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This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.

This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.

This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.

This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.

The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.

This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.

This chapter deals with the applicable procedure in investment treaty arbitration. It notes that although investment treaty arbitration has a public law character, the applicable procedure typically follows the model of international commercial arbitration. With this in mind, the chapter considers whether some features of the procedure that is applied in domestic public law litigation — in particular, in judicial review proceedings before domestic courts — might be relevant and applicable to investment treaty arbitration, so that it might better reflect its public law function. It then reviews the applicable procedure in such proceedings in the United Kingdom, Australia, the United States, Germany, and France, and suggests that the following aspects of procedure are worthy of consideration by investment treaty tribunals: the evidence-gathering powers of domestic tribunals, aspects of the inquisitorial process, the regime for access to the courts for non-disputing parties, and the diverse range of available remedies.

This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.

This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no ‘moral sources’, while legal sources are central to the law. It argues that legal interpretation is primarily the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. The chapter shows how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality.

This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.

This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force behind the word as foundations in the search of beginning and meaning. None satisfied him and he ultimately found the solution in the deed. The chapter reads discussions in the International Law Commission surrounding the Vienna Convention on the Law of Treaties and its rules of interpretation through the lens of Faust’s quarrels. It introduces the challenge for both sources doctrine and received ideas about the nature of interpretation that comes with semantic pragmatism and the proposition that it is the deed that generates meaning and legal normativity. The chapters draws attention to the legitimacy implications of this challenge in the specific constellation of the international legal order and sets out the book’s agenda.

While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

This chapter tests the hypothesis that the presence of specific kinds of disagreements in most contemporary legal systems — those that we call interpretative disagreements — is a characteristic feature of law. It considers whether disagreements about the interpretation of sources of law would not simply be compatible with, but indeed presuppose, an agreement on the identification of those sources. To verify the hypothesis it discusses, in light of a refined taxonomy of legal disagreements, how the ambiguities in Dworkin's reconstruction of legal disagreements may affect his critique of Hart's legal positivism. It also investigates the relevance of the notion of legal disagreements for general jurisprudence. On the basis of the linguistic character of legal norms, the chapter maintains that interpretative (meaning-content) disagreements and institutional (source-based) agreement are related in such a way that it makes sense to talk of a ‘dual nature’ of law.