The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 26, no. 1, 2024) is out. Contents include:
This book examines how the International Court of Justice (ICJ) reviews State behaviour through the prism of the standard of review.
It develops a novel rationale to support the ICJ's application of deferential standards of review as a judicial avoidance technique, based on strategic considerations. It then goes on to empirically assess all 31 decisions of the Court in which the standard of review was at issue, showing how the Court determines that standard, and answering the question of whether it varies its review intensity strategically.
As a result, the book's original contribution is two-fold: establishing a new rationale for judicial deference (that can be applied to all international courts and tribunals); and providing the first comprehensive, empirical analysis of the ICJ's standards of review. It will be beneficial to all scholars of the Court and those interested in judicial strategy.
The latest issue of the International Organizations Law Review (Vol. 21, no. 1, 2024) is out. Contents include:
The latest issue of the Human Rights Quarterly (Vol. 46, no. 2, May 2024) is out. Contents include:
The latest issue of the European Journal of International Law (Vol. 35, no. 1, February 2024) is out. Contents include:
This chapter discusses the key debates surrounding neutrality that international legal thought has had to grapple with. It shows how international legal thought has made sense of an institution that has been shaped by States’ pragmatic mindset in developing and invoking it. The chapter analyses how scholarship has positioned and continuously re-positioned neutrality within a dramatically changing international order in which neutrality has proved stubbornly resilient. In doing so, the chapter demonstrates that, however marginal neutrality’s relevance to current international law may appear at first sight, theoretical reflection on neutrality helps in better grasping the current international legal regulation of war as a whole, and even structural developments in general international law beyond war.
The multiplicity of causes of climate change may make it very difficult, if not impossible, to establish causal connections between individual states’ greenhouse gas emissions and the harmful effects of climate change. This causation puzzle offers states a defence against claims that they would be responsible for harmful effects. However, the increasing body of national and international case law on climate change has shown that this puzzle need not preclude the determination of the responsibility of states and other actors contributing to climate change. This paper examines how courts have replaced unsolvable puzzles of cause-effect relations with normative standards based on the imperative to prevent global risks of climate harm. It also identifies the causation puzzles that courts have not (yet) cracked, notably concerning compensation.
The latest issue of the Journal of International Humanitarian Legal Studies (Vol. 15, no. 1, 2024) is out. Contents include:
Wars are moments of social and political dislocation that uncover assumptions that routinely remain uninterrogated. The nature and function of law in society are questions both so complex and so pervasive that they most often fall into the category of unexamined facets of social life, relegated to the abstract musings of philosophers and legal theorists. Wars sometimes disrupt the normal patters of legalism to suddenly make more concrete and immediate such foundational questions. Thus, warzones are often thought of as lawless spaces, but in fact the problem is more often an overabundance of laws. Conflict situations in which several legal orders make competing claims are not extraordinary at all; arguably, it could be claimed that they are one of the defining legal features of war. The strange and tragic fate of Rainer Beck and Bruno Dörfer offers a striking illustration of the revealing disruption of law in war and the ways in which legal pluralism can help to structure thinking about the concept of law in such a context. Indeed, legal pluralism suggests that this and other examples of disrupted legality in conflict zones are best understood as the interaction and intersection of legal orders that must be mediated rather than resolved by claims of higher authority.
Agreements are central to many international law projects, including both treaty-making and the (rising) use of non-binding agreements. Yet, for all the attention States and scholars currently direct to differentiating between binding and non-binding agreements, there has been relatively little discussion of the antecedent inquiry – what constitutes an agreement in the first place? This short essay calls for new efforts to define agreements for purposes of international law and international relations, focusing on two criteria – mutuality and commitment. Agreements require two (or more) participants just as they must exhibit some shared expectations regarding those participants’ future behavior. This definition provides important limiting principles by excluding certain binding instruments (e.g., unilateral declarations) as well as some non-binding ones (e.g., diplomatic “deliverables” that do not reflect shared commitments to future courses of conduct). Moreover, a focus on agreements foregrounds a salient category absent in most existing discourse – tacit agreements. Reflecting on why tacit agreements qualify as agreements can help highlight different methods (e.g., content-driven criteria, presumptions and defaults) to supplement (or substitute for) existing subjective and objective efforts to identify whether an agreement is binding under international law. For those concerned with the transparency of diplomatic deliverables, the efficacy of domestic approval procedures for international agreements, as well as the operation of both the law of treaties and the law of state responsibility, it will be necessary to develop a broader and deeper understanding of what agreements “are” alongside any efforts to identify and differentiate among their binding and non-binding forms.
In 2015, the United States military dropped a bomb on a hospital in Afghanistan run by Médecins Sans Frontières, killing forty-two staff and patients. Testifying afterwards before a Senate Committee, General John F. Campbell explained that “[t]he hospital was mistakenly struck.” In 2019, while providing air support to partner forces under attack by ISIS, the U.S. military killed dozens of women and children. Central Command concluded that any civilian deaths “were accidental.” In August 2021, during a rushed withdrawal from Afghanistan, the U.S. military executed a drone strike in Kabul that killed ten civilians, including an aid worker for a U.S. charity and seven children in his family. The Pentagon later admitted it was a “tragic mistake.” In these cases and others like them, no one set out to kill the civilians who died. Such events are usually chalked up as sad but inevitable consequences of war—as regrettable “mistakes.”
This Article examines the law on “mistakes” in war. It asks: Under international humanitarian law, intentionally killing a civilian is a war crime, but is killing a civilian by mistake ever a crime? It considers whether and when the law holds not just individuals, but also states, responsible for “mistakes.” To see how the law works, or fails to work, in practice, the Article examines the U.S. military’s own assessments of civilian casualties. The analysis focuses on the United States, both because of its global military operations and because of the power of its example to shape global practices. It demonstrates that “mistakes” in the U.S. counterterrorism campaign have been far more common than generally acknowledged. Moreover, some errors are the predictable result of a system that, during the period examined, did little to learn from its mistakes.
This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through “flanking policies.” It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Part I defines terms and sets forth the argument. Part II typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Part III assesses different institutional choices for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Part IV shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures the flanking policies. Part V concludes.
This book investigates the relationship between sex and gender under international human rights law, and how this influences the formation of individual subjects.
Combining feminist, queer, and psychoanalytical perspectives, the author scrutinises the sexed/gendered human rights discourse, starting from the assumptions underpinning interpretations of sex, gender, and the related notions of gender identity, sex characteristics, and sexual orientation. Human rights law has so far offered only a limited account of the diversity of sexed/ gendered subjectivities, being based on a series of simplistic assumptions. Namely, that there are only two sexes and two genders; sex is a natural fact and gender is a social construct; gender is the metonymic signifier for women; and gender power relations take the asymmetrical shape of male domination versus female oppression. Against these assumptions, dominative and subordinate postures interchangeably attach to femininities and masculinities, depending on the subjects’ roles, their positionalities, and the situational meanings of their acts. The limits of an approach to gender which is based on rigid binaries are evident in two case studies, on the UN human rights treaty bodies’ vocabulary on medically unnecessary interventions upon intersex children and on the European Court of Human Rights’ narrative on sadomasochism.
The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.
To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.
The international legal norm that prohibits forcible annexations of territory is foundational to modern international law. It lies at the core of three projects that have been central to the enterprise. The first focuses on settling title to territory as the basis for establishing state authority. The second regulates the use of force across (settled) territorial borders. The third provides for the people within each state’s (settled) borders collectively to determine their own fates. The norm that prohibits forcible annexations is integral to each of these projects independently, and by tying them together, has had a transformative effect on the legal system as a whole.
However, this prohibition is also misunderstood, both as a matter of history and in its relationship to other contemporary international legal norms. Because it is intertwined with all three of the above projects, its origins cannot be traced to only one or the other. The common narrative that describes it as the inevitable outgrowth of regulating war is, therefore, misleading and incomplete. That narrative overlooks the role that formerly colonized states played in securing this norm while seeking to establish themselves as states, through decolonization and claims of self-determination. In modern doctrine, too, the prohibition of annexations is often subsumed into the general prohibition on the use of force, when in fact, its normative influence extends much more broadly.
As a result, the norm’s significance and position in modern international law are consistently overlooked. Analysts have also, by and large, failed to appreciate that it is now caught up in a broader contest over the future world order and at risk of erosion. As deeply flawed as the previous world order was, jettisoning this norm is a dangerous path forward. From Ukraine to Palestine, Israel, the Nagorno-Karabakh region, the Golan Heights, Western Sahara, and the Chagos Archipelago, states and nonstate actors alike care deeply about exercising power over territory, which has historically been a primary impetus of interstate war.
The international legal order, as we knew it, has changed. Since the early 2000s, we have witnessed significant international changes, including an escalating environmental emergency, the emergence of new ways to wage armed conflicts, the proliferation of new technologies to convey international influence and power, the decline of ‘old’ international powers and the rise of ‘new’ or ‘emerging’ ones, as well as increasingly overt ‘backlash’ against the international institutions and legal norms of the post-WWII international legal order. While it is common for international lawyers to read these events in a register of anxiety and pessimism, this stream seeks to strike a more curious and perhaps even hopeful tone by opening up a conversation about the new and alternative internationalisms that are emerging. In a world where the old is dying and a new hegemonic order has not yet been born, we ask, how can we understand, challenge and re-imagine international law anew? Convenors: Claerwen O'Hara (La Trobe University) and Valeria Vázquez Guevara (University of Hong Kong). For call and submission instructions, please visit the website.
This article re-conceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution, which have been missing from the traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the pre-designated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose, rather than between norms merely applying to the same factual situation. This re-conceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict” and “Unexperienced Conflict”, and suggests apposite ways to tackle them.
Of all the strands of international legal theory that exist in contemporary international law scholarship, one might have thought that the cognitive turn would impact positivism the most. In this chapter, however, I want to paint a different picture. The caricature of positivism that many of us hold in our heads – as a theory that is formalist, voluntarist, state-centric, and detached from morals – no longer accords with the prevalent conception of the theory in much of the literature. Instead, I argue that the principal challenge to positivism comes from experimental jurisprudence, a nascent body of literature which shows that the general public fails to recognise a source-based concept of law. This challenges positivists to explain why their view is to be preferred to the so-called ‘folk’ concept of law.
The book brings to light how Latin American States have traditionally stood before the field of International Investment Law and Arbitration. It delves into their posture of resistance to critically examine how their perspective has gradually changed and how they have adapted their investment agreements so as not to leave their position as players in the field of International Investment Law.
Engaging with one of the most consequential issues of our time, this book provides a thoughtful analysis of responsibility for environmental damage under international law. It conceives of responsibility in a comprehensive way, tackling the legal responsibility, liability and accountability of state and non-state actors for harm they cause to the environment.
Responsibility for Environmental Damage traverses the primary and secondary rules of international law, the responsibility, liability and accountability of states, international organizations, corporations and individuals, as well as existing, new and emerging regulatory frameworks. It engages with the consequences of environmental harm, appraising both orthodox legal doctrines and cutting-edge questions like shared responsibility, equitable considerations, full reparation, response measures under liability regimes, corporate responsibility, ecocide and responsibility for climate change, amongst many others. In doing so, the book evaluates whether the law is equipped to deal with the novel challenges that environmental damage presents and argues that new legal tools are needed to effectively tackle some of the most significant threats to our planet.
The latest issue of the World Trade Review (Vol. 23, no. 2, May 2024) is out. Contents include:
The latest issue of the International Journal of Human Rights (Vol. 28, no. 4, 2024) is out. Contents include:
Demystifying Treaty Interpretation doesn't just tell you how treaties are commonly interpreted. It helps you understand also the process of treaty interpretation and its outcomes. The idea that rules of treaty interpretation can guide us to the meaning of treaty provisions, in a simple and straightforward manner, is a myth to be dispelled. This book aims to capture some of the complex and nuanced processes involved in treaty interpretation. It spurs further reflection about how interpretation takes place against the background of concepts, categories, and insights from other disciplines. A useful tool for scholars, practitioners and researchers engaging with treaty interpretation at all levels, the book aims to enhance the reader's knowledge and mastery of the interpretive process in all its elements, with a view to making them more skilled and effective players in the game of interpretation.
This article challenges conventional views of international law textbooks as mere instructional tools and explores them as powerful sites for shaping knowledge and the discipline. Drawing on empirical methods and critical theory, we analyse the 10 main international law textbooks used in Brazil and conduct interviews with their authors to illuminate the textbooks’ complexities and their potential for shaping the discipline and the profession. The article delves into the tension between the structure of international law as depicted in the textbooks and the agency of their authors, investigating the authors’ identities and backgrounds. Brazil serves as a compelling case study due to its numerous international law textbooks and their widespread use. Our results indicate a predominant universalist approach in Brazilian textbooks and their connection to the French international law tradition. Moreover, the study sheds light on the Brazilian ‘invisible college’ of international lawyers, revealing gender and racial disparities and institutional centralities. It also uncovers crucial omissions in the textbooks, such as the relationship of international law to colonialism, slavery, race, gender and economic inequality. Overall, this study offers a comprehensive understanding of international law as a field in Brazil and provides a valuable methodological framework for future research on textbooks’ role in shaping the discipline.
On 30 March 2023, the International Court of Justice rendered its judgment on the merits of the case concerning Certain Iranian Assets, in which the Iranian central bank was not characterized as a company within the meaning of the Treaty of Amity. In so concluding, the Court relied upon the test focusing on the central bank’s sovereign functions and the purposes of the transaction at stake. Debate surrounds the origin and sources of inspiration of the sovereign function test, insofar as the majority’s minimum reasoning leaves an impression that it arose from thin air. This article explores the origin and the sources of inspiration of the test, concluding that the Court’s judgment affords the reading that the test was inspired, albeit clandestinely, by rules and practice specifically dedicated to the characterization of central bank activities, located in areas such as the laws of State immunity or responsibility, by judicial cross-referencing.
The concept of territory is central in international law, but a detailed analysis of how the concept is used in both discourse and practice has been lacking until now. Rather than reproducing the established understanding of territoriality within the international legal order, this study suggests that the discipline of international law relies on an outmoded spatial paradigm. Gail Lythgoe argues for a complete update and overhaul of our understanding of territory and space, to engage more effectively with key processes, structures and actors relevant to contemporary global governance. In this new theoretical account of an essential aspect of public international law, she argues that territory is a dynamic social reality created by the exercise of power. Territories are constituted by the practices of a more diverse array of actors than is acknowledged. As a result, functions are re-assembling in territories constituted by state and non-state actors alike.
The international law doctrine of jus cogens recognizes that some prohibitions – such as those against slavery, genocide, and torture – have peremptory status above other international norms and cannot be negotiated away by treaty. However, in their 1993 article “The Gender of Jus Cogens” Hillary Charlesworth and Christine Chinkin claimed, “the concept of jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women, and it has provided a protection to men that is not accorded to women.” The definition of jus cogens in spaces dominated by men, they argued, entrenched gendered experiences with distributive consequences. Jus cogens norms did not address the impacts on women of violence, poverty, food insecurity, and inaccessible health care. Jus cogens norms are biased and have been used to reinscribe benefits that men accrue from oppressing women.
Charlesworth and Chinkin published their article during early engagements with Feminist Approaches to International Law across the Global North, which foregrounded how international law is socially constructed to produce gender disparities. Sources of inspiration for these approaches included literature on colonialism and Third World feminisms. In their discussion of jus cogens, Charlesworth and Chinkin therefore used the term ‘women’ to refer to persons ‘around the world’ whose experiences jus cogens should reflect. Nonetheless, proposals to accommodate women in international law coming from the Global North have since been critiqued for eclipsing alternate feminisms and perspectives concerned with racism, colonialism, gender normativity, and economic inequality, with important consequences.
Acknowledging these nuances, we wish to focus on whether jus cogens reinforces hierarchies associated with multiple forms of imperialism. This has led us to ask if jus cogens might be associated with the dominance of people who have benefitted from and reproduce the white supremacy of colonialism and transatlantic slavery. The question is whether jus cogens might be defined by processes of racialization, simultaneously caught up with gender and class. We recognize, as Charlesworth and Chinkin did, that evoking jus cogens norms is often symbolic in practice. Our intuition is that jus cogens has at times been evoked for its symbolic value to discipline racialized peoples across a gender spectrum, while their appeals to jus cogens have often been excluded from its ambit of protection.
The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 25, no. 4, 2023) is out. Contents include:
This book provides a critical introduction to the core elements of international criminal law. It does so by provoking thought on what international criminal law is, or could be, by contrasting the practice of widely recognised state-based actors and institutions such as the International Criminal Court with practices associated with non-state actors in particular citizens' tribunals.
International criminal law is now established as an essential legal and institutional response to atrocity. However, it faces a series of political and practical challenges. It is vital to consider its limits and potential, as well as the ways and extent to which those limitations might be addressed. Many actors with very different visions of its nature and parameters play a role in shaping the meaning of international criminal law whether that be in official or unofficial spaces.
This book explores the principles and institutions of international criminal law alongside the alternative visions of it put forward by citizens' tribunals. In so doing it encourages reflection on that law's multiple meanings and usages in order to provoke consideration of what it means, and might mean, to deploy international criminal law today.
The latest issue of the International Community Law Review (Vol. 26, nos. 1-2, 2024) is out. Contents include:
In this insightful book, Katherine Reece Thomas explores the constantly evolving nature of state immunity, providing a nuanced analysis of the tension between private and public law. The current rules on the commercial activity exception to state immunity are examined, in both international and domestic law settings, using recent case studies from key jurisdictions including the UK and the US.
Questioning when a state can be sued in a domestic court if it engages in commercial activities, Reece Thomas reveals how a restrictive rather than an absolute doctrine has been adopted and explores the ways in which states allow commercial activity to override state immunity. The implications of this, and of how commercial activity can therefore be defined, are explored through the contexts not only of corporate law but also of central bank sanctions, human rights, employment, and crime, using recent examples from Afghanistan as well as Russia’s invasion of Ukraine. Further questions regarding immunity are posed by a crucial discussion on enforcement against state assets.
Comprehensive yet concise, this authoritative work includes consideration of a range of contexts and implications for the commercial activity exception.
This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that are usually divided into doctrinal siloes. These include questions about attribution of international legal responsibility to states and state-owned entities, transnational attribution of liabilities to firms, and attribution of identity rights to corporations. Durkee highlights the artificiality of doctrines that construct firms and states, and therefore their susceptibility to change.
The latest issue of the Nordic Journal of International Law (Vol. 93, no. 1, 2024) is out. Contents include:
Imperial conquest and colonization depended on pervasive raiding, slaving, and plunder. European empires amassed global power by asserting a right to use unilateral force at their discretion. They Called It Peace is a panoramic history of how these routines of violence remapped the contours of empire and reordered the world from the fifteenth to the twentieth centuries.
In an account spanning from Asia to the Americas, Lauren Benton shows how imperial violence redefined the very nature of war and peace. Instead of preparing lasting peace, fragile truces ensured an easy return to war. Serial conflicts and armed interventions projected a de facto state of perpetual war across the globe. Benton describes how seemingly limited war sparked atrocities, from sudden massacres to long campaigns of dispossession and extermination. She brings vividly to life a world in which warmongers portrayed themselves as peacemakers and Europeans imagined “small” violence as essential to imperial rule and global order.
Holding vital lessons for us today, They Called It Peace reveals how the imperial violence of the past has made perpetual war and the threat of atrocity endemic features of the international order.
The review of investment treaties by the Court of Justice of the European Union (CJEU) tells a story of inconsistency. As is well known, the Court rejected investor-state dispute settlement (ISDS) in the form of ad hoc arbitration in Achmea and Komstroy – and accepted it in the Investment Court System (‘ICS’) variety of the Canada-EU Free Trade Agreement (‘CETA’) in its Opinion 1/17. Taking a closer look at the various lines and subplots of this story, however, reveals three common themes. First, the CJEU’s review of investment treaties is a constitutional review not only in name but also in substance. It charges the law of internal and external EU commercial relations with the ‘values’ of Art. 2 TEU and thus introduces a ‘thick constitutionalism’ to this otherwise seemingly unspectacular area of EU policy: The Court does not merely insist on a review that may be characterized as constitutional in form – based on normative hierarchy and setting a floor and a ceiling to what is compatible with EU law. It also insists that it is tasked to protect the ‘values’ of the Union and makes them doctrinally operational by way of its – self-styled – role as exclusive guardian of the EU legal system. Second, such ‘thick constitutionalism’ provides an explanation for the doctrinal inconsistency in the Court’s jurisprudence. Promoting the ‘values’ of Art. 2 TEU in EU external relations requires a strategy of Voice, rather than Exit – and Opinion 1/17 enables the Commission and the Member States (in mixed agreements) to exercise such voice. Third, the impact of such ‘thick constitutionalism’ and the CJEU’s intention to provide the EU with Voice in its external economic relations vis-à-vis ISDS has repercussions regarding the Union’s agenda and wriggle-room in the current debates on ISDS reform in UNCITRAL Working Group III and in its current and future treaty practice.
Part II briefly recounts the main plot of this story, marking three milestones in the development of the CJEU’s case law thus far. In Part III, I will analyse and assess the Court’s jurisprudence with respect to the constitutional stakes it raises (III.1.) and regarding the different strategy it employs in order to ‘integrate’ the Union’s values also into its external commercial relations (III.2.). Part IV discusses how the Court’s ‘thick constitutionalism’ may impact the future of ISDS, both regarding the institutional and procedural matters as well as with respect to the substance of international investment agreements (‘IIAs’). Part V concludes.
