This article establishes the normative connection between Japan’s responses to regional hegemonic order prior to the nineteenth century and its subsequent engagement with the European standard of civilization. I argue that the Japanese understanding of the ‘standard of civilization’ in the nineteenth century was informed by the historical pattern of its responses to hegemony and the discourse on cultural superiority in the Far East that shifted from Sinocentrism to the unbroken Imperial lineage to the national-spirit. Although Japanese scholars accepted and engaged with the European standard of civilization after the forced opening up of Japan to the Western world in the mid-nineteenth century, they did so for instrumental purposes and soon translated ‘civilization’ into a language of imperialism to reassert supremacy in the region. Through intellectual historiography, this narrative contextualizes Japan’s engagement with the European standard of civilization, and offers an analytical framework not only to go beyond Eurocentrism but also to identify various other loci of hegemony, which are connected through the same language of power.

The recent investor–state arbitration claim of Piero Foresti, Laura De Carli and others v. Republic of South Africa considers the extent to which international human rights obligations might be compromised by investor protections. In this regard, the paper examines the investor protection known as fair and equitable treatment (FET). It addresses this treatment obligation in the context of the South Africa–Italy bilateral investment treaty, and its invocation by investors who feel wronged by South Africa's black economic empowerment policies. It analyses the main interpretative theories of the FET clause, and concludes that it is to be interpreted as a self-contained treaty standard. This sui generis approach to interpreting FET clauses more accurately reflects the intentions of the state parties. Such a view supports the conclusion that international human rights should be considered in the interpretation of the FET clause.

The rules of treaty interpretation are ordinarily met with scepticism not only by critically-minded international law theorists, but also by mainstream international legal scholars who otherwise believe in international law’s normative power. The objective of this article is to inquire whether, despite their much-discussed shortcomings, the rules of treaty interpretation have any ‘cash value’ in the sense given to this expression by one of the founding fathers of the philosophy of pragmatism William James, in other words, whether they make any practical difference. To do so, this article revisits the traditional understanding of the rules of treaty interpretation and argues that they cannot directly bridge the gap between the signifier and signified, but rather are designed to impose a ‘common discipline’ with respect to the admissible means that can be used in treaty interpretation.

The Leiden Journal of International Law (‘LJIL’) has always endeavoured to promote diversity and interdisciplinary enquiries in the international law epistemic community. Interdisciplinarity and diversity, albeit necessary in the long-term to refresh and update the discipline, raise numerous questions and epistemic challenges in the short-term. On the initiative of Jean d'Aspremont and Larissa van den Herik, today continued under the present editorship, these challenges have been at the heart of past LJIL editorials.

Article 31(1)(d)1 of the Rome Statute of the International Criminal Court (ICC Statute) presents an important opportunity to reconsider the defence of duress in cases of unlawful killing. While the case of Erdemović has done much to substantiate the existence of the defence of duress at international law it appears to have curtailed the doctrine by interpreting it with reference to a strict form of proportionality characteristic of duress as justification. On the other hand, duress as excuse requires some measure of proportionality. This article will contend that the hybrid approach of Nuremberg Military Tribunals (NMTs), defined duress and the moral choice test primarily by reference to culpa in causa, not resorting to duress, and a ‘softer’ proportionality and in doing so, provided a more flexible and workable model for duress. Article 31(1)(d) of the ICC Statute, although an interesting attempt to find the balance between duress as excuse and justification, is a missed opportunity to redefine the defence in international criminal law. An alternative test for duress, with reference to the principles that emerged from the jurisprudence of the NMTs, is required in order to find the correct balance between duress as excuse and justification.

There is a long-standing claim and ambition in international investment law that treaties and customary law contribute to economic development in countries hosting investment. However, this claim remains controversial and has been hotly debated among academics. The article explores how international investment law, understood as international investment agreements (IIAs) and their associated dispute settlement mechanisms, can support the right to development. It does so by analysing how rules regarding protection and flow of foreign direct investment have and can contribute to realizing the right to development and help achieve sustainable development goals. It finds that IIAs have had limited effects for promotion of investment into or restricting the policy space for least developed and low-income countries. It argues that potential effects of IIAs cannot be properly understood without taking into account other means of protecting and promoting foreign direct investment, i.e., national investment legislation and contracts. So far, national investment legislation is likely to have had more significant impact on flows of foreign direct investment and policy space of host countries than IIAs. Reforms of IIAs to increase synergies with the right to development will, therefore, have to be based on knowledge about and assessments of the dynamics between IIAs, domestic investment legislation, and investment contracts.

The long-simmering process of sidelining and side-stepping migrants’ rights protection while attempting to regulate cross-border movement of people was heated up by the 2015 migration crisis and has recently been brought to the boil with the crisis-fuelled adoption of the UN Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. The GCM represents an endorsement at the international level of soft-law, goal-setting frameworks for international co-operation on migration as it pertains to migrants’ rights, and a corresponding disavowal of any role for binding legal obligations in this field. Focusing on the EU, I argue in this article that states’ sovereign powers in the realm of control of non-EU migration have been largely undiluted by the development of the international system of human rights protection. I show how the 2015 migration crisis galvanized multilateral international co-operation on the part of the EU and its member states in the field of non-EU migration in a way that entrenched EU states’ sovereign self-interest by institutionalizing a soft-law approach, thereby producing a crisis from the perspective of migrants’ rights protection. I also argue, however, that the migration crisis facilitated a resurgence of state sovereignty in the EU to the detriment not only of migrants’ rights, but also of internal EU co-operation and co-ordination. Finally, I suggest that in times of crisis supranational courts are particularly susceptible to being recruited to EU states’ rights-restrictive approach to international migration.

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.

Looking at the migration management policies at Europe’s external Aegean border, this article examines how and why infrastructures of protection come to function as technologies of border violence. The repurposing of rescue rafts for extreme border violence in the Aegean Sea reveals a little-examined dark side of European ‘migration management’ as a process purportedly aimed to ‘civilize’ Greek coastguard operations. In transforming life-saving materials into life-threatening ones, patterns of border violence tell an alarming story about the relationship between law, politics, and the materiality of physical objects: absent concrete political and moral commitments to international protection, rescue’s physical infrastructure has been weaponized. The weaponized life raft further challenges the assumptions underpinning European ‘migration management’: the idea that technocratic solutions can fix structural injustices, or that ‘neutral assistance can ensure human rights compliance. The case study thus demonstrates the incompatibility of managerialism with human rights protection in the context of contemporary migration.

Before the 2015 annual meeting of the European Society of International Law, participants were notified of a ‘women in international law’ happy hour for exchanging ideas on ‘the improvement of representation of women’. At the convivial and well-attended event in Oslo, organizers thanked the men who were present, remarking that their support was not only welcomed but also necessary. This theme of inclusion resurfaced in side conversations about past conference panels on gender that noted the supportive role of senior male academics in audiences comprised primarily of women. Gender was mainly discussed along a single axis of male/female rather than intersectionally. Other categories of identity, such as ethnicity and nationality, remained on the sidelines of this event, which focused on the role of women within the field.

Hans Kelsen's vast body of work is perhaps one of the best examples of the unremarkable but important point that one's legal theory and methodological choices are intricately tied up with how one understands international law. Kelsen stands for a huge number of different positions, but chief amongst them must be his insistence on developing a ‘pure’ theory of law that accounted for the unique normativity of law, separate from empirical facts and causality on the one hand, and substantive theories of justice on the other. For Kelsen, the unique normativity of law is found within the legal system itself, in the idea of normative imputation – the ‘linking of a conditioning material fact with a conditioned consequence’. According to Kelsen, this specifically legal sense of ‘ought’ is an a priori category that allows us to correctly cognize the legal meaning of empirical data.

Jeff McMahan's challenge to conventional just-war theory is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability. IHL's failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has raised questions about IHL's adequacy also among international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes the quintessential war as presenting what I call an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. Commitment to the above moral standard, then, means that IL should not prejudge the outcome of wars and must, somewhat paradoxically, diverge from morality when making prescriptions about the conduct of hostilities. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just-war theorists like McMahan that the failure of IL to track morality in war is merely a function of contingent institutional desiderata. IHL, with its moral limitations, has a continuing role to play in IR.

The participation of developing countries in the international legal system poses a perennial dilemma. On the one hand the brutal facts of international economic and commercial interdependence make such participation inevitable. On the other hand, developing countries, for various reasons and with varying degrees of intensity, have articulated their reservations, or indeed experienced considerable difficulties, with respect to such participation. This article considers this dilemma with special reference to the experience of Sub-Saharan African countries in international commercial arbitration.

The ICTY Trial Judgment in the Prosecutor v. Tihomir Blaškić is the first judicial decision to explicitly address unlawful attack charges. This article reviews the judgment focusing on how the trial chamber addressed individual criminal responsibility, unlawful attack charges, the crime against humanity of persecution, and the relationship between the two offences. The author observes that the decision contains little legal analysis but a review of the factual findings sheds light on legal assumptions. In particular, the findings indicate a willingness to accept that indiscriminate or disproportionate attacks might provide evidence of attacks essentially directed against civilians, a tendency to regard ad hoc ill equipped resistance to an attack as equivalent to no resistance, and a tendency to evaluate the lawfulness of an attack on the basis of what happened after the attack as well as during the attack.

To what extent do rules of general international law apply between international organizations and their members? The article tackles this question by distinguishing between two categories of relations: those that take place on the international plane and those that are, rather, situated on the institutional plane constituted by the organization’s internal law. I argue that general international law applies by default to relations belonging to the first category, only being displaced when the internal law of an organization contains applicable lex specialis, but that it cannot claim a similar role at the level of internal institutional relations. The question there becomes one concerning the dialogue between relatively autonomous international legal orders, so that it is the internal law of each organization that defines the terms on which rules of international law are allowed in. At the same time, a normative argument can be made for a ‘monistic presumption’ for the application of general international law in cases where the rules of the organization are silent. By delving into such questions of applicable law and identifying the relevant analytical frameworks, the article aims to help international lawyers dealing with complex disputes opposing international organizations and their members to structure the legal analysis.

This article examines the reasoning and findings of the International Court of Justice in its judgment in Djibouti v. France on issues pertaining to the immunities and inviolability of state officials. While recognizing the Court's contribution to the clarification of certain aspects of the legal regime of the immunities and inviolability of state officials, the article emphasizes a number of points on which a clear response cannot be found in the judgment. Moreover, some concerns or doubts are raised about the way in which the Court dealt with certain issues regarding, in particular, the classification of immunities, their scope, their implementation, and the acts precluded by their operation. The Court's judgment clearly shows the complexities surrounding the legal treatment of numerous aspects of a topic which continues to be of the highest importance and sensitivity in international law and international relations.

This essay examines the impact of the distinction between situations and cases under the Rome Statute in national laws on co-operation with the ICC. It argues that this distinction is likely to create difficulties in three areas: (i) the communication of the notitia criminis to the Court; (ii) admissibility issues in proceedings under Articles 18 and 19 of the Statute; and (iii) the efficacy at national level of admissibility rulings by the Court.

The crime of attack on peacekeepers has gained specific attention in the practice of various international courts and tribunals, including the Special Court for Sierra Leone and the International Criminal Court. This article revisits the historical origins, the foundations, and the main issues from a prosecutorial perspective arising in the interpretation and litigation of this crime. It argues that the crime poses unique challenges in relation to charging practice and evidence.

The last decade marked the unprecedented increase in the importance of the role of judicial bodies in the maintenance of international legal order and their assumption of hitherto unprecedented judicial powers. The principle of consent and its implications are the issues that pose major questions on possible limitations in this process. The tension between these conflicting factors has been witnessed in the treatment by the ICJ of the disputes related to the right of convicted foreign nationals to consular notification. In LaGrand, the Court made substantial advances in terms of diminishing the role of the principle of consent as an obstacle to proper judicial enforcement of international obligations. Avena – a similar case – demonstrates that such an approach has acquired an important degree of consistency in the ICJ's jurisprudence.

The objective of this article is to evaluate whether the distinctive nature of the international law on indigenous peoples reflected in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) can be explained by reference to the service conception of authority developed by Joseph Raz. The article rejects arguments that the distinctive character of UNDRIP can be justified by ideas of ‘Indigenous Sovereignty’, not least because ‘sovereignty’ was developed in Western political thought in contradistinction to a constructed and imagined dystopian state of nature endured by the indigenous populations of the Americas. Instead, the work seeks to understand the UNDRIP regime in the light of Raz’s conceptualization of legitimate political authority, concluding that the inchoate and under-theorized international law on the rights of indigenous peoples becomes comprehensible within this framework.