The global climate crisis response envisioned by the Paris Agreement is commonly understood as demanding transformative change. International law, however, lacks a holistic conceptual framing for making sense of what such change would entail, how it might unfold, and who and what it will involve. Moreover, there has been little critical engagement with the question of what is at stake when invoking the notion of transformation. Contributing to the broader debate about what the climate crisis demands of international law, this article offers a critical conceptual appraisal of the notion of ‘transformation’. Conceptually, it describes transformative dynamics as processes which work towards radically different states of affairs that seem practically impossible under the status quo, but which could arguably be realized if different conditions were in place. Developing an ontology of transformative change, the article identifies heterogenous temporality, the actualization of impossible possibilities, and distributed engagement as three central features of transformations in climate crisis. Having laid the conceptual groundwork, the article then takes a critical turn and foregrounds unresolved tensions that run through transformation thinking. The aim here is to connect to critical discourses and show how these tensions can serve as entry points for international law to meaningfully engage with the notion of transformation. The article closes by offering some reflections on what engagement with the notion of transformation might mean for international law’s disciplinary identity, rationale, and sense of purpose.

This article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

In international legal historiography, it becomes a commonplace that the successful resolution of the Alabama dispute between Britain and the US by the 1872 Geneva Tribunal of arbitration – the 1872 Alabama arbitration – kindled the progressivist enthusiasm of liberal internationalists for projects of humanitarianism, the codification of international law, and international arbitration. The article aims to take this scholarship further by arguing that, against this backdrop of reformist enthusiasm for international law, two transnational social reform movements – pacifist internationalism and legalist internationalism – converged in a joint effort of social and intellectual mobilization in furtherance of an ordered system of international law and its judicial application in practice. The epitome of this encounter was the almost simultaneous creation of the International Law Association and the Institut de Droit International in 1873. The article shows that international jurists sought to delineate the nascent modern international law profession by strategically distancing their scientific cause of international law from the one embarked on by their pacifist counterparts. By demarcating international legal science in contrast to the contemporary pacifist activism of international law, international jurists set the parameters of their social networks, and manoeuvred for professional outreach. Yet it is precisely by bringing back the pacifist antithesis that had been deliberately relegated into the secondary by international jurists – ‘the men of 1873’ – that some previously under-emphasized aspects of the sensibility of l’esprit d’internationalité can be grasped.

The International Law Commission has allegedly been in crisis from its first day of existence. Its own (former) members have been critical about its working methods, the topics it chooses to discuss, its relationship with other UN bodies, and even its aura. At the same time, the International Law Commission also paints more positive pictures of itself. This article aims to make sense of this dynamic without explaining, accepting or refuting any doubts or critiques. Instead, in an attempt to take these discussions to a new place, the article analyses the debates of the Committee of 17, which recommended the establishment of the International Law Commission in 1947. By combining literary, socio-legal and historical methods, it is argued that the ILC is founded on an embracing of uncertainty. As such, the Commission’s ambivalence towards itself is revealed as structural rather than illustrative of the institution being in crisis.

Legal systems across the world contain the obligation to prevent ‘absurd interpretations’ of law. In international law, an instruction to avoid ‘manifestly absurd’ interpretations can be found in Article 32 of the Vienna Convention on the Law of Treaties. This gives rise to at least two questions that I will take up in this article. First, what is meant by the ‘absurd’ that is to be avoided in legal interpretation. The short answer to this question is: no one knows exactly. The absurd, by its very nature, resists definition in pre-given categories, as I will argue on the basis of four core thinkers on the absurd: Søren Kierkegaard, Jean-Paul Sartre, Albert Camus, and Thomas Nagel. The second question is more technical and easier to answer: how should lawyers try to avoid absurd interpretations? Here, I turn to absurdist writing and the theatre of the absurd for assistance. Absurdist writing and theatre have developed a number of techniques to make the absurd appear, to let the audience experience that something is fundamentally out of tune. Lawyers use similar techniques, but in reverse and with an opposite purpose: they add exposition, narrative, reasonable language, and stable, rational legal personae. In this way, they boost the rationality and reasonableness of the legal order. However, to come full circle, it is exactly the pretension of rationality and reasonableness that makes the law vulnerable to manifestations of the absurd. The rationality of law is the springboard for the very same absurdity it tries to suppress.

Philip Jessup’s 1956 Storrs Lectures, Transnational Law, developed a case for theorizing law beyond the state which continues to shape understandings of transnational law. Yet while transnational law has assumed increasing importance with globalization, it remains beset by conceptual difficulties. This article suggests that such difficulties are at least partly attributable to misreadings of Transnational Law primarily as proposing a more pragmatic concept to drive law’s progression. Contextualizing the Lectures within Jessup’s involvement in the US’s postwar worldmaking project and the contrasting project pursued by Third World states, and through close textual study, it contends that Transnational Law is better understood as geared to undermining the legal foundations of key efforts to counter Western dominance. It further shows how this reading can aid in clarifying misunderstandings of Jessup’s Lectures that still inform transnational law scholarship and in considering how law’s capacity to sustain inequality and exploitation may be challenged.

This article argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive nor block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately, the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system. This opened the door for certain actors – transnational coalitions of expert body members, human rights advocates and issue professionals – to use General Comments in a way that not only impacts international legal change but can also withstand state opposition.

This article advocates a turn to the visual in legal scholarship. The phenomenon used to elucidate this methodological proposition is the figure of the ‘human shields’ under international humanitarian law, viewed from within the lived history of the peoples of the Global South. Today, the ‘human shields’ notion profoundly shapes how international law operates in scenes of intense organized violence. Once deployed, the human shields claim triggers a radical shift in the applicable international legal framework. After this point, harm to the civilian population and space can be legally authorized and justified. This article challenges the ways in which the ‘human shields’ notion continues to be debated in mainstream legal scholarship and discourse in terms of doctrinal interpretation, examination of evidence, or analyses of ‘asymmetricity’ and ‘urbanization’ as ‘challenges’ in ‘contemporary’ war. Before any such inquiries, I argue, it is crucial to pay attention to the visual and the lived history of the peoples of the Global South. Images that exist in the cultural realm – of and about war and crime, the human shielding spectacle and its actors, and Global South societies – structure and delimit the legal conversation and predetermine its possible outcomes. I propose, in sum, an attention to the visual as a site of the legal inquiry that can inform our understanding and critique of the law and politics of human shields. Images enable, rationalize and provoke the emotions necessary for an ‘exceptional’ operation of international law that authorizes massive violence against Global South spaces and peoples.

A visible sign of changing relations between the Global South and Global North are reparation claims for colonial injustice. An interesting case is the 1904–1907 Namibian Genocide. Germany has recently concluded a draft agreement with Namibia on reconciliation and compensation. Nevertheless, Germany maintains that it is not under any legal obligation to pay reparations. This article challenges that position, arguing that colonial international law was far too ambiguous to support this conclusion. For this purpose, the article contrasts this ‘conventional view’ of colonial international law with post-colonial and pluralistic approaches. Post-colonial approaches reveal colonial-era law as a deeply ambiguous, contradictory practice that mirrors the identity crisis of the colonizers. Pluralistic approaches juxtapose colonial international law with autochtonous views of inter-polity law, i.e., the normative framework governing colonial encounters. To reconstruct autochtonous views, the article draws on letters by Hendrik Witbooi and Maharero, traditional leaders from Namibia, and examines the contours of their inter-polity law relating to territorial sovereignty and warfare. These contending perspectives undermine the cogency with which the conventional view rejects reparation claims. While ambiguity as such does not give rise to compensation claims, other options come to mind, such as a duty to negotiate, shifts in the burden of proof – or a profound recalibration of international law towards greater solidarity.

This article builds upon the common metaphor of international organizations as the ‘machinery’ of international law to present a theoretical exploration of these institutions. This metaphor has remained unexamined, a reflection of the paradoxical status of international organizations as objects lacking theoretical attention. By tapping into the metaphor’s full theoretical potential and expanding it into a theory of international organizations as machines, this article introduces a new conceptualization of their role and operation. This is accomplished by applying a particular machine concept from social theory, as developed in the work of Felix Guattari and his collaboration with Gilles Deleuze. The proposed machinic perspective enables the casting of the relation between international organizations and states in a new light, building on the classical concerns with these entities’ attributed powers and granted international legal personality. It presents an image of these institutions as agents focused on the production of connections and links with external ideas and forces, in order to produce unforeseen powers and capacities.

This article highlights the cross-disciplinary methodological potential of Third World approaches to international law (TWAIL) and microhistory by studying the active and complex exercise of agency by victims in an understudied historical instance of post-war justice, namely, the Singapore ‘Sook Ching’ trial or Nishimura trial. This trial dealt with the arbitrary massacre of Chinese residents by the Japanese military during the Second World War. Using TWAIL and microhistory methods, this article analyses trial transcripts and archival material on the Nishimura trial, with a focus on the trial experiences of witnesses, survivors, and community representatives. By studying the Nishimura trial as mobilization and meaning-making opportunity, this microhistory draws attention to the exercise of social and political agency by the Chinese community under difficult post-war conditions and British colonial rule. Chinese community leaders represented the community as collectively victimized and united in the pursuit of post-war justice. However, a close analysis of trial transcripts reveals tensions within the community and the need for a more complex understanding of victimhood.

In this article we adopt a political economic lens to analyse the revival of the concept of ecocide in present international legal scholarship and practice. The current campaign to codify the crime of ecocide under international criminal law represents the epitome of a problem-solving approach, which conceives of the law as external to society and as a corrective to its evils. Yet, a large body of critical literature has drawn attention to the constitutive role of international law and to the problems with its depoliticized approach when it comes to tackling global injustices. We build upon this diverse scholarship to illuminate how the technical, acontextual, and ahistorical legal debate on the codification of ecocide ends up normalizing the violent structures of extractive capitalism and its hierarchies. Further, we situate the proposed crime within the wider context of how international law regulates and constitutes the natural world. Drawing on critiques of sustainable development and of business and human rights discourse, we argue that the ‘imbroglio’ of ecocide, in its current legal definition, lies in presenting ecological preservation and devastation as simultaneously legitimate aims. The article ultimately raises the question of the role of international law in progressive political agendas, a question that could not be more pressing in times of entangled socio-ecological-economic disruptions.

From 1864 to the 1970s, international humanitarian law (IHL) changed through the path of formal treaty revision. Since 1977, however, purported changes to IHL have come not from treaty making but from interpretation, particularly through claims about the attainment of customary status by existing treaty rules. This article explains this shift as the result of the attitudes and choices of key IHL stakeholders under the changed conditions of post-Second World War multilateralism. It argues that the turn toward customary law claims-making was a reaction to the negotiation politics and contested outcomes of the 1977 Additional Protocols (APs) to the Geneva Conventions. After 1977, leading actors looked to custom as a means of arresting or encouraging legal change. The resulting, much-expanded IHL has proved influential and authoritative, even if its precise degree of acceptance by states remains unclear.

Treaty amendments constitute a critical but under-researched aspect of international law. In this article, we present a comprehensive survey of 491 amendment procedures across 691 multilateral environmental agreements. We use this data collection to build a typology of amendment procedures based on various combinations of control, adaptability, and flexibility. We introduce the property space reduction method as a valuable tool for building typology and analysing international law. We find a clear trend towards the inclusion of amendment procedures, which makes treaties increasingly adaptable. This adaptability is generally coupled with flexibility to avoid infringing on consent. As a result, amended treaties risk being increasingly fragmented into differentiated bundles of obligations split among subsets of members. We also examine how key features of treaty membership, such as power distribution, correlate with the occurrence and types of amendment procedures.

Legal scholars continue to revisit historical treaties between Western and non-Western nations to challenge long-standing accounts of non-Western peoples’ engagement with international law. Following this trend, new scholarship has stressed African agency in Euro-African treaty-making. However, legal scholars have generally overlooked African perspectives, pointing to a lack of sources. Focusing on nineteenth-century treaty-making between France and the polities of the Western Sudan in West Africa, this article excavates African perspectives through a novel reading of Euro-African treaties in an African context. This reading analyses treaties within the Western Sudan’s broader diplomatic corpus in both French and Arabic. By focusing on markers of translation, transcription, and negotiation left on different copies of treaties, this method brings to light arguments and practices that have been obscured in published European-language versions. Reading Franco-Sudanian treaties in a Sudanian context reveals that different norms governed the ratification of treaties in the Western Sudan and Europe. Treaties that scholars have long considered unratified were in fact ratified according to Western Sudanian norms, which designated the governor of French Senegal rather than the French president as the official competent to ratify treaties for France. However, when French officials sought to use treaties to claim sovereign rights in West Africa against Great Britain, they pressed the president to ratify them again. Presidential ratification thus served to transpose Franco-Sudanian treaties from an African to a Western normative order. Uncovering the African origins of Euro-African treaties thus reveals their differential operation across autonomous inter-polity orders.

Delimitation of the continental shelf beyond 200 nautical miles (nm) is a relatively novel exercise by international courts and tribunals, and a question that assumes theoretical and practical importance is whether the delimitation methodology primarily developed in maritime delimitation within 200 nm can be applied to the delimitation beyond that distance. In contrast to some prevailing arguments that the delimitation methodology for the continental shelf beyond 200 nm should somewhat differ, this article examines whether the delimitation beyond 200 nm can be integrated under the three-stage approach articulated by the ICJ in the 2009 Black Sea case and discusses what methodological problems have been raised in the delimitation process. By analysing the applicability and application of the three-stage approach to the continental shelf delimitation beyond 200 nm in the jurisprudence, this article argues that substantive integration of the delimitation methodology for the continental shelf beyond 200 nm has taken place and is likely to continue. The integrated approach to the delimitation methodology adopted in the Bangladesh v. India case and the Ghana/Côte d’Ivoire case may prove to be guiding precedents that indicate a way forward in the jurisprudence.

Sexgender has become politicized by neo-conservative and populist movements in Europe and elsewhere. This article explores how the sexgender binary is foundational to the social and material construction of the non-heterosexual legal subject and unveils binary hierarchies embedded therein. Furthermore, it develops a new materialist methodology called BinaryTech, which exposes the binary formulas of inequality and difference in the Court’s jurisprudence. This new materialist approach, based on Karen Barad’s agential realism, is used to critically examine how differences are produced as stable features of subjects and objects. The human of the Convention being heterosexual is thereby the result, constructed on material-discursive differentiation of non-heterosexuals. The article concludes by describing how new materialist interventions and Nordic feminist perspectives on law can offer valuable insights within the emerging material turn.