In 2012, the Leiden Journal of International Law (LJIL) celebrates its silver jubilee. Such a milestone calls for a brief sketch of LJIL's life and development over the past quarter of a century. This editorial accordingly narrates how LJIL grew from a modest student-run journal to establishing itself as a respected participant in the international academic arena. It is premised on the idea that LJIL's professionalization process and the gradual formation of a distinct identity in the field may be of interest to our entire epistemic community and those interested in the dynamics of the dissemination of scholarly ideas. Eventually, this editorial engages with some of the greatest challenges with which LJIL – as well as other actors in scholarly publishing – will most likely be confronted in the years to come.

The goal of this article is to initiate an interdisciplinary and historical reflection on one of the central preoccupations of our time: the relationship of religion to international order. This current project grows out of my long-standing work on the genealogy of modern internationalism. In my past work, I have argued that internationalists constructed their own disciplines in tandem with their construction of nationalism, to such an extent that modern ‘internationalism’ and modern ‘nationalism’ must be understood in relation to each other; in the present essay, I contend that ‘internationalism’ and ‘religion’ have an equally mutually constitutive relationship. This article seeks to retell the story of international law over the past century through the lens of its relationship to religion – a lens that both overlaps with and differs from that of nationalism. Its historical narrative is rooted in the early twentieth century – a period to which so many of our ‘modern’ cultural conceptions may be traced. Its methodology is broadly interdisciplinary, setting changing international legal conceptions of religion in relation to contemporaneous developments in domains such as sociology, religious studies, and historiography. This is the first piece of a series of projected studies on the construction and contestation of ‘religion’, ‘the secular’, and ‘the international’ over the past century. It is also my first publication associated with the interdisciplinary Religion and Internationalism Project, which I co-direct at Brown University.

Religion plays a central role at the global political level despite being often portrayed as dead, marginal, or irrelevant. The way in which it plays that role, however, is not always immediately apparent or transparent. Professor Berman's essay attempts to illustrate the various ways – direct and indirect – in which religion is still central in today's debates about international law and politics. He does that by bringing us back to the interwar period, which saw an abundant flurry of arguments about international law, nationalism, and religion. He focuses in particular on the avant-garde movement led by Georges Bataille, who called for the shaking of civil society by appealing to the destabilizing forces of the (left) sacred in opposition to the conservative forces of the (right) sacred. Bataille's key insight is that religion has a contagious energy that is far more sweeping and powerful than the mere force of Western rationality. From this viewpoint, (international) law is incapable of taming the crisis of the West and of keeping at bay the perils of religion and nationalism.

Nathaniel Berman's paper offers us a rich study of the interwar reflections about the intertwining between religion and nationalism, seen as ‘forces’ both dangerous and necessary, which should be ‘freed’ or ‘tamed’ in order to create a new political order. This theme is approached through its theorization by the French Collège de Sociologie and its non-academic philosophy of the sacred (mainly Bataille's transformation of the Durkheimian idea of a ‘left sacred’ and a ‘right sacred’), but also through the discourses and the practices of international law, by prominent lawyers, or through the way European nations dealt with the status of ‘minorities’ or with colonized people living under status of Protectorate. I much appreciate Berman's evocation of these various reflections and the way they ‘complicate’ (both as analysis and as symptoms) the problem of secularization as well as the question of legal internationalism. Let me develop these two points, before coming to some aspects of Berman's reflection that seem to me less convincing or more questionable.

I thank the Leiden Journal of International Law for this opportunity to address the provocative responses by Jean-Claude Monod and Lorenzo Zucca to ‘The Sacred Conspiracy’. In this short reply, I seek to clarify some misapprehensions, as well as to sharpen the differences between us.

One of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

The Commission on the Limits of the Continental Shelf is neither fish nor fowl. Its primary purpose is to consider coastal states’ proposed limits of the outer continental shelf and to make recommendations thereto. Albeit the establishment of the outer limits is an act within the sole discretion of a state, the role of the Commission in the establishment of such limits is of pivotal importance. Due to its mandate, it can reasonably be argued that the Commission is, by way of implication, deemed to be vested with rights that cannot be seen to be limited to a technical review stricto sensu. This paper seeks to determine the exact terms of reference of the Commission and to what extent it comprises powers to undertake legal interpretations of the Convention. It will be concluded that a fair balance governs the operations of the Commission, although they, at times, comprise tasks that are essentially of a legal nature.

The case concerning Military and Paramilitary Activities in and against Nicaragua, better known as the ‘Nicaragua case’ or simply Nicaragua, is arguably one of the most important and controversial cases ever to be heard by the International Court of Justice. Twenty-five years after the judgment on the merits was handed down, it is high time to reassess the impact of Nicaragua on international law. The joint efforts of the Grotius Centre of the Leiden Law School, the Centre on International Courts and Tribunals at University College London, the Netherlands Society of International Law, and the law firm Foley Hoag LLP resulted in a one-day conference, on 27 June 2011, the very day on which the judgment on the merits of the Nicaragua case was handed down, 25 years ago.

At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court's jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court's decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court's most active litigant) to participate fully in international dispute settlement.

The Nicaragua case demonstrates the Court's competence in receiving and interpreting evidence, and in making reasoned findings of fact, even in the most complicated evidentiary context, as is often presented in cases involving use of force and armed conflict. The Court applied well-established standards for evaluating the conflicting evidence presented to it. In particular, the Court determined that greater weight should be given to statements against interest made by high-level government officials than to a state's self-serving declarations. The Court also determined that statements by disinterested witnesses with first-hand knowledge should receive greater weight than mere statements of opinion or press reports. In applying these guidelines, the Court found, correctly, that (i) the United States had used military and paramilitary force against Nicaragua both directly and indirectly, by organizing, financing, arming, and training the Contra guerrillas to attack Nicaragua; (ii) the evidence did not support a finding that the United States exercised direct control over the Contras’ day-to-day operations; and (iii) there was no evidence that Nicaragua supplied arms to guerrillas fighting against the government of El Salvador during the relevant period, or carried out an armed attack against that state. While Judge Schwebel's dissent criticized the last of these findings, in fact, the evidence fully supported the Court's conclusion. In subsequent decisions during the past 25 years, the Court has continued to rely on the approach to evidence first elaborated in the Nicaragua case and has continued to demonstrate its competence as a finder of fact, including in cases involving armed conflict (Bosnia Genocide) and complex scientific and technical issues (Pulp Mills).

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court's 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

Modes of liability, such as ordering, instigation, superior responsibility, and joint criminal liability, are arguably the most-discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider sociopolitical objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms entirely, even though it, too, fails the tests international criminal lawyers use as benchmarks in the deconstruction of other modes. Moreover, the source of complicity's departures from basic principles is not international as previously suggested – it stems from international criminal law's emulation of objectionable domestic criminal doctrine. If, instead of inheriting the dark sides of domestic criminal law, we apply international scholars’ criticisms across all modes of liability, complicity disintegrates (as do all other modes of liability) into a broader notion of perpetration. A unitary theory could also attach to all prosecutions for international crimes, both international and domestic, transcending the long-endured fixation on modes of liability within the discipline.