The right of self-defence is usually presented as an exception to the principle of non-use of force. Conventional wisdom therefore holds that the right of self-defence can only be relied on to justify those measures constituting a threat or use of force. This article rejects that claim. It argues that self-defence is a general right under international law and, as such, can be invoked to justify all measures necessary to repel an armed attack regardless of whether they are forcible or non-forcible in nature. To support this argument, this article examines the genesis of the right of self-defence under customary international law, the text of Article 51 of the United Nations Charter, the structure of the United Nations Charter and State practice on Article 51.

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.

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’.

Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered.

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.

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

A principle that prohibits States from weakening their domestic levels of environmental protection continues to emerge at varying speeds within international trade, investment and environmental law. This article explores the principle's diverse history, rationale and legal expression in each of these domains and finds that its various articulations in different international treaties suffer the same shortfalls and deficiencies. Non-regression clauses may leave the complexities and nuances of implementing environmental protections unaddressed, including identifying and measuring when a regression has occurred and balancing these environmental protections with other legitimate policy and environmental measures. As these clauses are increasingly subject to investor–State and State–State dispute procedures, States expose themselves to heightened liability for changes to their environmental laws, even where those changes might be legitimate and reasonable. The particular emergence of this principle in environmental law offers treaty-makers an opportunity to clarify the rights of States to derogate from otherwise narrowly drafted clauses that require them to maintain their level of environmental protection strictly.

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.

Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are most prominent in current international environmental law, but that a normative rationale for public participation could be gaining more formal endorsement through the growing legal recognition of linkages between procedural human rights and environmental protection.

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.

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.

The European Union (EU) is contemplating the adoption of a carbon border adjustment mechanism (CBAM), which would extend its domestic carbon price to emissions that are produced outside its borders but are embodied into its imports of carbon-intensive commodities. In doing so, the EU is testing the boundaries of permissible unilateral action at the interface of international climate and trade law. However, the question of whether the proposed CBAM is compatible with these two multilateral legal regimes is yet to be addressed in an integrated manner. This article seeks to fill this gap in the scholarship and makes two main arguments. First, the CBAM as presently designed does not respect the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC) and needs to be adjusted through two forms of differential treatment: a full exemption for least-developed countries and Small Island Developing States and the use of CBAM-generated revenue to support decarbonisation efforts in other affected developing countries. Secondly, this CBDRRC-based differentiation should be permissible under WTO law on the grounds that it does not amount to discrimination between countries where the same conditions prevail.

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 Western response to the Russian invasion of Ukraine has featured remarkable solidarity over diplomatic and sanctioning initiatives. This unity of action, however, has largely not extended to developing or non-Western States. Many such States have, instead, expressed their non-alignment in respect of Western ‘economic warfare’, albeit not infrequently while also condemning Russia's military actions. This article proposes an approach to reconciling the positions of States in different economic, geopolitical and regional/cultural alignments. First, it suggests that current norms on State responsibility do not rule out using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions. At the same time, however, it is argued that individual third-party States retain extensive rights to decide whether or not to participate in such initiatives. This autonomous agency can be derived, in part, through the continued applicability of traditional neutrality principles that require all sides to a conflict to respect the status of neutral States. As collective countermeasure initiatives come to be used more frequently in response to global conflicts, the ‘forgotten’ rules of neutrality provide a useful guide for balancing inter-State legal relations.

This article argues that although most Caribbean States have in the last 60 years ascended to statehood, colonialism continues to exist in new and variable forms. It relies upon the concept of ‘coloniality’ as advanced by Schneiderman to contend that the international investment law regime, whose history and evolution is rooted in colonialism, relentlessly pursues the economic interests of foreign investors and capital-exporting countries. It draws important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, as advanced by Schneiderman in his new book, Investment Law's Alibis, namely (a) profitability and privilege; (b) a discourse of improvement; (c) distrust of local self-rule; and (d) construction of legal enclaves. It is argued that each of these features of colonial rule, from a Caribbean perspective, is inscribed in the discourse and practices of the international investment law regime.

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.

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

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.

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 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.