It has recently been suggested that the study of international legal life should take an ‘empirical turn’: a turn which has often focused on how patterns of authority emerge and operate in relation to international courts. In what follows it is argued that this empiricism fails to distinguish (for the purposes of sociological inquiry) authority from various other concepts such as power or consensus in the study of international law and courts. This is because this method focuses only on overt signs, such as observable action or statements of intention, and at the level of the sign these concepts are not obviously distinguishable. However, one solution to this problem, which is to collapse socially significant and distinct categories such as authority and consensus into a broad category of ‘power’, requires the adoption of an implausible and inconsistent view of agency in explanations of legal authority. By contrast, and in line with the long-standing interpretivist tradition in sociological and legal method, we claim that in order to interpret the observable signs of compliance to international legal rules and principles as indicative of authority, consensus, or power, it is necessary to interpolate an account of the reasons which give rise to the compliance we observe. This, in turn, explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of its addressees, such as state officials.

Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

Article 38, paragraph 1(b), of the Statute of the International Court of Justice (ICJ) is universally considered to be an authentic definition of custom as a principal source of international law, not least by the International Law Commission (ILC) in its recently completed work on the identification of international customary law. At the same time, though, the formula has constantly met with severe strictures concerning its very formulation. Given the text as it stands, this paradoxical dissonance cannot be satisfactorily resolved, but it can at least be tentatively explained by retracing the genesis of the clause a century ago, at the price, however, of a complete reappraisal of the whole of Article 38. Notoriously, Article 38 originated in a proposal of Baron Descamps, the president of the Advisory Committee of Jurists in charge of devising the Statute of the Permanent Court of International Justice (PCIJ). Yet the ambivalent but crucial role of the Descamps Proposal in drafting the article has not hitherto been realized. In fact, owing to the debates it aroused and to its misapprehension as a draft article instead of a merely exploratory basis of discussion, it has directly led to the shortcomings of Article 38 and especially of its clause on customary law.

Interdisciplinary scholarship at the intersection of international law (IL) and International Relations (IR) has illuminated the roles of politics in law, of law in politics, and of the shifting boundary between the two in various areas of international affairs. The boundary itself, however, has proven resilient. While critical approaches investigating the politics of international law have come to insist on the lasting significance of legality proper, IR approaches to legalization have returned to politics. Although the apparent limits to challenging the boundary between legality and politics are not new, we suggest that they are intimately related to another great divide, i.e., that between the state and the international. Together, these two cross-cutting lines have shaped the possibilities and constraints of articulating substantive positions ‘in’ (international) law and politics at least since the Interwar period. Reading these distinctions as intertwined ‘nested oppositions’, this article reconstructs the stylized but paradigmatic debates between Max Weber and Hans Kelsen over the nature of the state and between Hans Morgenthau and Hersch Lauterpacht over the nature of the international. We further illustrate how the same conceptual oppositions still enable and constrain current debates in IL and IR, discussing as examples the creation of states and the justiciability of international crimes. Crossing and contesting the boundaries ultimately reaffirms them as the matrix in which conflicts over states and the international are articulated as legal and political.

The intriguing relationship between jus ad bellum and jus in bello has provoked perennial academic debates. This article examines this issue from Chinese perspectives and offers a cultural critique of the well-entrenched norm of the ad bellum/in bello separation in international humanitarian law. Based on its distinctive traditional perception of the world order and the meaning of war, China embraces a holistic understanding of the ad bellum/in bello relationship. This relationship is construed as essentially harmonized. The cardinal moral principle underpinning it is that a just war should be conducted in a just way. The ad bellum/in bello separation in international humanitarian law has a Western origin, and the rationale behind it intimates Western sensitivity to the European just war tradition in which jus in bello was parasitic on jus ad bellum. It is assumed that jus ad bellum and jus in bello are irreconcilably in conflict once they come into contact with one another. This assumption is followed by a widely-held belief that any attempt to reconnect the two concepts would bring nothing but the subordination of jus in bello to jus ad bellum as experienced in European just war and, consequently, the collapse of the former. Chinese perspectives nevertheless evidence that this conventional line of thinking, hampering scholars from thinking beyond the sealed ad bellum/in bello separation, is not sound. A proposal for a more constructive solution should be taken into consideration.

Illusions of common interest and joint purpose falter when states choose to break up, as with the recent changes to the European Union, or according to more dangerous precipitants such as those which shaped the Franco-German Armistice 1940, 80 years ago as a detail of war. The latter bares the sudden end of the Franco-British alliance and holds an invitation from history to re-examine the troubling political, social and legal layers of the concept of the vital interests of states. That category opened to radically different interpretations for political and legal thinkers who witnessed the fall of France yet did not respond directly or immediately. Hannah Arendt’s theory of politics, conceived in the aftermath of war as a corrective to the internal fragmentation of the European nation-state, elucidates the instability of the concept of vital interests which underpinned international legal and political thought in the 1930s and 1940s and frustrates the co-operative relations between states. The problem pairs back, she says, to whether interests signify an associative technique or sword. Her invitation for legal thought is to challenge the expectation of rupture implicit in the juridical category by outlining an alternative that recovers the pacifistic function of law and implicates the international lawyer.

This article explores the scope and nature of diplomatic immunity ratione materiae under the Vienna Convention on Diplomatic Relations (VCDR) by comparing this immunity with state immunity and immunity ratione materiae of ordinary state officials in general international law. It is argued that diplomatic immunity ratione materiae is distinct from immunity ratione materiae of ordinary state officials because ‘functions’ of a mission member should not be treated as ‘state functions’ in general but should be understood within the framework of Article 3(1) of the VCDR, which sets out the functions of a diplomatic mission as a whole. This means that the immunity cannot be upheld for serious violation of international law. On the other hand, diplomatic immunity ratione materiae is also different from state immunity both in scope and in nature. Therefore, the immunity must be understood as a unique concept which includes both the substantive issue of non-personal-liability and the procedural issue of immunity from jurisdiction. This hybrid nature of diplomatic immunity ratione materiae is the corollary of the functional emphasis of the Vienna Convention.

This article examines the limits that academics from peripheral countries might encounter while trying to influence the decision-making process inside an international organization. Although there are different mechanisms whereby academia might influence non-academic debates, we highlight here the use of policy papers, in order to examine and discuss the non-textual barriers which might be faced by those academics. After an analysis of primary sources this article presents some pragmatic limits in the use of policy papers and discusses the consequences of this condition for the legitimation of international organizations. As such, relevant international organizations still seem to be unresponsive to some initiatives in particular: closed to the spontaneous participation of academia; and not willing to call for contributions from academic communities. This is particularly relevant for contributions from peripheral academia and other non-state actors, who lack the capability to disturb the traditional ideational power exercised by core (Western) countries and by state-centric ideology in current international law.

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

There is widespread anxiety about human rights ‘inflation’: positing too many human rights, it is said, will lead to their devaluation. This article seeks to disentangle the inflation objection from other concerns about rights expansionism and to critically assess it. It considers the scope and implications of the inflation objection by reference to several issues – e.g., which modes of human rights proliferation it covers and which restrictions follow from it – and argues that it is characterized by a formal emptiness since it lacks any specific criteria to indicate which human rights lead to inflation and which do not. The formal emptiness of the inflation objection does not, however, mean that it is politically neutral, for despite its inability to generate closure it does generate a sense of closure by drawing strict boundaries around the corpus of ‘proper’ human rights. This sense of closure, the article argues, entrenches currently dominant (neo)liberal understandings of human rights while generating suspicion of claims to far-reaching social transformation. In light of this, an alternative to the anti-inflation mindset is suggested: a mindset of wonder, which understands human rights claims outside of dominant understandings not as a threat, but as an opportunity to question the status quo.

Since Oscar Schachter’s articulation of the concept, scholars have attempted to better understand the ‘invisible college of international lawyers’ making up our profession. They have done this through piecemeal surveys of public professional rosters (arbitrators, International Court of Justice counsel), piecing together anecdotes of connections between members, or constructing stories about individuals’ role in discrete legal developments. Departing from these approaches, we use the obituaries published in the British Yearbook of International Law (1920–2017) to draw an interactive map of the ‘invisible college’. Obituaries are a unique window into international law’s otherwise private inner life, unveiling professional and personal connections between international lawyers and their shared career paths beyond single institutions or individual stories. Employing network analysis, a method commonly used in social sciences to describe complex social phenomena such as this, we are able to demonstrate the ubiquity of informal networks whereby ideas move, and provide evidence of the community’s homogeneity. Exploring connections between international lawyers and their shared characteristics in this novel way, we shed light on the features of this group and the potential impact individual personalities have on the law. These characteristics of the profession and its members are evident to insiders but externally invisible. Graphic representation is a powerful tool in bolstering critiques for diversity and contestation of mainstream law-making narratives. Rather than exhaustively mapping, however, we propose to take the ‘dead white men’ trope to an extreme, provoking the reader to question the self-image of the profession as an impersonal expert science.

The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

This article sets out the major tenets of new materialism and maps out its implications for international law. It considers what new materialism might offer for those of us working within international law in the way of new insights, resources, practices or politics. It first sets the contours of new materialism within the broader material turn. It then elaborates three main tenets of new materialism’s methodology, theory, and ontology: its attention to matter in its physicality; the embedded and entangled subject; and the vitality or agency of objects. The article focuses on how new materialist work might help us to understand, first, subjectivity and second, power and accountability in international law. It concludes that new materialist approaches offer important and compelling insights, working against entrenched categories and structures that continue to perpetuate or excuse violence and harm in international law’s doctrines and practices. These insights provide resources for rethinking power and subjectivity, and the role these play in international law. However, those of us working to consider how we can respond to pressing crises of justice and coexistence within international law may find new materialism most powerful when brought into relation, and deep conversation, with more structural methodologies. Notably ‘older’ (Marxist or historical) materialisms grasp embedded power relations and deep-rooted systemic harms in more concrete ways. This is, the article concludes, a conversation that international law scholars are well placed to contribute to, deepening both ‘old’ and ‘new’ materialist insights for international law.

This article presents selected findings on India relating to the effects of international investment agreements (IIAs) on national governance. Our research used ethnography-inspired methods to explore the often-voiced hypothesis that IIAs induce good governance reforms in their state parties. Our findings demonstrate that the good governance hypothesis is too sweeping and lacks subtlety, but they also bring forward new conceptualizations of the impact of the international investment regime on national governance. Our research shows that governance actors use IIAs selectively in order to advance various agendas and interests. The Indian case study shows that rather than acting like a monolith when reacting to the experience of IIAs, the state is instead a site of struggle between different actors with different motivations, agendas, and interests. In such context, IIAs produce various formal–institutional as well as ideological–discursive effects that have not been captured by the existing literature. First, IIAs lead to the simultaneous practices of internalization through external adjustment and internalization through accommodation. At the same time, these modes of internalization lead to rearrangements by internalization within the public administration. Second, governance actors resort to various narratives about IIAs, which we present in this article. Importantly, the deployments of various narratives about IIAs are context-dependent and are used by governance actors tactically as convenient tools in internal political struggles within the public administration. These findings have important consequences for the design and reform of international investment regulation, should such regulation have ambition, as it does, to promote good governance.

Against the context of pending judicial proceedings between the State of Palestine and the United States of America (US) at the International Court of Justice (ICJ), this article critically examines the United Nations (UN) commitment to the international rule of law through an examination of its consideration of Palestine’s 2011 application for membership in the organization. The universality of membership of the UN is a foundation upon which the organization rests. The international law governing UN admission has accordingly been marked by a liberal, flexible and permissive interpretation of the test for membership contained in the UN Charter. In contrast, an assessment of the UN’s consideration of Palestine’s application for membership demonstrates that it was subjected to an unduly narrow, strict and resultantly flawed application of the membership criteria. An examination of the contemporaneous debates of the Council demonstrates that the main driver of this was the US, which used its legal authority as a permanent member of the Council to block Palestine’s membership. The principle argument used against membership was the US’s view that Palestine does not qualify as a state under international law. Notwithstanding, the State of Palestine has been recognized by 139 member states of the UN and has acceded to a number of treaties that furnish it with access to the ICJ. While a number of articles have been written about Palestine’s statehood, little has been written on the UN’s consideration of Palestine’s 2011 application for membership. Palestine v. USA provides a renewed opportunity to do so.

International investment tribunals often use the language of ‘rights’ to characterize foreign investors’ claims against host states, evoking the language of human rights and, in some cases, appearing to conflate the two concepts. We investigate the cognitive framing of the relationship between investor rights and human rights in investor-state dispute settlement (ISDS), as characterized by investment tribunals. We first establish that arbitrators (and scholars and counsel) tend to characterize investor claims as rights claims in general and property rights claims in particular, even if this normative basis is far from precise. Second, building on behavioural economics and cognitive psychology, we argue that this characterization places human rights considerations at a structural disadvantage in ISDS. Investor rights are perceived by arbitrators as endowments that are possessed and that risk being lost, while the human rights of host state populations are viewed as aspirational demands that might only be fully realized in the future. Thus, governmental actions interfering with investments are perceived by arbitrators as actual losses, while competing human rights claims are perceived as potential gains or demands. Following prospect theory, the former (certain losses) will usually be weighed more heavily in a decision-making calculus than the latter (possible gains). This loss–gain frame provides a cognitive explanation for the prevalence of arbitral decisions that prefer investor claims over human rights, a phenomenon that is highly problematic in times in which the legitimacy of the ISDS system rests on its ability to consider the rights of non-investors.

The Universal Periodic Review (UPR) of the United Nations Human Rights Council is an innovative monitoring mechanism in the international human rights law system. As the UPR matures, scholars have increasingly sought to stand back and understand it as a process. In this article, I take work in this vein further by considering more closely the actors involved in the UPR – humans and objects – and highlighting the time creating effects that emerge from the relationships between them. Across the various stages of the UPR, a range of temporalities – from cyclicality and linearity to retrogression and suspension of time – are produced and sustained by people, reports, data, lists, microphones, screens, computers, action plans, and desks, just to name a few. I argue from this that time is materially made in the review process, often in micro and taken for granted ways. In its operation, the UPR appears as a collection of temporal assemblages. Or, in language drawn from actor-network theory (ANT), an assortment of fluid and interweaving sets of actants networked together who generate ideas of time across its practice. Apprehending time creation in this material, the ANT-inflected way is highly significant for scholars and practitioners interested in the UPR. It holds potential to influence how this process can be understood, approached, and located within international human rights law as itself a larger, time creating actor-network.