Over the last decade international lawyers have been increasingly concerned with the ‘fragmentation’ of international law. However, given that this expression has been repeatedly used by the profession since the mid-nineteenth century to depict the state of international law, one may wonder about its recent revival in the international legal discourse. Why has it re-emerged? What can we learn from previous invocations? An answer may be sought by contextualizing the fragmentation debate in a historical perspective. This brings out the repetitive and relatively stylized modes in which the profession has narrated legal developments. This essay suggests a correlation between periods of crisis in general and a critical view of fragmentation on the one hand, and periods of scholarly enthusiasm and the prevalence of positive views about fragmentation on the other. This analysis sheds critical light on both the implicit assumptions and political implications of the current debate on fragmentation.

The chief aim of this article is to unearth, explicate, and contextualize the various techniques on which Mahmut Esat, Turkey's agent before the Permanent Court of International Justice in the Lotus case, drew in order to narrate a fresh understanding of Turkish ‘nationhood’ during a period of intense vulnerability for the newly established Republic. The argument advanced by Turkey in this case – that it need not demonstrate the existence of a specific jurisdictional exception in international law in order to proceed with its prosecution of the French captain of the Lotus, a French vessel – has often been dismissed as an example of cynical apologetics. Nevertheless, a close reading of Turkey's pleadings reveals that it was inclined to oscillate between a variety of universalistic and particularistic approaches, Esat litigating the Lotus with an eye to exploiting the schism that lies at the heart of the concept of ‘civilization’ so as to submit Turkey to the normative authority of the international legal system while bolstering its positive power as an independent sovereign state. More specifically, it was by merging two modes of reasoning – the one prizing systematicity, the other prioritizing sovereignty – that Esat sought to construct a new, robustly reconciliatory identity for the ‘Turkish nation’, one that would enable it to embrace its commitment to international order by securing its place in ‘la civilisation contemporaine’ while amplifying the ambit of its autonomy as ‘un état civilisé’.

The familiar critical claim that propositions of international law cannot be both objective and normative casts a long shadow over international legal theory. The claim relies on the conjunction of two ideas: first, that the truth-conditions of any proposition of international law will include some element of evaluative judgement (about the right or the good) that gives the proposition its normative character, and, second, that evaluative judgements cannot be objectively true or false. International lawyers have two main strategies for defending their discipline against this sceptical challenge. A more modest strategy would accept that legal objectivity and normativity are incompatible and attempt to sidestep the sceptical critique by abandoning the claim to normativity. A second and more ambitious strategy would resist the sceptical challenge by disputing the plausibility of its attack on the objectivity of evaluative judgements. This strategy would rely on the claim that objectivity and normativity are not mutually incompatible and that the aim of producing an account of international law that displays both features is realistic. My aim in this paper is to show that there exists at least one version of this second strategy that can succeed against the sceptical challenge. I argue that scepticism about values is incoherent and, therefore, that the opposition between the objectivity and the normativity of international law is illusory. Setting such scepticism aside will allow international lawyers to concentrate fully on the substantive normative questions that drive theories of international law and on the values that provide the best account of its content.

This quantitative study analyses the sentencing practice of the International Criminal Tribunal for the former Yugoslavia (ICTY). The sentencing process is only loosely regulated by the ICTY Statute, and consequently it is not clear how judges exercise their broad discretionary sentencing powers in practice. By analysing the existing case law, legal factors influencing the sentencing decisions are examined. The extent to which the selected factors predict sentence length is tested in a multiple regression analysis. The analysis suggests that the sentence can be to a large extent predicted by legal criteria. The number of offences and the rank of the offender are the strongest predictors of sentence length in the model.

The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law can be decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidating peace. This view is at odds with the history of international criminal tribunals and the cases currently under review by the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate.

This article illustrates how the ECCC is struggling to combine successfully two distinct institutional responses to crimes, by being both a criminal tribunal, with its formal rules of procedure and focus on retributive justice, and a quasi-truth and reconciliation commission, with its more flexible approach to participatory rights for victims and focus on reconciliation. The article highlights the advantages and challenges of adopting a ‘two for the price of one’ model within the Cambodian context and uses the experiences of the ECCC to underscore important lessons for future ad hoc and hybrid courts.

The US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

In recent times the human rights discourse has become increasingly concerned with the relationship between domestic and international (UN and regional) human rights law. In 2007, two significant additions to this body of scholarship appeared. Although the authors of these texts are based in Canada and the United Kingdom respectively, their contributions explore the domestic–international relationship from a particularly African angle. While both works are concerned with the national arena (local activist forces and national human rights institutions respectively), the one investigates the domestic impact of international law and institutions, while the other explores the increased international impact of a particular domestic institution.

Despite its not being an entirely new debate in international law and international relations, the nexus between human rights and non-state actors has become a highly relevant topic of scholarly research, as witnessed by the three works under review, published in 2005 and 2006. When Andrew Clapham published in 1993 Human Rights in the Private Sphere, in which he already questioned the public/private divide of human rights law, the book was then categorized as both ‘adventuresome and timely’. Some fifteen years later, an analysis of this topic can no longer be called ‘adventuresome’, but the timeliness remains beyond doubt.