LJIL Symposium Vol 26-2 and 26-3: Introduction

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

In the upcoming days, you will find food for thought with regard to four articles featured in issues 26-2 and 26-3 of the Leiden Journal of International Law, covering a wide range of contemporary discussions in international law.

The first discussion stems from Janina Dill’s article entitled “Should International Law Ensure the Moral Accountability of War?”. In this piece, the author discusses recent just war theories that argue the need of international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability by moving away from the collective dimension of protected status. The author posits that such proposal is not realizable, and suggests ways to improve the current system. In their thoughtful discussions of the article, Gabriella Blum of Harvard Law School, and Christopher Kutz of Berkeley Law, invite the author to forward her argument yet further. Specifically, Gabriella Blum suggests that individual human rights can and should be taken into account in the context of war, while Christopher Kutz questions Dr. Dill’s premise that the collective approach to war in IHL is in contradiction with the general evolution of International Law towards taking into account individual rights.

The second discussion revolves around Maarten den Heijer’s article, Diplomatic Asylum and the Assange case, where he argues that granting such asylum contradicts a number of principles of international law. Gregor Noll, from Lund University, and Roger O’Keefe, from Cambridge University, challenge the author’s premises, both in relation to his historical analysis and in relation to his evaluation of the legal framework.

The third discussion focuses on Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making. In the article, the author discusses the ways in which domestic and regional judges (EU, ECHR) deal with United Nations Security Council Resolutions and suggests the need to go beyond the classical notions of bindingness and hierarchy.  She proposes instead a more subtle and elaborate “dialogue model”. Erika de Wet, of the Universities of Amsterdam and Pretoria, and Piet Eeckhout, from University College London, draw attention to the limits of the author’s model within the current international law structure and in context of the states’ international legal obligations. In a nutshell, the professors argue dialogue is not always possible.

Finally, the fourth discussion is an interchange between Zoran Oklopcic and Brad Roth, from Wayne State University, on the former’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary” to the latter’s allegedly “empty” concept of self-determination. Brad Roth defends his “empty” notion of self-determination, pointing out the difficulties of actually identifying the substance of such principle.

Aside from the in-depth and engaging appraisal of the specific issues contained in the articles, the various discussions all either directly or indirectly touch upon what has historically been at the heart of international law: state consent and state sovereignty. Dill’s paper brings to light the possible shift from the collective (state) dimension of war while Den Heijer’s article discusses more directly the ways in which states structure their international relations when international politics and territorial sovereignty are potentially at odds. The largely un-discussed “legal elephant in the room” of Hovell’s article is the conduct of states that consent to conflicting obligations, thus leaving judges with the grim responsibility of making sense of a normative mess. Finally, Oklopcic’s article discusses the essential moment of “birth” into statehood of peoples, i.e., the right to self-determination.

This collection of articles demonstrates the continued ambitions of the Leiden Journal of International Law. First evidenced is LJIL’s desire of attaining diversity with each issue, as illustrated by the articles selected for this symposium, which together provide a broad range of topical discussions on current and pressing issues of international law from both a theoretical and practical point of view. Second, LJIL’s demonstrates its ambition of continually moving the debate one step further, by not only encourage discourse on contemporary topics, but also by tackling the fundamental notions that are at the core of international law and its normative development.

As this year comes to a close, we once again profusely thank the authors and commentators who have contributed to the symposiums organized, as well as Opinio Juris for providing this invaluable forum for discussion. This fruitful “dialogue model” between traditional publishing and online blogging is a welcome and necessary development, that provides to readers of both Opinio Juris and the LJIL a comprehensive, intelligible and, we hope, entertaining, understanding of international law.