This article examines reactions to the South China Sea and Chagos Marine Protection Area arbitrations under the United Nations Convention on the Law of the Sea (UNCLOS), in particular concerns about the potential widening of Part XV jurisdiction and its impact on the dispute resolution system's consent basis. It argues that assessing the impact of such cases involves a characterization of both the function of Part XV and of international judges. Ultimately, it suggests that the best test of whether UNCLOS case law has gone too far is the reaction of States in designing dispute settlement under the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction.

The United States and United Kingdom have carried out a series of strikes upon Yemeni territory since January 2024. The acting States have justified these on the basis of the right of self-defence in response to the series of attacks that have been perpetrated by the Houthi group in Yemen against various commercial and military vessels in the Red Sea. On the face of it this was a relatively straightforward justification. Yet, when subjected to analysis it becomes evident that not only is the justification itself not clear, but that the law governing the actions—the jus ad bellum—is not sufficiently settled to provide clear parameters by which to assess the legality of the strikes. Furthermore, the strikes themselves, and the purposes for which they were undertaken, may have set a precedent with unforeseeable consequences.

The relationship between scholarship and adjudication has attracted considerable attention in recent years, especially in those areas where significant academic expertise has been developed and academic scrutiny of decisions is common. Yet the role of scholars and scholarship in the context of the adjudicatory practices of the European Court of Human Rights (ECtHR) has remained palpably under-investigated. This article begins to fill this gap in the literature by carrying out the first large-scale empirical study of the use of scholarship by the ECtHR. The authors rely on a purpose-built dataset comprising all the citations made by the Grand Chamber of the Court in judgments and separate opinions appended to it. The study finds that the Court's majority uses scholarship for the purposes of reviewing facts and interpreting international and domestic law but does so rarely. The majority of the ECtHR does not use scholarship to interpret the European Convention on Human Rights or for persuasive purposes, unlike the individual Judges in their separate opinions. Indeed, individual Judges refer to scholarship more often, for more varied and arguably different purposes. This use, however, is inconsistent in terms of both frequency and the types of sources referred to.

In the past decade, the practice of investor–State arbitral tribunals addressing investment protection in the context of armed conflict and military occupation has expanded. This has prompted a growing interest in the relationship between international investment law and international humanitarian law (IHL), two regimes with markedly different relationships to war—IHL more pragmatic and international investment law more idealistic. This article argues that, while its lack of pragmatism might render international investment law ineffective in changing how war is conducted, it is the regime under which States are most likely to be held liable for the conduct of war. This is a result of its more robust primary obligations, more effective enforcement mechanisms and large awards of damages. Nevertheless, comparing international investment law and IHL does also reveal some similarities—the legacy, it is argued, of a time when the laws of war were more about protecting private property and neutral commerce than civilians. Putting these two regimes together in this way exposes international law's uneven distribution of protection in war.

The characterisation, legal status and future of islands are increasingly prominent in international and legal affairs. This emerging ‘legal era of islands’ demands a clearer understanding of the multiple distinctive legal issues that islands, whether as sub-national political units or as the territory of continental or mainland States, raise. This article conducts the first contemporary study of these issues by examining the international and constitutional legal status of island territories. It finds that although the relationship between islands and mainland States is characterised by incredible diversity, island territories are pursuing a range of innovative strategies to preserve and protect their autonomy.

In 2023, the Organisation for Economic Co-operation and Development (OECD) launched an updated version of the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. The changes represent substantial and potentially far-reaching implications for business, particularly in the areas of climate change and biodiversity. This article examines the 14 climate-related complaints filed under the Guidelines prior to the adoption of the 2023 Update, showing how many of these cases illustrate the potential interlinkages between the human rights and climate change dimensions of the Guidelines. The article then discusses how the updated provisions may influence future complaints concerning climate change. Based on this analysis, the article concludes that the Guidelines could have been strengthened by the explicit integration of climate change into the scope of corporate human rights responsibilities under the Guidelines.

The dichotomy between jurisdiction and admissibility developed in public international law has drawn much attention from arbitrators and judges in recent years. Inspired by Paulsson's ‘tribunal versus claim’ lodestar, attempts have been made to transpose the distinction from public international law to investment treaty arbitration, yielding a mixed reception from tribunals. Remarkably, a second leap of transposition has found firmer footing in commercial arbitration, culminating in the prevailing view of the common law courts in England, Singapore and Hong Kong that arbitral decisions on admissibility are non-reviewable. However, this double transposition from international law to commercial arbitration is misguided. First, admissibility is a concept peculiar to international law and not embodied in domestic arbitral statutes. Second, its importation into commercial arbitration risks undermining the fundamental notion of jurisdiction grounded upon the consent of parties. Third, the duality of ‘night and day’ postulated by Paulsson to distinguish between reviewable and non-reviewable arbitral rulings is best reserved to represent the basic dichotomy between jurisdiction and merits.

This article suggests a new interpretative framework for Article 27(2) of the Fourth Geneva Convention, which prohibits sexual violence against women in armed conflict. One specific aspect of this norm is particularly controversial: the notion of ‘honour’ has often been criticised as an obsolete concept linked to an outdated view of female morality. In the absence of a definition of the term, this article examines whether the gendered limitations of the norm can be overcome and the extent to which an evolutive interpretation of the concept is feasible. It argues that the concept of ‘honour’ can be treated as a generic term that is subject to evolutive interpretation, allowing for a renewed and gender-sensitive understanding to be developed, aligned with the concept of human dignity.

The Geneva Convention relative to the Protection of Civilian Persons in Time of War provides a practical and effective framework for the protection of civilians in international armed conflicts that has retained its relevance for 75 years since its adoption. As with all treaties, its ‘object and purpose’ has a concrete impact on how its terms are interpreted, giving insights into the ordinary meaning of the text and allowing the aim of the Convention to be fully realized. This article asks and answers a series of questions to elucidate the role of the object and purpose in treaty interpretation and how to identify the object and purpose of a given treaty before focusing on the specificities of international humanitarian law treaties. On that basis, it determines that the overall ‘object and purpose’ of the Convention is to protect civilians during armed conflict, including in circumstances where they are subject to permissible measures of control and security. The article then demonstrates how that ‘object and purpose’ assists with the resolution of specific, well-known interpretive dilemmas including the determination of protected status under the Convention and the application of provisions premised on the existence of a Protecting Power.

As the human right to a healthy environment is codified around the globe, some systems still lag behind. One noticeable straggler is the Council of Europe, which is currently undergoing its fourth attempt to recognize the right. This article examines the proposals tabled within this system in light of overarching debates about climate justice and environmental rights, before focusing specifically on the spatial and temporal limits of the European Convention on Human Rights (ECHR) and the institutional features of its Court. First, the article describes what the author sees as the current liminal moment in the development of human rights law, a time of transition in which established legal concepts can be questioned or reaffirmed. Second, it sketches recent proposals for locating and conceptualizing the right to a healthy environment within the Council of Europe. Evaluating different options, it makes the case for including this right in the ECHR. Third, the article discusses the right's potential to reshape the spatial and temporal limitations on legal subjectivity and Convention protections. These proposals come at a crucial time when the system's ability to protect human rights from environment-related impacts is being tested by climate litigation. The article understands these developments as interrelated and discusses whether current proposals could deliver on demands for climate justice by extending protection to future generations and for extraterritorial environmental impacts.

The Parties to the Paris Agreement have committed to communicate successive ‘nationally determined contributions’ (NDCs) to the global response to climate change. Each NDC is expected to reflect the Party's ‘highest possible ambition’ (HPA) on the mitigation of climate change. This article envisages the possibility of taking HPA seriously: that is, of approaching it as an effective legal standard. It shows that, in some circumstances, the HPA standard can help to assess whether a State has complied with due diligence obligations on climate change mitigation.

Private actors and institutions, and by extension private law itself, are increasingly being forced to reckon with a multiplicity of challenges that extend beyond the domain of private law as it is traditionally conceived. They reflect threats to the global constitutional order and liberal constitutionalism, and threats to individual and collective fundamental rights and constitutional values. As a result, the role of private law in framing and facilitating the development of the global economy and globalization often does not fall within the direct purview of public international lawyers. This editorial aims to examine the role of private law in the litigation and enforcement of public interests against the background of the public/private divide. This is done in light of the increasing role adopted by private actors, including corporations, beyond the private realm.

Multilateral development banks (MDBs) are international organizations subject to the law of international responsibility. Yet, the relationship between their accountability mechanisms and the International Law Commission (ILC) Articles on the Responsibility of International Organizations (ARIO) remains unclear. Understanding this relationship is essential in fully realizing the right to remedy in the development finance context. A comparative analysis of these legal frameworks clarifies that notwithstanding their different rationale, scope and functions, the two are not normatively conflicting and both serve to control public power. While the accountability mechanisms correct the ARIO's State-centric orientation by granting legal standing to project-affected people, they have their own deficiency concerning the actions they can prescribe to MDBs upon a finding of noncompliance. Highlighting that the MDBs’ mandate to ‘do no harm’ and pursue sustainable development is left unfulfilled by the accountability mechanisms’ deficient remedial function, this article identifies specific ARIO provisions to complement rather than undermine the MDBs’ accountability system. The ARIO's residual character, combined with the proposition that remedies arise not only from wrongful conduct but also from harm suffered by one party due to another's risky activities, justify this complementarity.

For societies transitioning from conflict to peace, the phenomenon of child soldiers poses significant challenges. These include quandaries associated with assisting in the reintegration of serving child soldiers, determining how to prevent future recruitment of child soldiers, and pursuing accountability of those who utilize child soldiers. In addition, questions are also raised as to whether and how child soldiers responsible for crimes committed during conflict are to be held to account. While no one mechanism or response can adequately and sufficiently address the multifaceted issues that arise, peace agreements, as foundational documents that serve as the blueprint for peacebuilding and the post-conflict State, can make a useful contribution to some or all of them. Drawing on all references to child soldiers in 77 peace agreements signed between 1990 and 2022, this article examines the ways in which peace agreements address the issue of child soldiers.

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU's rule, the insoluble practical issues that it leads to, and the need to consider differently the EU's spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU's territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

This article explores the constitutional regulation of birthright ius soli citizenship in two Latin American countries which restrict access to citizenship for the children of foreigners deemed to be passing through the countries. Access to citizenship is a significant marker of membership, setting the boundaries of inclusion and exclusion within and across States. Choosing the cases of Chile and Colombia, this article uses historical, institutional and comparative analysis in order to excavate the evolving conceptions of citizenship in those two countries, with particular reference to the concepts of the ‘transient foreigner’ and of ‘domicile’. The case studies provide an excellent laboratory within which to examine the evolution of constitutional ideas of citizenship and ‘the people’. In Colombia, the outcome of the investigation shows that there is unlikely to be significant long-term change in the citizenship regime towards a more generalised acceptance of unconditional ius soli, notwithstanding the substantial shorter-term measures taken to accommodate the children of undocumented migrants from Venezuela and to respond to international pressure. In Chile, combined with other ongoing constitutional work in the citizenship space as part of a wider reform process, there may be a slow journey towards a different constitutional future for so-called ‘transient foreigners’ and others excluded within the State, but this is currently stalled. Chile has, however, introduced legislation cementing a more limited concept of ‘transient foreigner’, linking this work on citizenship to the wider domain of migration governance.

This article adopts a critical approach towards scholarship seeking to identify binding due diligence obligations for States in cyberspace. The article demonstrates that due diligence obligations are anchored in specific primary rules and are not a universal standalone source from which it is possible to derive binding obligations for all areas of activity. The consensus position of States in United Nations fora clearly determines that due diligence in cyberspace is a voluntary, non-binding norm of responsible State behaviour, and there is currently insufficient State practice and opinio juris to support the development of a customary rule containing binding due diligence obligations in cyberspace. Consequently, the article concludes that attempts to establish binding due diligence obligations in cyberspace constitute lex ferenda that may be understood as an interventionist attempt by scholars to fill what they perceive to be dangerous legal gaps.

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.

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.

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.