Remote-access cyber espionage operations against activists, dissidents or human rights defenders abroad are increasingly a feature of digital transnational repression. This arises when State or State-related actors use digital technologies to silence or stifle dissent from human rights defenders, activists and dissidents abroad through the collection of confidential information that is then weaponized against the target or their networks. Examples include the targeting of Ghanem Al-Masarir (a Saudi dissident living in the United Kingdom), Carine Kanimba (a United States–Belgian dual citizen and daughter of Rwandan activist Paul Rusesabagina living in the United States) and Omar Abdulaziz (another Saudi dissident living in Canada) with NSO Group's mercenary spyware. This practice erodes human rights, democracy and the rule of law and has a negative impact on targeted communities, including social isolation, self-censorship, the fragmentation and impairment of transnational political and social advocacy networks, and psychological and social harm. Despite this, international law does little to restrain this practice. Building on momentum around the regulation of mercenary spyware and transnational repression, this article elaborates on how States could consider regulating dissident cyber espionage and streamlines a unified approach among ratifying States addressing issues such as State immunity, burden of proof, export control and international and public–private sector collaboration.

This article revisits the overlooked field of comparative environmental law. It examines contributions to this field from the late 1960s to 2022, highlighting the methodologies proposed, their shortcomings, the main aspects and angles taken by the literature, and the curious lack of engagement by experts in comparative law proper with environmental law systems. On the basis of a structured examination of the literature, the article extracts four main aims or purposes that may guide this line of research: (i) clarifying the initial system by contrasting it with a foreign system; (ii) using the basic conceptual features of a known system to analyse and understand a foreign unknown system; (iii) evaluating and fine-tuning a system or an aspect thereof; and (iv) extracting analytical categories that can serve to map the entire field or areas of it.

The health of the planet and its life forms are under threat from anthropogenic climate change, pollution and biodiversity loss, and the extreme weather events, heatwaves and wildfires that accompany them. The burgeoning field of planetary health studies the interplay between humanity and the Earth's biosphere and ecosystems on which human health depends. Scholarship on law from a planetary health vantage point remains scarce. This article fills this gap by delineating the conceptual building blocks of a planetary health law, which, in its latent form, is dispersed across various hard and soft sources of international environmental law and global health law that converge on the right to a healthy environment, and, to a lesser extent, rights of nature emerging in various domestic jurisdictions. It elucidates how the fragmented regimes of international environmental and global health law could be developed in more coherent ways, driven by an overarching concern for the integrity of the planetary foundations of life.

In its updated Commentaries on the 1949 Geneva Conventions, the International Committee of the Red Cross (ICRC) embraces the ‘external’ interpretation of Article 1 common to the four Geneva Conventions, according to which States have certain negative (complicity-type) and positive (prevention/response) obligations to ‘ensure respect’ for the Conventions by other actors. This interpretation has been gaining support since the 1960s, though the ICRC's new Commentaries have served as a catalyst for some States recently to express contrary views. This article focuses on two major methodological shortcomings in the existing literature, offering a much firmer foundation for the external obligation under common Article 1. First, it demonstrates the overwhelming support in subsequent practice for external obligations. Previous studies have failed to explain the method by which this practice is taken into account, given the existence of some inconsistent practice. This article addresses this general question of treaty interpretation, critiquing the approach of the International Law Commission that relegates majority practice to supplementary means of interpretation and proposing instead a principled approach that better fits and justifies the judicial practice here. Secondly, the article challenges two common assumptions about the travaux: first, that an original, restrictive meaning was intended, and secondly that the travaux of Additional Protocol I offer no support for external obligations. Given the ubiquity of military assistance and partnering, these findings have far-reaching consequences for the liability of States.

In the work of the International Law Commission (ILC) on ‘the general principles of law’ in Article 38(1)(c) of the Statute of the International Court of Justice, one question has given rise to an inordinate amount of controversy: does this category of principles include principles formed within the international legal system or does it embrace only principles derived from national legal systems? In the draft conclusions adopted on first reading in 2023, the ILC accepts the existence of general principles of law formed within the international legal system, but only in a very narrow manner. Prominent commentators have argued that such a narrow approach is correct. It has been contended, furthermore, that the category of general principles of law formed within the international legal system is an innovation of the ILC's, and one that lacks any real support in State practice. These views are based on assumptions to the effect that the traditional view concerning the meaning of Article 38(1)(c) was that it referred only to general principles of law derived from national legal systems. The present article takes issue with these assumptions. It seeks to prove, by an analysis of the position in 1920 when the Statute was drafted, of the practice of States, both before and after 1920, and the writings of leading commentators, that general principles of law formed within the international legal system are no less part of ‘general principles of law’ than general principles of law derived from national legal systems.

During the COVID-19 pandemic the international community repeatedly called for the equitable distribution of vaccines and other medical countermeasures. However, there was a substantial gap between this rhetoric and State action. High-income countries secured significantly more doses than they required, leaving many low-income countries unable to vaccinate their populations. Current negotiations for the new Pandemic Treaty under the World Health Organization (WHO) attempt to narrow the gap between rhetoric and behaviour by building the concept of equity into the Treaty's substantive content. However, equity is difficult to define, much less to operationalize. Presently, WHO Member States appear to have chosen ‘access and benefit-sharing’ (ABS) as the predominant mechanism for operationalizing equity in the Treaty. This article examines ABS as a mechanism, its use in public health, and argues that ABS is fundamentally flawed, unable to achieve equity. It proposes other options for an equitable international response to future pandemic threats.

This article challenges the justification usually offered by the Inter-American Court of Human Rights for its broad use of external sources when engaging in evolutive interpretation of the American Convention on Human Rights (ACHR). It analyses the Court's jurisprudence concerning international humanitarian law, the rights of the child, and lesbian, gay, bisexual, transexual and intersex (LGBTI) rights, in addition to drawing on interviews conducted with lawyers of the Court. It argues that the discursive strategy used by the Court to justify its ‘import’ of external sources fails to provide a complete normative justification and remains open to the charge of ‘cherry-picking’. The article recommends that the Court tailors its discursive strategy to the specific type of external sources used and suggests that more attention be paid to searching for internationalized consensus when determining the relevance of non-binding sources to evolutive interpretation of the ACHR.

The article explores the interpretation of the right to a healthy environment by the Inter-American Court of Human Rights as an autonomous right under the American Convention on Human Rights. It places this development in the context of transformative constitutionalism in Latin America and examines it against the background of the Court's broader case law. The article argues that, even though this is an important judicial innovation, there are three challenges with the approach of the Court. The first relates to the individual and collective dimensions of the right; the second to the link between this development and the Court's previous jurisprudence; and the third to the corresponding reparations. The last part of the article seeks to explore ways in which the Court could offer further guidance on the contours of the right and its relationship with civil and political rights.

National regulatory authorities (NRAs) play a key role in energy transition from fossil fuels to renewable energy sources. A recent judgment of the Court of Justice of the European Union has clarified the requirements of NRA independence under European Union (EU) energy law. The Court classified the exclusive competence of NRAs to fix network tariffs as purely technical assessments of factual realities. This article challenges this assumption and examines whether the technical administrative tasks of NRAs can in fact be separated from political choices. It also explores the delineation of competences between NRAs and national governments at the EU and national levels, as exemplified by the Netherlands and by the proposed Dutch Energy Act.

This article examines the legal principles governing the sharing of benefits deriving from the exploration and use of outer space. It shows that, over time, three strands of State practice have developed different understandings of the content of the obligation contained in Article I, paragraph 1 of the Outer Space Treaty. While drawing parallels with other areas of international law, the article examines the role of equity in the structure of the obligation and evaluates the possibility of replacing considerations of equivalence with a proportionality test to facilitate the fulfilment of the benefit sharing obligation under the Outer Space Treaty.

The law of the sea has long been a rich source of examples of the interplay, and occasional entanglement, of treaty and custom. This article discusses whether claims to close off the waters of ‘offshore archipelagos' by non-archipelagic States are consistent with international law against the background of this perennial issue. Analysis of the 1982 Law of the Sea Convention (LOSC) demonstrates quite clearly that there is no basis for such claims. ‘Going beyond the LOSC’ the article examines whether the matter remains subject to customary international law; whether subsequent practice may have established the agreement of the parties that the relevant provisions of the LOSC are to be interpreted as allowing their invocation by non-archipelagic States with offshore archipelagos; and whether there is ‘supervening custom’ that may have emerged since the adoption of the LOSC and that permits such claims by non-archipelagic States. Identifying and critically assessing the current state of international law on these fundamental questions of the relationship between treaty and custom, it is concluded that there is no basis for arguing that non-archipelagic States are able to claim any sort of special status for ‘offshore archipelagos’.

Data protection law has emerged as an important bulwark against online privacy intrusions, and yet its status within privacy law remains awkward. Its starting point of protecting ‘personal’ rather than ‘private’ information puts it at odds with privacy more generally. Indeed, in its very design, data protection law caters for the protection of public personal information, or personal information which has attained a degree of publicness through disclosure. Building on James Whitman's comparative privacy study, this article argues that data protection law is not the odd bedfellow of privacy law properly so called but may be understood as a manifestation of the Continental European culture of privacy. Its distinctiveness does not lie in its apparent technicality but in its robust openness to privacy in public—an idea that is alien to the Anglo-American culture of privacy. Whilst these two cultures of privacy have long ‘met’ in different jurisdictions, this article locates their enduring influence and antagonism within three contemporary privacy regimes. By taking the right to be forgotten, as an archetypal privacy-in-public right, in the testing context of spent criminal convictions, the article gauges the comparative openness to such claims, first, of the Court of Justice of the European Union as the authoritative voice on General Data Protection Regulation normativity; secondly, of the US judiciary as committed to the First and Fourth Amendment; and, thirdly, of the European Court of Human Rights on Article 8 of the European Convention on Human Rights and its fused Anglo-American and Continental European privacy jurisprudence. It is the latter jurisprudence in particular that highlights the tensions arising from trying to marry the two privacy traditions, or merge data protection and ‘privacy’ law. Yet, these tensions also offer insights and opportunities.

The Taliban's takeover of Afghanistan in August 2021 deprived women and girls of their fundamental rights. The Taliban denied or severely restricted women and girls’ rights to education, work, healthcare, freedom of movement, opinion and expression, and to protection from gender-based violence. This article argues that the Taliban's treatment of Afghan women and girls amounts to persecution, and all Afghan women and girls should be recognised as refugees under the 1951 Refugee Convention. The article further examines the feasibility of prima facie recognition for Afghan women and girls.

This article explores the meaning of solidarity in European Union (EU) law in the context of the energy sector and the ongoing energy crisis. Energy provides a powerful and topical sectoral example of the fundamental role and diverse functions of solidarity in EU law. In its OPAL ruling in 2021, the Court of Justice of the EU established that energy solidarity constitutes a legally binding principle of EU energy law that should inform EU institutions and the Member States in their energy decisions. This article adds to legal scholarship on solidarity in three ways. First, it further develops the understanding of the ambiguous solidarity concept in EU law through the lens of the energy sector. Secondly, it contributes to the emerging body of energy law scholarship that seeks to advance the discipline of energy law by focusing on its doctrine rather than on its substantive developments. Finally, it provides a timely and novel analysis of the EU's recent emergency responses to address the acute energy crisis from the point of view of solidarity.

Companies from emerging economies have started internationalizing their production operations; they are following the same path as American, European and East Asian corporations before them, setting up factories in third countries to serve their export markets from closer locations and produce more efficiently. Thus, it is no longer only developed countries’ multinationals which are moving their operations to developing countries, but emerging market companies that are increasingly engaging in production abroad. This is having beneficial effects in countries where these companies invest and might help them start their own industrialization process. This has attracted the ire of developed countries, which are now targeting these downstream production plants abroad by using the so-called anti-circumvention instrument, resulting in trade defence duties imposed on the parent companies being extended to their foreign subsidiaries. This application of the anti-circumvention instrument departs from its historic rationale and might hinder the development of countries in need of foreign investment. Therefore, affected governments should consider taking international legal action to bring developed countries to the negotiating table to put a halt to this abuse of the anti-circumvention instrument.

Plastic pollution is a planetary crisis posing a significant threat to humans and the environment. The regulatory response to this crisis has so far been piecemeal and has not prevented the accumulation and ubiquity of plastic pollution. The growing concern over plastic pollution and the first regulatory measures directed against it soon resulted in court cases. By early 2023, cases concerning plastic pollution emerged in more than 30 countries around the world. From holding private polluters accountable to considering the constitutionality of restrictions on certain plastic products and to ordering regulatory bodies to adopt or implement such measures, courts are playing an increasingly important role in plastic pollution governance.

Binding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.

The discussion on Taiwan's status under the United Nations Convention on Contracts for the International Sale of Goods (CISG) has picked up steam. After providing some historical background, it is argued that neither doctrinal nor policy arguments can support the application of the Convention to Taiwanese parties. Drawing on case law in the context of other uniform law treaties, the article concludes that the approbation of the CISG by the People's Republic of China should not bind Taiwan and that, as a consequence, Taiwanese parties should be treated as parties from non-Contracting States.

The negotiation of the free trade agreement (FTA) between Australia and the United Kingdom promised to integrate trade and climate policies. As a leader of the United Nations Framework Convention on Climate Change (UNFCCC) conference in Glasgow, the UK seemed well-placed to exert pressure on Australia, a country that was yet to embrace a target of net zero emissions by 2050. This article asks whether the FTA achieves this aim. It explains the link between trade liberalisation and climate change, referring to the scale and composition of economic activity and drawing upon examples from energy, agriculture, building and transportation sectors, as well as strategic factors. It provides an original analytical framework to assess the FTA's contributions to climate change goals, pointing to: (1) provisions to strengthen climate commitments, including net zero targets; (2) provisions to facilitate trade and investment in climate-related areas; and (3) provisions relating to enforcement and cooperation. It compares selected initiatives of other FTAs, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the European Union–Canada Comprehensive Economic and Trade Agreement (CETA), the UK–New Zealand FTA and the Singapore–Australia Green Economy Agreement. It reviews the FTA's negotiating process and its aftermath, including complaints about public participation. The article's conclusion that the FTA makes minimal contribution to climate change mitigation has implications for the broader quest for mutually supportive trade and climate policies, and, now that a net zero target has been legislated by the newly elected Australian Parliament, for the FTA's future implementation.

This article presents the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council. Specifically, it examines the pillars relating to ‘participation’ and ‘protection’ under the Women, Peace and Security (WPS) agenda. In attempts to balance agency with victimhood, normative advancement of both pillars has until recently evolved along parallel tracks, with little acknowledgment of how protection relates to women's participation. This article identifies synergies, gaps and productive tensions as the WPS agenda begins to engage with the inter-relationship between the pillars. It outlines critical implications and considerations for any future moves towards cross-pillar congruence.