This article documents how members of the European Economic Community and members of the Arab League negotiated a draft ‘mega-regional’ investment protection treaty from 1976 to the late 1980s—the first of its kind. The negotiations produced a full draft treaty and came tantalisingly close to completion but ultimately ran into the political sands. Had it been concluded, the Convention would have been the most significant investment protection treaty ever negotiated at the time, and one of the most significant to this day. Negotiations were conducted within the cloak of diplomatic confidentiality, however, so the effort has remained unknown to even specialised scholars and practitioners to this day.

When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor's right to recourse to an investment tribunal.

This article considers the positive evolution of international law in the past century, and the emergence of a rules-based multilateral system under the UN Charter, which has, inter alia, enabled formerly colonised peoples to exercise their right to self-determination and prohibited the use of force in international relations. The author reaffirms his faith in the ability of international law to provide a common language for the international community to face successfully common challenges, such as poverty, global warming, and the protection of privacy rights in the era of social media and artificial intelligence. Looking beyond traditional beneficiaries and duty-bearers of international obligations, the author makes a case for all actors to engage in respecting, upholding and promoting international law.

The role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

Informed by the ‘assembly’ jurisprudence of the United Nations Human Rights Committee, this article addresses fundamental questions about the meaning and scope of ‘assembly’ in Article 21 of the International Covenant on Civil and Political Rights (ICCPR). In seeking to determine when the right of peaceful assembly might properly be engaged, the article explores the interrelationship of assembly with expression and association and proposes a definition of ‘assembly’—for the purposes of its protection—as ‘an intentional gathering by two or more people (including in private and online/virtual spaces)’. Such definitional reflection is particularly timely in light of the Human Rights Committee's drafting of General Comment No 37 on Article 21.

Since the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

The interaction of international counter-terrorism laws with IHL is an area of renewed focus, amid widespread concern that the former are being (mis)applied to criminalise the provision of humanitarian assistance envisaged under the latter. The Security Council has begun to consider this issue in resolutions adopted in March and July 2019, but difficult questions of law and fact remain. These questions have significant practical consequences—for humanitarian agencies and those they seek to assist, as well as for States that must weigh different, and possibly conflicting, legal obligations. Much of the analysis to date and the solutions proposed, pay insufficient attention to the specifics of each legal regime.

The legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.

The current relationship between UK and Strasbourg is politically fraught, which presents inevitable challenges for both jurisdictions. This article will analyse how the Strasbourg Court has responded to these challenges when dealing with applications against the UK, particularly when an application is brought following determination by the UK Supreme Court. It will be argued that there is some evidence that the Strasbourg Court has recently been using the admissibility stage as a novel site for effecting strategic behaviour, in order to moderate and influence UK–Strasbourg relations. The effect of this recent inclination, and some possible justifications for it, will then be set out.

The dyadic rule–exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorised in the literature. This article argues that we should understand exceptions from a deontological perspective as permissions that affirm governmental regulatory capacity and thus limit the scope of the commands set out in the treaty. This characterisation of exceptions has both symbolic and practical implications, of which this article discusses two: determining the exception's applicability as a preliminary matter rather than as a defence, which would in turn permit consideration of regulatory purpose at the point of obligation; and whether the applicability of an exception is properly a question of merits or jurisdiction.

A ‘safe zone’ refers to an area established in armed conflict for the purposes of protecting civilians. This article provides the first legal analysis of whether safe zones can be invoked as a ground for refusing asylum. It examines the concept of the Internal Protection Alternative (IPA) which posits that an individual is not a refugee if there is a safe place within his/her country where he/she can relocate. It clarifies the applicable criteria in the IPA inquiry and uses three case studies to illustrate that safe zones can only qualify as lawful IPAs in exceptional circumstances.

As artificial intelligence (AI) systems become more sophisticated and play a larger role in society, arguments that they should have some form of legal personality gain credence. The arguments are typically framed in instrumental terms, with comparisons to juridical persons such as corporations. Implicit in those arguments, or explicit in their illustrations and examples, is the idea that as AI systems approach the point of indistinguishability from humans they should be entitled to a status comparable to natural persons. This article contends that although most legal systems could create a novel category of legal persons, such arguments are insufficient to show that they should.

The Syrian civil war has highlighted the phenomenon of foreign fighting, in which individuals leave their home State to join an armed conflict overseas. The predominant paradigm for regulating foreign fighting, centred on United Nations Security Council Resolution 2178, is based on counterterrorism, which in essence treats foreign fighting as a form of terrorism. This paradigm is largely reflective of the domestic legislation of the United Kingdom, United States, Canada and Australia. This article argues that this approach is problematic, and that an alternative paradigm based on the international law of neutrality and related domestic legislation provides a better means for regulating foreign fighting.

This article, on the basis of a consideration of the development of the law relating to the use of passports as a tool of national security in the United Kingdom, Canada, Australia and New Zealand, challenges the common law conception of passports, arguing that passports effectively confer rights and so, consequentially, that the refusal or withdrawal of a passport represents a denial of rights. From this conclusion a number of points flow. Though these consequences are most acute for the United Kingdom and Canada, in which passports remain regulated by, and are issued under, prerogative powers, there are also a number of points of significance for Australia and New Zealand, where passports have a statutory basis.

The law of armed conflict requires ‘distinction’ between civilians and combatants and provides that only the latter may be targeted. However, for proper implementation, distinction requires advanced observation and recognition abilities as well as the capacity to exercise judgement based on situational awareness. While the observation and recognition abilities of machines may now surpass those of humans, the capacity of machines to exercise judgement remains significantly more limited than our own. Consequently, this article contends that the deployment of ‘autonomous weapons’ based on current levels of technological sophistication would be incompatible with distinction and that, as such, their use in conflict would be unlawful.

This article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation and coordination amongst them, the guiding principles of the new agreement, and the question of implementation and enforcement of the new agreement. These issues and the choices that delegations will make respectively highlight the controversy on the underpinning tenet of the agreement, ie between the ‘freedom of the high seas’ and the common heritage of mankind. The article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States and international community have had at the early days of the negotiation.

When bitcoin was released by the mysterious Satoshi Nakamoto in 2008, few could have predicted that it would attract as much attention as it has today. It has spawned a veritable host of other cryptocurrencies, including ether on the upstart Ethereum network, which boasts smart contract functionality. The underlying blockchain technology has also attracted attention, with some within the blockchain community suggesting that it can solve such diverse problems as secured digital voting to tracking food provenance. In the legal context, blockchains have been envisaged as capable of revolutionising registries for assets ranging from land to intellectual property, modernising clearing and settlement, and even fundamentally transforming the contracting process. This article critically evaluates the popular claims surrounding the potential of blockchain technologies to disrupt the legal system by separating hype from fact.

Some investment arbitration tribunals have relied upon the principle of contributory fault to conclude that claimants have contributed to their own loss and should accordingly receive less compensation. The principle has not, however, been coherently applied. After analysing the use of contributory fault by tribunals and identifying factors contributing to an incoherent approach, the authors conclude that carefully crafted treaty provisions can improve the consistency of international investment arbitration by fostering a more coherent approach to both contributory fault and foreign investors’ responsibilities.

Deep-water technology and commercial interests have put the protection of underwater cultural heritage under considerable pressure in recent decades. Yet the 2001 UNESCO Convention has the potential to fend off the threat—if fully implemented. This article sets out the legislative duties States Parties have under one of the Convention's core provisions: Article 16. It requires States Parties to take a triad of legislative measures: they must enact prohibitions, impose criminal sanctions and establish corresponding jurisdiction over their nationals and vessels. In addition, the comprehensive protection of underwater cultural heritage also necessitates measures covering acts of corporate treasure hunters, even though this is not required by the Convention itself.

When adjudicating religious disputes, constitutional courts often resort to a particular discursive register. The notions ‘tolerance’ and ‘respect’ are an integral part of this religion-specific constitutional register. But what do judges mean when they deploy the language of tolerance and respect? And what substantive role, if any, do both notions play in the constitutional interpretation of religious freedom? This article seeks to answer these conceptual and substantive questions by comparing constitutional case law on religious freedom from India, Israel and the United States. It also provides linkages to ongoing processes of (alleged) constitutional retrogression in the three jurisdictions.