Along with “globalization” and ideas of a “new world order”, the last 20 years have witnessed the emergence of an (anti-)foundational critique of international law which may be associated with the postmodernist turn of philosophy. In addition, globalization has questioned some of the basic assumptions of international law, especially the primordial role of states. The article analyses several answers postmodern international legal theory has given to the challenges for international law – despair, politicization, history, subjectivism(s), democratic experimentalism, and a return to positivism. It argues that postmodern theory fails to provide a concept for the future of international law but that this is exactly what is needed to save international law from politics and irrelevance. The author comes to the conclusion that a “middle-of-the-road”-approach steering a course between positivist objectivism and the subjective responsibility of the lawyer might be the most promising avenue for the future of international law. Wer mir Dekonstruktion ans Herz legt, und auf Differenz besteht, steht am Anfang eines Gesprächs, nicht an seinem Ziele.Hans-Georg Gadamer

In his opening lecture of the LL.M. Program in Public International Law at Leiden University, Judge Buergenthal examines whether the recent phenomenon of the proliferation of international tribunals is to be welcomed or regretted by those who are interested in seeing international law become a vibrant and politically relevant legal system. He addresses questions relating to their interaction and the delimitation of their respective roles.

International organisations have recently assumed a more intrusive role in settling conflicts in all continents. At the same time, post-conflict or post-settlement tasks seem to be emerging as an important function, encompassing the conduct of democratic elections, the guarantee of security, development of civil society, etc. In order to operationalise such wide-ranging and deeply intrusive social aims it is not sufficient to have peace-keepers or elections monitoring missions sent into the conflict-torn territories. Concentrated and centrally planned efforts of international governance are needed. In the present day, however, there is no such systematic scheme to which to refer. Yet institutional structures are needed to administer the extensive tasks and functions assigned in certain post-conflict situations. Therefore many questions of legitimacy and fundamental accountability arise.

Dr René Lefeber stayed at the helm of the Leiden Journal of International Law as its Editor-in-Chief for more than four important years (1996–2000), marked by innovation and change in practically every aspect of the Journal. Barely two years after a profound re-organization, the Journal's volume was doubled with three issues per year in 1997, and four issues in 1998. Meanwhile, the number of pages, the quality, and the diversity of published material saw dramatic growth. The section on Hague International Tribunals became a standard feature; a sub-section on the International Criminal Court was set up in 1998 to regularly cover ongoing developments in this important institution; an annual specialized bibliography on dispute settlement was introduced; and regular Editorial notes by members of the Board figured in each issue. All in all, a very different Journal than the one handed down four years earlier.

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.’

On 15 May 2001 the Head of the United Nations Interim Administration in Kosovo (‘UNMIK’) signed into law Regulation 2001/9 establishing a Constitutional Framework for Provisional Self-Government in Kosovo. The document creates a provisional institutional framework for the exercise of public authority by Kosovo's institutions of self-government during the territory's administration under United Nations rule. UNMIK delegates important parts of its responsibilities in the legislative, executive and judicial field to the local institutions envisaged in the document. At the same time, however, crucial areas remain under the direct authority of the United Nations administration. This article examines the modifications brought about by the Constitutional Framework by discussing the legal nature and the contents of the document in the light of the various legal instruments governing Kosovo's institutional system throughout the last thirty years and previous international practice in the field of state-building and territorial reconstruction.

This article questions the legality of the extent of the Iraqi sanctions regime, due to its severe impact on human rights such as the right to life and the right to health. After examining whether the Security Council is bound by human rights, the article examines if and to what extent the Security Council may limit human rights norms when imposing economic sanctions. In the process it distinguishes between non-derogable and derogable human rights. With respect to the latter, it supports limitation in accordance with a proportionality principle that protects the core of the rights involved, while at the same time allows the Security Council the flexibility required by its unique role in the maintenance of international peace and security.

Lawyers have begun to think of the legal events and institution-building related to the demise of Yugoslavia as raising new hope for international law. The recognition of newly self-determining sovereign entities that was facilitated by the European Community, together with the creation by the UN Security Council of an international criminal tribunal, constitute instances of newfound political authority over political disputes. On the other hand, close examination of the recognition process of the European Community and the constitutional stature of the ad hoc criminal court reveals political considerations to have dominated normative principles. Thus, while in form the legal events surrounding the Yugoslavia conflict seem to reflect the triumph of internationalism over the force of sovereignty, in substance they reflect precisely the opposite. In analyzing these legal pronouncements through the lens of the fantasy stories of Jorge Luis Borges, one can begin to appreciate international law's conceptual embarrassment of riches. For this is all a dream we dreamed one afternoon long ago.Hunter & Lesh, Box of Rain.

Carl Schmitt was an intellectual who made the discipline of international law grapple with the major issues of his time. His work as an international lawyer remains largely untranslated. It is riddled with racism and anti-Semitism. However, an interest of his work is that it reflects the ‘shadow side’ of contemporary international law, forgotten because the moral defeat of Germany in 1945 was so total. Schmitt argues for an inherent tendency to violence and demonization in Western liberal international law theory and practice. He argues for the acceptance of difference as against homogeneity in world society as the only way to limit this violence. Finally, he argues that the liberal tradition is fundamentally compromised by its own colonialist heritage. Its objections to Nazi Germany translating this colonialist imperialism onto Eastern Europe are incoherent. Schmitt's avowed racism and anti-Semitism remain shocking. The article does not try to downplay this aspect of his work. However, it is worth noting that his Nazi bosses, for the most part, thought his racism insincere. If any negative spirit imbues the actual technical detail of Schmitt's work it is his aversion to the West. This probably had its roots in the envy which the Kaiserreich had of the British, French, and American Empires while Schmitt was growing to maturity.

The United States is abrogating the Anti-Ballistic Missile Treaty in order to deploy a limited missile defence shield. Amongst other developments, this is prompting a reconsideration of the global security framework. However, a crucial element is missing from the current missile defence proposals: a clearly articulated concept of peaceful use, applicable both to outer space and to earth-space. The deployment of missile defence runs counter to emerging norms. It has effects going far beyond the abandonment or re-configuration of specific Cold War agreements. In a community of nations committed to the maintenance of international peace and security (cf. national or plurilateral security), sustainable meaning for widely used and accepted norms of peaceful use and peaceful purposes is at risk.

Environmental damages caused by Iraqi occupation of Kuwait and its aftermath are to be assessed through the compensation system created by the UN Security Council. The UN Compensation Commission (‘UNCC’) has scheduled its first decision on environmental claims for the summer of 2001. These claims, however, deserve a particular treatment by the UNCC: problems related to the law applicable, the principle of due process, the principle of causal link, the assessment of damage, the identification of injured subjects, and the type of compensation are particularly addressed in the following pages. Keeping in mind the ‘precedent-setting procedure’ used by the UNCC, this article tries to explore previous applicable precedents, ordering them into a structured ‘legal’ framework and exposing existing gaps, if any.

This article seeks to show that both the conceptualization and practice of international human rights education within the mainstream human rights community has been shaped and framed, with mostly negative consequences, by at least three constitutive orthodoxies: a heaven-hell binary distinction between an all but “perfect” West and an all but “hellish” Third World; a consequent unidirectional traffic of human rights teaching from the West to the rest; and a reliance on the abolitionist paradigm of human rights education. It starts by mapping these orthodoxies, and proceeds thereafter to challenge them as fundamentally problematic and as capable of frustrating the project of progressive human rights education. The article ends by offering an insight into the ways in which international human rights education might be re-imagined if it is to have a better chance of achieving its ordinarily laudable mission.

The article reviews (i) the qualifications of judges of, and (ii) the distribution of seats in, the ICJ. (i) Since 1966 there has been only one judge elected who merely satisfied the requirement relating to highest national judicial office. It is clear that with the increase in the supply of competent public international ‘jurists’ from the developing countries and because of the increasingly complicated and specialized nature of international law national judicial office has become irrelevant and insufficient as a qualification. Recognized competence as a public international jurist should be the only valid criterion. On the other hand, the latter concept has been given an unwarranted and undesirable extension by the UN, especially in connection with candidates from developing countries. (ii) While, in keeping with Article 9 of the Statute, there is some agreed regional distribution of seats among the non-permanent members of the Security Council, equity seems to be disregarded, particularly among the non-Western European states, by rotation among states being ignored. This is not in keeping with the Statute.

This article discusses the judicial vision articulated by Judge Christopher Weeramantry in his time as a member of the International Court of Justice. It seeks to trace the development of his vision by examining his earlier writings, and the factors which shaped his approach to international law. It discusses some of the key elements of his vision: his sensitivity to Third World concerns, his attempts to create a universal international law which represents all the world's cultures, and his views of the judicial function and the international rule of law.

On 5 December 2000 the International Court of Justice adopted amended texts of Articles 79 and 80 of the Rules of Court, dealing respectively with preliminary objections and with counter-claims. The present paper introduces the new articles in the light of the 1978 version of the texts.

The article critically examines the use of the doctrine of command responsibility by the UN International Criminal Tribunal for Rwanda in two of its judgements, Kayishema & Ruzindana and Musema. It argues that in assessing superior-subordinate relationships the ICTR applied the wrong standard in both cases. While there is no doubt that civilian superiors are liable to prosecution for command responsibility, the doctrine will be properly operative only in cases where the superior's control of subordinates strongly resembles that enjoyed by military commanders. The article builds upon the arguments of the ICTY's Čelebići judgement on this point, and emphasises the difficulty in holding lower-ranking Rwandan civilians responsible as superiors for genocide committed by supposed subordinates.

This article considers the contribution of the International Court of Justice (‘ICJ’) to the development of the rules and principles of international humanitarian law (‘IHL’). In recent times, the contribution of the Court to this body of the law has been overshadowed by the work of the two ad hoc international criminal tribunals, the ICTY and the ICTR, established by the Security Council to punish those responsible for serious breaches of IHL. Nevertheless, the ICJ, in both its contentious and advisory jurisdictions, has considered the provisions of IHL on a number of occasions, and in the process has clarified many areas of IHL. This article is concerned with one particular issue: how does the Court perceive the fundamental nature of IHL? The analysis adopts two themes. First, an assessment is made of the part played by the Court in the process of bringing IHL into conformity with the changing emphasis of general international law. In both the Nicaragua case and the Nuclear Weapons Advisory Opinion the Court continued the process of what has been referred to as the “humanization of international law.” Second, the approach of the Court to the vexed issue of the relationship between ius ad bellum and IHL is considered. The conclusion is reached that the approach of the Court to this latter issue has undermined its contribution to infusing the humanitarian ethos into IHL.

The Statute of the ICTY incorporates the customary international law principle of superior responsibility. Where a superior knew or had reason to know that subordinates were about to commit or committed a crime, he/she is under an obligation to take preventative or punitive measures against subordinates. The mens rea, or knowledge, of a superior is pivotal in determining his/her criminal responsibility. However, despite the customary law status of the principle of Superior Responsibility, the definition and standard of mens rea applied has varied. The ICTY Trial Chambers in the Čelebići and Blaškić cases reached opposite findings on the definition of the term “had reason to know” under customary law. The Appeals Chamber has rendered its definition of mens rea. However, the standard applied appears inconsistent with the principle of Superior Responsibility.

States can accept the jurisdiction of the International Court of Justice with respect to all or certain categories of legal disputes by means of unilateral declarations. This article examines the reservations to the acceptance of the compulsory jurisdiction that states include in such declarations. It reviews the practice of states and traces the trends in drafting and adopting reservations. It also analyzes the jurisprudence of the Permanent Court of International Justice and the International Court of Justice in relation to the interpretation of various reservations, particularly in recent cases, illustrating the effectiveness or ineffectiveness of different types of reservations.

There have been several important developments concerning the ICTY and ICTR recently. For example, steps have been taken to improve the efficient operation of both ad hoc Tribunals, to include the addition of ad litem judges at the ICTY, an increase in the number of judges assigned to the common Appeals Chamber (to include the permanent assignment of ICTR judges to The Hague for this purpose), and amendments to the Rules of Procedure and Evidence of both ad hoc International Criminal Tribunals. In addition, efforts have been initiated to provide for compensation to victims and to individuals wrongfully detained, prosecuted or convicted. There have also been recent allegations of improper conduct by defence attorneys and investigators. The following article surveys these developments.