with its statutory obligation under Article 54(1)(a) of the Rome Statute to investigate incriminating and exonerating circumstances equally. By way of a number of striking examples of deficient investigations, it demonstrates that the ICC Prosecutor has so far failed to comply with this obligation. As a matter of competence and diligence, the Prosecutor is expected to conduct thorough investigations: this requires a critical assessment of each case and the supporting evidential material. An examination of the pending ICC cases shows that the Prosecutor has not met this expectation. The investigations conducted in all of these cases have been incomplete as far as both incriminating and exonerating circumstances are concerned. This article, however, also suggests that the defence is in a better position to search for exonerating evidence than the Prosecutor, and questions whether Article 54(1)(a) can be applied effectively under any conditions.

Hitherto, the ‘African part’ of the history of international law has often been limited to the (critical engagement with) ‘the acquisition of Africa’ since the 1880s and questions of ‘state succession’ and international borders following independence starting in the 1950s. In this historical narrative, the dominance of colonialism is evident. It seems that ‘Africa’ as a narrative concept in international legal history remains tied to abstract contrasts such as ‘foreign domination’ versus ‘independence’, or ‘exploitation’ versus ‘development’. However, if twenty-first century writings about ‘international law in Africa’ and its histories remain shaped by this perspective, historians may lose sight of issues, questions, or ideas formed in historical Africa that do not fit into this preconceived dichotomous matrix. After discussing methodological challenges, this article asks for other ‘contacts’, other arenas of ‘internationality’ and international law in Africa’s pre-colonial past. These contacts reach back very far in history. Three arenas are mentioned: the Red Sea area and Ethiopian-Arab relations; the Indian Ocean rim; and finally, the case of nineteenth-century Ethiopia.