The legal argument of intervention by invitation has been used by all 11 states intervening in Iraq (nine members of the US-led coalition, Russia, and Iran), by Egypt for its airstrikes against ISIL in Libya, and by Iran and Russia for their interventions in Syria. To the extent that these consensual military interventions targeted ISIL and other UN-designated terrorist groups, their legality has not been challenged by any state. Strong criticisms marked nonetheless military operations undertaken by invitation, but not targeting ‘terrorist groups’, such as the alleged Russian strikes against the ‘Syrian moderate opposition’. The arguments advanced by intervening states seem to confirm the purpose-based approach of intervention by invitation. They did not claim a ‘right to intervene in a civil war’, but relied on the existence of both a request by the government and a legitimate purpose: fighting ISIL and other terrorist groups. The different reactions also show unwillingness by the international community to recognize a general right of intervention in a civil war. Turning to the strikes of the US-led coalition in Syria, it is impossible to rely on the legal basis of ‘intervention by invitation’. The controversial theory of ‘passive consent’ could be used to some extent – but not after September 2015 when Syria denounced these strikes as a ‘flagrant violation’ of its sovereignty. The current efforts of the international community to find consensual solutions to the dramatic conflicts in Syria, Libya, and Iraq could offer new possibilities of consensual interventions against ISIL and other terrorist groups.

According to, e.g., some Western governments and the ICRC, existing rules of international law would provide adequate protection of the environment in times of armed conflict. However, a proper analysis of the existing rules, contained in relevant treaties and customary international law, suggests that this protection is currently far from adequate, in times of both international and non-international armed conflict. In order to ensure a better protection of the environment in times of armed conflict, a new approach is required which departs from the obvious necessity of a common recognition of the following three fundamental ideas: 1. the indivisibility of a healthy environment as an indispensable condition for the survival of present and future generations; 2. the necessity to disconnect the legal protection of the environment in times of armed conflict from its anthropocentric legal enclosure; and 3. the need to expand the protective scope of the relevant rules beyond the current level of merely prohibiting the known or expectable and the obsoleteness of the distinction between environment protection pursued by the law of peace and environment protection pursued by the law of armed conflict, as well as recognition of the environment as a common heritage (or at least a common concern) of mankind.

The role of domestic courts in the application of international law is one of the most vividly debated issues in contemporary international legal doctrine. However, the methodology of interpretation of international norms used by these courts remains underexplored. In particular, the application of the Vienna rules of treaty interpretation by domestic courts has not been sufficiently assessed so far. Three case studies (from the US Supreme Court, the Mexican Supreme Court, and the European Court of Justice) show the diversity of approaches in this respect. In the light of these case studies, the article explores the inevitable tensions between two opposite, yet equally legitimate, normative expectations: the desirability of a common, predictable methodology versus the need for flexibility in adapting international norms to a plurality of domestic environments.

This article engages with the current internationalist debate about the ‘linkage’ or the proper relationship of trade and human rights law. The debate, as played out in activist commentary, scholarly journals and the reports of international institutions, is largely concerned with the substantive obligations or normative commitments involved in the two fields. This article seeks to address instead the forms of law (the patterns of relations and subject positions) that transmit, frame or accompany these obligations and commitments. It suggests that focusing on this question of the forms of law is helpful, perhaps even necessary, in developing an understanding of the political effects of appealing to democratic participation as a counter to the excesses of economic globalization. The particular focus of the article is on WTO agreements that pursue the goal of regulatory harmonization as a means of achieving greater market access and economic integration. It explores the relationship between the form of law mandated by these harmonization agreements (the form of sacrifice), and the form of law envisaged in an appeal to democratic political participation (the form of abandonment).

This article lays the groundwork for a Marxist theory of the international law of land-grabbing. It argues that any comprehensive politico-economic analysis of land-grabbing must also be a politico-economic analysis of the law of land-grabbing. It argues further that Marx’s account of ‘primitive accumulation’ in Capital – an account it presents as an historical explanation of the transition to capitalism as well as a general theory of ‘extra-economic’ force deployed through state power, including, crucially, the power of law – is helpful for developing an analytical framework for understanding the legal facets of land-grabbing. Political economists, rural sociologists, and social and political theorists have argued for and against the applicability of Marx’s theory of ‘primitive accumulation’ to the contemporary wave of global land grabbing. Intriguingly, though, no international lawyers have grappled with the question of whether a specifically Marxist approach to the phenomenon can or should be developed. This article does so, contending that contemporary land-grabbing is unintelligible absent a theory of capitalism, and that the processes whereby capitalism transforms land and labour are unintelligible absent a theory of the periodic waves of legally mediated ‘primitive accumulation’ that propel it forward. The article pays particular attention to the work produced by Olivier De Schutter during his tenure as United Nations Special Rapporteur on the Right to Food.

The ‘Abyssinia Crisis’ of 1935–36 – in which one League of Nations member (imperial Ethiopia) was annexed by another (Fascist Italy) – presents one of the clearest twentieth-century illustrations of international law's ‘progress narrative’. International lawyers are encouraged to draw a salutary lesson from the crisis: namely that Ethiopia's sovereignty – and, indeed, the peace of the entire world – might have survived the 1930s if only international law had been properly enforced. Yet, the assumption upon which this lesson depends – to the effect that Ethiopia's only discursive contribution to the crisis was passively to regurgitate the relevant clauses of the Covenant – is profoundly ideological. For this assumption effects a double suppression: erasing Ethiopia's strategic construction of a hybrid, partially Abyssinian international law from the discipline's memory; and concealing from scholarly view the possibility that Ethiopia's annexation might have resulted from actions that were in accordance with, rather than in violation of, interwar international legal norms regarding sovereignty and the use of force.

The article revisits the Barcelona Traction judgment of the International Court of Justice, rendered forty years ago. It evaluates the lasting influence of the Court's pronouncements on the nationality of corporations and on obligations erga omnes, and uses the case to illustrate the Court's role as an influential agent of legal development. In this respect, it identifies a number of factors that can help to explain under which circumstances judicial pronouncements are likely to shape the law.

In the general debate prior to the onset of war in Iraq, we made public our view, in a letter to the Guardian newspaper, that the war could be justified neither by reference to earlier UN Security Council resolutions nor by way of the doctrine of self-defence. In this article we reflect on some of the anxieties we experienced both before and after that ‘intervention’ in terms of the vision of international law we might unwillingly promote, and in terms of the role we appeared to assume for ourselves, and our professional colleagues, in public debate. Despite our efforts to prevent legal issues from dominating, we came to be viewed as the defenders of an anti-hegemonic legality – resisting the erosion by an opportunistic coalition of the principles of sovereignty, non-intervention, and collective security. We were concerned that this made us appear champions of international law in a way with which none of us was entirely comfortable. On the other hand, in contesting that, we seemed in danger of valorising a politics of expertise that gave international lawyers a privileged position within the debate. We reflect, then, on the consequences, intentional or otherwise, of our intervention, and explore the dilemmas associated with it. The problem with which we finally grapple is whether the relationship between critical scholarship and the techniques associated with it (anti-formalism, complexity, and indeterminacy) is such as to preclude strategic intervention in the effort to stop a war.

This article discusses the normative essence of the principle of non-appropriation in outer space as envisaged in Article II of the Outer Space Treaty, as well as its standing under customary international law. The analysis is structured with reference to the general public international law framework that governs the acquisition of territory by states, following the territorially based paradigm still prevalent in international law theory in stressing that the non-appropriation principle is indeed a norm of most increased significance within the corpus juris spatialis, i.e. the Grundnorm of international space law.

In much international legal scholarship, Iraq stands for what lies beyond the UN Charter – a world in which international institutions have proved unable to challenge the pragmatists of the new American empire, or one in which international institutions must be remade to suit the interests of the only state capable of acting as the sovereign enforcer of the law. Yet this sense of a crisis of legal authority is not novel for international law – rather, it pervades the discipline. Seen in this light, the inability of the United Nations either to prevent the use of force against Iraq, or to develop an effective multilateral response to terrorism, is simply another manifestation of that crisis, another moment in which international law is called upon to renew itself and reassert its relevance. International law is thus a useful site to explore modern responses to the pervasive uneasiness about legal authority and its legitimacy. Attention to anxious representations about what lies ‘beyond’ the law allows an exploration of the nature of the crises of legal authority that haunt modernity, and have returned again so traumatically in this time of terror. International law is also a continuing source of extremely productive responses to that crisis of authority. These responses include conventional attempts to find a new sovereign ground for the law, whether that be in the form of international organizations or of powerful national sovereigns who stand outside the law and guarantee its operation. But international law is also a source of much more surprising and radical responses to the sense of anxiety produced by that crisis. This article develops these arguments through engaging with readings by Jacques Derrida and Shoshana Felman of Sigmund Freud's Beyond the Pleasure Principle. Beyond was written at a time of some crisis for the new discipline of psychoanalysis and for Freud, its sovereign. At stake was the relevance of the discipline, its lack of mastery over its own knowledge, and questions of its proper heirs. All of these issues are at stake for the discipline of international law today.

Recent cases before the ICC raise the question of on behalf of which entities crimes against humanity can be committed. Interpreting the ‘organizational policy’ requirement in its context, this article argues that in principle crimes against humanity can be committed pursuant to or in furtherance of a policy of any organization that has the capacity to orchestrate a widespread or systematic attack against a civilian population. It is shown that this does not broaden the scope of the crime indefinitely but that concrete requirements defining such entities are found in the contextual elements of crimes against humanity.

This article argues that a contemporary form of ‘cosmopolitan legality’ serves as an animating force behind contemporary practices of global civil society and global governance. The first part provides an account of the recent history of civil society engagement with the World Trade Organization. It observes that civil society groups have focused their collective efforts on issues relating to procedural legitimacy, including accountability, openness, and transparency, potentially to the detriment of efforts to bring about more fundamental change. In the second part of the article, various theoretical approaches to cosmopolitan legality are discussed, including their claimed Kantian origins, and are mapped on to the preceding discussion of the place of a global public sphere in global governance. Programmatic approaches that purport to mobilize cosmopolitanism in the service of either a political or legal project are ultimately rejected, and a provisional alternative reading is suggested.

Focusing particularly on the moment of decolonization, in this article I look at the paradoxes attending the endurance of the statist framework in conceptualizing territorial self-determination as well as in curtailing it. A range of protagonists in the decolonization drama, from the departing colonial powers to Third World nationalists to international jurists, have all clung to the modern nation-state as the means through which self-determination is to be realized. Against the enduring hold of the state, this article tries to foreground the ways in which the statist paradigm prematurely forecloses the self-determination options available to the nomadic communities of Western Sahara, and cramps debates about boundary and uti possidetis in Burkina Faso and Mali. In this vein the received categories of the territorially bounded state reach into the postcolonial imagination to discipline, codify, and produce ‘independence’. At the same time, however, the difficulties confronted by the boundary delimitation process in Burkina Faso and Mali suggest that the reach of the territorially bounded state is limited. It is limited by the sub-national and transnational complexities of people's lives, but also by the indeterminacy of cartographic documentation and the complexities of colonial and postcolonial bureaucracies. Rather, it is argued that international law has a contradictory relationship with decolonization, desiring the self-determination of the former colonies, while also harnessing the decolonization project to fulfil its own desires, ‘to reproduce the law's assumptions regarding the ends of freedom’.I am indebted to Doris Sommers for this formulation.

The pronouncements of punishment for war crimes, crimes against humanity, and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) will be among its most important legacies for international law and international relations. The purpose of our research is to examine the judges' opinions on the determinants of punishment and, most especially, the data on sentences handed down by the trial chambers in order to understand which factors are the most powerful in explaining sentences. We find that there is a fair degree of consistency in the sentences conferred on the guilty. By systematically examining all the sentences both doctrinally and empirically we can see that sentences are premised on those critical factors that the judges are admonished to employ by the ICTY Statute and their own Rules of Procedure and Evidence.

The African Union marks a new era in institution-building in postcolonial Africa. It is conceived as an aspect of Africa's response to the challenges of globalization and regional integration. It is also part of the historic quest for deeper African unity. This discussion focuses on the political and contextual dynamics behind this development, and assesses its significance for the project of African integration. While offering no extensive examination of all the core provisions of the Constitutive Act, particular attention has been paid to some key principles. It is argued that the African Union represents a significant departure from the political, legal, and institutional framework of the OAU, and is predicated on a range of principles that reflect new thinking and approaches among the African states.

This article explores the understanding of nature reflected in the international legal classification of territory, as reflected in the doctrines of terra nullius, res communis, and the common heritage of mankind. It provides an overview and analysis of each of these concepts, noting the frequently problematic role they have played in legitimating the exercise of political and economic power. It then analyses the continuities and discontinuities between these categories. It argues that, despite surface changes, a narrow instrumental view of nature and the environment continues to be deeply embedded in much of our current thinking about jurisdiction over territory, and can be seen as constituting one of the ongoing barriers to thinking about the environment in more innovative and sustainable ways.

The difficulty in identifying the contours of the international regulation of the use of force is not merely the product of the highly politicized character of this area of international law, let alone of the divide between theory and practice. This paper submits that the problem rather lies in the fact that the interpretive community that produces the official discourse on the use of force is no longer able to agree on the way in which legal categories and interpretive techniques should be used to identify the applicable law. A reflexive consideration, by all actors involved, of the method by which the discourse on the use of force is formed seems to be necessary in order to establish or restore, within that interpretive community, the societal consensus needed to provide the international community with a common understanding of the extant regulatory framework and its scope of application.

Governments perceive UN human rights conventions and the law of the World Trade Organization (WTO) as separate legal regimes. WTO jurisprudence, by contrast, interprets WTO rules as parts of international law and may soon be confronted with legal claims that WTO obligations are to be construed with due regard to the human rights obligations of WTO members. The diverse constitutional traditions of WTO members, and their political opposition to linking WTO law to human rights, make it unlikely that WTO members will respond to the UN proposals for a ‘human rights approach to trade’ by adopting a WTO Declaration clarifying that WTO rules are flexible enough to be interpreted and applied in conformity with the human rights obligations of WTO members (section 1). Following the invitation by WTO Director-General Pascal Lamy to form ‘cosmopolitan constituencies’ in support of global public goods (like a rules-based world trading system), this article makes concrete proposals for the initiative by the International Law Association (ILA) to elaborate an ILA Declaration clarifying the complex interrelationships between trade law, human rights and WTO jurisprudence (section 2). As many human rights arguments presented in trade disputes in the EC Court and in the European Court of Human Rights could likewise be raised in WTO dispute settlement proceedings, the article examines whether the ‘constitutional methodologies’ applied by European courts offer lessons for further ‘constitutionalizing’ trade governance in the WTO in conformity with the human rights obligations of all WTO members.

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.

To help states parties circumvent domestic prohibitions on, inter alia, the extradition of nationals, the ICC Statute formally distinguishes ‘surrender’ of individuals to the Court from interstate ‘extradition’. The European Arrest Warrant contains a similar solution. As (successful) constitutional challenges by nationals to be surrendered under a European arrest warrant indicate, such a (semantic) distinction may not suffice. Despite considerable differences between surrender within the EU and to the ICC, these cases offer useful guidance to domestic legislatures occupied with implementing obligations arising under the ICC Statute so that they can ensure that ICC requests concerning the surrender of nationals can be honoured.