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.

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.

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 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 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.

The right of self-defence against non-state actors is increasingly invoked and accepted in the practice of states. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host state, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, states invoking self-defence against non-state actors rely on the involvement of the host state with those actors to justify the use of force in that state's territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host state's due diligence obligation to protect the rights of other states in its territory. All of these solutions are deficient in some way, and have failed to receive general endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non-state actors.

‘Climate change inundation’ – the process whereby climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns interact with and exacerbate existing vulnerabilities like poverty, isolation, resource scarcity, and inadequate infrastructure – presents a unique challenge to the territorial, legal, and political infrastructure of low-lying coral atoll island states. This article uses the example of climate change inundation to illustrate some of the shortcomings of the mainstream ‘minimum threshold’ account of statehood. It then proposes an alternative account of the criteria of statehood as a set of overlapping similarities or relationships between state-like entities, drawing on Wittgenstein's concept of ‘family resemblances’. Although problematic in some respects, this family resemblance account provides a broader conceptual space for assessing the merits of alternative forms of statehood.

The International Court of Justice and other international tribunals have a much more prominent role in settling international disputes than they did 50 years ago. It follows that the measures for the protection of the independence of the institutions and their members are even more important. Those protections include the qualifications judges are to have, the methods of their election and selection, their commitment to their responsibilities, and their methods of work. Also important are the reactions to their decisions by states, particularly the parties, the wider international community and the contribution of the rulings of the institutions to the clarification of the law and its development.

In recent times, transitional justice practice has increasingly seen truth commissions tasked with administering accountability programmes, distinct from, and in addition to, their traditional truth-seeking role. Such accountability schemes typically take the form of granting or recommending amnesty for those who disclose involvement in past crimes or facilitate reintegration on the basis of similar disclosures. Self-incriminating disclosures made in the course of traditional truth commission proceedings generally attract a robust set of legal safeguards. However, the protections within transitional accountability schemes administered by truth commissions tend to be less stringent. This article explores this anomaly, focusing particularly on the extent to which the privilege against self-incrimination is protected within truth commission-administered accountability programmes. It considers the programmes operated to date, and the levels of protection afforded, and demonstrates a lack of consistent practice in the safeguarding of individual rights within these programmes. It examines international legal standards on the privilege against self-incrimination and questions whether the procedures operated by accountability programmes can be reconciled with international norms in order to protect those who make self-incriminating disclosures within accountability initiatives. The article argues that a failure to ensure individual rights against self-incrimination risks compromising the efficacy of the programmes themselves and the contribution that they can make to long-term peace and reconciliation in transitional states.

The justification for a majority of international judges sitting on hybrid international criminal tribunals is tremendously undertheorized. At present, policymakers must rely on base pragmatic considerations that allege that local judges are either too incapable or too corrupt. This may or may not be true. It is, however, certainly unattractive and inadequate as an argument. In this article, I sketch out a principled theoretical argument defending internationalization of hybrid tribunals. Drawing on debates in municipal jurisdictions on the principle of fair reflection, my principled justification centres on institutional and sociological legitimacy. As international crimes strike at two societies – the local and the global – hybrid tribunals should be composed of both international and local judges. In principle, the severity of international crimes dictates that international judges should predominate. However, peculiar contextual factors may suggest moderating the principle of fair reflection in appropriate circumstances.

The interplay between the International Criminal Court (ICC) and domestic jurisdictions under the complementarity regime has unveiled statutory and policy limitations. These loopholes became vivid when the ICC faced new complex situations that were not initially envisaged by the drafters of the Rome Statute. On the practical side, the Libyan situation revealed setbacks and shortages in the policy(ies) adopted by the ICC. The first of these setbacks is the apparent lack of a coherent strategy on positive complementarity as invoked by (some) organs of the Court. The second aspect is the Court's adoption of a restrictive interpretation of the constituencies of the complementarity regime, making it extremely difficult even for some willing and able states to exercise their primary duty to prosecute core international crimes.

The unfortunate loose interpretation of ‘unavailability’ that the ICC has developed has led to inaccurate interpretations of the complementarity mechanism in certain situations, such as Libya. Furthermore, the fair trial standards within the admissibility regime should not be exaggerated, but rather invoked to determine whether the state has a bona fide intention to investigate and prosecute these crimes. Contrary to some writers’ interpretation, this is an objective test of intention, not one of relativity or specific result.

The ICC practice has shown a patchy approach that lacks a consistent and clear vision of its relation with domestic jurisdictions. While the ICC has not missed every opportunity to hail its commitment to positive complementarity, the reality is that the Court seems keen on understanding its success through conducting more international prosecutions.

The debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

Despite the great body of academic research on international criminal justice, little attention has been given to the situation of those who have been acquitted. This article aims to fill this gap by offering an empirical overview of what happens to persons acquitted by the ICTY, ICTR, and the ICC. Rather than providing an in-depth legal analysis, the article emphasizes the challenges acquitted persons encounter. It discusses in particular: (1) to what extent and why some acquitted individuals are barred from residing in the country of their preference; (2) whether and why they are facing subsequent prosecution; and (3) what obstacles there are for acquitted persons seeking to obtain compensation for the lengthy periods spent in detention. Although similar problems may be experienced by individuals who have been acquitted for conventional crimes in domestic systems, the authors argue that persons acquitted by international criminal tribunals are relatively more susceptible to post-acquittal challenges because of the unique nature of the alleged crimes and the institutional context in which international criminal trials take place. The authors conclude that there are no easy solutions, and that some of the problems identified are inherent to the system of international criminal justice.