The past few decades have witnessed a proliferation in the writings on risk and uncertainty. Led by the work of writers such as Beck, Luhmann, Ewald, and Giddens, scholars across the humanities and social sciences have been engaged in reflections on the ways in which our understanding of risk structure informs decision-making and the attribution of responsibility. One of the central topics in this body of literature is the transformation of the concept of risk in postmodern societies.

This article argues that orthodox international law is committed to the state at the expense of the Other, that which is not the state, and, at a more philosophical level, to ontology at the expense of ethics. Drawing on the philosophy of Emmanuel Lévinas, it seeks a shift from ontology, focusing on Being, to ethics, constituted by our responsibility to the Other. Section 1 argues that international law assumes the natural existence of a Being of the State and that this ontology of statehood constitutes the ontology of international law. Section 2 explains how the ontology of statehood having been transformed into an epistemology ultimately leads to the violent suppression of alterity. Section 3 proposes a number of projects and strategies through which we may pursue the ethics of alterity in international law. The article concludes with a discussion of three tensions within international law: statehood–alterity, ontology–ethics, and law–politics.

In this article, I apply René Girard's theory of generative violence to the international law relating to the use of force. I argue that texts of international law make gestures of referral towards an immanent normativity on the fettering of divine violence. The means to this end is a form of sacrificial violence that seeks to promote the preservation and cohesion of the ‘international community’. The structuring of this violence through international law and its repeated staging reproduces the relationship of prophecy to miracle. Empirically, I draw mainly on excerpts from the 2006 US National Security Strategy.

This special issue of the Leiden Journal of International Law on the Nigerian international lawyer Taslim Olawale Elias (1914–91) marks the second of the journal's Periphery Series. The collection of essays featured here serves essentially two functions. On the one hand, it pays tribute to an exceptional jurist whose work marked international legal scholarship during the years of decolonization. On the other, it invites critical engagement with the theme of international law's ‘periphery’. The centre–periphery formulation, as explained elsewhere, owes its provenance mostly to recent debates in political economy. It is a spatial metaphor which postulates a structural relationship between a presumed ‘centre’, typically portrayed as advanced or metropolitan, and a less developed and provincial ‘periphery’. In such debates the centre–periphery opposition is assumed as stable, decisive, and representative of the empirical reality of a ‘world out there’. The Periphery Series was launched in 2007, with a special issue on the Chilean jurist Alejandro Álvarez, to foster engagement with the discursive function of centre–periphery oppositions in public international law in its various iterations, and to confront questions of resource allocation, dependency, geography, and power.

This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

The recognized benefits to a hegemon of working through an intergovernmental organization (IGO) include legitimating its policy preferences, disseminating them with efficiency, and promoting stability. While most would agree that international law is important in this process, it is less easy to map exactly how international law fulfils this role. Using the cognitive structures of co-operation (CSC) approach to the political interpretation of multilateral treaties, this article demonstrates at a relatively low level of abstraction the way in which a constitutive treaty embeds an ideational structure integral to the political relationships within the IGO. This can serve the interests of the hegemon but may also make it difficult for the hegemon to disseminate a fundamentally changed policy should its preferences alter. This paper uses the CSC theory of treaty interpretation to trace the under-recognized role of the United States in bringing about the 1982 adoption of a moratorium on commercial whaling by the International Whaling Commission.

The idea of randomness is mostly excluded from international legal argumentation. If we need law at all, we are told, it is precisely to avoid arbitrary fortuity. Nonetheless, the exclusion of randomness renders international law structurally incapable of dealing with general risk issues, be they external or manufactured. The core of the problem is the notion of causation. International law seems to be infused by a model of causation that excludes any consideration of randomness. The law of state responsibility and certain elements of international trade law bear witness to this point. Randomness, however, is Janus-faced, and risk is its correlate aspect. By excluding randomness, risk is also left out. Therefore the model of causation embedded in international legal language makes that very language incapable of framing the ideas that a risk society needs to express. It is not surprising, then, that risk societies turn to other languages to express their needs, as is evidenced by the WTO SPS disputes. In this context, international law seems to become a broker of expertise, which refers to the relevant epistemic community that is needed to ‘get the job done’, and abandons any aspiration to holding an independent normative pull in itself.

Taslim Olawale Elias's intellectual and juristic legacy remains unparalleled in many material respects. He left a remarkable body of work, as an African legal scholar in London in the years between the late 1940s and Nigerian independence, as a legal administrator while he served as Nigeria's first Attorney General and Minister for Justice, among his achievements as the dean of the new faculty of law at the University of Lagos, and as a national and international judge. Born on 11 November 1914 in Lagos, Nigeria, into a family of merchants, he began formal schooling at the age of 12, a fact that was greatly overshadowed by a prodigious academic performance and by the plethora of distinctions and accolades (including sixteen honorary degrees in four continents and a host of national and international honours) that he would acquire during his indefatigable study and practice of the law, and in his contributions to its evolution.

The article analyses the approach concerning the rules of attribution of conduct to a state followed by the ICJ in the Bosnia v. Serbia case, and contrasts it with that of the International Law Commission. How far the Court modified its own jurisprudence in this field of law is also addressed. Moreover, the question will be discussed of whether the standards applied in the Court's decision are appropriate, considering the needs of the international community regarding the harmful action of private actors conspiring with states.

The long awaited judgment of the International Court of Justice (ICJ) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide was handed down on 26 February 2007. It has attracted the attention of the international legal community as well as political circles. In addition, the world media – not to mention the local media – have taken note of the judgment, with leading newspapers carrying the story on their front pages rather than buried deep within, as sadly tends to be the case with international legal issues.

This article understands risk dialectically as a decision-making resource stressing probability but as also giving rise to further uncertainties. It shows that the panel report in EC – Biotech reflects an understanding of risk as decision-making that is deterministic and leaves little room for the application of precautionary approaches and non-scientific factors. It submits that such an approach is unsuitable for novel technologies with limited background knowledge and reduces the accountability of risk regulators. A different approach is put forth, which allows members greater scope for precautionary action while preventing trade protectionism. The article concludes that law can enhance its authority and epistemic validity through scientific evidence but only if it recognizes science's epistemic and its own limitations. Law has to approach science as contested knowledge and risk regulation as political decision-making, leading – inevitably – to more indeterminate solutions to legal conflicts.

This article takes as its starting point the characterization of T. O. Elias as a representative of a ‘weak’ form of anti-colonial scholarship. Elias had sought to show that the ancient African kingdoms had participated in international legality with European states on an equal footing. The view has arisen in contemporary scholarship that this mode of argumentation is typical of the weak strain, evincing only a continued tendency to underestimate the imperial nature of international law itself. A related criticism is that many Third World scholars like Elias view international law's claim to universality and its ability to be inclusive as relatively unproblematic concepts. This article presents two interlocking claims. First, that while Elias was persuaded by the idea of a universal legal order derived from European thought, he never accepted the European view of universality. Vitoria and Grotius had paved the way for the idea of a universal legal order, but, as Elias was consistently aware, the extension of the European law of nations to Africa and Asia in the name of universality was unaccompanied by theoretical recognition in European legal thought that such universality cannot be unilaterally achieved on specific cultural terms. Second, that Elias did not view universality as an unproblematic concept. While he considered the legal order inherited from the European law of nations never to have been universal in its application, the post-colonial legal order could in principle approximate more closely to an ideal of democratic universality. We focus on Elias's attempt to substitute the doctrinal requirement of individual, sovereign consent with majoritarian lawmaking based on democratic theory, and his faith in the machinery of the United Nations as a ‘technology’ which post-colonial states would employ to put democratic majoritarianism into practice.

This essay critically examines T. O. Elias's international legal scholarship, especially in so far as he sought to reclaim, or claim, a place in international legal history for Africa. Having found that Africa contributed to the formation of international law, Elias argued in favour of reforming its rules so that they could serve the interests of the newly independent African states. In this respect he influenced many contemporary international lawyers in Africa and elsewhere. In particular, his singling out of sovereignty as a barrier to reforming international law is shared by generations of international legal scholars who have criticized states for placing too high a premium on their sovereignty, thereby placing insuperable barriers to their acceptance of egalitarian goals, expressed by, for example, the international bill of human rights. The essay also contrasts Elias to scholars of international law who took the colonial legacy of international law as a barrier to reforming it so that it was consistent with the interests of so-called post-colonial African states.

The article explores the political context of the Bosnian Genocide case recently decided by the International Court of Justice. It strives to show that an appreciation of the larger disputes within Bosnia and Herzegovina and Serbia is necessary for understanding the Court's judgment properly, particularly when it comes to the litigation strategies of the two parties which shaped the final outcome of the case, and, above all, for understanding how the judgment was perceived by the general public of the former Yugoslavia.

Contemporary security practices pose a particular paradox in the relationship between law and norm. On the one hand, the institution of risk practices in advance of, and in place of, juridical decisions appears to have become the technical resolution of choice to the politics of targeted security in the ‘war on terror’. The risk calculus makes possible an array of interventions – from detention, deportation, or ‘secondary’ security to asset freezing and ‘blacklisting’ – that operate in place of, and in advance of, the legal thresholds of evidence and decision. And yet, this article demonstrates, it is not the case that law recedes as risk advances, but rather that law potentially both authorizes and contests specific modes of risk management. As risk practices in the war on terror operate on and through a distinctive and novel terrain of the uncertain future, the capacity of juridical intervention to contest the exposure of people to dehumanizing technologies itself faces new potentials and limits.

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.

While risk has established itself within the social sciences in general and international relations in particular as a theoretical concept in its own right, its ‘value added’ for understanding international legal processes and argumentation is still rather unexplored. While the dominant approach to risk and law focuses predominantly on the regulation of some specified risk such as diseases or environmental ‘risks’, this contribution argues that the overall semantic shift from ‘threats’ to ‘risks’ signifies an acceleration of time underlying legal argumentation. It introduces a distinction between norms and risks, highlights the respective temporality and reconstructs the current overlap and conflict between them in the case of the European human rights regime.

The Permanent Court of Arbitration (PCA) was established at the first Hague Peace Conference in 1899. During the past decade the PCA has progressed from a period of relative inactivity to a previously unsurpassed caseload. In this article the Secretary-General of the PCA reflects on the creation and early development of the PCA, before giving a detailed overview of recent arbitrations conducted under PCA auspices. The first part of this review, concerning treaty-based arbitration, analyses the role of the PCA in the resolution of disputes under the United Nations Convention on the Law of the Sea, illustrated by the arbitrations conducted in the Guyana/Suriname, Barbados/Trinidad, Malaysia/Singapore, and Ireland/United Kingdom (MOX Plant) disputes. The second part, which focuses on ad hoc arbitration, outlines the recently concluded arbitrations in the Iron Rhine (Belgium/Netherlands) and Eritrea/Yemen cases, as well as the work of the Eritrea–Ethiopia Boundary Commission and Claims Commission.

This article investigates T. O. Elias's constructions of past and future Africas in Africa and the Development of International Law. It locates Elias within Nigeria's educated elite and its oscillating constructions of past and future Africas, and turns specifically to Elias's romanticized African past of the great medieval empires as a source of legitimacy within the broader ‘development’ of international law. The article works through his depiction of ‘customary’ law in Nigeria and how the African past maintains its presence in current law, and then addresses Elias's depiction of the future represented by new pan-African institutions. Finally, the article discusses Elias's depiction of a liberating future or ‘modern’ international law – the move from consent to consensus – in which Africa seems important only within the broader population of new states, and how his conception of international law – citing Jenks and Jessup, Friedmann and Falk – with its commitment to law's reflection of society, fits comfortably within the traditions of a modern sociological jurisprudence.

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.