This article provides a framework for systematically analyzing the practice, function, and consequences of human rights references in investment arbitration. In recent years, investment arbitration witnessed an enormous increase of references to external sources. References to human rights are especially interesting as they defy the alleged inherent conflict of investment and human rights, as well as the presumed fragmentation of international law. By applying both quantitative and qualitative approaches, I analyze how and why human rights references are employed in investor-state arbitration and, ultimately, whether they are able to remedy the legitimacy crisis of investment arbitration.

The empirical analysis is based on 46 awards, which include explicit references to human rights instruments. In the first part, this article examines which human rights instruments are referenced in investment arbitration and how the disputing parties as well as the tribunal engage in human rights referencing. In the second step, the article identifies two strategic functions of referencing human rights: guidance in the determination of substantive provisions and argumentative practice. This article further argues that, from a comparative law perspective, references may help to overcome the indetermination of investment treaties, provide for the balancing of investment and non-investment concerns, and ensure cross-regime consistency. In the third step, this article elaborates on whether those presumed benefits of referencing human rights can be confirmed on the basis of empirical results. It remains to be seen whether the ‘pick and choose’ approach of human rights references is capable of uncovering this legitimating potential.

State-centrism is a key concept in discussions of sovereignty, justice, and the global political order and of changes within that order. Thus we routinely hear: ‘that analysis is far too state-centric!’ Or: ‘earlier approaches were marred by excessive state-centrism, and need to be reconsidered in the light of contemporary circumstances’. Or even: ‘I'm state-centrist and proud of it’. This article brings into focus some of the themes associated with state-centrism in international legal writing, and suggests something of the limits of this way of framing issues. It also raises the possibility that these themes may provide clues to certain characteristic and apparently deep-rooted, but not always clearly recognized, anxieties on the part of those who work in this field. Borrowing a phrase from Harold Bloom, the article refers to these as anxieties of influence.

The article analyses the main features of the Statute of the International Criminal Court in the context of recent developments in international law. The core submission is made that the states' obligations enshrined in the Statute (namely, to investigate and prosecute the most heineous crimes, and to co-operate with the Court in their investigation and prosecution) are to be construed as obligations erga omnes. Since ending impunity for such crimes transcends the interests of individual states, the Court should act on behalf of the international community in remedying any shortcomings of states' action in this respect. In this perspective, particular attention is devoted to the principle of complementarity: it is argued that it could and should be construed and implemented in such a way as genuinely to allow the achievement of the universal objective of preventing impunity for those crimes of concern to the international community.

This paper argues that the concept of the civilian is a specific way of viewing non-combatants that can be traced to the First World War. Before the war, non-combatants were seen by the law and the prevailing culture as citizens. The citizen was potentially and probably aggressive, bound to the fate of his or her state and, therefore, granted only minimal protection by law. The war, however, brought technological changes and a propaganda effort that transformed these citizens into a civilian population. Civilians were essential to the war effort, which meant that they were a target. Yet, at the same time, they were feminized, described as vulnerable and deserving of protection. This cultural shift influenced the way in which the laws of war were understood, leading to the replacement of the traditional categories of law with a military/civilian distinction in the 1923 Hague Draft Rules of Aerial Warfare. In this way the concept of the civilian entered international law.

This paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.

The present article deals with international law problems that have arisen in the process of legal clarification of the state crimes committed during the Soviet occupation in the three Baltic states. Following the restoration of their independence in 1991, the Baltic states have sought to establish the historical truth about the mass crimes committed during the Nazi and Soviet occupations – Estonia's International History Commission recently published its first report which is analyzed in this article. Moreover, the courts in the Baltic states have convicted deporters of 1941 and 1949 for crimes against humanity and/or genocide. By discussing different definitions of ‘genocide,’ the author attempts to answer the question whether the general context of the Stalinist mass repressions in the Baltic states permits to qualify the occupant's policy as ‘genocide.’

How should international law deal with the uncertainty arising from the rise of irregular forms of warfare? In the past decade, this question has been the topic of several reports produced by international groups of experts in the field of conflict and security law. The most recent examples include the study on the notion of the ‘direct participation in hostilities’ under the auspices of the International Committee of the Red Cross, and the Tallinn Manual on cyberwarfare prepared at the invitation of NATO. In this article, we discuss the Tallinn Manual, showing how experts faced with uncertainty as to the law's precise scope and meaning construct legal interpretations, legal definitions, and institutional facts and norms that can be used to make sense of a contingent world. At the same time, we argue, this absorption of uncertainty produces new uncertainty. Consequently, the power of experts does not reside in their knowledge, but in their control and management of uncertainty and non-knowledge.

International law and Marxian theory both emanate from nineteenth-century progressivism. Although Marx had no interest in international law, many aspects of his work are very relevant for it. Where (modern) international law became secular and focused on states and human rights, (early) Marxian theory would claim that its secularization did not go far enough. Instead, statehood and individual rights appear as forms of political theology. Today, deconstruction carries on some of the heritage of Marxian dialectics. The task, however, is to move from doctrinal critique to progressive practice. In this, the theory of hegemony provides the best available account of how that can be undertaken without losing the ambition of the law's universality.

This essay explores the legal thought of Hannah Arendt, and is one of the first to do so. Having presented an Arendtian view on law and its relations to politics, it subsequently discusses how an Arendtian view might yield insights on some topical international issues, in particular the much-discussed issue of constitutionalism in international law.

The quest of extending the role of tribunals beyond its traditional mission of justice to embrace the difficult need of reconciliation after mass atrocities has revealed itself to be challenging. This difficulty is most clearly illustrated in the case of the ICTR, whose mission is to bring about Rwandan reconciliation through justice. The implementation of this mission that was doubted by some members of the Security Council, including the Rwanda itself, at the time of setting up the ICTR is becoming a difficult experiment, with positive results but also with some negative outcomes capable even of undermining the aimed objective of national reconciliation. The problem of co-operation between the Tribunal and Rwanda, the difficulties of circumscribing individual responsibility without condemning the whole community, the problem of singling out and punishing some criminals and leaving the rest unpunished, the abuse of pardon and clemency, and finally the absence of the victim in a criminal process pretending to restore his situation are some of the difficult problems hampering the proclaimed mission of reconciliation assigned to the ICTR. This article is an attempt to analyse these problems and their impact on national reconciliation in Rwanda.

This article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.

In the Armed Activities on the Territory of the Congo case the International Court of Justice has – for the first time in its history – found a state to have violated the prohibition of the use of force in Article 2(4) of the UN Charter. For the first time also, the Court has discussed the scope of self-defence directly under Article 51. In this article the focus lies on this aspect of a wide-ranging judgment. In finding that Uganda had violated the Charter, the Court kept to its jurisprudence constante; it did not bow to ‘post-11 September’ pressure to extend the logic of Article 51 to private actors. This article discusses the merits of the scholarly claims for both sides, but warns of drawing conclusions for the Court's future jurisprudence – the apparent unity among judges may have to do more with the case rather than the wider issue.

This contribution sets out the path towards consensus at Kampala. Before the Review Conference, two main issues remained unresolved: the question whether some form of consent by the alleged aggressor state should be required, and the role of the UN Security Council. Few had expected a consensus on a comprehensive package. The outcome of Kampala reflects significant compromises, but also a significant step to advance international criminal law.

A key achievement of the International Criminal Court is its acknowledgment of the rights of victims to participate in proceedings and to seek reparation before the Court. This article analyses some of the specific challenges relating to the ICC reparations regime, stemming from the interplay between the ICC and national courts on such issues as tracing assets and implementing protective measures, and in enforcing the ICC's reparations orders. A review of several examples of legislation adopted by states parties on cooperation with the ICC is undertaken with a view to examining its potential impact on these issues.

This article explores how Luxembourg and Nauru put their sovereignty to use in order to become global players in what can be considered extraterritorial landgrabs – the turning of the deep seabed and outer space into realms of commercial exploitation. It shows how the international legal framework puts states, however small, into a position to facilitate private enterprises’ endeavours to obtain extraterritorial exploitation rights. The article further enquires into the public interest justifications put forward by governments to legitimate their support for the expansion of private resource extraction into the deep sea and outer space. It finds that these justifications are very tenuous; that governments refer to vague notions of economic growth and benefits that may accrue from extraction to an undefined humanity while it remains unclear whether their own populations will obtain any concrete gains. Both case studies illustrate how states, on the basis of international law, facilitate the expansion of private value extraction, thus perverting the redistributive ambitions that may once have motivated the negotiations of the United Nations Convention on the Law of the Sea and the Outer Space Treaty.

The article aims at examining, in the light of the practice of the International Court of Justice, some issues concerning the power of the Court to indicate provisional measures to prevent the aggravation or extension of a dispute. While the existence of a power to indicate non-aggravation measures appears to be well established in the Court's case law, the scope of this power has proved to be a more controversial issue. This study argues that, by attaching relevance to the element of aggravation, the Court has been able to indicate measures that are not strictly needed to prevent a risk of irreparable harm but which at any rate contribute to a greater protection of the rights of the parties; at the same time, however, the Court has so far refrained from regarding the risk of aggravation as a circumstance which may justify a less stringent evaluation of the other conditions that normally need to be satisfied for the granting of interim protection under Article 41 of the ICJ Statute.

In 2009, the International Court of Justice introduced plausibility as a requirement for indicating provisional measures under Article 41 of its Statute. Upon its introduction, plausibility was conceived as a test to establish that the rights asserted by applicant states might exist under international law. However, the Court subsequently developed the plausibility test into a higher standard, which requires the Court also to assess that the alleged conduct of the respondent state might breach that applicant state's asserted rights. This development has important implications for provisional measures proceedings before the Court. First, one could distinguish two aspects of plausibility, legal and factual. Second, plausibility has different functions in requests for provisional measures depending on whether the applicant state asserts rights arising under a treaty or under customary international law. Third, the Court's enquiry into plausibility could overlap with the enquiry into prima facie jurisdiction ratione materiae, although these two requirements conceivably entail different thresholds. Fourth, plausibility in provisional measures indicated in interpretation proceedings could be seen to be different from plausibility in provisional measures indicated in ordinary contentious proceedings.

This introductory paper to the symposium hosted by the Leiden Journal of International Law, and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.

The ICC's early history indicates that more attention must be paid to the investigative practices of the Office of the Prosecutor. The judicial record to date, and the increasing dissatisfaction amongst affected communities with the Court's work, belies the desirability of the ‘light-touch,’ low-cost approach to investigations that has hitherto been championed. Rather than positioning the ICC as a remote site of justice, the Office must locate its investigative work more thoroughly on the territories in which it is engaged. The composition of its staff has also been insufficiently reflective of the countries under investigation and its relationships with individuals and institutions on the ground poorly managed. Despite relying heavily on the knowledge that these local actors can bring, the OTP has too often employed a unilateral approach to evidence gathering, failing to integrate their concerns and priorities into the investigative process.