A pivotal point in time has been reached in the ongoing negotiations under the auspices of the International Seabed Authority (ISA) towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA has a mandate to ensure that activities in the Area, legally designated as ‘common heritage of humankind’, are carried out for the benefit of humankind as a whole. Yet, there is a growing sense of unease with the potential imminence of the commercial exploitation phase, and concern that the implementation of all components of the common heritage principle, including its environmental and distributive ambitions, will be compromised in the interest of a handful of industry stakeholders. This article dives under the surface of these tensions by asking how the public interest in a global commons can become constructed in a way that conflates diverse and opposing interests in favour of value extraction by the private sector, revealing the ambivalent role of international law in the process. It uses the concept of ‘false necessity’ to question the apparent urgency and inevitability of commercial exploitation, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind. By shifting the focus from the much-debated risks of deep seabed mining to the notion of benefit, the article illuminates the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation.

This article focuses on the nature-culture dimension in the Amazonian territory as an ontological question. It is argued that international law, as a product of modern Western societies, reflects and reproduces particular ideas about what the environment is. These ideas in turn reflect specific nature-culture relations that are not necessarily present in other societies. This is especially evident in contexts such as the Amazon, where the basic assumptions that modern Western society takes for granted cannot be extrapolated. The argument is illustrated through the Amazonian Kukama-Kukamiria people’s conception of the river, which was put on the ropes by the implementation of a development project. It is proposed that rethinking international law along with the Amazon means situating oneself in not only a geographically but also ontologically different place.

Usual accounts of international law-making and international legal change focus on formal secondary rules. Others include societal and institutional facts. But international law consists of ideas too. Arguably it exists only in minds. To be sure then, the conditions of ideational change codetermine when and how international law is made, unmade, and otherwise changes. This is what this article is after. It first draws a general sketch of international legal change (including its making and unmaking) to then zoom in on its ideational elements, with a narrower focus on market opportunities for ideas. These market opportunities, it is argued, are determined by: paradigm shifts, struggles between competing schools of thought, the formation of distinct epistemic subfields, the core individuals’ different capitals, and changes in beliefs.

Many contemporary armed conflicts are shaped by the reliance on airstrikes using traditional fighter planes or remotely piloted drones. As accounts of civilian casualties from airstrikes abound, the ethics and legality of individual airstrikes and broader targeting practices remain contested. Yet these concerns and debates are not new. In fact, a key attempt to regulate aerial warfare was made 100 years ago. In this article, we approach the regulation of aerial warfare through an examination of the 1923 Hague Draft Rules of Aerial Warfare and the contemporary scholarly discussion of these rules. While the Draft Rules have never been converted into a treaty, they embody logics of thinking about civilians, technologies of aerial warfare, and targeting that are still resonating in contemporary discussions of aerial warfare. This article argues for a contextualized understanding of the Draft Rules as an attempt to adapt International Humanitarian Law (IHL) to the new technological realities while maintaining distinctions between different kinds of spaces and non-combatants. We argue that the Draft Rules prefigure later debates about the legality of aerial bombing by tacitly operating with a narrow understanding of the civilian and by offering a range of excuses and justifications for bombing civilians.

Article 281 of UNCLOS allows states parties to a dispute to set aside the compulsory dispute resolution procedures under Section 2 of Part XV. This article discusses the recent jurisprudence that appears in the interpretations of Article 281. It discusses in turn whether, first, Article 281 provides requirements for agreements under Article 281(1) to activate the opt-out procedure from the compulsory dispute settlement mechanism; second, whether such agreements under Article 281(1) must include an explicit exclusion from the procedures under Section 2 of Part XV of UNCLOS; and, finally, whether agreements under Article 281(1) must include a compulsory dispute settlement procedure allowing binding decisions. It is concluded that Article 281 is not designed for compulsory dispute settlement procedures, which is the object and purpose of Article 282. Instead, Article 281 opts for consensual dispute settlement mechanisms which, under certain circumstances, may set aside the compulsory dispute settlement mechanism in Section 2 of Part XV.

Article 12 of the United Nations (UN) Convention on the Rights of the Child (CRC) requires that states afford children the opportunity, subject to certain qualifications, to express their views on all matters that affect them. Alongside the substantive, procedural and normative significance of this right, Article 12 both reflects and contributes to progressive understandings of childhood more generally; it recognizes children as agentic beings ‘with integrity and personality and the ability to participate freely in society and articulate a view’. Nevertheless, the fulfilment of this legal right is often not realized, requiring ongoing efforts to help translate it into practice. This article examines how the UN Committee on the Rights of the Child (CommCRC), through recommendations to state parties issued as part of its monitoring function, can assist, or hinder the realization of Article 12. The primary argument advanced is that when issuing recommendations, the CommCRC ought to draw on the Lundy Model of Child Participation as an organizing concept- one utilized to weave together the substance of their recommendations in ways more instructive, useful, and impactful than the current approach.

Considered a landmark in feminist international politics, the Women, Peace and Security (WPS) agenda of the UN Security Council has been the object of many feminist explorations. Feminist legal scholars, however, have grappled with the ‘shadowy’ legality of the agenda, mostly analysing it as an ‘unsuccessful’ legal project: a partial or in progress legal norm, a defective legal form that attests (and furthers) the exile of inclusion of feminists in international law, or yet a formalistic discussion with lesser impact for feminist activists on the ground. Drawing from Avery Gordon’s considerations on taking shadows seriously in our production of knowledge, I propose, however, that reckoning with the shadows of the WPS’s legality enables a more comprehensive analysis of how the agenda has been a successful legal project in its own way. Offering a ‘shadow hauntology’ for the legal status of the WPS, I zoom in on the competing legality perceptions shared by relevant actors, the (gendered and colonially-continuous) shadows that have haunted those perceptions into formation, and how these competing visions have shaped the legality of the WPS as a shadow of its own. This study then offers an alternative way of studying legality both to feminist legal scholarship and studies on international legal sources more broadly. More concretely, it embraces the irresolvability of the legal status of a norm to take stock of the different legal projects and legality perceptions advanced by feminist actors and gender experts, in an effort to understand, in their own terms, the successes achieved.

The subject of this analysis is the role that regional trade agreements (RTAs) play in balancing between personal data commodification and protection of privacy and personal data, approached from the perspective of Karl Polanyi’s theory of double movement. We analyse provisions on cross-border information transfers and data protection in order to establish the models for balancing between the ideas of personal data commodification and social protection, understood as allowing for the use of measures that ensure privacy and personal data protection. Our analysis indicates that there are two general models concerning the liberalization of cross-border information transfers: one model restricts states’ ability to restrict data flows while the other is more open to such measures. Next, we identify three primary models governing how data protection is treated in the agreements that liberalize data flows: one that is based on the inclusion of substantive standards of protection in the content of the given agreement; one that uses international standards as a proxy for establishing certain level of protection; and one that is based on national data protection laws. Combining identified models of liberalizing data flows with identified models of ensuring data protection allows us to show that the inclusion of seemingly similar provisions on cross-border data transfers in various RTAs has resulted in developing several different models for balancing between commodification of personal data and data protection.

This article aims to enrich the emerging, multi-coloured tapestry of ‘international law in context’ through a study of how international economic law operates in complex investment-related disputes. Focusing on the Eco Oro v. Colombia investor-state arbitration, and drawing on both doctrinal analysis and sociolegal research, the study investigates how different actors make sense of the issues, of the dispute, and of the law. Besides shedding light on the neglected multi-actor, multi-layered dimensions of investment disputes, and on tensions between often incommensurable values, juxtaposing arbitral proceedings and underlying social realities highlights how investor-state arbitration involves a socio-political process of re-presenting actors, territory, the environment, and livelihoods through the prism of international arrangements that are primarily designed to protect foreign investment. The findings provide policy pointers on the need for systemic reform of international investment law, moving away from the predominant emphasis on investment protection and investor-state dispute settlement, towards a governance model that effectively considers the social, political, and environmental dimensions of foreign investment projects.

This article maps the elements of the epistemically legitimate argumentative space of judges in scientific disputes, where scientific facts and arguments intrude into the legally relevant aspects of the legal controversy. The article distinguishes four main forms of legitimate hybrid reasoning styles. It identifies the epistemic risks threatening the legitimacy of decisions in light of the corresponding limits of the epistemically legitimate argumentative space. The article concludes by discussing the parameters which help judges to select the appropriate reasoning style in particular cases, such as the judicial institution’s epistemic capacities, practical feasibility, and the role science plays in the fabric of legal rules.

This article analyses the law-making power of international sports federations, with a specific focus on their authority of shaping global norms on gender. It explores a variety of international sporting rules from feminist and queer perspectives. These include the ban of rainbow armbands at the 2022 FIFA (Men’s) World Cup, rules on the participation of transgender persons in rugby, gendered and racialized uniform regulations in sports, and the Semenya case concerning the sports participation of women with variations in sex characteristics The analysis asserts that despite being non-state actors, international sports federations are de facto international lawmakers that disseminate hegemonic gender norms reflecting cis-hetero-sexism and white body norms. However, analysing the Semenya case and the decision of the Chamber of the European Court of Human Rights in the case shows that the law-making power of international sports federations in shaping gender norms is not absolute but embedded in a transnational network of norms. The article concludes that subjecting international sports federations to a feminist, queer, and anti-racist legal analysis assists in understanding how hegemonic norms on gender circulate transnationally and enhances knowledge on how international law works in practice.

The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.

The legally binding unilateral application of norms holds potential for abuse. Nonetheless, self-judgment is alive and kicking. Self-judgment language commonly features in treaties and states frequently invoke their authority to ‘self-judge’ sensitive issues, such as matters related to national security, before international judicial bodies. In many of these cases, the controversy whether a norm has a self-judgment quality or not has been decisive for the outcome of the dispute. Yet, the meaning and consequences of self-judgment remain contested.

This article develops self-judgment as the authoritative application of international legal norms by states. It posits that steps towards the judicialization of self-judgment by judicial bodies have given rise to state efforts to preserve unfettered discretion. Notably, states have responded to attempts by judicial bodies to gain authority over the application of self-judgment by drafting provisions more explicitly. This dynamic continues to make self-judgment a site of judicialization and pushback. The only way to understand the meaning, limitations and development of self-judgment is by studying this process. Doing so conceptually refines self-judgment and allows for more meaningful references to the notion in practice.

Persons with disabilities suffer disproportionately in every armed conflict, and Russia’s war in Ukraine is no exception. The atrocities committed against persons with disabilities in this conflict, however, are in part a consequence of the state’s longstanding policy of institutionalization, which heightens existing vulnerabilities and places persons with disabilities at an unacceptable risk of acute harm. The Independent International Commission of Inquiry for Ukraine must investigate the extensive and varied acts of violence that have been committed against persons with disabilities in Ukraine since the beginning of the Russian invasion, with a focus on persons with disabilities who are institutionalized. In recommending future action, the Commission must be driven by a victim-centred approach to accountability that contributes both to the criminal prosecutions of individual perpetrators, and to systemic reforms that contribute to the project of deinstitutionalization. This article can assist the Commission’s analysis by: (i) canvassing the reports of violence against persons with disabilities during the war in Ukraine, particularly those persons in institutions; (ii) reviewing the Commission for Ukraine’s mandate and explaining its primary purpose – that is, to ascertain the facts of the conflict, through an intersectional lens, with the aim of promoting accountability – with reference to the work done by United Nations commissions of inquiry in the past; and (iii) providing concrete examples on how the Commission’s investigations and report can further both legal accountability and systemic accountability for violence against persons with disabilities in Ukraine.

International law today recognizes that cultural heritage includes not only tangible but also intangible cultural heritage, encompassing traditions, customs, practices, and beliefs. While protections for tangible cultural heritage have existed since at least the nineteenth century, only relatively recently has the law gone beyond piecemeal human rights protections and extended direct and specific treaty protections to intangible cultural heritage through the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. The push for this Convention was linked with broader discontent within the Global south at the prioritization of Eurocentric ‘monumentalism’ in international cultural heritage law. Nevertheless, in situations of armed conflict, the emphasis reverts to protection of tangible cultural heritage as international humanitarian law does not go beyond general civilian protections to directly address the protection of intangible cultural heritage in conflict. While the 2003 Convention provides for emergency assistance, its broadly-worded terms do not indicate the shape its other obligations would take in armed conflict or the manner in which they would interact with rules governing the conduct of hostilities. This article examines, first, the degree and extent to which the 2003 Convention’s various obligations in relation to safeguarding intangible cultural heritage circumvent de-prioritization and continue to apply in conflict; and second, the manner in which they can be integrated with rules of international humanitarian law to better protect intangible cultural heritage during active hostilities.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

Despite Article 68(3) of the Rome Statute of the International Criminal Court (ICC) granting victims an autonomous standing in proceedings, victims’ participatory rights have often been tailored to fit within the retributive structure of the trials. This contribution aims to provide a different perspective on victims’ role and their narratives in proceedings at the ICC, building upon the expressivist model of international criminal justice and focusing on a specific strand that engages with the adjudication process’s performative and communicative features. In providing a better understanding of how victims’ narrative unfolds in trials at the ICC, the article addresses two issues: how the concept of the victim is constructed at the ICC; and whether and, eventually, how this construct impedes progress in recognizing their narratives in proceedings at the ICC. Concerning the first issue, drawing on criminologist Nils Christie’s theorizing of the ‘ideal victim’, it will be observed that the construct of victims in proceedings at the ICC reflects three main attributes: weakness; innocence; and dependency. The second issue shed light on the extent to which the emphasis on the ‘ideal victim’ can serve as a tool in the hands of institutional actors at the ICC to pre-empt, constrain and subordinate victims’ narratives, in a manner that oversimplifies victimhood. To impose a particular narrative upon victims’ experiences, three main procedural mechanisms have been identified: appropriation of victims’ interests; legal representation of abstract victimhood; and exclusion from the trial of victims who do not conform to the ideal victim.

The article focuses on reparations, as ordered by the International Criminal Court (ICC) against a convicted individual. It has long been orthodoxy that such measures fulfil solely compensatory objectives, for they lack any punitive intent. This article offers a rival account. An analysis of the respective regulatory and contextual framework reveals that, by design, reparations are allowed to pursue compensatory and punitive goals equally. An analysis of the reparations orders themselves affirms that, in practice, the ICC utilizes reparations as a means to accomplish compensatory and punitive objectives both. It is maintained that reparations orders are both remedial and punitive in nature. Ignoring this reality has a negative impact on individual prerogatives, and contradicts fundamental sentencing ideals of international criminal justice. It follows that the current reparations order regime should be reformed. The ICC should either explicitly acknowledge reparations as punishment, or detach them from criminal proceedings altogether.

The dispute over the Matthew and Hunter Islands (MHIs) has long been a constant strain on Vanuatu-French relations. The article examines this dispute in light of the Chagos Advisory Opinion and a few other cases concerning territorial disputes. It first submits that sovereignty over the MHIs had never been raised until 1962, when, at the occasion of a private claim, France and Britain, the two administering powers of the New Hebrides at that time, considered the issue. The two states reached an agreement in 1965, asserting that the MHIs were part of the French colony of New Caledonia and not the British-French Condominium of the New Hebrides. This article then considers the legal implications and lawfulness of the agreement, which did not take into account the local populations’ will. Although there are some important differences between the Chagos and MHIs disputes, mainly due to the fact that the MHIs are uninhabited, the applicability of the right of self-determination to both cases is nevertheless beyond doubt. The article contends therefore that the 1965 Agreement between France and Britain may constitute a violation of the right to self-determination of the people of the New Hebrides (Vanuatu), who were not consulted on the decision to attach the MHIs to the French territory of New Caledonia, and suggests that there may be, however, some other legal principles under international law that can come into play. Finally, the article contends that negotiated solutions could be a potential way forward for the parties involved.