Three intertwined threads run through many recent editorials of the Leiden Journal of International Law (LJIL). They tie together many debates within and beyond the board of editors. The threads are those of the Journal's plural identity, the conversation about methods, and the spicy theme of interdisciplinarity. They are related for obvious reasons. Methodology forms one – not the only and perhaps not the foremost – factor in assessing submissions. We need to have an idea of good methodology for such an assessment to be possible. At the same time such an idea must not go against the plurality of perspectives or the Journal's aspiration to provide a forum to new and possibly unsettling voices. Research that cuts across disciplines seems especially valuable in this regard. But it comes with its own methodological challenges and tests the Journal's identity which is – albeit plural– that of a Journal of international law. It is against the background of these intertwined threads that I wish to offer a discussion of a central question that mirrors these recent debates: What makes for a valid legal argument?

A question such as this one usually results in a slightly incredulous smile on the addressee's face, as if it implies an assumption that there is time to spare in the life of an international lawyer faced with a myriad of interesting-looking publications. For a long time, writing a monograph used to be the keystone, the ultimate test, to join the academic ranks – yet today, universities grant PhD titles based on the writing of separate articles on a common theme and doctoral researchers are increasingly encouraged to choose this option, so as to ensure their ideas actually reach the intended audience. Arguably, today's academic audience is assumed not to have, or at least not to make, the time to read an entire book.

Like international legal scholarship, LJIL is in transition. Our colleagues, Larissa van den Herik and Jean d'Aspremont, who have shaped much of the role and plural identity of the journal over the past decade, in collaboration with our different sections, have passed leadership on to us, the new team of (co-)editors-in-chief. This editorial reflects on the changing role and function of scholarship in international law, a theme important to our predecessors and ourselves. This is to some extent a niche area. It has not received much attention in discourse. With some notable exceptions, legal journals are typically reluctant to address overarching meta-issues of discourse, i.e. issues of production of scholarship, the role of journals vis-à-vis other media, or the broader direction of the development of international legal scholarship. Such issues might be perceived as non-scientific by some. We feel that it is important to include such dimensions, including critical self-reflection on our discipline, in international legal discourse.

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.

Traditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

This article draws upon a neo-Gramscian analysis of world order to critically assess the relationship between neo-liberal globalization and socioeconomic rights. It argues that, notwithstanding the well-documented discursive tensions that appear to exist between neo-liberalism and socioeconomic rights, the latter have been reconceptualized in a manner that is congruent with the hegemonic framework of the former in a number of international institutional settings. This has been achieved in part through three discursive framing devices which will be termed ‘socioeconomic rights as aspirations’, ‘socioeconomic rights as compensation’, and ‘socioeconomic rights as market outcomes’. The article will conclude by arguing that, despite such appropriation, there are still fruitful possibilities for counterhegemonic articulations of socioeconomic rights to contest neo-liberal globalization.

Traditional rules of international law do not recognize a positive right of revolution, nor a prohibition thereof as the relevant rules merely place the legality of revolutions in their effectiveness. However, the recent upsurge in democratically inspired revolutions has provided high currency to proposals that seek to re-evaluate the position of international law towards revolutions. Proponents of the theory of democratic revolution have sought to establish the legality of revolutions on an elevated normative ground using the lofty ideals of human rights and democratic governance and ultimately suggesting the existence of a positive right of democratic revolution under international law. Focusing on the Arab spring and the normative framework of the African Union, this article argues that the existing (emerging) human rights and democratic norms do not necessarily provide any distinct normative justifications for democratic revolutions beyond the legality that could be possibly established on the basis of traditional norms of international law. While the study recognizes emerging norms that represent a shift away from the effectiveness doctrine, it is observed that the pro-revolutionary implications of the norms are not as obvious as their importance as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments. The article concludes with the observation that the premium placed on democratic elections in the various normative instruments underscores the centrality of elections – and, alas, not revolutions – as the primary means through which the people's constitutive power (pouvoir constituant) is to be expressed.

Environmental harm is of increasing concern to peoples and states all over the world, whether in relation to ensuring access to healthy air, water, food, and sustainable livelihoods, or coping with the diversity of challenges posed by changing climates and ecologies. While international lawyers have focused on crafting solutions to environmental problems, less attention is paid to the disciplinary role in fostering harmful and unsustainable behavioural patterns. Environmental issues are usually relegated to the specialized field of international environmental law. This project explores instead the role of nature in the general discipline, arguing that the natural environment is a determinative factor in shaping international law, and that assumptions about nature lie at the heart of disciplinary concepts such as sovereignty, development, economy, property, and human rights.

After decades of rule-of-law promotion in world affairs, international law and legality have regained scholarly imperative. Yet this has not dissolved disciplinarity between international law (IL) and relations (IR), but furthered a priori theorizing and the unilateral extension of disciplinary research agendas. A prime example is the influential ‘legalization agenda’ of IR scholarship, where an institutionalist doctrine has renarrated the ‘L word’ through a fetishizing of rules and a managerial focus on rule compliance. However, this approach confronts a problem of relevance as international struggles increasingly involve contests over how to legally characterize issues, actions, and events, and this engages juridical and normative dimensions of rule application which are beyond the managerialism of compliance. This article argues for greater sociological and critical engagement with the way in which the concept of law operates through juridico-political practices of legality, and the aim is to provide a theoretical and empirical discussion that revives the significance of the juridico-political world for scholarships which have habitually underplayed the constitutive significance of lawyering for rule application. To do so, this article, first, addresses the profundity of Kant's work and concern over law's application by a rule-applier and, second, claims this has long invited a more critical sociology. To initiate that social exploration, the paper draws on both Pierre Bourdieu's concept of the ‘juridical effect’ and the Foucauldian notion of ‘normative law’ to theorize the significance of juridical and normative practices in the making of international law's rule. In the final section, I introduce the empirical benefit of these critical sociologies by turning to the law of armed conflict (LOAC), and the ways juridical and normative power have enabled sophisticated militaries of the developed world to constrain the application of the LOAC in contemporary wars of asymmetric combat.

This article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. Through tracing the co-evolution of these assumptions about nature alongside seminal disciplinary concepts, it becomes evident that such understandings are central to shaping international law and that the discipline helps universalize and normalize them. By comprehending more broadly the relationship between nature and international law, it is possible to see beyond law's potential to correct environmental harm and identify the disciplinary role in driving ecological degradation. Venturing beyond the purview of international environmental lawyers, this article considers the role of all international lawyers in augmenting and mitigating ecological crises. It concludes that disciplinary solutions to environmental problems require radical departures from existing disciplinary tenets, necessitating new formulations that encapsulate rich and diverse understandings of nature.

In 2013 the Netherlands lost its standard bearer in international law. After a short period of illness, Pieter Hendrik Kooijmans died at the age of 79 on 13 February 2013. Some time before his illness the author had an extensive and frank interview with Judge Kooijmans who reflected on his life and work, especially on his intellectual formation, his understanding of the essence and core functions of law, his experiences as UN special rapporteur on torture, his ideas on reform of the International Court of Justice, and the great changes that have taken place in international law. This portrait shows a fine man with a strong sense of justice who was fully dedicated to the substance of public international law without turning a blind eye to its shortcomings and relative influence in international and domestic affairs. The interview is preceded by an introduction and concludes with some observations on his long and productive life in the service of peace, justice, and respect for human rights through the law.

This article discusses the normative essence of the principle of non-appropriation in outer space as envisaged in Article II of the Outer Space Treaty, as well as its standing under customary international law. The analysis is structured with reference to the general public international law framework that governs the acquisition of territory by states, following the territorially based paradigm still prevalent in international law theory in stressing that the non-appropriation principle is indeed a norm of most increased significance within the corpus juris spatialis, i.e. the Grundnorm of international space law.

International law is an amalgam of the past, present, and future. The past is important in itself not only because the vast majority of rules and principles of international law have come into being through decades, if not centuries, of deviation, crystallization and consolidation, but also because the past, and one's perspectives of the past, underlie, inform and explain a state's perspectives of a particular order or particular norms or values, and its approaches to the perspectives and actions of other states. The importance of understanding China's historical approaches to international law cannot be understated. China's interactions with international law began to take place in the context of its interactions with Western powers that culminated in the Opium War. This article then examines China's approaches to international law during its republican, communist, and contemporary socialist-market eras.

For over three decades, it has been the International Law Commission's position that the circumstance of consent involves something other than the consent which, through the rule pacta sunt servanda, imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify, or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic. The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary-rule–secondary-rule terminology; it justifies itself by referring to an ill-conceived definition of the notion of peremptory norms, and no less importantly undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.

This article examines the evolution of military operations by the Economic Community of Western African States (ECOWAS) and the South African Development Community (SADC) over the last three decades. By looking at constitutional (treaty) developments and organizational practice, it questions whether these sub-regional organizations have displaced the primacy of the United Nations Security Council (UNSC) in matters pertaining to international peace and security, as foreseen in Articles 24(1) and 103 of the United Nations Charter (the UN Charter). The relevance of this question is underscored by the fact that ECOWAS and SADC have engaged in various peace operations since the 1990s. The article concludes that, since all the interventions under discussion were underpinned by the consent of the recognized government, it would be premature to suggest that the practice of African sub-regional organizations amounts to the emergence of a new customary right to engage in ‘first-instance enforcement action’.

This article examines the relationships between representations and operations of sovereignty in natural resource governance. We advance a ‘political ecology of sovereignty’, examining the participation of non-state actors in resource governance processes. We particularly argue that processes of integrating subaltern populations through mapping local ecological knowledge can modify effective governance practices while nonetheless reproducing the legibility of state sovereign authority and its territorial boundaries. Exploring the Enbridge Northern Gateway pipeline in Canada, we suggest that state jurisdictional authority is secured through incorporating indigenous interests as a delimited geography of tradition. Examining the Hatgyi hydroelectric development along the Thai–Burmese border, we argue that the territorial boundaries of those nation-states are rearticulated through the governance of this transboundary development. Through these cases, we demonstrate how the insertion of local knowledge works not only to reconfigure effective governance processes but also to reinforce the effect of state sovereignty in new ways.

The principle of sovereign rights under UNCLOS countenances competition among littoral states for ownership of a common oil deposit through the unilateral exploitation of their continental shelf. This leads to conflict, wastage, and resource sterilization. However, rather than apply the principle of sovereign rights, states seem to turn to natural law principles as a more reasonable regulation of their activities on the continental shelf. Two sources of natural law principles are relevant. One source consists of a priori principles of sociableness and necessity which prescribe that, for their own preservation, states ought to act pursuant to the common good. These principles underlie energy security policies which espouse interdependence. Another source of natural law principles are international agreements and national laws in which states temper their sovereign rights and interests and recognize the co-existence of the rights and interests of other states in a common deposit. These practices constitute a posteriori intervenient or secondary law of nations, which appears similar to customary law. Adherence is not dictated by conviction that these principles are obligatory. Rather, adherence seems to be based on discernment that, while permissible under the principle of sovereign rights, unilateral appropriation is impermissible under natural law.

This article explores the understanding of nature reflected in the international legal classification of territory, as reflected in the doctrines of terra nullius, res communis, and the common heritage of mankind. It provides an overview and analysis of each of these concepts, noting the frequently problematic role they have played in legitimating the exercise of political and economic power. It then analyses the continuities and discontinuities between these categories. It argues that, despite surface changes, a narrow instrumental view of nature and the environment continues to be deeply embedded in much of our current thinking about jurisdiction over territory, and can be seen as constituting one of the ongoing barriers to thinking about the environment in more innovative and sustainable ways.

The role of domestic courts in the application of international law is one of the most vividly debated issues in contemporary international legal doctrine. However, the methodology of interpretation of international norms used by these courts remains underexplored. In particular, the application of the Vienna rules of treaty interpretation by domestic courts has not been sufficiently assessed so far. Three case studies (from the US Supreme Court, the Mexican Supreme Court, and the European Court of Justice) show the diversity of approaches in this respect. In the light of these case studies, the article explores the inevitable tensions between two opposite, yet equally legitimate, normative expectations: the desirability of a common, predictable methodology versus the need for flexibility in adapting international norms to a plurality of domestic environments.

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.