This issue of the International Community Law Review explores contemporary issues within the wider international legal discourse from across the global and theoretical spectrum. It demonstrates the breadth of topics that can be affected by international law. From acts of aggression by States, to international investment agreements, from Third World Approaches to International Law to questions of justification for jus cogens claims; international law touches upon many areas of life previously considered the realms of politics, economics or philosophy.
The issue begins with a theoretical examination of the justifications for a claim that a norm has the status of jus cogens. In ‘The Emperor’s New Clothes – What If No Jus Cogens Claim Can Be Justified?’, the author critiques the logics of legal positivists and legal idealists in making claims about jus cogens norms. In so doing, he questions the rationality of an international legal discourse that makes jus cogens claims at all, even if it does so with the admirable intent of providing constraint on State conduct. The author concludes that if sufficient justification for such claims cannot be made, they should be discarded in favour of other means that better serve this purpose.
The theoretical vein continues in our second article which provides a timely exploration of Third World Approaches to International Law (TWAIL) in ‘TWAIL: a Paradox within a Paradox.’ The author investigates how TWAIL’s scholars represent its theoretical credentials and where its contribution fits into the broader field. The article presents the role of TWAIL as providing an alternative to a ‘Euro-centric’ vision of international law; one that is more sensitive to Third World concerns in its engagement with international law. Through a lively discussion of the underlying theory of this approach, this article presents TWAIL as at times radical, challenging, anti-orthodoxy and political.
The issue then makes a doctrinal shift into the growing area of scholarship on the crime of aggression. In our third article entitled: ‘The Activation of the International Criminal Court’s Jurisdiction over the Crime of Aggression: International Institutional Law and Dispute Settlement Perspectives’ the author explores the categorisation of the resolution that activated the International Criminal Court’s jurisdiction over the crime of aggression and how this will affect its interpretation under international law. The article presents the decision to activate the crime of aggression as a ‘Rule of the Organization’ and clarifies its legal binding effect on the interpreter under international institutional law. The author argues that, where a dispute arises with regard to the interpretation of the Rome Statute on the crime of aggression, two separate regimes at the ICC exist for the settlement of disputes: the judicial function and general international dispute settlement mechanisms.
The issue ends with a discussion of international investments agreement (IIAs) and their potential impact. ‘The Chilling Effect of Indirect Expropriation Clauses on Host States’ Public Policies: a Call for a Legislative Response’ presents that the use of indirect expropriation clauses within IIAs has resulted in unfavourable consequences on the protection and promotion of public welfare. The author argues that this is due to the absence of a definition of ‘relevant rules’ and scant jurisprudence which causes a lack of clarity and consistency in treaty interpretation. She calls upon states to formulate an effective and unambiguous legislative response to ensure the ‘chilling effect’ is avoided.
Kathryn Allinson
Managing Editor, International Community Law Review
PhD Candidate, Queen Mary University of London, London, UK
Teaching Associate, Department of Law, University of Bristol Law School, Bristol, UK
