This is the third issue of the Periphery Series of the Leiden Journal of International Law. The first two were dedicated to the works of the Chilean jurist Alejandro Álvarez and the Nigerian international lawyer Taslim Olawale Elias – two scholars from regions conventionally cast as ‘peripheral’ to the discipline's metropolitan ‘centre’. This issue takes a somewhat different perspective by focusing on a country (or subcontinent) as a whole. Its primary questions concern the way in which Indian scholars have imagined, shaped, and reshaped international law; the manner in which India's domestic system has received international law; and the ways in which India has been projected by the international legal system.

As the clash of aspirations increased among European countries, a European ‘civil war’ started in 1914, which engulfed the whole world. With all the terrible destruction and loss of life, it was felt that an international organization must be established to avert war in future. At the Paris Peace Conference in 1919, the British government succeeded in gaining separate representation for its dominions, including India. This created a rather anomalous situation, since a dependency of a foreign power, a colony which could not control its internal affairs, was accepted as a sovereign state by an international treaty. Europe had hardly recovered from the First World War in the late 1920s when it drifted towards a second holocaust in 1939. India became a founding member of the United Nations in 1945, even though it was still under British rule, participating in the historic founding conference. But Indian national public opinion was neither very hopeful nor enthusiastic about the conference on the new international organization. Not only India, which was not even independent at that time, but Asian countries as such played a very small and insignificant role in the formulation of the UN Charter.

This essay seeks to sketch and evaluate international law scholarship in post-colonial India in the period 1947–2007. The exercise is undertaken to assess how Indian scholarship has coped with the dual life of international law: the fact that it is both an instrument of domination and possible emancipation. It is contended that while the dominant approach of formalist dualism, which critiques colonial international law but embraces the narrative of progress in the present, has made a seminal contribution to the world of international law, in particular the first articulation of Third World approaches to international law (TWAIL), it has not adequately addressed deep systemic structures that underlie contemporary international law. It is argued that this task is performed more effectively by a critical dualist approach that problematizes the structure, ideology, and practices of global capitalism. The essay concludes by reflecting on the future tasks of Indian scholarship.

The approach of Indian courts towards international law has been consistently evolving. Initially, the Indian constitutional framework provided a flexible basis for the application and use of international law, the reasons for which could be seen in the socio-political context of India as a developing country. India, for its part, continued to argue that it remained essentially at the periphery of the mainstream international law, as it had no role in formulating some of the basic principles of international law. For the Indian courts the first substantive encounter with international law emerges in the context of several territorial-related issues. The socio-political context forms the next phase, for the Indian courts to have recourse to diverse international legal norms relating to the environment and human rights and applying them as a persuasive tool. Later, the development context brings a complex array of commercial, environmental, and other related international legal norms into the Indian legal system. For Indian courts, in the present context, the correct sourcing and identification of international legal norms and their application remain a huge challenge. The majority of the legal systems of developing countries for varied historical reasons continue to treat international law as an exotic legal tool to be used sparingly, perhaps only to broaden the interpretation of or sustain a comparable domestic legal norm.

Indian responses to international law have now seen three generations of scholarship. A decade into its independence, India began playing its role in what has retrospectively been referred to as Third World approaches to international law (TWAIL). The early 1990s witnessed the rise of TWAIL II. Armed with interdisciplinarity and inspired by the subaltern pathology of the state in the 1970s, TWAIL II scholars barged into areas with approaches never seen before. Bhupinder Chimni alone discovered six perspectives of international law from India. My article picks up from where Professor Anand has left off and adds a seventh ‘tribal’ tale to Chimni's six. It is also argued that the category ‘Third World’ needs redefinition, as pockets of poverty are increasingly betraying geography. Indian law schools have also been evaluated vis-à-vis promotion of TWAIL. The paper covers, as comprehensively as possible, approaches and issues, direct or collateral, regarding an international law from India.

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.

In the Brđanin and Krajišnik judgments, the ICTY Appeals Chamber found that the accused may incur criminal liability for crimes carried out by low-level non-joint criminal enterprise (JCE) physical perpetrators who are used as tools or are otherwise instrumentalized by JCE members other than the accused to carry out the crimes of the common plan. Similarly, the Appeals Chamber held that the accused may also incur liability for crimes of excess committed by non-JCE perpetrators. However, as for the precise nature of liability in such cases, no clarification was provided. From this ambiguity the author detects an inclination on the part of the Appeals Chamber to construe JCE not only as an expression of commission but also of complicity. The author then identifies and elaborates the theoretical difficulties that this construction would instil in the traditional doctrine of JCE as formulated by the Tadić Appeals Chamber and the international law of individual criminal responsibility. He suggests that awareness of these very problems of theory is the reason behind the conspicuous ambiguity in Brđanin and Krajišnik as to the nature of JCE liability.

The crime of attack on peacekeepers has gained specific attention in the practice of various international courts and tribunals, including the Special Court for Sierra Leone and the International Criminal Court. This article revisits the historical origins, the foundations, and the main issues from a prosecutorial perspective arising in the interpretation and litigation of this crime. It argues that the crime poses unique challenges in relation to charging practice and evidence.

This article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

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.

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.

The first Telders Competition was organized in 1977 on the occasion of the thirtieth anniversary of the Telders International Law Students Debating Society. Due to its success the Competition has been held annually ever since at the Peace Palace in The Hague. Nowadays it is considered to be the most prestigious and important international moot court in Europe. Teams from over forty European universities compete in national rounds, with the successful teams participating in the international rounds held in April in The Hague.