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.

In 2017 the Leiden Journal is celebrating its 30th anniversary. Since the inception of the journal in 1988, much has changed. This includes not only the structure, lay out, organization and publisher of the journal, but also the general environment in which the journal is published. This editorial's aim is to briefly sketch the journal's life over the past 30 years and to reflect on it.

The deep relation between the colonial past and contemporary international law has been convincingly established. Scholars from diverse backgrounds, employing a variety of approaches, have shown the multifaceted ways in which the colonial enterprise occasioned the birth of doctrines and practices that are still in common use. The conference that occasioned this symposium, the last of the project History of International Law: Between Religion and Empire, directed by Martti Koskenniemi, was held in Helsinki in October 2016 and approached the issue of the colonial legacy of international law from the point of view of specific histories. The ‘techniques of empire’ raised at the conference encompassed colonial governance in the broadest sense, looking at practices, norms and normative systems, doctrines and concepts, and events. The case studies making up the articles featured in the symposium treat subjects as diverse as the experiences of colonialism have been, assuming an array of forms. Even so, from the multiplicity of techniques certain patterns and themes emerge.

Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years. It is hoped that this retrospective will not only bring back some fond memories but also – by viewing this material as a whole, and pointing out certain gaps in the Journal’s coverage of the Court's work – stimulate future analyses.

At the end of the nineteenth century, China found itself torn between its imperial past and its nation-state future. By the time it became a Republic in 1911, China had to redefine its territory in new national sovereign terms. Until then its territory had been inscribed in more malleable frontiers and boundaries within the normative framework of the so-called ‘tribute system’. The article shows how, applying the new legal techniques of empire learned from the West, the Chinese central government, wherever possible, attempted to expand its new sovereign domain in territories like Tibet, Xinjiang, and Mongolia, where, according to international law, all the prerequisites existed for national self-determination and independence. In the context of opposing British and Tibetan claims, the Chinese appropriation of international law in the Republican period (1911–1949) helped China not only to assert itself in the international domain as a sovereign state, defending itself against Western imperialism, but also to pursue its own fictional imperial claims over Tibet, without which the Communists’ ‘liberation’ of Tibet would have not been possible. The paper highlights the interplay of imperial techniques based on international law, the relativity of this legal language, and how the strategies of empire are not only a prerogative of the West, but can be quickly adopted by those who have been subjected to them, resulting in a vicious circle.

The article proposes an innovative theoretical framework outlining preconditions for Regional International Courts (RICs) to act as engines of supranationality in different institutional and socio-political contexts. In so doing, the article nuances the theoretical approaches to supranationality and supranational adjudication. The article focuses on the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ). Both courts have been branded institutional copies of the Court of Justice of the European Union (CJEU); they have even borrowed key jurisprudential principles from the Luxembourg Court with the goal of expanding the reach of Central American and Caribbean Community Laws. Yet, both the CACJ and the CCJ have thus far failed to foster supranationality in their respective systems. This is because the conditions allowing RICs to become engines of integration lie, for the most part, beyond the direct control of the judges, most notably, with other institutional, political, and societal actors, such as national judges, regional organs, legal and political elites, as well as academics. The article thus suggests that RICs can become engines of supranationality only to the extent to which they are supported by a set of institutional, political, and societal pre-conditions allowing for the concrete enforcement of the rulings of the RIC at the regional and national levels.

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.

During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

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 EU's consistent policy towards the Israeli-Palestinian conflict has been that Israel's presence in the West Bank, East Jerusalem, the Gaza Strip (prior to the 2005 disengagement) and the Golan Heights is subject to the laws of belligerent occupation, that any purported Israeli annexation is illegal and null and void, that Israel's settlements in the Territories are in breach of public international law and constitute a serious obstacle to peace, and that Israel and Palestine should settle their conflict on the basis of public international law and through the two-state solution. In recent years the EU attempted to concretize this policy through its trade and trade-related agreements with Israel, withholding the benefits of EU-Israeli co-operation from companies and research institutions based in the Territories or operating therein, as well as from products produced therein (the New Approach). Thus, from the EU perception, the New Approach towards the long-standing conflict and its reliance on international law may be seen as an instrument to reinforce internal and external legitimacy, buttress identity cohesiveness and as a manifestation of its more robust effectiveness. But this article seeks to conduct a more careful and balanced analysis of the New Approach and in doing so to reveal that the EU's (almost) exclusive focus on non-governmental entities, such as corporations situated in the Territories, and on Territories’ products, is misplaced in terms of public international law and effectiveness. The New Approach's deficiencies, in abstracto and in concreto, as evaluated in this article, are likely to prevent it from serving as a paradigm shift in EU-Israel relations.

In November 1945, the British colonial authorities convened a court martial of members of the Indian National Army, which had fought alongside the Japanese in the Asia-Pacific War. Three defendants were charged with ‘waging war against the King’ – the equivalent of treason, set out in Section 121 of the Indian Penal Code.

At the heart of the case was the question of allegiance. The chief defence counsel, Bhulabhai Desai, had the task of presenting a legitimate – i.e., non-treasonable – exception to the duty of allegiance to a state during a war. Drawing on Hobbesian themes, Desai insisted that a specific event – the fall of Singapore – had convinced the surrendered Indian troops of the British Army that Britain was no longer capable of protecting their interests. Further, he questioned the very premise of the ‘waging war against the King’ charge, by arguing that during a war of liberation the justice of the challenger eclipsed the security of the challenged.

Desai's approach influenced Radhabinod Pal, who would take these arguments to the International Military Tribunal for the Far East. Pal, like Desai, took as his starting point the differing interests of the powerful states and their colonies. He argued that the Allies’ motives for creating the new charge of ‘crimes against peace’ were highly suspect, considering their own history of violence towards the non-Western world. Would it not potentially immobilize the struggle against colonialism? And, pace Hobbes, could not a colonized state's duty of allegiance to the society of states be relinquished?

Proportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.

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.

In March 2014, a meeting of CARICOM states approved a ten-point plan of the Caribbean Reparations Commission to achieve reparatory justice for the victims of slavery, genocide and racial apartheid in the Caribbean. With assistance from the London-based law firm Leigh Day, the aim is to reach a negotiated settlement with the governments of Britain, France and the Netherlands. What makes this case different from previous discussions on Caribbean reparations is that the claim includes an indigenous component, with ‘native genocide’ included in the title and an ‘indigenous peoples’ development program’ included within the ten-point plan for reparations. Yet reparations are problematic in the Caribbean context due to the ongoing violation of indigenous rights internally. This article analyzes the various dimensions of the Caribbean reparations discourse with regard to contemporary indigenous communities in the region. It highlights the problems at regional level with regard to state responsibility and indigenous rights, particularly in relation to land, and argues that this presents a problematic element in the claim due to the fact that violations are being perpetrated against indigenous peoples by the same states who are representing them in the Caribbean Reparations Commission. Finally, it discusses the onus on European governments to acknowledge past wrongs and the potential of ‘cultural reparations’ to contribute to the Caribbean reparatory justice programme more generally.

The principle of non-refoulement found in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of the non-refoulement obligation. However, in Europe, this has begun to change. The non-refoulement obligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle of non-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework.

The article explores the demise of the ‘colonial war’ category through the employment of French colonial troops, under the 1918 armistice, to occupy the German Rhineland.

It traces the prevalence of – and the anxieties underpinning – antebellum doctrine on using ‘Barbarous Forces’ in ‘European’ war. It then records the silence of postbellum scholars on the ‘horror on the Rhine’ – orchestrated allegations of rape framed in racialized terms of humanity and the requirements of the law of civilized warfare. Among possible explanations for this silence, the article follows recent literature that considers this scandal as the embodiment of crises in masculinity, white domination, and European civilization.

These crises, like the scandal itself, expressed antebellum jurisprudential anxieties about the capacity – and implications – of black soldiers being ‘drilled white’. They also deprived postbellum lawyers of the vocabulary necessary to address what they signified: breakdown of the laws of war; evident, self-inflicted European barbarity; and the collapse of international law itself, embodied by the Versailles Diktat treating Germany – as Smuts warned, ‘as we would not treat a kaffir nation’ – as a colonial ‘object’, as Schmitt lamented.

Last, the article traces the resurgence of ‘colonial war’. It reveals how, at the moment of collapse, in the very instrument embodying it, the category found a new life. Article 22(5) of the League of Nations Covenant (the Covenant) reasserted control over the colonial object, furnishing international lawyers with a new vocabulary to address the employment of colonial troops – yet, now, as part of the ‘law of peace’. Reclassified, both rule and category re-emerged, were codified, and institutionalized imperial governance.

Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals for binding international treaties by leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyber opinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term ‘norms’. This article argues that the reluctance of states to engage in international law-making has left a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and the Tallinn Manual project. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similar to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of inter-state cyberspace governance or a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve strategic and political goals.

The article tackles the question of how far should investment tribunals go in reviewing the reasonableness of host state conduct. Based on an evolutionary interpretation of the preamble of international investment treaties and focusing on the principle of integration as the key element of the concept of sustainable development, the article's main argument is that investment tribunals should avoid a review based on proportionality stricto sensu or cost-benefit balancing.

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.

In the South China Sea Arbitration initiated by the Philippines against China, the Chinese (Taiwan) Society of International Law (CSIL) submitted an amicus curiae brief to the Annex VII arbitral tribunal established in accordance with United Nations Convention on the Law of the Sea (UNCLOS). This article first analyzes the definition and legal nature of amicus curiae status, then introduces cases involving amicus curiae in the International Court of Justice (ICJ) and UNCLOS dispute settlement mechanisms. By analyzing relevant statutes and rules of procedure, this article assesses the acceptance of amicus curiae submissions by international courts or tribunals, in different dispute settlement mechanisms. Finally, the article describes the significance of the amicus curiae brief submitted by CSIL to the arbitral tribunal, concluding that the South China Sea Arbitral Tribunal did take the amicus curiae submission into account, but exercised caution in its consideration.