A future multilateral investment court (MIC) or multilateral appellate mechanism (MAM) will operate on a plurilateral basis, among States that become parties to the tribunal's constitutive instrument and grant it jurisdiction over disputes under their investment treaties. The creation of a MIC or MAM would involve a significant strengthening and centralization of dispute settlement institutions in the investment treaty regime, which is already overly dependent on law-development by adjudicators, reflected in well-established concerns about loss of State control. Thus, a key challenge in designing a MIC or MAM is to incorporate appropriate control mechanisms that will enable State input, without unduly undermining a MIC or MAM's independence. This article analyses control mechanisms in a MIC or MAM, considering a wide range of questions of institutional design. It highlights two fundamental tensions. One is the tension between independence and accountability. The other tension is between procedural multilateralism and substantive bilateralism. While the procedural law in a MIC or MAM will have been multilateralized, the substantive law the tribunal will interpret and apply will remain contained in mostly bilateral investment treaties, controlled by the parties to those agreements. This article addresses the challenges of designing a multilateral tribunal for a regime that lacks multilateral substantive law and contributes to wider debates over striking an appropriate balance between international judicial independence and Member State control.

Global digital integration is desirable and perhaps even inevitable for most States. However, there is currently no systematic framework or narrative to drive such integration in trade agreements. This article evaluates whether community values can offer a normative foundation for rules governing digital trade. It uses the African Continental Free Trade Area (AfCFTA) Digital Trade Protocol as a case study and argues that identifying and solidifying the collective needs of the African region through this instrument will be key to shaping an inclusive and holistic regional framework. These arguments are substantiated by analysis of the regulation of cross-border data flows, privacy and cybersecurity.

The human right to leave any country protects an intrinsic interest in free movement and is also a vital pre-condition to seeking asylum. The right to leave attracts little academic interest, but it is quietly being eroded. Exit restrictions in States of origin or transit have become an instrument of extraterritorial migration control for European Union Member States seeking to prevent the arrival of unwanted migrants. This article first explores the revival of exit restrictions, focusing on agreements between European destination States and select African States of departure. It argues that the adoption of exit restrictions from one State to prevent entry to another creates the paradox of seamless borders, where regulation of exit and entry are harmonized and fused to serve the singular objective of preventing entry to the destination State. The article further argues that the political and discursive coupling of anti-smuggling and search-and-rescue regimes occlude the rights-violating character of exit restrictions and enables breach of the right to leave to hide in plain sight. Additionally, current approaches to jurisdiction and State responsibility in regional and international courts render the prospect of destination State liability uncertain in circumstances where the destination State does not exercise legal and physical control over enforcement. The article draws on ‘crimmigration’ and border criminology literature to identify the common element of carcerality that connects confinement of migrants to the territory of departure States with migrant detention inside the territory. Beyond lamenting the erosion of exit rights, the article concludes by querying whether the erosion of the right to leave is symptomatic of a larger trend toward the regulation of mobility itself.

The employment of cutting-edge technology in the European Union's external border management is transforming the way that States acquire control over seaborne migrants and deconstructing traditional conceptions of border and territory. This article sheds light on a new generation of human rights violations on the high seas, where people's rights become contingent on their geographical location which is increasingly traceable by monitoring bodies. Amidst the burgeoning phenomena of abandonment at sea and contemporary forms of migrant push-backs, this article contends that human rights jurisdiction ought to be reconceptualized in functional terms to capture new modalities of State power, that if and when exercised, can amount to effective control, triggering a State's human rights obligations.

This article argues that the scope of the neutrality duties of non-assistance and prevention allows for an exception – a carve-out for assistance given to the victim State of an armed attack. Rather than weighing in on debates as to whether current State practice accepted as law suffices to establish this rule inductively, the article offers a different approach to grounding the argument for this exception in the methodology of the sources of international law, which thus far has been underexplored. The central argument of the article is that the exception or carve-out—and its contours—deductively flows from the structure of international law of peace and security and, in particular, the victim State's right to self-defence. The purpose of that right—enabling the effective termination of the armed attack—must not be undermined through prohibitions of military assistance and duties of prevention. These considerations define the scope of neutrality duties as revealed through systemic treaty interpretation. Such deductive reasoning equally determines the scope of customary neutrality duties, whether discerning that scope is framed as systemic interpretation or as identification of custom.

This article argues that the current approach of the European Court of Human Rights (ECtHR) to evaluating scientific evidence is lacking and hampers its ability to properly handle cases involving questions of science, and particularly environmental cases which are replete with them. It identifies three problem areas in relation to the ECtHR's adjudication of such cases: the evaluation of evidence proving the causation of harm; the extent of the Court's deference to the determinations made by national authorities; and the Court's evaluation of evidence adduced by the respondent State in justifying its conduct as being in line with the standard of due diligence. Several cases that illustrate the recurring problem of the lack of science-based reasoning in the Court's judgments are then identified, highlighting the shortcomings of its approach. Such issues have an impact upon the legitimacy of the ECtHR, and it is therefore imperative that it engages more robustly with scientific evidence. The article suggests the best way to do this would be for the ECtHR to make more use of its power to seek assistance from independent scientific experts in environmental cases.

This article argues that the purpose of the English gateways for service out of the jurisdiction is to identify a presumptive meaningful connection; that courts have used different mechanisms to rebut the presumption of a meaningful connection established by the gateways; and that there are lessons to be learnt from a clearer, more explicit understanding of this presumptive purpose of the gateways. The article uses Brownlie (I and II) and Fong v Ascentic Ltd to support and illustrate these arguments.

This article discusses the United Kingdom Supreme Court judgment in Zubaydah v Foreign, Commonwealth and Development Office, which addressed the law governing the tort liability of the United Kingdom Government for its alleged complicity in the claimant's arbitrary detention and torture overseas by the Central Intelligence Agency. In holding that English law applied, the Court departed from previous case law by giving decisive weight to public law factors in its choice-of-law reasoning. This decision arguably heralds a greater role for English law in relation to tort claims brought by overseas victims of allegedly wrongful exercises of British executive authority as a mechanism for achieving executive accountability, controlling abuse of power, ensuring the rule of law and providing victims access to remedy.

Under the law of treaties, two mechanisms currently seek to bridge the gap between the conclusion and entry into force of treaties. These are found in Article 18 (the obligation not to defeat the object and purpose of a pending treaty) and Article 25 (provisional application of treaties) of the Vienna Convention on the Law of Treaties. This article considers the nexus and relationship between these provisions and clarifies two aspects of their interaction. First, the article assesses how Articles 18 and 25 interact in their practical application and whether Article 25 can inform the content and interpretation of Article 18. Second, the article explores how the termination of a provisionally applied treaty under Article 25(2) affects the applicability of Article 18(a).

This article discusses the relationship between particular and general customary international law, grappling with academic views affirming that, ordinarily, the emergence of the former is a stage in the consolidation of the latter. It is argued that the higher standard of State consent required for the configuration of bilateral or regional custom suggests otherwise. In addition, it is also contended that a distinctive kind of opinio juris must be present for particular custom to arise: a conviction from the States concerned that their conduct is governed by particular (as opposed to general) customary law.