The present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.

Against such a background, this article demonstrates that, in some circumstances, deportation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state's prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.

The 1996 Nuclear Weapons Advisory Opinion of the International Court has been both hailed and criticized on various grounds. However, one area, namely the Court's treatment of the distinction between the law regulating the use of force and the humanitarian law of armed conflict, has received relatively little attention. This author is convinced and concerned that the Court's treatment of this issue misconstrued the relationship between these two branches of the law, and in doing so potentially weakened any restraining influence the law of armed conflict might have on the potential use of nuclear weapons.

Stability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

This article explores whether Turkey is the continuing or a successor state of the Ottoman Empire. This is a question that attracts particular attention in the context of the contemporary political debate on ‘neo-Ottomanism’. After the analysis of past debates on succession and continuity, the Ottoman Empire's legacy is considered in light of the international case law, especially the 1925 Ottoman Public Debt Arbitration. Arguments of the international doctrine in favour of and against the Ottoman continuity thesis are also explored and tested by reference to comparable cases. The peculiarity of the transitional period from the Empire to the Republic, where two governments and two constitutions coexisted, is crucial to understanding the transmission process of the legal personality. Despite the undeniable ambiguity of the issue, the conclusion tilts towards the continuity argument. Potential positive and negative, as well as legal and political, implications of continuity, including those related to delictual responsibility, are discussed at the end.

Expanding now familiar debates about the impact of the ‘historical turn’ upon the field of international law, this article considers some of the different ways in which ‘turn to history’ scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law. We suggest that the anxiety over the sources of international law as the basic methodological precepts of the discipline has been a catalyzing element for a radical reengagement with the canon of international law, one with a significant impact on the field’s existing parameters and doctrinal limits. Within the three streams of scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created, and new issues, sources, subjects, and approaches can be explored. Yet, by opening up international law’s sources doctrine, reactionary causes and unjust ends may equally well be the result. This account is an attempt at diversifying the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques and epistemological foundations behind the history of international law as an evolving discipline, and of the different scholarly motivations of its specialists.

The dichotomy of reason and passion is so deeply embedded in the construction of what is ‘legal‘ that it seems difficult even to imagine an international law that would not be entrenched in it. The very identity of international law seems based on its capacity to set itself on the side of reason, in opposition to the passionate, the irrational. Is not reason practically synonymous with order, and passion with chaos? And what is law for if not to bring about order, and to allow exit from our slavery under passion? Is not reason what is universal and objective, while passion is particular and subjective? And is it not then the case that a law pretending to universality must perforce align itself with the forces of reason?

This contribution is dedicated to Professor John Dugard. It discusses the most difficult issue to be resolved in the negotiations on the crime of aggression: the role of the Security Council in the exercise of jurisdiction over this crime by the International Criminal Court. The International Law Commission suggested a solution in the 1990s, but failing the required support and in the absence of subsequent agreement the 1998 Rome Conference could only prospectively give the Court jurisdiction over the crime of aggression. The post-Rome negotiations are characterized by, on the one hand, support from the five permanent members of the Security Council for the thesis that it should be exclusively for the Security Council to determine whether or not an act of aggression has been committed (as a precondition for the exercise of jurisdiction by the ICC) and, on the other hand, a rejection of this thesis combined with a search for alternatives by many other states. According to the analysis below, in relation to cases involving the crime of aggression the preferred way for the ICC to proceed is to exercise jurisdiction over this crime after a determination of state aggression has been made by the Security Council. Nevertheless, the view according to which such a determination could exclusively be made by the Council is rejected, on the basis of the rules of the Charter, the practice of the Security Council and the General Assembly, and decisions of the International Court of Justice. Finally, an alternative arrangement is suggested for the cases in which the Security Council is prevented from acting because of the use of the veto or because of lack of support from its members.

This article examines the reasoning and findings of the International Court of Justice in its judgment in Costa Rica v. Nicaragua on issues relating to the effect of the passage of time on the interpretation of treaties. In arriving at the proper interpretation of the disputed phrase ‘for purposes of commerce’ in a Treaty of Limits between the parties, which entered into force in 1858, the ICJ followed a number of interpretative steps based on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which led the Court to conclude that the meaning of this phrase must be presumed to have evolved over time. The means and methods of interpretation employed by the ICJ to determine the effect of the passage of time on treaties are examined. More specifically, the question is raised whether the ICJ's approach to determining the evolutionary character of a treaty provision, based on an interpretative presumption, may not be considered unsatisfactory insofar as it does not appear to take full account of the actual common intention of the parties – the main task of interpretation.

According to the ICTR, Emmanuel Bagambiki is an innocent man. The trial chamber and the Appeals Chamber have each unanimously acquitted the former Prefect of Cyangugu of crimes relating to Rwanda's horrific 1994 genocide. And on 19 July 2007 Bagambiki was reunited with his wife in children in Belgium, having been granted asylum a few days earlier. It is tempting to conclude that justice has been done in Bagambiki's case. That conclusion, however, would be too facile: Bagambiki was acquitted in February 2006, nearly 18 months before his family reunion. In the interim he lived in a safe house in Arusha paid for by the United Nations, wanted by Rwanda for trial on related charges and unable to convince Belgium that he posed no danger to its peace and security. Bagambiki, moreover, is one of the lucky ones: the nightmare of being free but having nowhere to go continues for two of his acquitted roommates in the safe house, Andre Ntagerura and Andre Rwamakuba, Rwanda's Minister of Transport and former Minister of Education respectively. Bagambiki's ordeal and Rwamakuba and Ntagerura's ongoing plight illustrate one of the basic problems facing international criminal tribunals: what to do with the acquitted. An acquitted defendant normally has two options: return to his country of origin, or find a third country that will grant him asylum. Both options, however, have been problematic for defendants acquitted by the ICTR and are likely to prove equally problematic for defendants who may be acquitted in the future by the ICC. This short essay explains why – and identifies what the international community should do about it.

A new genre of scholarly writing has emerged in recent years in the field of what one can broadly call critical international theory. Its principal defining feature is an intense preoccupation with the phenomenon of the so-called ‘new world order’, which it tries to explain and describe through an analytical lens constructed primarily around two ideas: the idea of ‘empire’ and the idea of ‘imperial law’. In this article I attempt to provide a brief overview of this genre, which for the sake of simplicity I shall call henceforth the ‘new imperial law’ or NIL genre, and to reflect critically on its underlying ideological dynamics.

Alejandro Álvarez's professional trajectory forces us to rethink the traditional modes of reading and writing the history of international law. Álvarez was central to the development of modern international law. He also happened to be a Latin American international lawyer. Should we interpret his work and life against the background of the intellectual and political history of Europe? Are the contexts that relate to the crisis of the European balance of power or the rise of nationalism the only ones that explain the emergence of a modern international legal discourse? This article situates Álvarez's scholarship within the intellectual, economic, and political history of Latin America. Interpreting Álvarez in the context of a genealogy of modernist Latin American thinkers illustrates the extent to which his work was part of a broader regional effort to appropriate European cultural artefacts in ways that granted them both a cosmopolitan and a distinctively Latin American character. Álvarez's modernism reinvented the meaning and uses of international law as a strategic foreign-policy tool in the interest of Latin American countries, a reinterpretation that contributed also to the construction of a Latin American identity and thought.

The extraterritorial application of competition law on the basis of the effects doctrine of jurisdiction has long been controversial. An analysis of the assumptions which underlie the discourse of jurisdictional assertion leads, however, to the conclusion that the effects doctrine is the only principle on which competition law jurisdiction can reasonably be based.

Moreover, a form of qualified effects principle, founded upon the consent of the undertakings involved, would be supported by most, if not all, of the leading players in the competition law arena.

State-owned enterprises (SOEs) have long constituted, and are likely to remain, an important instrument in any government’s toolbox for a variety of economic and societal goals. However, the significant extent of state ownership among the world’s top companies, and the quantitative and qualitative transformation and hybrid nature of SOEs, raises the issue of their impact on international trade flows and the competitive process. This article addresses the question of how international trade agreements regulate SOEs, with a view to furthering the international contestability of markets, while, at the same time, allowing governments to provide support to SOEs as a means of dealing with market failures and the pursuit of public goals. After a brief introduction to contemporary state capitalism, the argument is developed in three main parts. The first part situates SOEs within the GATT and WTO frameworks and elaborates on the findings of previous literature with a view to highlighting the main shortcomings of such discipline. The second part re-examines the notion of ‘competitive neutrality’ by locating contemporary trade agreements within the larger contextual relationships between the state, the market, and the social, and thus reconstructs the normative rationales and general policy implications of the disciplines under examination. Against this background, the third part critically assesses the new disciplines on SOEs in recent preferential trading areas (PTAs). The main conclusion is that the search for binding rules has not led to balanced regimes and, despite the wider scope of the new rules, notable problems that have emerged within the WTO context remain unsolved.

This article examines the tensions within the international drug control system which are putting the until now consensual position in regard to the prohibition on drugs supply and use for anything other than medical and scientific use – the Vienna Consensus – under strain. The article examines a number of areas where policy stress is leading to controversy about potential violation of international drug control treaty obligations by states parties. Drawing a comparison with earlier periods of stress when drug control fell under the League of Nations, it suggests that what appears to be occurring is a shift in the Vienna consensus, and that the drug conventions are sufficiently flexible to permit resulting shifts in practice, although reform would be preferable.

This article discusses the law and practice of the International Organization for Migration (IOM), a little-known but important international organization. The article aims to illuminate what it is the IOM does; how it influences its member state practices while simultaneously working on member state assignments; and how this affects the dominant theory underpinning the law of international organizations, i.e., the theory of functionalism. The article concludes that the IOM takes functionalist thought to extremes, and in doing so makes visible the latter’s ideological nature.

Like international legal scholarship, LJIL is in transition. Our colleagues, Larissa van den Herik and Jean d'Aspremont, who have shaped much of the role and plural identity of the journal over the past decade, in collaboration with our different sections, have passed leadership on to us, the new team of (co-)editors-in-chief. This editorial reflects on the changing role and function of scholarship in international law, a theme important to our predecessors and ourselves. This is to some extent a niche area. It has not received much attention in discourse. With some notable exceptions, legal journals are typically reluctant to address overarching meta-issues of discourse, i.e. issues of production of scholarship, the role of journals vis-à-vis other media, or the broader direction of the development of international legal scholarship. Such issues might be perceived as non-scientific by some. We feel that it is important to include such dimensions, including critical self-reflection on our discipline, in international legal discourse.

Taking up the torch from my fellow co-editors who have addressed substantive and methodological issues of international criminal law (ICL) in their contributions, I propose to turn to the current state and prospects of its scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship were the leitmotif of past editorials and its (changing) role was chosen as the theme of the latest LJIL symposium. The professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of scholarship vis-à-vis practice in ICL. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

Hans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

Between 1935 and 1937, the International Missionary Council conducted the Bantu Educational Kinema Experiment. The objective was to produce silent educational films and screen them to ‘native’ people via mobile cinemas in the British territories in East and Central Africa. Embracing the principle of ‘indirect rule’, and its role in training colonial subjects in economic self-sufficiency and political self-rule, as then advocated by leading colonial figures and the League of Nations, the films strived to capture ‘the native point of view’ through an ‘ethnographic sensitivity’ towards local cultures, concerns and needs. Hoping to educate the natives from ‘within’, they used local actors, familiar locations and pedagogical instructions that were believed to meet the target audience's cognitive capacity. Though in many respects unsuccessful, the experiment cemented the use of cinema in the late colonial project and, more importantly, embodied the clear move at the time towards a more dynamic and disaggregated, yet perhaps never fully post-imperial, international order. I argue in this article that the Bantu Experiment is thus a telling instance through which to examine both the mobility and multiplicity of late imperial locations and the system of modern international administration that emerged during the interwar period. I suggest that this mobility and multiplicity continue to characterize the workings of today's international order, indicating the key role that ‘indirect rule’, as a silent principle of international law, still plays in its functioning today.

Focusing on some undertheorized aspects of Article 31(3)(c) of the Vienna Convention on the Law of Treaties, the present article aims to reassess critically the anti-fragmentation function generally assigned to this provision. The high hopes associated with the harmonizing potential of Article 31(3)(c) are usually based on a reading of this provision as requiring the interpreter to take into account not only rules applicable between all of the parties to the treaty, but also those applicable only between some of the parties. However, this reading does not seem to be confirmed by the interpretive approach suggested in this article. On the other hand, the use of Article 31(3)(c) in judicial settings raises a structural problem inherent in the international judiciary. The analysis undertaken along these lines suggests that the optimism that Article 31(3)(c) has recently provoked should be qualified in some important respects.