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.

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.

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 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.

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.

This article examines whether mass deforestation could be prosecuted as a crime against humanity under Article 7 of the Rome Statute. It does so in respect of the situation in the Brazilian Legal Amazon in 2019–2021, where the unbridled exploitation and destruction of the rainforest had a disastrous impact at local, regional and global levels. The article covers three main aspects. First, it explores the existing limits of international criminal law for prosecuting mass deforestation as a crime against humanity, and the contours within which criminalization would be possible. Secondly, it discusses the challenges inherent in the anthropocentric nature of the chapeau requirement of Article 7 for the criminalization of mass deforestation under that provision. Thirdly, it analyses the extent to which mass deforestation could qualify as persecution and/or an ‘other inhumane act’ under Articles 7(1)(h) and (k) of the Rome Statute.

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.

The traditional effective control test for determining the existence of a belligerent occupation requires boots on the ground. However, the evolution of the international law of occupation and the emergence of complex situations, particularly of a technological nature, necessitate a functional approach that protects the rights of occupied populations. The political, historical and geographical conditions of Gaza allow Israel to exert effective remote control. Despite the disengagement of Israel from Gaza in 2005 and the assumption of military and political authority by Hamas, this article argues that Israel nonetheless continues to be in effective occupation of the Gaza Strip on the basis of the following grounds: (1) the relatively small size of Gaza in connection with the technological superiority of the Israeli air force allows Israeli boots to be present in Gaza within a reasonable response time; (2) Hamas's authority and armed resistance do not impede the status of occupation; (3) the long pre-disengagement occupation and close proximity between Israel and Gaza (geography) allow for the remote exercise of effective control; and (4) all imports, exports in and out of Gaza, and any movement of persons are fully controlled and regulated by Israel.