The traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable of The Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

The paper analyses the dynamic procedures that work during the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making that works for normative coherence in contexts characterized by co-operation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue that is crucial to reach normative coherence. Drawing on the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Also, the paper points out the predominance of normative coherence, as well as that of its ‘guarantor’, namely procedure that its author considers the cornerstone of legal certainty in the co-operative context of the international society.

Engaging with a mundane topic like the softness of international law may certainly look surprising to the readership of a journal known for its avowed and constant quest for an intellectually and conceptually rigorous ‘off-Broadway’ scholarship. Why would a journal that tries to establish itself as a leading alternative voice in the field replay a comedy so often staged in mainstream scholarship? It is with the full awareness of such an anticipated feeling of déjà vu that the editors of the Leiden Journal of International Law have decided to open the ensuing pages to an oft-debated topic with the ambition of evaluating the possibility of transcending the traditional pitched battle between opponents and advocates of soft law. It is well known that, after the juvenile success of the concept1 and its embrace by a great number of international scholars, soft law became the object of severe criticisms, resulting in a chasm in the international legal scholarship. Indeed, the debate about soft law came to literally split authors into two camps, firmly pitted against one another. On the one hand, there are the advocates of the notion for whom the binary nature of law is incapable of explaining the complexity of the international exercise of public authority in a pluralized world2 or who see soft law as an instrument of (programming of the) development of hard law.3 These apostles of the notion of soft law are opposed by those who see the notion as redundant because it turns into either hard law or not law at all,4 it is self-serving for the profession,5 it is dangerously deformalizing our instruments of law ascertainment,6 or it is weakening the general authority of law.7 The fierce character of that confrontation originates in soft law's being intrinsically intertwined with one's core and inner understanding of (international) law, thereby making these discrepancies seem irreconcilable.

Soft law is often seen as a way to overcome certain problems of legitimacy in international law, notably the weaknesses of a voluntaristic conception of international law's validity. Other perceived benefits of soft law include flexibility, speed of adoption and modification, and even effectiveness. Yet, soft law is seen by others as a threat to law, because it effaces the border between law and politics. This paper explores different approaches to the boundary between law and not-law that seek both to maintain this boundary and to reconceptualize it in a way that better anchors the validity of international legal rules.

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.

Matthias and I clearly agree on a great deal: a voluntarist approach to defining public international law is unsatisfactory; any rule of recognition in international law must provide a basis for a link between legality and legitimacy; one of the central contributions that law can make to international society is procedural in nature. However, our respective positions on the utility of a binary distinction between law and not-law have significant impacts on our approaches. We are both concerned, I think, with preserving the autonomy of politics – with ensuring that politics (or, more specifically, international public authority) do not come to be invaded by law. My own concern with preserving the autonomy of law leads me to two conclusions with which Matthias would take issue: that international public authority must be constituted by law; and that the rules which those authorities administer must be treated differently, depending on whether or not they meet a set of formal criteria that legal rules must satisfy. I will also address Matthias's discussion of Lon L. Fuller's internal morality of law and Benedict Kingsbury's concept of publicness in international law. I believe that both sets of concepts may be useful to Matthias's argument and deserve further attention. First, however, I would like to explore what it means, or could mean, to cut off the head of the king.

When the editors of this journal asked me to write a comment on Jaye Ellis's paper, I was immediately fascinated by the prospect of engaging in a rigorous debate, perhaps one as controversial as that between Hans Kelsen and Eugen Ehrlich on legal scholarship and legal sociology about 100 years ago – although I am unable to reach the brilliance of those thinkers, and probably also their level of polemics.1 Now that I have read Jaye's paper, my expectations have somewhat changed. I realize that Jaye and I agree on many important points – points that would have brought large parts of the ‘invisible college’ up in arms a few decades ago. In particular, we agree that legal scholarship should find ways of dealing with the multiplicity of soft-law instruments that look like law because they consist of sometimes quite precise rules; that function like law because they effectively guide the behaviour of states, international organizations, and private entities; and that are therefore not adequately described as ethical, political, or moral rules. We also agree that the traditional concept of international law, which considers state consent as the one and only source of legitimacy, has come under stress since the advent of global governance, particularly because other actors like international bureaucracies or non-state entities play increasingly important, indispensable roles.

International environmental law (IEL) as a discipline has failed to respond to problems of fairness in a meaningful and systematic fashion. Whilst IEL has long acknowledged the existence of competing claims regarding the fair distribution of costs, resources, and responsibilities, fairness remains at the periphery of the disciplinary discourse. The present essay considers some possible explanations for this neglect. The first part of the essay examines a set of implicit assumptions and beliefs in which IEL is embedded, which somewhat prevent genuine and critical engagement with fairness issues. The second part of the essay considers normative and policy arguments recently developed in the law and economics literature that explicitly argue against the notion that fairness should play a role in the design and implementation of environmental regimes. The essay concludes by calling for a more robust engagement with fairness issues and by considering some of the implications this project may have for IEL.

Teck v. Pakootas revisits the infamous Trail smelter, which made history in public international law. This more recent case should be set to make history as well, due to the manner in which the issue of extraterritorial exercise of jurisdiction was handled. The substantive result reached in the courts seems fair, reasonable, and appropriate: a notorious polluter, Teck Cominco Metals Inc., is called to account by the United States Environmental Protection Agency and required to study the feasibility of cleaning up a site it contaminated by dumping effluents in a transboundary river over the course of several decades. Yet, both courts that examined this case on the merits failed to understand the ramifications of this extension of the Environmental Protection Agency's jurisdiction across the Canada–United States border. This article begins with a doctrinal analysis of jurisdictional rules in private and public international law, and then proceeds to evaluate those rules with the help of insights from scholarship on global administrative law and international public authority.

This article considers fairness in international environmental law (IEL) in light of the convergence of two contemporary phenomena: the rise of social movements and the increasing power of large developing countries. These two trends will be determinative for the future of IEL. They have brought issues of fairness, equity, and justice to the forefront of contemporary IEL debates. Despite inability to adequately address issues of fairness at the international level, as demonstrated by negotiating gridlock at international summits, IEL can evolve in more equitable directions through the influence of subaltern experiences. This article examines domestic law-reform efforts of Indian social movements, focusing particularly on indigenous movements responding to extractive industries, with a view to determining international implications. The way states such as India address environment-related conflict, respond to demands for fairness, and evolve domestic understandings of inclusive and sustainable law and development will increasingly shape IEL.

Transnational environmental law is the subject of growing scholarly interest. Yet, much work remains to be done to fill in both the conceptual and empirical contours of this field. One methodological challenge that transnational law poses is the need to look beyond traditional sources of international and national law. This article contributes to efforts to understand transnational law's multilayered architecture by drawing attention to the use of transnational contracts as a mechanism to protect habitats and species. The diverse and proliferating examples of conservation contracts discussed in this article – which include forest carbon agreements, conservation concessions, debt-for-nature swaps, conservation performance payments, and private protected area agreements – reveal an ongoing and intensifying transnational attempt to use private contracts to address some of the most pressing issues of common concern. This article draws on fairness theory in both contract and international environmental law to argue for law's relevance in interpreting conservation's call for contracts.

The notion of ‘armed attack’ is at the heart of the law on the use of force in self-defence. The ICJ first addressed the issue in its judgment in Nicaragua; however, its formulation of the legal parameters of ‘armed attack’ has not been without controversy. In particular, the high threshold of force required for an ‘armed attack’ and the consequent distinction between ‘armed attack’ proper and acts of lower intensity (termed ‘frontier incidents’) is said to have reduced the barrier to armed aggression. More recently, the formulation has also been criticized for not being fully applicable to large-scale terrorist attacks such as the events of 11 September 2001. This article examines the Court's first pronouncement on the concept of armed attack, with a specific focus on the rationae materiae aspect of ‘armed attack’, which situates it in the context from which it arose and analyses its development through subsequent case law, particularly the Court's judgments in Oil Platforms and Armed Activities (Congo v. Uganda) and the decision of the Eritrea–Ethiopia Claims Commission.

This article provides a reappraisal of the International Court of Justice's approach to jurisdiction and applicable law in Nicaragua, 25 years later. In the first phase of the proceedings arising from the US support of the activities of the Contras against the Sandinista government, the Court robustly asserted its jurisdiction despite the US reliance on its multilateral treaty reservation and the subsequent attempted modification of its Optional Clause declaration. At the same time, the Court approached the related question of applicable law with a wide, if not effusive, reliance on multilateral customary international law operating conjunctively with treaty law. The Court's dismissal of negotiations as a procedural precondition for invoking its jurisdiction in Nicaragua is contrasted with its recent findings in Georgia v. Russia.

This presentation is twofold. The first part shows that the Nicaragua case played a significant role in reconciling the Third World with the International Court of Justice and, more generally, in revitalizing the Court. In the second part, the author, who was counsel for Nicaragua in that case, casts an eye as external analyst on the judgments of 1984, about which he has some reluctance, and 1986, which he largely approves of, even though Nicaragua did not win 100 per cent and some points may be debatable.

Having identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.

This article is a journey through the life of Antonio Cassese, a giant of international law, no doubt one of the most prominent international lawyers of the twentieth century, and the ‘architect of international criminal justice’. From his first steps in the academic community in Pisa in the early 1960s to his well-known contributions as first president of the International Criminal Tribunal for the former Yugoslavia, he became a prolific author and editor of seminal books and commentaries on international law and international criminal law, as well as founder of groundbreaking law journals.

When, on 3 May 2011, the Appeals Chamber reversed the decision of Trial Chamber III in the Bemba case that had admitted material on a list of the prosecution into evidence, it addressed various central issues related to the admission of evidence under the legal framework of the International Criminal Court (inter alia, the orality principle). The present article critically analyses both decisions. In particular, it views the Trial Chamber's approach that envisages a multi-tiered process of admitting evidence, in light of the approaches of civil law and common law, and expresses concerns about uncertainties and protraction that may result. As the Court's legal framework does not determine that the processing of evidence follow either the civil-law or the common-law model, this is left for the trial chambers to decide in each case. In determining the preferable approach for each respective case, consideration of the procedural context is key. The Appeals Chamber decision allows for the required leeway of the trial chambers in regulating the processing of evidence, to adopt a way that fits the particular circumstances best.

In Nuhanović and Mustafić (5 July 2011), the Court of Appeal of The Hague held the Netherlands liable under Bosnian torts law in relation to acts of Dutchbat in the days following the fall of Srebrenica. The claims were brought by relatives of victims killed by Mladić's troops after being evicted from the Dutchbat premises, where they had sought refuge. When resorting to international law to attribute the conduct to the Netherlands, the Court shed light on the concrete meaning of ‘effective control’ when a wrongful conduct does not result from direct orders, thereby clarifying some of the questions surrounding the determination of responsibility for conducts in the framework of international organizations.