The taxonomy of genres is always a work in progress. It is away of describing empirical data, facts that may change across time. Dark fantasy, and the subgenres which can usefully be included within it – template dark fantasy and paranormal romance – are in some measure developments of the last two decades; they are publishing categories, but also ways of thinking about texts which already existed, or which were not automatically allocated to dark fantasy on their first appearance. Nothing that is said here is a criticism of earlier attempts at a taxonomy, so much as a clarification in the light of subsequent information and later texts.

John Clute in the 1997 Encyclopedia of Fantasy was almost sceptical about whether the term ‘dark fantasy’ was useful at all, pointing out that usage varied at that time to a remarkable degree, sometimes being used almost synonymously with ‘Gothic fantasy’, sometimes to sanitize horror fiction's perceived low-rent image. The Encyclopedia itself opts for a usage that this article will dispute:

To early European visitors, America was a land of the fantastic. Their reports were full of strange people, weird foodstuffs, incredible riches. Such travellers' tales inevitably became the basis of literature about America which, during the sixteenth and seventeenth centuries, was often written to advertise colonial ventures by people who had never been there. During the first 300 years of European settlement in America, settlers primarily saw themselves as British, French or Spanish rather than as American, and what literature there was, therefore, tended to continue such fanciful forms, or to follow European models, subject matter and sensibilities. By the time of American independence, however, journals featuring American poets, essayists and short story writers were being published in New York, Boston and Philadelphia.

Of the first generation of American novelists who used the Gothic mode around the time of the Revolution and in its immediate aftermath, the most significant was probably Charles Brockden Brown. Brown absorbed the Gothic sensibilities and radical perspectives of writers such as Mary Wollstonecraft and William Godwin. His reading informed a series of startling, often violent novels which appeared over a very short period at the end of the century. The first published was Wieland; or, the Transformation (1798), in which the title character is driven to madness and murder by a malevolent ventriloquist who makes Wieland believe he is hearing the voice of God. In Edgar Huntly; or, Memoirs of a Sleep-Walker (1799), Huntly sets out to find a murderer but, after a mysterious episode of sleep walking, discovers that the real villains are American Indians who committed the crime to foment a war against the settlers.

What is the relationship between fantasy and history in historical fantasy novels? The historical fantasy is a hybrid of two seemingly opposed modes, fantasy, with its explicit rejection of consensus reality, and historical fiction, a genre grounded in realism and historically accurate events. Jana French, in her work Fantastic Histories: A Dialogic Approach to a Narrative Hybrid, argues repeatedly that the tension in historical fantasy comes from the opposition of two extremes, ‘a clashing of two vastly different discursive mediations of the historical world’. She writes that such a clash is generative of insights into the nature of historical writing precisely because such an extreme contrast ‘radically destabilize[s] the normal contract between reader and text which tells us what kind of novel we are reading’ (5). Thus French takes an extreme separation, or even opposition, between history and fantasy to be normative, and historical fantasies to be remarkable precisely because they put two radically dissimilar discourses into dialogue. But K. L. Maund in John Clute's Encyclopedia of Fantasy points out that ‘Fantasy as a genre is almost inextricably bound up with history and ideas of history,’ relating fantasy to the historical swashbucklers of H. Rider Haggard and others, and noting that a number of fantasy authors such as Judith Tarr and fantasy scholars such as Farah Mendlesohn have been trained as historians. Writers of historical fiction and of fantasy must engage in world-building, in constructing and familiarizing their readers with a world foreign to their own and yet fully realized as a world complete unto itself with its own mores, customs and tensions. Thus in historical development, individuals and techniques, fantasy and historical fiction are not as polarized as French claims.

Introduction

Several fundamental problems confront those seeking to find the sources of international law. First and foremost, at the conceptual level, there is no constitutional ‘machinery for the creation of rules of international law’ so that the notion of ‘formal sources’ is misleading (Brownlie 2008, 3). Additionally there is the phenomenon of ‘fragmentation’ of international law (see, e.g., Koskenniemi 2007; Shaw 2008, 65). What we can search for is evidence of ‘general consent of states [that] creates rules of general application’; sources that may provide such evidence are, for example, decisions of the International Court of Justice (ICJ), United Nations General Assembly resolutions and various ‘law-making’ multilateral treaties (Brownlie 2008, 3–4). But these ‘sources and evidences’ are extensive, diffuse and decentralised. Even locating them is a challenge.

Although there is still no substitute for a fully equipped law library, this vast range of potentially relevant materials is increasingly accessible on the internet. This account of electronic sources conforms to the categories of article 38(1) of the ICJ’s Statute (see Charlesworth, Chapter 8), but adds some additional materials, not specifically identified in the Statute. These are: Section 5 which deals with ‘Other Sources’, such as UN Resolutions and ‘soft law’; and Section 6, listing ‘Guides, Encyclopaedias and Digests’ which are useful as starting points for searches on particular problems or topics.

A fragmenting arena

Analysis of regulation in trade, investment and money must take account of the specific characteristics of each field. The following discussion will be macroeconomic, leaving aside the legal dimension pertaining to economic actors’ individual behaviours and transactions. The field of the investigation is complex, whether approached from a normative angle (how are trade, investment and finance regulated?) or an organic angle (who regulates trade, investment and finance?). The complexity increases when both endogenous and exogenous perspectives are taken into account. From the endogenous perspective, the traditional fragmentation allowing for the cohabitation of the distinct fields of trade, investment and monetary regulation is called into question by their increasing interdependence. From the exogenous perspective, complexity arises from the progressive penetration of international economic regulation into other fields of regulation, such as the environment, health and human rights. Tensions are often created by the way an economic approach is imposed on fields alien to economics. The various interconnections and more or less confrontational frictions thus reveal a distinct need for linkage.

Though this need – and the search for consistency – has been intellectually identified for a long time, its expression in the practice of law and politics is relatively recent and, overall, little has been achieved in terms of concrete results. Two remarks can, however, be made at this point.

Introduction

International law is constantly under challenge as a legal system. Some scholars depict it as weak, mutable, unstable (Morgenthau 1948, 284), some as the mere product of states maximising their interests (Goldsmith and Posner 2005), some point to it as the framework of many mundane activities, for example as the basis of airline travel or international postal services (Henkin 1979, 29–30), while others explain its value as a ‘placemarker for justice’ or as a vehicle for the ‘regulative ideal of the international community’ (Koskenniemi 2007, 30). Perhaps because there is so much anxiety about whether international law can claim to be a branch of law, the topic of the making and sources of international law dominates most introductory works. It is as if pinning down the well-springs of international law will provide certainty and authority for the discipline.

Where does international law come from? The sources of international law are a complex tangle of ideas, commitments and aspirations. In national legal systems, law is typically regarded as the product of legislatures or court systems; it is relatively straightforward to identify the legal principle at stake in a dispute, even if there is debate about its application in a particular case. There are also institutions at the national level that enforce the law, such as police forces and civil authorities, reinforcing the significance of legal status. By contrast, modern international law is to some extent the product of the behaviour and agreement of states, and to some extent the product of abstract values such as ‘humanity’ (Peters 2009), ‘fairness’ (Franck 1998), or ‘communitarian values’ (Tasioulas 1996). Jurists debate the proper respective contributions of state consent and moral values to international law, although of course the two may sometimes coincide. However defined, this mixture is a volatile one, which, together with the less-certain enforcement of international law, makes it appear more negotiable and uncertain than domestic law.

As a definition of a category of fiction, ‘slipstream’ is abused as much as it is applied. Part of this is due to the subjectivity of its definition and its implementation – as originally coined by author Bruce Sterling circa 1989 it referred to contemporary literature that utilized certain modalities of genre fiction in building a new postmodern extra-genre creation, but in practice it has long since abandoned the limits of this definition, with cross-pollination blowing furiously in both directions, because of which, like the category of magical realism before it, the term has become a confused plurality. As with the nature of the fictive reality slipstream describes, it is itself inconstant.

My sense also is that slipstream is not a new tradition so much as a new alloy, mercurial and shape-shifting. The reader, in approaching something so slippery, must come prepared to submerge in layers of possible meaning. The skimming reader who only engages with surfaces may find some purchase but will miss the breadth of examination, meaning and resonance, and probably come away dissatisfied.

The alloy that is slipstream requires of the reader an ability to roll with the punches, to shift through a kind of multitasking approach to the story. The reader must come at the story with a willingness to flow with such shifts even if unaware of the sources. Like someone from the pen and paper universe forced to interact with a computer for the first time, readers versed only in traditional, unadorned narrative may feel they are leaping into a void.

‘Writers of colo(u)r’ is a term which has emerged in the United States as an extrapolation from ‘people of color’, which itself emerged as a response to two issues: first, that many people in the USA who do not identify as white do not identify as black either; and, second, this more expansive terminology ‘acts as a recognition that certain people are racialized’, and allows for wider coalitions and more complex discussions, in addition to moving from a ‘negative’ (non-white) to a positive description. Writers of colour may be of African, Asian, Indigenous Australian, Native American or other heritage not discussed here.

The term ‘writer of colour’ is not uncontested in terms of its application. To begin with, it is a term used by US and Canadian writers, and by Caribbean authors resident in those countries; it has not been widely used as yet in the United Kingdom or elsewhere. More important, it has to be used with caution when one is dealing with authors who, while presented as writers of colour in the USA or the European market, are members of the dominant, majority group in the land in which they were born, lived and wrote. Miyuki Miyabe is a Japanese author who continues to live in Japan, but whose work has been available in translation since 1999, and who some consider a ‘writer of colour’ within the Anglo-American market. Hayao Miyazaki, author of one of the great Japanese fantasy mangas, Nausicaa of the Valley of the Wind (1982–94), is similarly positioned, part of the hegemonic culture in which he lives, but potentially read as ‘other’ when read within the Anglo-American fantasy market.

Jorge Luis Borges's flash fiction story ‘On Exactitude in Science’ (‘Del rigor en la ciencia’) features an incredibly detailed, albeit cumbersome map, similar to the one in Lewis Carroll's Sylvie and Bruno Concluded (1893), that is drawn exactly to the same scale as the world itself, matching the terrain ‘point for point’. As Alfred Korzybski notes, however, ‘A map is not the territory.’ Even when a cartographer precisely records the exact dimension of every twig and pebble in the empire, s/he will fail to capture the unique character of the mapped terrain itself. This is especially true when mapping abstract, epistemological or metaphysical countries. Critics of fantasy are continually mapping the territories of the fantastic, and this essay represents a foray into the critical and generic landscape of modern and postmodern fantasy, all the while recognizing the futility of an expedition that obsesses over the precise demarcation of boundaries and borders. Even if we could produce an exact map of the Fantastic (Post)modern Empire, adding landmarks work by work until the map becomes as big as the empire itself – this is modern fantasy; that is postmodern fantasy – we would fail to capture the qualia (the essential, defining quality) of the territory itself. Such a perfect, meticulously drafted, scale map would ultimately prove useless, good only when ripped into tatters for critics and scholars to huddle under in the deserts of literary criticism, like the beasts and beggars in Borges's story.

‘Sovereignty’ as a distinctive attribute of the state

Chapter 4 explored the question how it is that various peoples (the Lithuanians, the Thais . . .) have a state of their own; whereas others (the Kurds, the Tibetans . . .) do not. Despite the manifest historical contingencies involved, once statehood is generally recognised – evidenced most obviously by admission to the United Nations – then a new situation arises, a category divide is established, marked by the legal category of statehood. The new state is ‘sovereign’, has ‘sovereignty’; and this is true, no matter how fragile its condition, how diminutive its resources. Vattel (1714–1767), who systematised the pre-1914 law of nations in his treatise of 1758, put it thus: sovereign states are to be considered as so many free persons living together in the state of nature, that is to say, without a common civil law or common institutions; in such a situation they are ‘naturally equal’, and inequality of power does not affect this equality; ‘[a] dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom’ (Vattel 1758 [2008], Bk. I, Preliminaries, §18). And despite all that has changed since 1758, the basic concept remains: states are ‘political entities equal in law, similar in form . . ., the direct subjects of international law’ (Reparation for Injuries suffered in the Service of the United Nations, ICJ Reports 1949, p. 174, 177–178). As the Badinter Commission, established to advise on legal issues arising from the breakup of the former Yugoslavia, put it, ‘such a state is characterised by sovereignty’ (Opinion No. 1 (1991), 92 ILR 165).

Introduction

What is the character of international law as a legal system? How different is international law from municipal law? Is this difference significant or is it made into more than is justified? What consequences flow from international law being a distinct legal system in terms of its practice and prospects?

International law as a discipline has exhibited an unusual propensity to ask such questions, perhaps because, historically and politically, this has often seemed less a matter of course than for domestic legal orders. In truth the debate about international law as law covers three distinct though related questions. The first deals with what type of legal system international law is. It is immediately quite clear that international law operates differently from domestic law. But to what extent is it a sui generis legal system? Second is the rather more ominous question of whether, on the basis of its defining characteristics, international law can even qualify as ‘law’ properly so called. Confronted with widely publicised and spectacular violations of international law, popular opinion is often tempted to give up on the idea, yet international law is routinely treated as law by its practitioners. Why this disjunction? Third, one of the difficulties in determining what sort of law international law is, or whether it is law at all, is that it is a constantly evolving legal system that has seemingly taken many different shapes over time. Is international law so changeable that it lacks the minimum stability a legal order should have, or is it instead remarkably constant over time despite the appearance of constant renewal?

Introduction

When the English philosopher John Austin delivered the six lectures he published as The Province of Jurisprudence Determined in 1832, he argued that there were laws properly so-called (commands that are ‘armed with sanctions, and impose duties, in the proper acceptation of the terms’ (Austin 1832 [1995], 119) and laws like international law that were laws improperly so-called, by virtue of an ‘analogical extension’ of terms such as ‘law’ and ‘rule’ (ibid., 123). Austin considered enforcement, or at least enforceability, an essential ingredient for the existence of law. Since international law presented no obvious or readily identifiable machineries for its enforcement, it had taken the name of ‘law’ in vain and it could hold no claim to this status. To similar effect, a popular Japanese song of the 1880s had it that ‘There is a Law of Nations, it is true,/but when the moment comes, remember,/the Strong Eat up the Weak’ (Sansom 1965, 407). International law had, however, historically considered the matter of its existence as separate from its enforcement: the former spoke to the validation and authority of this law as law; the latter to questions of its effectiveness. And this stands to reason: a law can only be enforced once we have been assured of its promulgation.

Sudan, December 2008

In a camp for displaced persons in Darfur, children have tied a cord around a hedgehog’s neck. ‘This is President Bashir and we are taking him to the International Criminal Court.’ Awaiting the BBC and CNN, spokespersons for the displaced chant: ‘We need NATO, the EU and the ICC.’ Tribal leaders, asked why they no longer use traditional justice mechanisms, explain: ‘This is genocide and only the International Criminal Court can address genocide.’ New-born boys have been named ‘Ocambo’, after the Court’s Prosecutor. Bolstered by ‘brother’ Ocampo’s request for an arrest warrant for the Sudanese President on charges of genocide, crimes against humanity and war crimes, one of the rebel movements has launched an attack on the Sudanese capital and another has refused to participate in peace talks, arguing that one should not negotiate with ‘war criminals’. The Sudanese government, in turn, publicly denounces the International Criminal Court (ICC). Driving from the airport into Khartoum one is greeted by enormous billboards showing a strong President and reading: ‘Ocampo’s Plot: A Malicious Move in the Siege’, ‘Protect the International Law from Ocampo’s Illusions’ and ‘No for the Oppression of Peoples under the Name of International Law!’

Introduction

Statehood has long been the central organising idea in the international system. Although there is no generally accepted legal definition of statehood, the best-known formulation is found in the 1933 Montevideo Convention on Rights and Duties of States: defined territory, permanent population, government and capacity to enter into relations with other states. Paradigmatically, territory, people and government coincide in the state to produce international law’s map of the world as a jigsaw puzzle of solid colour pieces fitting neatly together.

Although the state as territory–people–government is international law’s main device for representing the world, the intersection of this definition with other doctrines of international law complicates the picture. As this chapter shows, the result is a diversity of representational mandates: some states are made to carry one meaning, others another. From different conceptions of the state, the chapter moves next to different models of its centrality. The story it tells about international law scholarship proceeds from the state’s twofold significance as the international system’s main organising idea. First, on the analogy between states in international society and individuals in a society, states are like individuals. The accent on the state–individual analogy is basic to traditional international law, in which states are central in the sense that they are the only full legal subjects. But are states like individuals in a state of nature, as Thomas Hobbes famously thought, or are they like individuals in a state? Insofar as they tend toward the latter – or the domestic state even serves as the comparator for the international system – then ideas of the state fundamentally organise international law in a second sense. The international system is held up to the domestic state, whether in a concrete analogy or in some more abstract search for appropriate principles or a style of approach. And on this international system–domestic state comparison, the actors in the international system need not be limited to states.