This symposium provides a critical opportunity for international legal scholars to engage with the value and power of certain aspects of culture. The successive holders of the UN mandate on cultural rights have declined to define culture, instead taking a holistic, inclusive approach to its meanings, including inter alia diverse forms of artistic and cultural expressions, languages, worldviews, practices, and cultural heritage. Cultural rights—including the right to take part in cultural life without discrimination, the right to access and enjoy cultural heritage, and freedom of artistic expression—are a core part of the universal human rights framework. They are vital in and of themselves and protect key aspects of the human experience, but they have also been increasingly recognized as important elements of accessing justice and responding to atrocities and as “fundamental to creating and maintaining peaceful and just societies and to promoting enjoyment of other universal human rights.” The artistic and cultural expressions which result from the exercise of these rights likewise have inherent value and can also play significant roles in achieving basic goals of international law and human rights. As I noted in a report to the UN Human Rights Council in my capacity as UN Special Rapporteur in the field of cultural rights:

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. And the outreach of others may look and sound strikingly different than that curated and manicured by courts. This essay presents one such othered outreach initiative: a memorial in Tokyo dedicated to Justice Radhabinod Pal of India, who authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE). The IMTFE was established in 1946 to prosecute Japan's leadership in the aftermath of the Second World War. Pal would have acquitted each defendant. This essay describes Justice Pal's legal philosophy, situates his place in the currents of international law, and reflects on the broader role of memorials as discursive sites.

These things also require their material forms, their easily recognizable visible symbols, their homes. . . . [With the Peace Palace,] international justice between nations has moved into a splendid home. The proud building is standing now, visible, and tangible: Temple, symbol and workplace. At least the spirit of peace is no longer homeless.

The potential convergence of art and international justice has received greater attention in recent years. In light of recognition of the limitations of international courts and the challenges of outreach, scholars and practitioners have begun to seek alternative ways of fostering engagement among the communities most affected by the crimes under their jurisdiction. In this context, the question has arisen: What can art do? What is the potential role of art and aesthetics in furthering goals of international courts beyond justice, i.e., towards peace and reconciliation? In this essay, I discuss three ways in which art has enormous potential, while also acknowledging that there are associated risks and challenges that might cause us to temper our enthusiasm.

The body is falling backwards, facing the sky. The hands are clasped together in a sampeah, as if in greeting, as if in prayer. For the artist of the Cambodian Tragedy Memorial, also called A ceux qui ne sont plus là (For those who are no longer here), the body “speak[s] both to and beyond individual identity.” By standing both as personal testimony of loss and “in memory of the Cambodian genocide and its impossible representation,” the memorial raises longstanding questions on the authority and limits of testimony, on representation, and, importantly for this symposium, on the relation between art and international criminal law.

This essay contends that emotions provide an extralegal framework that can contribute to a better comprehension of international legal justice and the ways in which it works. The examination of two cases brought before the International Criminal Court (ICC)—namely Ongwen (ICC-02/04-01/15) and Al Mahdi (ICC-01/12-01/15)— identifies how the parties in the process attempt to harness the power of emotion in their pleadings and arguments. This examination fosters a better understanding of the dramatic nature of international trials.

Enthusiasm abounds about the potential of artificial intelligence to automate public decision-making. The rise of machine learning and computational text analysis together with the proliferation of digital platforms has raised the prospect of “robo-judging” and “robo-administrators.” From a human rights perspective, the reaction has been mixed, and on balance negative. Optimists herald the possibilities of democratizing legal services and making decision-making more predictable and efficient. Critics warn, however, of the specter of new forms of social control, arbitrariness, and inequality. This essay examines the concerns over the turn to automation from the perspective of two international human rights: the rights to social security and a fair trial. It argues that while the critiques deserve a full hearing, they should be evidence-based, informed by an understanding of “technological systems,” and cognizant of the trade-offs between human and machine failure.

AI-based military applications present both opportunities and challenges for multinational military cooperation. This contribution takes stock of the state of discussions around AI-based military applications within the North Atlantic Treaty Organization (NATO). While there have been a number of recent developments in national AI strategies and policies, discussions at the NATO level are still in early phases, and there is no agreed NATO policy in this area. Further multilateral work is needed if like-minded states such as NATO Allies and partners are to head off the serious risk that disagreements about these technologies might hamper effective multilateral military cooperation.

Every road vehicle must have a driver able to control it while in motion. These requirements, explicit in two important conventions on road traffic, have an uncertain relationship to the automated motor vehicles that are currently under development—often colloquially called “self-driving” or “driverless.” The immediate legal and policy questions are straightforward: Are these requirements consistent with automated driving and, if not, how should the inconsistency be resolved? More subtle questions go directly to international law's role in a world that artificial intelligence is helping to rapidly change: In a showdown between a promising new technology and an entrenched treaty regime, which prevails? Should international law bend to avoid breaking? If so, what kind of flexibility is appropriate with respect to both the status and the substance of treaty obligations? And what role should deliberate ambiguity play in addressing these obligations? This essay raises these questions through the concrete case of automated driving. It introduces the road traffic conventions, identifies competing interpretations of their core driver requirements, and highlights ongoing efforts at the Global Forum for Road Traffic Safety to reach a consensus.

States are investing heavily in artificial intelligence (AI) technology, and are actively incorporating AI tools across the full spectrum of their decision-making processes. However, AI tools are currently deployed without a full understanding of their impact on individuals or society, and in the absence of effective domestic or international regulatory frameworks. Although this haste to deploy is understandable given AI's significant potential, it is unsatisfactory. The inappropriate deployment of AI technologies risks litigation, public backlash, and harm to human rights. In turn, this is likely to delay or frustrate beneficial AI deployments. This essay suggests that human rights law offers a solution. It provides an organizing framework that states should draw on to guide their decisions to deploy AI (or not), and can facilitate the clear and transparent justification of those decisions.

States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft law or hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader regulatory landscape.

This contribution, rather than focusing on the debates within the Business and Human Rights (BHR) domain itself, offers a comparison between soft law regulation in the BHR context, on the one hand, and in the jus in bello (JIB) and jus ad bellum (JAB) contexts, on the other. Specifically, this contribution looks at the recent experience in JIB and JAB wherein states and other actors have tried to address the indeterminacy of treaty law provisions through soft law proposals that advance a disputed interpretation of hard law, producing legal uncertainty and scholarly debate. I use as examples the 2009 Interpretive Guidance on Direct Participation in Hostilities and the 2012 Bethlehem Principles as a way to extract lessons for the codifying momentum underway in BHR.

In this essay, we examine empirically whether the revised draft of the business and human rights (BHR) treaty is a normative advance on the existing jungle of global instruments. Since the 1970s, almost one hundred global corporate social responsibility (CSR) standards have been adopted, half of them addressing human rights. See Figure 1 from our global CSR database, below. What is novel about the current treaty-drafting process within the UN Human Rights Council (HRC) is that it aims to develop a comprehensive standard that would hold states legally accountable for regulating business. The question is whether this is possible. Drawing on our work on the “commitment curve,” we begin theoretically and point out why one should hold modest expectations about the process and treat strong text with skepticism as much as celebration. Using an empirical methodology, we then compare the HRC's Revised Draft Legally Binding Instrument (Revised Draft LBI) with existing standards, and find that while the draft contains a healthy dose of incremental pragmatism, its significant advances require a degree of circumspection about its strengths and prospects.

Achieving respect for human rights by businesses requires not making the “right” choice between hard and soft law but establishing an architecture to sustain a constructive dialectic between the two. This essay argues that a business and human rights treaty modelled as a framework convention and centered initially on the UN Guiding Principles (UNGPs) offers such a structure while avoiding the shortcomings of treaty proposals advanced to date.

A common exercise for international lawyers faced with a new global environmental problem consists in undertaking a review of the applicable law. Environmental principles generally feature extensively in such studies: their open-textured nature is recognized to facilitate a fluid adaptation of international law as new risks become apparent. Among these principles is the foundational prevention principle, which is based on the rationale that environmental damage is best avoided rather than repaired. Since its international recognition in the 1972 Stockholm Declaration on the Human Environment, the prevention principle has gained an influential place in the work of environmental lawyers. While it is readily assumed that the principle is able to guide state responses to the plastics crisis, its exact functions and legal implications in this context remain underexplored. The purpose of this essay is to shed light on the different roles that the prevention principle can play in response to the proliferation of harmful plastics.

As an internationally-traded commodity, plastic waste has long followed the profitability dynamics of the global waste and recycling market, leaving in its trace a disproportionate environmental and health burden on the world's most vulnerable populations. East Asian and Pacific countries, where most globally generated plastic waste has been exported since the late 1980s, are marked by underdeveloped, inefficient, or non-existent waste management infrastructures. Despite the highly visible environmental and human health impacts of plastic pollution, the global plastic waste trade has predominantly operated outside the scope of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. In 2019, however, this treaty was amended to explicitly bring all but a narrow stream of plastic waste within the category of wastes controlled as “hazardous waste,” or “waste requiring special consideration.” This essay explains the international legal implications of the amendment and discusses potential challenges related to its implementation and enforcement. It argues that in order to be effective, the new plastic waste trading rules will require further legal clarity, greater transparency in plastic waste trade that is not regulated under the Convention, and stronger law enforcement cooperation between customs and environmental protection authorities, both within and between countries. Since controlling all plastic waste trade at point of export is, in practice, impossible given the state of global shipping infrastructures and container traffic volume, the most effective approach to curbing plastic waste pollution and illegal trade lies outside the mandate of the Basel Convention, notably, in assigning financial and environmental responsibility for plastic waste within plastic product supply chains.