On November 14,2001, the Ministerial Conference of the World Trade Organization, meeting in Doha, Qatar, adopted the Declaration on the TRIPS Agreement and Public Health (Doha Declaration). The declaration affirms that the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights “can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all,” and it reaffirms that the Agreement “provide[s] flexibility for this purpose.” The Doha Declaration mandated further negotiations on one important subject, providing in its paragraph 6: “We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem … .“

After the Rwandan genocide of 1994, the United Nations Security Council moved quickly to establish an international tribunal to indict the architects of the slaughter. Whether motivated by a sincere desire for international justice or a self-serving desire to assuage international guilt for the lack of significant military intervention, one thing is clear: the Security Council began a program that, when coupled with its establishment of the International Criminal Tribunal for the Former Yugoslavia, represented the most significant return to international criminal justice since the Allied prosecution of German war criminals at Nuremberg. But so much had changed since 1951. Whereas the Nuremberg Tribunal imposed death sentences for the most culpable instigators of the Holocaust, there would be no death sentences for the architects of the Hutu genocidal campaign against the Tutsi. Over the course of forty years, there was a sea shift in attitudes about the legality of the death penalty. When the Allies announced their decision to apply the death penalty at Nuremberg, few objected or suggested that executions would violate international human rights law. Indeed, Churchill was initially suspicious of the plan for a war crimes tribunal, having assumed that what remained of the Nazi leadership would simply be executed on the battlefield. As the proceedings unfolded, there were isolated calls for leniency and clemency, and even complaints of victors’ justice, but certainly no suggestion that executions violated international law as such.

Customary international law (CIL) is under attack as behaviorally epiphenomenal and doctrinally incoherent. In this article, we reject both claims. To be sure, CIL is a feat of levitation; it rests not on a rock-solid natural law basis of divine principles, but on a fabric of rational acts, woven through a multiplicity of relations over time. And while there are limits on, and variations in, the effectiveness of CIL, we argue that there are circumstances where it may independently affect the behavior of states. There is no reason in theory, or in data adduced by others, to believe CIL to be generally epiphenomenal. Since certain components of CIL serve as the foundation of all international law, this article suggests the circumstances under which one would expect international law to affect state behavior.

In June 2002, the Israeli cabinet approved a plan to construct a continuous “security fence” separating much of the occupied West Bank of the Jordan River from Israel proper. The stated purpose of the barrier was to prevent Palestinian terrorists from entering Israel and killing Israeli civilians. Construction began in 2002, and a significant portion of the structure had been completed by early 2004. The current route of the wall deviates significantly from the “Green Line”—the 1949 armistice line that separates the West Bank from Israel. The fence frequently enters and traverses the West Bank, encircling Jewish settlements there. Eventually, about 15 percent of the territory of the West Bank, home to several hundred thousand Palestinians, will lie between the wall and the Green Line.

Today many feminists seem relatively content with the treatment of rape and other sexual violence against women under international criminal law. In the context of the conflict in Bosnia and Herzegovina in the early 1990s, feminist activists made a concerted effort to affect the statute establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the rules of evidence under which rape and other crimes of sexual violence would be prosecuted, the form the indictments of crimes of sexual violence would take, and the strategies and legal argumentation made at both the trial and the appellate levels. For the most part, much to the surprise of many feminists themselves, they have been successful. As Joanne Barkan comments: “From the start, most observers considered the [ICTY] a sop to human rights and feminist activists who wanted intervention.... Almost no one expected it to succeed. And yet to some extent, at least for women, it did.”

International agreements exhibit a wide range of variation. Many are negotiated as legally binding agreements, while others are expressly nonbinding. Some contain substantive obligations requiring deep, demanding policy changes; others demand little or simply ratify the status quo ante. Some specify institutions to monitor and sanction noncompliance; others create no review structure at all. Thus, there is considerable variation both in the form of international agreements—in their legal bindingness, as well as in the range of structural provisions for monitoring and addressing noncompliance—and in the substantive obligations they impose. This variation in form and substance raises several fundamental questions about the role of international agreements in world politics.’ Why do states differentiate commitments into those which are legally binding and those which are not? What relationship exists between legality and the substantive provisions of an accord, and between legality and structural provisions for monitoring behavior? What is the relationship between substantive obligations and monitoring provisions? Finally, what difference, if any, do these choices make as to the effectiveness of an agreement?

The International Criminal Court (ICC) was officially opened in The Hague on March 11, 2003, in a special ceremony attended by Queen Beatrix of the Netherlands and United Nations secretary-general Kofi Annan. Less than four years after the historic breakthrough by the Diplomatic Conference of Plenipotentiaries in Rome on July 17, 1998, the Statute of the ICC had entered into force on July 1, 2002. The required number of sixty ratifications, which is laid down in Article 126, paragraph 1 of the Rome Statute, was reached much faster than for other comparable multilateral treaties and faster than had been expected by the global public. Secretary-General Annan attracted widespread attention when he observed that July 1, 2002, was a decisive landmark in breaking with the cynical worldview of people like Joseph Stalin, who is alleged to have remarked that while “a single death is a tragedy, a million deaths is a statistic.”

It is hardly surprising that the controversial advisor)’ opinion of the International Court of Justice in the case concerning the Israeli security fence raised serious concerns in many quarters, on multiple grounds. Most prominently, as some of the judges and numerous commentators have noted, the restriction of the right of self-defense under Article 51 of the United Nations Charter to attacks by “states” is unwarranted on the basis of the text. It is also, of course, illogical in an era when the worldwide terrorist threats stem primarily from nonstate actors. Additionally, in the current case, while the Court assimilated “Palestine” to a state for the purpose of granting it certain rights (including procedural rights before the Court), the ICJ made no corresponding acknowledgment of Palestine’s obligation to refrain from engaging in an armed attack. This, as Judge Rosalyn Higgins recognized, was “formalism of an unevenhanded sort.”

On July 9, 2004, the International Court of Justice issued its advisory opinion on the legal consequences of Israel’s construction of a security wall on occupied Palestinian territory, declaring that the wall was in violation of international law. The advisory opinion also indicated that Israel should forthwith cease construction of the wall, dismantle what had been so far constructed, and make reparations to the Palestinians for all damages caused by the project. On July 20, 2004, at the Tenth Emergency Session of the General Assembly, Resolution ES-10/15 was adopted by a vote of 150 in favor, 6 opposed, and 10 abstentions, demanding that Israel comply with the legal obligations as specified by the advisory opinion.

On December 8, 2003, the International Court of Justice was requested by the United Nations General Assembly to give an advisory opinion on the “legal consequences” of the security fence under construction by Israel in the West Bank, also variously called “security barrier” and “wall.” The General Assembly sought referral to the Court by a vote of 90 states—but another 74 states abstained, and 8 states voted in opposition. Careful consideration of the case was rendered especially difficult by the decision of the Court to set a truncated briefing schedule, permitting only six weeks for written submissions on jurisdiction and the merits. An even greater concern was the danger, perhaps realized, that the Court’s opinion might be read as prejudging issues central to negotiations in the “Roadmap” political process seeking peace in the Middle East. The hope for some coherence in the approach of the international community to the resolution of a difficult and violent conflict is not otiose, especially where a stable settlement will require ongoing diplomatic, economic, and security support. For that very reason, two of the road map’s sponsors—the United States and the Russian Federation—urged the Court to take account of the impact that any decision might have on the negotiating process. The European Union, as a third member of the “Quartet” sponsoring the road map, together with the ten acceding states to the European Union and fifteen other states, urged the Court to decline to render any advisor)’ opinion at all because of the “compelling” circumstances of the peacemaking process.

On December 16, 2003, Uganda referred the situation concerning the Lord's Resistance Army (LRA) to the prosecutor of the International Criminal Court (ICC). It was the first time that a state party had invoked Articles 13(a) and 14 of the Rome Statute in order to vest the Court with jurisdiction.

For both Uganda and the ICC, the case presented an important opportunity. For Uganda, the referral was an attempt to engage an otherwise aloof international community by transforming the prosecution of LRA leaders into a litmus test for the much celebrated promise of global justice. Since 1986, LRA atrocities have wreaked havoc on the Acholi people of northern Uganda. Given the absence of any vital national interests, influential states have not been inclined either to pressure Sudan to stop harboring the LRA or to help government forces confront the insurgents. Instead, the burden was placed on Uganda to negotiate a peaceful settlement with a ruthless, cult-like insurgency. The imprimatur of international criminal justice, sought through the referral to the ICC, was a means of thrusting this long-forgotten African war back onto the international stage.