The Leiden Journal of International Law (LJIL) is many things. In the present editorial we highlight three of its activities – both old and new. First, we look back briefly at the symposium on ‘The Changing Role of Scholarship in International Law’ that we held in March 2015. Second, we present the winner of the second LJIL Prize and draw attention to her contribution. Third, we announce the first LJIL lecture and introduce the inaugural laureate. We do this in a way that continues to reflect on the roles of the journal. We do not aspire to define its identity simply because we value its diversity too much. But we wish to contribute to the ongoing debates on how a journal of international law might position itself in light of many new outlets for scholarship, in the context of porous or battled disciplinary frontiers, and in response to expectations that scholarship ought to meet. These are recurrent issues in the journal and its editorials. In particular, Carsten Stahn has drawn attention to the theme that shaped the symposium, the changing role of scholarship. He has since stepped down as an Editor-in-Chief and Ingo Venzke has assumed this position, continuing to work alongside Eric De Brabandere. Once again we thank Carsten for his immensely valuable contributions to the journal – past, present, and future.

In his recent review of Neil Boister's book, An Introduction to Transnational Criminal Law, Robert Currie praises the author for shedding light on a field of law that has suffered from inattention. Transnational criminal law (TCL), the ‘other’ branch of what was traditionally called international criminal law, has been overshadowed by international criminal law ‘proper’ (ICL). The establishment of international criminal tribunals after the end of the Cold War, culminating in the establishment of the ‘flagship’ court, the International Criminal Court (ICC), came with a spectacular rise of ICL as a separate legal discipline. As a result, ICL stole the limelight at the expense of TCL. Currie deplores this since TCL presents features and issues that are worthy and in pressing need of in-depth study. Also, in his view the attention to ICL is unjustified: ICL ‘as an academic and legal inquiry or study has become distended by over-study’. While he supports the mission of international criminal justice in general, Currie points out that ICL as an academic discipline is saturated; each article, paragraph and subparagraph of the ICC Statute has been pulled apart and dissected.

This editorial takes a practical approach. It aims to stimulate reflections on the way we teach international law today, on how new technologies could enhance the pedagogical experience, on the upgrading of the role and participation of students, and on a better connection with the ‘real world’. It focuses on ‘how’ rather than on ‘what’ or ‘for what purpose’ we teach international law. With this aim in mind, it serves a few ideas seasoned with suggestions and examples.

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.

How can I as an international lawyer, conscious that international law is deeply implicated in today's global injustices and that the course of history will not be changed by any grand legal design, practice law responsibly? Taking as a point of departure my own desire not to seek comfort in the formulation of a critique of law, but to aspire to a responsible practice, I consult two quite different bodies of work: first, critical theory of law and second, recent scholarship on international law that argues a practice guided by ethics may enhance the legitimacy of international law. I turn then to my own practice of international economic law focusing on my occasional role as legal expert on the so-called megaregionals the EU aims to conclude with Canada and the United States. I propose that the debate on international economic law lacks an investigation into the role of law in shaping political economy; that this lack can be explained by the compartmentalization of expertise which leads to justification gaps with respect to projects such as the megaregionals. One way lawyers can assume responsibility is to work on closing these gaps even if it means leaving the ‘inside’ of the legal discipline. Finally, I suggest that a responsible legal practice of social change might follow Roberto Unger's call for institutional imagination. Maybe I can satisfy my wish for a transformative practice by joining forces with friends in experimenting with institutions, hoping to build an alternative political economy.

This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemi's work, international lawyers came to feel that they have domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline's vocabulary decide on their behalf.

No international lawyer bats more than the proverbial eyelid nowadays at states intervening militarily in states which host non-state armed groups. Neither drone strikes nor what used to be called ‘invasion’ quicken the pulse of the jus ad bellum lawyer; this is now a matter for humanitarians; the ‘how’ matters much more than the ‘whether’. We have become inured to relatively small-scale military interventions. Those who remember that 20 years ago international lawyers were more likely to find such actions illegal than justified should (but do not) collectively raise an eyebrow at this rapid change.

This article starts with a paradox: international law-making is ridden with reasonable disagreement and yet no state can be bound by international law without its consent and hence without agreement. Breaking away from the pragmatic resignation that prevails among international law scholars on this question, the article proposes an interpretation of the role of state consent that both fits and justifies its central role in the practice of international law-making and, hopefully, strengthens the latter's legitimacy in the future. Its proposed justification actually lies in the circumstances of reasonable disagreement among democratic states and this proposal dissolves the paradox. The article argues that, in international law as it is the case domestically, consent is neither a criterion of validity of law nor a ground for its legitimate authority. It also dispels two myths about state consent: its necessary relationship to legal positivism and state sovereignty. Instead, the article argues, the role of democratic state consent is that of an exception to the legitimate authority of international law and hence to its bindingness in a concrete case. While the legitimacy of international law is not democratic, the democratic nature of states and their democratic accountability to their people matter. This is especially the case in circumstances of widespread and persistent reasonable disagreement as they prevail among democratic states in international law-making. In these circumstances, respecting the sovereign equality of democratic states by requiring their consent is the way to grant an equal voice to their people. Of course, there are limits to the democratic state exception that are inherent to both its democratic dimension (it requires respecting basic political equality) and its consensual dimension (it requires that consent is expressed in a free, fair and informed fashion). The article concludes by showing how the proposed disagreement-attuned account of democratic state consent explains various characteristics of the main international law-making processes, i.e., treaties and custom.

Accountability has become a cornerstone of current discussion on the prospects of legitimate and effective global governance. In spite of its rather high currency, accountability does not partake in the select group of first-order political ideals: democracy, human rights, constitutionalism and rule of law have all been historically uttered in much more vocal tones and still remain at the forefront of public demands for legitimate authority. Rather than radiating a comprehensive legal or political vision, accountability supplies a power-constraining toolbox that allows for a variety of more or less attractive permutations. This rather commonplace story, though, tells very little about the concrete configurations, underlying values and ends of accountability. The concept of accountability remains unstable because, among other things, its descriptive and normative aspects lack a clearer articulation; traditional taxonomies fail to precisely illuminate its political and extra-political instantiations, and their respective connection with law; the relevant descriptive variables that shape accountability arrangements are not yet systematized in a comprehensive way; the specific normative goals that lurk behind the calls for more accountability tend to be taken for granted, and the trade-offs or internal tensions that necessarily occur are usually camouflaged. Conceptual clarification, thus, is indispensable whenever one comes across such multifaceted umbrella terms. The article attempts to diagnose such shortcomings, to elucidate a minimalist concept of accountability and to provide a large analytical map that can aid both the description and the critical assessment of accountability arrangements in light of their potential purposes. This analytical exercise is a pivotal starting point if accountability is to get a better grip on the debates about the improvement of global governance.

This contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

One of the most striking trends in contemporary international law (IL) scholarship is the turn to empirical research methods. Some see this as sign of progress, whereas others call for caution or even show hostility. With a view to the future of IL scholarship, however, all sides in this at times heated debate seem to have considerable problems keeping a clear focus on the key question: What are the implications of this empirical turn in terms of philosophy of legal science, of the social understanding of IL, and, not least, of the place of doctrinal scholarship after the alleged Wende? What is needed, we argue, in order to answer this question is not yet another partisan suggestion, but rather an attempt at making intelligible both the oppositions and the possibilities of synthesis between normative and empirical approaches to law.

Based on our assessment and rational reconstruction of current arguments and positions we outline a taxonomy consisting of the following three basic, ideal-types in terms of the epistemological understanding of the interface of law and empirical studies: toleration, synthesis and replacement. This tripartite model proves useful with a view to teasing out and better articulating implications of and interrelations between positions. As such the model: i) provides a framework to better situate arguments about the role of empirical studies in IL; ii) helps identify real epistemological stakes in order to overcome ‘trench wars’ – or worse: absence of dialogue and genuine argument; and iii) thus ultimately contributes to the development of a genuine basic science-of-law.

A certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

Recent developments in legal scholarship evidence that the orthodoxy on the law on the use of force has dramatically switched from a restrictivist to an expansionist perspective. This article seeks to analyse this recent shift, especially with respect to the law of self-defence, from an expansionist point of view. Its purpose is to examine the argumentative landscape which currently exists on the expansionists’ side about that law. It observes that such argumentative landscape has significantly changed, as expansionists tend to pay less attention to the traditional arguments based on state practice and increasingly rely on policy considerations in order to strengthen and to go deeper in their wide conception of the law of self-defence. It calls into question such increasing recourse to policy oriented arguments and argues that those arguments cannot justify alone any evolution of the law of self-defence, while emphasizing that state practice remains central in that respect and explaining the different ways through which this practice may play such a role.

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small's idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

Martti Koskenniemi's From Apology to Utopia is (rightly) considered a classic in international legal theory. The study tracks the oscillation of international legal argument over hundreds of years to reconcile seeming incongruencies: legal reasoning does not provide determinacy, but it brings weighted direction to political conflict; legal categories are amorphous, yet also an autonomous field of study. Though not commonly engaged, the methodological and theoretical posture of the book is significantly informed by a theory of history. This article focuses on this historical element within the text as a means to analyze some of its central claims and situate it within a broader sociology of knowledge production particular to late twentieth century legal academia.

The article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyond jus cogens and the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

This article, prepared for the symposium on ‘The Future of Restrictivist Scholarship on the Use of Force’, examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of the UN Charter. Instead, they generally focus on legal constraints outside the Charter's text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the tradition's influence on debates over anticipatory self-defense and the use of force against non-state actors abroad. The article concludes by examining how the American restrictivist tradition is beginning to shape the United States’ approach to the use of force in response to cyber attacks.

This article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis.

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

In the past ten years or so, several documentaries on international criminal justice have been produced, shown at film festivals, and used for advocacy and educational purposes. On some occasions, artists, humanitarian organizations, and the Office of the Prosecutor of the International Criminal Court (ICC) have worked closely together in the production of documentary films. Documentaries have thus become important tools for education and the spread of imageries of international criminal justice. So far, however, international legal scholars have largely shied away from researching cinematic representations of their field. In this article, I seek to remedy this by focusing on a family of four recent influential documentaries related to the ICC: The Reckoning, The Court, Prosecutor, and Watchers of the Sky. All four use similar modes of representation, narration and promotion and basically communicate the same message about the Court. My article critically analyzes how such artistic interventions have helped create specific images, stories, and sentiments.