This essay critically examines T. O. Elias's international legal scholarship, especially in so far as he sought to reclaim, or claim, a place in international legal history for Africa. Having found that Africa contributed to the formation of international law, Elias argued in favour of reforming its rules so that they could serve the interests of the newly independent African states. In this respect he influenced many contemporary international lawyers in Africa and elsewhere. In particular, his singling out of sovereignty as a barrier to reforming international law is shared by generations of international legal scholars who have criticized states for placing too high a premium on their sovereignty, thereby placing insuperable barriers to their acceptance of egalitarian goals, expressed by, for example, the international bill of human rights. The essay also contrasts Elias to scholars of international law who took the colonial legacy of international law as a barrier to reforming it so that it was consistent with the interests of so-called post-colonial African states.

Mandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist’, are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

This article focuses on the development of the crime of incitement to genocide and the prohibition of hate propaganda. It first examines the conflict which exists between these and the right to freedom of speech and concludes that a limitation of this right through prohibition of hate propaganda and criminalization of incitement to genocide is justifiable. The article then analyses how the crime of incitement to genocide and the prohibition of hate propaganda first developed historically, focusing on judgments by the International Military Tribunal at Nuremberg and the Genocide Convention, on the one hand, and on international conventions and case law by the Human Rights Committee and the European Court of Human Rights, on the other. Next, recent ICTR decisions are examined, in which the ICTR has considerably clarified and extended the concept of incitement to genocide. The tribunal has brought it closer to encompassing vicious hate propaganda by acknowledging that in order to incite individuals to commit genocide, incitement in the sense of instigation is insufficient; it requires the prior creation of a certain climate in which the commission of such crimes is possible. Hate propaganda leads to the creation of such a climate. It is argued that, for several reasons, virulent hate propaganda must be accorded the status of an international crime. Genocide could be prevented more effectively if such speech were criminalized. Several efforts to outlaw hate propaganda internationally in the past are examined. The article concludes that it can be regarded as a crime punishable under the Genocide Convention if a purposive interpretative approach is used, and that hate propagandists should be prosecuted for direct and public incitement to genocide if their hate speech is engaged in with the specific intent to commit genocide, and creates a substantial danger of genocide.

This article surveys contemporary approaches to international soft law, such as various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law. It concludes that discursive approaches that stress the public character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the article argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.

This symposium concerns the utility of the work of the French philosopher and social theorist, Michel Foucault (1926–84), for international law as an academic discipline. It almost goes without saying that there are several different ways to approach this question of utility. We want to introduce the symposium by sketching just a few of the different avenues by which one could approach the question of Foucault's utility for theorizing international law. One dominant understanding within the extant legal literature on Foucault is essentially to ask after his own legal-theoretical credentials. This approach is based on the seemingly straightforward and widely shared presupposition that if his ‘work offers no plausible account of law, why should legal scholars take him seriously? If we seek to bring Foucault into law, must we not first seek to bring law into Foucault?’1 Here, a precondition to being taken seriously within the discourse of law is precisely the plausibility of one's fidelity to existing conceptions of what law is. Somewhat solipsistically, then, from this perspective, one must first adduce a plausible theory of law in order to be taken seriously within law.

Destination states of irregular migration aim to prevent arrivals by controlling their borders outside their territory, specifically on the high seas. This practice may best be described as the de-territorialization of border control at sea. The de-territorialization impacts the applicable legal framework, in particular the safeguards to which individuals submitted to the control activities are entitled. This article posits that the principle of non-refoulement is a fundamental yardstick for the de-territorialization of border control and applies wherever competent state authorities perform border control measures. The argument develops in four steps. After outlining the content of the principle of non-refoulement, this article defines maritime borders and elucidates their functional nature. It then outlines how the principle of non-refoulement applies at sea and translates into a ‘principle of non-rejection at the maritime frontier’. The article finally highlights the principle's legal and practical consequences in the context of de-territorialized border control.

In this speech delivered at the conference honouring Professor Dugard, President Higgins discusses various human rights issues that have come before the International Court of Justice, including self-determination, reservations to human rights treaties, the application of human rights instruments to occupied territories, and allegations of genocide by one state against another. President Higgins notes that in the past few decades the ICJ has been joined by regional human rights courts, commissions and treaty monitoring bodies. Similar human rights claims are surfacing in these diverse fora, but the acknowledged expertise of these specialist bodies and the desire to avoid fragmentation provide an impetus for all concerned to seek common solutions on evolving points of law.

International criminal justice is on one level a project of hubris and promise, but on another level a project arguably riddled by anxieties. These anxieties are linked to the dizziness of choices available to it, and the degree to which every move to compensate for anxieties produces its own form of anxiety. This article surveys ten distinct anxieties that are deemed to be constitutive of the movement. Ultimately, it argues that the neurotic nature of international criminal justice can be the source of its creativity and resilience.

On 11 December 2008 the UN General Assembly adopted a set of draft articles on the law of transboundary aquifers which had been prepared by the International Law Commission (ILC) between 2002 and August 2008. These draft articles are the first official instrument that lays down rules of international law for the management and protection of groundwater, which makes up 97 per cent of the Earth's freshwater resources, excluding the resources locked in polar ice. This article discusses the contribution of the draft articles to the development of international water law. It first provides some background on the importance of shared groundwater resources, then describes the ILC's work on transboundary aquifers, and finally assesses in detail the draft articles and the way ahead.

Although initially perceived as illegal and illegitimate, targeted killing has gained legal approval and greater acceptance as a tactic in the US fight against terrorism. Rather than being accomplished extra-legally or gradually normalized as an exception to the rule, as critics proclaim, targeted killing becomes inscribed into a law that was, and is, prepared to accept it as a practice. Conceiving of law as a practice renders the mutually constitutive relationship between targeted killing and the law visible. As a practice, law is indissoluble from the forms of knowledge both that enact it and that its enactment invokes. Targeted killing could assert itself as a security dispositif that displaces and relocates political notions underlying and defining international law.

This article discusses the Review to Identify Non-Cooperative Countries or Territories, which was issued by the Financial Action Task Force in June 2000. After a general overview of the problem of secrecy havens and of the criteria used to identify them, the article gives a critical assessment of the process used to arrive at the ‘black list’ of 15 jurisdictions that was eventually drawn up. In this respect, a comparison is made with the work carried out by the OECD in the field of unfair tax competition by tax havens. It also looks forward at the possible follow-up to this list, both by the FATF and other international fora.

The Okavango River Basin is a transboundary basin which serves as an important source of water resources for three riparian Southern African states, namely Angola, Botswana, and Namibia. If not properly managed, the Okavango River Basin is a potential source of conflict amongst the three countries. In order to reduce the likelihood of disputes among riparian states, the Governments of Angola, Botswana, and Namibia have signed and ratified an agreement establishing the institutional framework for the management of the shared water resources. This article discusses the legal aspects of the institutional arrangements in the Okavango River Basin. It highlights the importance of river basin organizations in the effective management of transboundary watercourses. This article concludes that the institutional arrangements between the riparian states with access to the Okavango River provide the framework for resolving possible disputes peacefully. Further, it concludes that these institutional arrangements promote co-operation over the management of the shared water resources.

This article focuses on the evolution of the concept of legal order in Carl Schmitt's thought and in particular on the spatial perspective he developed in his internationalist thought. In order to grasp its relevance, it is necessary to understand it in relation to the theoretical problems and concepts which underlie Schmitt's oeuvre. For this reason the first part of the article focuses on the theoretical problem of the possibility of a legal order in a plural context, trying to assess the distinctiveness of Schmitt's thought in relation to his contemporaries and to the approaches and schools of thought with which he is often associated. The second part then examines the evolution of his constitutionalist output, something which is fundamental to an understanding of his internationalist thought. The third part then focuses on his internationalist thought, and in particular on the theory of the nomos, which represents a synthesis of his whole thought.

This is the story behind another story. Inspired by the anthropological practice of reflexivity, it traces some practical, epistemological, ethical, and existential questions behind a book based on empirical socio-legal research into international criminal law in situations of conflict. The challenges involved in such research are at times impossible to overcome. Indeed, the challenges may be such that the researcher will never be able to answer her original question fully and confidently. However, challenges can be findings in themselves. They may reveal insights into the role of law in a society, the limitations of vocabularies, the overexposure of international criminal law, and inequalities in global knowledge production. Rather than merely obstructing research into a topical issue, challenges may shift the researcher's attention to other, more fundamental, questions. Nonetheless, understanding challenges as findings does not resolve the existential problem of the researcher's possible complicity in maintaining the very challenges that she analyses and perhaps ambitiously tries to overcome.

The cover of Sex Rights: The Oxford Amnesty Lectures 2002 shows a picture of two men photographed from the back, with their hands holding each other's waists. They are walking towards a camera crew. Based on the way they are dressed, it seems that they have just been married. Both men are wearing white dress shirts and have similar hairstyles, with one wearing a black waistcoat over the white shirt and the other with black braces. This collection, based on the Oxford Amnesty Lectures series on gender and sexuality, thus apparently features on its cover the same-sex marriage of two men, ostensibly held in one of the few jurisdictions that have legalized such a union (perhaps the Netherlands, which was the first to do so, and was later followed by Belgium, Spain, Canada, Massachusetts (United States), and South Africa). And while we know that ‘love and marriage go together like a horse and carriage’, what has sex got to do with this? Would it not be more appropriate for a cover of a book entitled Sex Rights to feature two persons engaged in sex or having just engaged in sex rather than a marriage ceremony? Would it not be more appropriate to depict, on a cover of a book called Sex Rights, a picture of two men in a position that suggests they have just had sex, an act for which they could be persecuted and prosecuted in various jurisdictions?

So why, then, does a book on Sex Rights feature same-sex marriage on its cover?

John J. Kirton and Michael J. Trebilcock (eds.), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance, Aldershot: Ashgate Publishing, 2004, ISBN 0754609669, 372 pp.

Amid the proliferation of international judicial and quasi-judicial bodies, worries about the possible fragmentation of international law are increasing. Such fears, however, may be misplaced. A close examination of the jurisprudence of nine international judicial bodies, looking specifically for instances of explicit reference to one another's decisions, shows the practice to be widespread, of variable frequency and covering both procedural and substantive issues. Taken in conjunction with other scholarship about the similar treatment of important doctrines across all (or most) bodies, this study suggests that unity, not fragmentation, may emerge from the proliferation of international courts and tribunals.

International law is an amalgam of the past, present, and future. The past is important in itself not only because the vast majority of rules and principles of international law have come into being through decades, if not centuries, of deviation, crystallization and consolidation, but also because the past, and one's perspectives of the past, underlie, inform and explain a state's perspectives of a particular order or particular norms or values, and its approaches to the perspectives and actions of other states. The importance of understanding China's historical approaches to international law cannot be understated. China's interactions with international law began to take place in the context of its interactions with Western powers that culminated in the Opium War. This article then examines China's approaches to international law during its republican, communist, and contemporary socialist-market eras.

The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.