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.

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.

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.

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.

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.

Recently, two disputes involving China's WTO-plus obligations have attracted great attention: China – Raw Materials and China – Rare Earths. In China – Raw Materials, China resorted to WTO environmental protection exceptions to justify its violation of the export duty elimination obligation outlined in paragraph 11.3 of the Protocol on the Accession of the People's Republic of China, which is clearly a WTO-plus obligation. However, China's recourse was rejected by the panel and then by the Appellate Body, as will probably happen in China – Rare Earths. This article looks into the interpretation and finding of the applicability matter in the DSB reports in China – Raw Materials and further discusses the general applicability issue of environmental protection exceptions to the violation of WTO-plus obligations. As rebuttal to the DSB reports, this article argues that omissions or silence in paragraph 11.3 do not necessarily mean rights waiver, especially when the right involved is the essential right to justify the violation pursuant to environmental protection exceptions provided in Article XX(b) and (g) of the GATT. Also, it is illogical to refer to GATT generally when the WTO-plus obligation in paragraph 11.3 does not have any corresponding rules in GATT. More generally, with consideration of the nature of the environmental protection exceptions in Article XX and the conclusion process of the Protocol, as well as with consideration of the sustainable development objective of the WTO and the politically sensitive matters concerned in China – Raw Materials, China should not be deprived of the right to defend its violation of the export duty obligation in China – Raw Materials. Although the discussion in this article is mainly based on China's WTO-plus obligations, its reasoning may also be extensively applied to that of other acceding members if suitable.

This article concerns the concept and practice of international(ized) constitutions, which have become characteristic of situations where there is deep international involvement in peacebuilding efforts. The process and nature of internationalized constitutions challenge traditional ideas about sovereignty, self-determination, and constitutions. While they reinforce the importance of constitutional documents themselves as an indicator of sovereignty, internationalized constitutions simultaneously legitimize a high degree of external influence in the creation and even implementation of that document. This article argues that internationalized constitutions are not inherently legitimate or illegitimate, but have the potential to be either in any given situation. Internationalized constitutions in Iraq and Kosovo are used as case studies to investigate how the dilemmas of internationalized constitutions have played out in two recent scenarios.

The Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke the inadimplenti non est ademplendum rule to justify breaches of their own obligations under the same treaty.

In the last issue a number of articles were published from a symposium held at University College Dublin on integrating a socio-legal approach to evidence in the international criminal tribunals. The articles focused on specific socio-legal projects carried out in the field of evidence within the international criminal context, and on how such research can enrich our understanding of international criminal law and practice. The articles in this issue focus on certain neglected areas of research and on some of the challenges posed by conducting empirical research in this field.

This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.

This article examines whether the ICC Prosecutor has complied with its statutory obligation under Article 54(1)(a) of the Rome Statute to investigate incriminating and exonerating circumstances equally. By way of a number of striking examples of deficient investigations, it demonstrates that the ICC Prosecutor has so far failed to comply with this obligation. As a matter of competence and diligence, the Prosecutor is expected to conduct thorough investigations: this requires a critical assessment of each case and the supporting evidential material. An examination of the pending ICC cases shows that the Prosecutor has not met this expectation. The investigations conducted in all of these cases have been incomplete as far as both incriminating and exonerating circumstances are concerned. This article, however, also suggests that the defence is in a better position to search for exonerating evidence than the Prosecutor, and questions whether Article 54(1)(a) can be applied effectively under any conditions.

This is the story behind another story. Inspired by the anthropological practice of reflexivity, it traces some practical, epistemological, ethical, and existential questions behind a book based on empirical socio-legal research into international criminal law in situations of conflict. The challenges involved in such research are at times impossible to overcome. Indeed, the challenges may be such that the researcher will never be able to answer her original question fully and confidently. However, challenges can be findings in themselves. They may reveal insights into the role of law in a society, the limitations of vocabularies, the overexposure of international criminal law, and inequalities in global knowledge production. Rather than merely obstructing research into a topical issue, challenges may shift the researcher's attention to other, more fundamental, questions. Nonetheless, understanding challenges as findings does not resolve the existential problem of the researcher's possible complicity in maintaining the very challenges that she analyses and perhaps ambitiously tries to overcome.

Professor Ruti Teitel, author of Humanity's Law, is perhaps best known for her foundational work on the concept of transitional justice. She is a proven norm entrepreneur. Her development of the concept of transitional justice demonstrates her ability to detect progress for those victimized by atrocities. It also demonstrates her skill in developing responses to those atrocities. Transitional justice, as Teitel envisioned it, has an ambitious agenda as a ‘conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes’. That said, transitional justice in its original conception has a specific focus, limited by time and circumstance. Those limits are in part responsible for its success as a concept and practice.

Some books present such a wide variety of perspectives and so many interesting themes and topics in a particular area of law that it is rather difficult to write a comprehensive but at the same time concise review article about them. Consequently, such books run the risk of remaining unobserved or unattended, however valuable may be their contribution to the development of that area of law. Something like that threatened to happen to the volume of papers that was edited by Sari Kouvo and Zoe Pearson and published in 2011. Writing the book review remained for rather a long time on my to-do list, because reading it had incited me to reconsider my own answers to some foundational questions about feminism, about law, and about the ‘and’ that seems so firmly situated between these two concepts. In fact, feminism and law have been at the core of my professional activities since I finished law school in 1983, so for some thirty years for me these two things were closely connected. I thought that I knew very well what I was doing and why! Reading this book – and having agreed to review it – made these questions manifest and urgent to answer. The book, in short, invokes much (self-critical) thinking about the why and how of any engagement with feminism and (international) law, which is a first reason to recommend it to anyone who stands open for such an endeavour. After a brief description of its structure and content, I will discuss just a few of the many thought-provoking materials in this volume and some of my preliminary reactions to them.