Rankings and indicators have been with us for a while now, and have increasingly been objects of attention in international law. Likewise, they have been with the LJIL as a journal for a while now. Our so-called ‘impact factor’ is, to my untrained eye, the most prominent feature on the LJIL webpage hosted by our publisher. So this editorial is something of a rearguard action. The indicators and rankings, however, keep piling up. Proliferation may afford a perverse sort of optimism, about which below but, as will be clear, I do not share it. The increasing number and command of indicators and rankings reflects a consistent trend and a bleak mode of knowledge production. Knowledge production has been a topic in these pages recently, for instance Sara Kendall's excellent editorial on academic production and the politics of inclusion. I mean to continue in that vein, with respect to other aspects of the political economy of the academic production of international law, especially at a nexus of publishing, scholarship and market practices. There is an undeniable element of nostalgia in what will follow, but I do not really mean to celebrate the publishing industry, status quo ante, that has put me in this privileged position to wax nostalgic. The academic publishing business is flawed. What we are preparing the way for is worse. When I say we, I mean to flag my complicity, both as an individual researcher and as an editorial board member. I use the word complicity to convey a personal anxiety, also in my role as editor, so let me be clear: the LJIL board has no policy concerning rankings, and rankings have never influenced review at the journal. Moreover, while I cannot claim to speak for the LJIL as a whole concerning the topic of rankings or any other matter, nor is mine exactly a dissenting voice on the board. The tone of this polemic is mine alone; the concern is not.

This article analyzes the interactions between norms formally stemming from different orders and regimes so as to demonstrate how and to what extent the legal spaces composing the transnational legal sphere are intertwined. Furthermore, it addresses the consequences of the intertwinement and suggests a fresh approach to the traditional concept of legal orders: it stresses a norm-centered rather than system-centered understanding of the transnational legal sphere. It argues for a norm-based strategy in order to understand the phenomenon of intertwinement, analytically deducing the relationship of the legal orders from the relationship of the legal norms.

A recent editorial in this journal stressed the need to rearticulate the methodology – and thereby the distinctiveness – of international law in the context of blurring disciplinary lines between international law and international relations. The aim of this article is to contribute to the methodological aspect of the debate. First, the article outlines a legal empirical approach, which complements legal methodology of international law with empirical tools and techniques such as citation network analysis and corpus linguistics. Second, the article applies the approach on the case law of two European courts: the Court of Justice of the European Union (CJEU), and the European Court of Human Rights (ECtHR). It demonstrates how the study of case citations and the language of courts enhance the validity, reliability, and transparency of the established legal method. In particular, scholars of international law gain a stable and complete quantitative basis for a further in-depth study of case law, precedent and interpretation. Additional benefit stems from a set of transparent criteria by which to criticize the jurisprudence of international courts. Firmer ground emerges from which to evaluate the courts’ role in the political process, their societal impact and their legitimacy. At the same time the approach preserves the main features of the distinct legal methodology of international law – especially its attention to legal detail.

The expanding reach of international investment law and the negotiation of major economic treaties between democratic polities have prompted new debates about the relationship between democracy and the international investment regime. This article develops an analytical framework for understanding that relationship. It first unpacks the concept of democracy, exploring the ‘rules-based’ and ‘action-based’ conceptions that emerge from political theory and their relevance to international investment law. It then examines three themes that frame the relationship between democracy and international investment law: the interface between the investment regime and national democratic space; the place of democratic processes in investment treaty making; and public participation in the settlement of investment disputes. The interplay between rules- and action-based dimensions provides a common thread across the three themes. The article concludes that there is a gap between formal rules and citizen action in promoting democratic oversight, and significant scope to develop more effective mechanisms to install democratic governance in the creation and implementation of international investment law.

As a result of the 2010 sovereign debt crisis and the subsequent restructuring operations, bondholders have pursued different dispute resolution strategies. Litigation before US courts has proved to be a viable option, as demonstrated by the Argentine cases. State court litigation, however, is not the only available forum: in some cases, bondholders have commenced arbitration proceedings against the issuing state.

Arbitral case law has been consistent in concluding that the holders of sovereign bonds issued by the host state qualify as investors and thus have standing to bring investment treaty-based claims. The recent Poštová award, however, casts doubts over whether holders of sovereign bonds qualify as investors for the purposes of international investment law.

This article illustrates the main problems revolving around the qualification of sovereign bonds as investments for the purposes of international investment law. The article summarizes the relevant legal framework and the solutions adopted by arbitral case law so far. Subsequently, the contents of the Poštová decision are addressed in detail and the consequences of this decision are scrutinizsed.

This article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceedings ought not to undermine the value of finely reasoned arbitral decisions grounded in law and justice. It also argues for a contextual assessment of ICA that extends beyond the debate over ‘judicialization’.

Using global illustrations and ICA developments in Australia as an initial guide, this article suggests that balancing party autonomy, accountability, efficiency, and fairness in ICA can help resolve these growing criticisms of ‘judicialization’. Ultimately, the reform of international arbitration should take place within a framework of ‘international best practice’ that is both analytical in nature and functional in operation. As such, ICA should not only be affordable and expeditious, it should serve as a legitimate and effective method of resolving international commercial disputes. In addition, it should balance the virtue of transparent proceedings against the need to respect the confidences of the parties.

International humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

As a standard of review, ‘objective reasonableness’ has been in the academic spotlight after the Whaling in the Antarctic judgment of the International Court of Justice (ICJ or the Court). The Court's approach was conceptually innovative and seemed to have operated a partial reversal of the burden of proof in favour of the applicant. In response to certain criticisms addressed to that decision, this article makes two claims. First, ‘reasonableness’, while being inherently vague, gives a justifiable degree of discretion to judges, thereby enabling them to make difficult adjudicatory choices without departing from the applicable legal framework. Second, the term finds sufficient support in the Court's case law dealing with state discretion in the implementation of treaties. Both claims relate to the very same core idea: that even if one remains sceptical as to the capacity of the term to enhance certainty, ‘reasonableness’ is a basic conceptual tool that facilitates judicial review in complex cases, including those of a scientific nature.

International criminal law is being pulled in different directions by various conflicting considerations – deterrence, retribution, justice for victims, reconciliation, and setting the historical record. This trend is detrimental to the survival of the system as it erodes coherence and undermines its legitimacy. One may suggest that international criminal law needs a principle objective to bring order to the system. This article argues that while this statement may be true, it is equally important to have a discussion about pragmatic policy choices underlying the system. Acknowledging that the role of international criminal law is symbolic assists with constraining over-ambition implicit in the discipline. Treating symbolism as a policy consideration places necessary checks on other goals proclaimed by international courts and UN executive bodies and also serves as a tool informing the exercise of discretion in international criminal law.

The emergence of new international criminal courts in the 1990s intensified an existing professional contest to define international crimes. This ongoing competition concerned which crimes should be termed international and consequently become the subject of international institution-building and prosecution. The article draws upon Pierre Bourdieu's analytical tool of the ‘field’ in order to investigate how legal professionals located in different fields of practice have crafted and promoted specific crimes as international, in successive phases. The focus of the analysis is on two stages of this development. The first is the protracted emergence of a field of ‘core crimes’ centred on a specific set of crimes: genocide, crimes against humanity, and war crimes. The second is an emergent contestation of this focus on ‘core crimes’ embedded in the careers of legal professionals engaged in the field of anti-corruption. By adapting the impactful narratives developed around core crimes, this second phase of contestation becomes a new frontline in the wider endeavour to define the role of criminal law in a larger international space of governance and politics.

In this article, I argue that we need a better understanding of the theoretical underpinnings of the current debates in international law surrounding hate speech and inchoate crimes. I construct a theoretical basis for speech acts as incitement to genocide, distinguishing these speech acts from speech as genocide and speech denying genocide by integrating international law with concepts drawn from speech act theory and moral philosophy. I use the case drawn on by many commentators in this area of international criminal law, the trial of media executives for the roles they played in the Rwandan genocide through public speech acts by media entities insulting an ethnic group or advocating violence against an ethnic group. Each of these men were institutional leaders and were charged with using their positions within Rwandan society to distribute what I call genocidal hate speech, genocidal incitement speech, and genocidal participation speech. I argue for a distinction between these three types of speech, and a difference in individual criminal liability for the dissemination of each type of speech. I also argue that there should be a difference in individual criminal liability for speech acts within the context of an ongoing or recent genocide, and speech acts that can be separated from a site of mass violence.