This is the third issue of the Periphery Series of the Leiden Journal of International Law. The first two were dedicated to the works of the Chilean jurist Alejandro Álvarez and the Nigerian international lawyer Taslim Olawale Elias – two scholars from regions conventionally cast as ‘peripheral’ to the discipline's metropolitan ‘centre’. This issue takes a somewhat different perspective by focusing on a country (or subcontinent) as a whole. Its primary questions concern the way in which Indian scholars have imagined, shaped, and reshaped international law; the manner in which India's domestic system has received international law; and the ways in which India has been projected by the international legal system.

After setting out the importance of the notion of an international community in contemporary treaties, International Court of Justice judgments and opinio juris, this paper claims that we need to turn to Cicero's works in order to appreciate a sense of what an international community is. Cicero was the first jurist known to recognize and elaborate a theory of the international community and this through his concept of jus gentium. Cicero's theory of jus gentium, I argue, was neither a positivist theory nor a natural law theory. Instead, jus gentium dwelt in an intermediate position between posited state laws and the laws of nature. I find a problem, however, in that Cicero exempts certain types of society from the guidance and protection of the jus gentium. I document examples of the sort of society so exempted. In order to understand why Cicero exempts such societies from the protection of the jus gentium, I argue, Cicero's theory depends on a primordial condition where human beings, living an animal-like existence, lack a language and reason. Cicero posits that human beings must leap from such a primordial condition into a civilized world where language is shared. Cicero associates a civilized world with communication, deliberation, reason, and law, particularly the jus gentium. His theory of jus gentium thereby hierarchizes societies and begs that we ask whether such a hierarchy remains presupposed in contemporary international law and international legal theory.

This article, based on a lecture offered in honour of Professor Cleveringa, provides some insights into the difficult question of ‘unjust laws’ and the place of ethics in law, with an emphasis on international law. While this question has long been a bone of contention between natural lawyers and positivists, it has a particular importance in international law. Attention is paid to the role of ethics in the context of non-discrimination and armed conflicts.

It is tempting to introduce this special section in an apologetic tone. Has not enough been written, in recent years, on constitutionalization, that new phenomenon and term which has recently entered the world of politics and law, closely related to global constitutionalism, to constitutionalism in international law? And is there really a need to publish another three articles on Hans Kelsen, Carl Schmitt, and Hannah Arendt, instead of highlighting new faces and frames of thought in international law and its theory?

As the clash of aspirations increased among European countries, a European ‘civil war’ started in 1914, which engulfed the whole world. With all the terrible destruction and loss of life, it was felt that an international organization must be established to avert war in future. At the Paris Peace Conference in 1919, the British government succeeded in gaining separate representation for its dominions, including India. This created a rather anomalous situation, since a dependency of a foreign power, a colony which could not control its internal affairs, was accepted as a sovereign state by an international treaty. Europe had hardly recovered from the First World War in the late 1920s when it drifted towards a second holocaust in 1939. India became a founding member of the United Nations in 1945, even though it was still under British rule, participating in the historic founding conference. But Indian national public opinion was neither very hopeful nor enthusiastic about the conference on the new international organization. Not only India, which was not even independent at that time, but Asian countries as such played a very small and insignificant role in the formulation of the UN Charter.

In this article I am interested in seeing what the normative jurisprudential support is for a minimalist version of habeas corpus in international law. I investigate what Fuller called ‘procedural natural law’ in contemporary international criminal law. In the first two sections I rehearse some of Hart's and Fuller's views as they pertain to the subject of international law and also to the inner morality of law. In the third section I set out some of my views on these matters, drawing on both Hart and Fuller, concerning the value of fundamental procedural rights. In the fourth section I discuss the right of habeas corpus as a good test case of how to think about these issues. In the final sections I expand on these remarks and argue that procedural rights need to be protected better in international law, if the latter is to have a claim to legitimacy as a mature legal system.

While today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalization, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies, that scholarship claims competencies which it does not have, and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen's arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) of the UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the rediscovery of a strictly legal – that is, structural – constitution as the highest echelon of legal regulation.

This article considers the relationship of international law and the media through the prism of human rights. In the first section the international regulation of the media is examined and visions of good, bad, and new media emerge. In the second section, the enquiry is reversed and the article explores the ways in which the media is shaping international legal forms and processes in the field of human rights. This is termed the ‘mediatization of international law’. Yet despite hopes for new media and the Internet to transform international law, the theoretical work of Jodi Dean warns of the danger to democracy of commodification through the spread of ‘communicative capitalism’.

The principle of complementarity is one the cardinal features of the architecture of the Rome Statute. Complementarity provides not only a forum to advocate overlapping competencies and litigate jurisdictional disputes over admissibility (e.g. Articles 17 and 19), but marks the foundation of the Statute as a multidimensional system of justice (e.g. Preamble, Article 1). This topic has been a focus of attention of the Court since its very inception. When taking office, the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, qualified complementarity as one of the key factors for the successful operation of the Court, noting that ‘the absence of trials led by [the] Court as a consequence of the regular functioning of national institutions would be a major success’. As of 2003, the Office of the Prosecutor (OTP) has developed guidelines and principles on complementarity in order to clarify its theoretical underpinnings and operational features.

This essay seeks to sketch and evaluate international law scholarship in post-colonial India in the period 1947–2007. The exercise is undertaken to assess how Indian scholarship has coped with the dual life of international law: the fact that it is both an instrument of domination and possible emancipation. It is contended that while the dominant approach of formalist dualism, which critiques colonial international law but embraces the narrative of progress in the present, has made a seminal contribution to the world of international law, in particular the first articulation of Third World approaches to international law (TWAIL), it has not adequately addressed deep systemic structures that underlie contemporary international law. It is argued that this task is performed more effectively by a critical dualist approach that problematizes the structure, ideology, and practices of global capitalism. The essay concludes by reflecting on the future tasks of Indian scholarship.

Carl Schmitt is still astonishingly present in the legal discourse. Yet instead of indulging in the study of his explicit ‘lesson’ and its possible impact on contemporary legal problems, it might be worthwhile to survey the primary cause of his greatest fear. Following this perspective, the article analyses Schmitt's concept of the nomos, distinguishing it from the traditional normativist approach on the one hand and confronting it with a more recent understanding of law in terms of the network conception on the other. Thus Schmitt's view of the developing legal system in the twentieth century proves to be relevant to our current efforts to grasp newly emerging legal phenomena in the twenty-first century.

Global constitutionalism is becoming increasingly prevalent in international legal discourse. While the various contributions give the impression of a seemingly complex and diverse debate, the contributions in fact all share some significant omissions and biases. It is argued here that the limitations, to be found in the disregard for processes such as fragmentation, and the biases, to be found through such realities as hegemony in international law, give rise to the necessity of a reconceptualization of the global constitutional debate. It is suggested that global constitutionalism should be reconfigured in terms of what is called ‘organic global constitutionalism’. Organic global constitutionalism should be understood as being defined by constitutionalism as process, constitutionalism as political, constitutionalism as a ‘negative universal’, and constitutionalism as a promise for the future. These features would offer an alternative way of framing the debate and a means of redeeming the idea of global constitutionalism.

On 22 July 2009 a Tribunal of five leading international lawyers rendered their award at the Permanent Court of Arbitration (PCA), thereby redrawing the boundaries of Abyei, a small patch of land in the centre of Sudan and source of violent conflict throughout recent years. The arbitration was initiated by the two signatories of the Comprehensive Peace Agreement (CPA) that in 2005 brought an end to the longest civil war in Africa. Both parties, the government of Sudan and the Sudan People's Liberation Army/Movement, expressed satisfaction with the award, which conceivably saved the CPA from potential collapse. This article examines the legal oddities which accompanied the settlement of the dispute over the Abyei area. It analyses both the referral of the dispute to the PCA through the lens of the Sudanese Constitution and the legal ambiguities of the award itself.

The admissibility challenge of the defence in Katanga has raised complex issues of litigation in the light of the practice of self-referrals and existing ICC jurisprudence. This article examines the Katanga Trial Chamber decision and its consequences from this perspective. It focuses on three themes that are of particular relevance, since they have a direct impact on the functioning of the Court and its different organs: (i) the timing for a challenge of the admissibility of the case; (2) access to information related to admissibility; and (iii) the role of the defence.

The approach of Indian courts towards international law has been consistently evolving. Initially, the Indian constitutional framework provided a flexible basis for the application and use of international law, the reasons for which could be seen in the socio-political context of India as a developing country. India, for its part, continued to argue that it remained essentially at the periphery of the mainstream international law, as it had no role in formulating some of the basic principles of international law. For the Indian courts the first substantive encounter with international law emerges in the context of several territorial-related issues. The socio-political context forms the next phase, for the Indian courts to have recourse to diverse international legal norms relating to the environment and human rights and applying them as a persuasive tool. Later, the development context brings a complex array of commercial, environmental, and other related international legal norms into the Indian legal system. For Indian courts, in the present context, the correct sourcing and identification of international legal norms and their application remain a huge challenge. The majority of the legal systems of developing countries for varied historical reasons continue to treat international law as an exotic legal tool to be used sparingly, perhaps only to broaden the interpretation of or sustain a comparable domestic legal norm.

‘What is politics?’ is an omnipresent question in Hannah Arendt's work and one which is broadly explored in countless publications. ‘What is law?’, in contrast, is a question which has not been of much interest to Arendt scholarship to date. There is a good reason for this: Arendt's engagement with law seems not to be systematic but, rather, episodic and sporadic. However, on the basis of three different discourses – historical, political-theoretical, and legal-philosophical – I shall point out that Arendt's dealing with legal questions takes place on a continuous basis and should be regarded as crucial for a proper understanding of her thoughts. I shall argue that with her shift from the Greek conception of law as nomos to the Roman lex, Arendt seeks to de-substantiate the concept of law and to highlight the relationship-establishing dimension of law. Both attempts are important for overcoming the dichotomy of law and politics within constitutionalism and for paving the way to a different understanding of legal rationality which seeks not to isolate law from the political sphere but rather to interact with it.

This article critically assesses the role of provisional measures indicated by the International Court of Justice in protecting populations during armed conflict situations and the legal consequences attached to the violation of such measures. A number of relevant cases, including the most recent Georgia v. Russia case, are dealt with. Provisional measures aimed at protecting populations affected by armed conflict have been increasingly requested in the last two decades by states finding themselves at a military disadvantage. Questions remain, however, with regard to the suitability of these incidental proceedings to deal with major political controversies resulting in armed conflict between states. That notwithstanding, it is submitted that although compliance with such orders of the Court remains unsatisfactory, in the long term provisional measures can eventually strengthen state compliance with commonly agreed international human rights and humanitarian law standards.

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

Indian responses to international law have now seen three generations of scholarship. A decade into its independence, India began playing its role in what has retrospectively been referred to as Third World approaches to international law (TWAIL). The early 1990s witnessed the rise of TWAIL II. Armed with interdisciplinarity and inspired by the subaltern pathology of the state in the 1970s, TWAIL II scholars barged into areas with approaches never seen before. Bhupinder Chimni alone discovered six perspectives of international law from India. My article picks up from where Professor Anand has left off and adds a seventh ‘tribal’ tale to Chimni's six. It is also argued that the category ‘Third World’ needs redefinition, as pockets of poverty are increasingly betraying geography. Indian law schools have also been evaluated vis-à-vis promotion of TWAIL. The paper covers, as comprehensively as possible, approaches and issues, direct or collateral, regarding an international law from India.

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.