In “Gender and the Lost Private Side of International Law,” Karen Knop argued that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law.”1 In this essay, I use Knop's argument to revisit our understanding of the sixteen century “School of Salamanca”2 and its importance for international legal history from a gender perspective. I focus on the practice of jurists and theologians associated with the School of Salamanca in assessing the validity of marriages of newly converted Indigenous peoples in Brazil (negros da terra), and later the validity of remarriages of Indigenous people and enslaved Africans (negros da Guiné) who had already been married in places from which they had been forcibly removed.3 To do this, these jurists and theologians engaged in private international law (or conflict of laws) reasoning. A key question involved determining what law governed each marriage—was it ius gentium, natural law, or canon law? Examining their arguments, I argue, offers an instance of Knop's insight that recuperating private international law allows us to redress the invisibility of women in the history of international law. In my case study, not only do we better understand “how power operates through international legal concepts and institutions”4 in the private sphere of the family in the colonies, but also, and crucially, how “private international law make[s] visible the effects of colonial . . . law on gender relations and national identity at home,”5 to borrow Knop's words.

This essay takes up Karen Knop's challenge to reconstruct the oft-made distinction between private and public law by engaging private international law (PrIL) as a “lost side of international law.”1 To do so we interrogate the changing fortunes (literally) of women's private property rights in the long nineteenth century—a period characterized by the divestment and reinstatement of gendered rights in national law—focusing on the Nordics, Europe more broadly, and the Colonial world. Following Knop and other feminist legal scholars, and by engaging with questions of what Mariana Valverde calls “scale,”2 we bring women's property rights in conversation with international law. In doing so, we point to sites of engagement where the politico-economic structures of international law are lived, negotiated, reconfigured, and made real.3 We use scale to frame and inform our analysis bringing attention to how the “small” (micro) economics and politics of everyday life, women's labor, and gendered legal concerns, underpin and are an intrinsic part of the “large-scale” structures of international law. “All scales shifts,” Mariana Valverde notes, meaning that such “processes . . . br[ing] certain phenomena into focus that had previously been blurred or pushed to the background.”4 Recovering matters of women's history and everyday life, which, as Knop has argued are often “hiding in plain sight,” with a focus on women's property rights, brings to the fore the critical relationship between family/household, market, and the state, and the fundamental role international law has played in implementing a specific economic vision through the organization of gendered power relations.

In her analysis of James Lorimer's The Institutes of the Law of the Nations (1883), Karen Knop called on public international lawyers to explore the potential of Lorimer's figure of the “private citizens of the world” to illuminate the position of the individual in international law.1 She argued that focusing on the individual's private law dimension revealed hidden understandings and manifestations of the international. This focus, she observed, might even clarify the structural role that nonstate actors and their legal interactions play in shaping sovereign states and their relations.2 This essay builds on Knop's insight to reflect on the role of actors involved in frontier expansion in international law. I examine the settlement of land deemed desert in South America at the turn of the nineteenth century, as private actors used law to incorporate new territories and resources into a capitalist order. Drawing on the work of Argentinian jurist Carlos Calvo, and analyzing specific cases of settlement in the Amazon, I explain how these actors and their legal practices participated in the consolidation of a territorial order of states. Following Knop's prompt, I explore how examining the role of individuals and their private allegiances sharpens our view of how international law exercises power and distributes resources around the world. Combined with efforts to decentralize the history of international law, Knop's private lens shows how individuals seeking to expand the capitalist frontier make international law, not only at the core, but also on the margins and in the interactions between the two.

In this essay, I think with Karen Knop about the heuristic and critical potential of the framework of Foreign Relations Law (FRL) for Private International Law (PrIL). I apply the framework of FRL to the recognition of foreign marriages in Denmark to study how PrIL is operationalized by domestic authorities. FRL helps us see how PrIL's operationalization engages a wide array of legal fields, including Public International Law (PIL), domestic administrative law, and immigration law, as well as the domains of foreign service and foreign policy. In doing so, PrIL in this context draws upon all these fields’ rationales and implicit assumptions. I argue that a FRL perspective not only contributes to PrIL's theoretical self-reflection, but also enhances PrIL's capacity for subversiveness—“its ability to unsettle by showing a given legal system's assumptions and approaches to be a matter of choice rather than simply common sense.”1

In 2021, the French government commissioned two reports on episodes of extreme violence involving France's past: the Algerian War and the Rwandan genocide. Both reports grapple with how “the past haunts the present and the future,”3 a theme that is central to Karen Knop's scholarly legacy. In both reports, legal, historical, and archival expertise are positioned to redraw and recast relations of France to Africa. We argue that the reports’ focus on the role of a particular class of experts (namely archivist and historians, rather than lawyers) reflects France's current approach to narrating historical injustice, emphasizing public memory of violent pasts, rather than legal responsibility of the French state.

Nearly every aspect of our life is impacted by digital technologies manufactured and sold by companies. Legislative frameworks to limit the harms of such technologies have been slow to develop and remain entangled in controversy.1 The expanding role of digital technologies has been accompanied by a disturbing descent into authoritarianism in many countries that is also, in part, fueled by these very same tools.2 The decline of liberal democratic institutions is said to be linked to various properties of the digital ecosystem—from security flaws in popular applications used by states to engage in covert and remote surveillance3 to the development and exploitation of social media algorithms that push violent and divisive content.4 There is no doubt, then, that digital accountability research—which we define as evidence-based research seeking to track and expose risks to civil society in the digital ecosystem—is critical. This essay highlights the legal and ethical challenges faced in digital accountability research and concludes that a comprehensive and global ethical framework for such research is a critical step forward. As legal frameworks and norms continue to shift with respect to digital accountability research, such collaborative, international norm-setting would help ensure that digital accountability research continues.

Over the past decade, the field of digital open-source investigations has both expanded and matured. Open source investigations rely on information that anyone can access from the Internet, and have been increasingly deployed by legal investigators, human rights researchers, and journalists. The investigatory methods include Boolean searches; sourcing videos, photographs, and other data from social media; determining locations of events by comparing photos and videos to satellite images; mining the deep web for government records; determining time of day by analyzing shadows in photos; and more. In this essay, I argue that digital open-source investigators can (and should) rely on a three-step process when faced with an investigations-related dilemma: (1) identifying what the law says they can or cannot do according to their professional identity, intended purpose, and relevant jurisdiction; (2) soliciting guidance from their professional code of ethics (if they have one); and (3) weighing their options against the values of safety, accuracy, and dignity. Given space constraints and prior coverage of the first two steps, I focus here on step three. The values of safety, accuracy, and dignity arguably apply to all open-source investigations and investigators, regardless of jurisdiction or professional identity, and their application reflects a relatively novel attempt to help set ethics-based boundaries around investigation-related activities.

The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

Digital evidence has the potential to transform the accountability landscape. However, several obstacles must be overcome to use it effectively for war crimes prosecutions. The availability of digital evidence can be impacted by a range of factors, from Internet connectivity to removal of content by platforms to the difficulty of identifying relevant content through the fast pace of social media. The reliability of digital information is increasingly being called into question because of deliberate disinformation campaigns by parties to conflicts, as well as the fear of media manipulated by Artificial Intelligence (AI). And questions around chain of custody and admissibility of digital evidence have not fully been resolved by international courts. This essay unpacks some of these challenges. It suggests some ways in which governments and big tech should seek to ensure access to digital spaces and put in place measures to increase the integrity of online content, and how investigators and lawyers can gather, authenticate, archive, and establish chain of custody to ensure it can be used in accountability processes.

Digital evidence is rapidly emerging as a tool for migration authorities in refugee status determination (RSD)—the procedure for determining whether a person meets the criteria for protection as a “refugee.” Its growing popularity may be seen as a response to the relative dearth of “hard” evidence in asylum procedures, where decisions often hinge exclusively on the applicant's personal narrative and assessment of her credibility. In this essay, we critically examine the growing use of digital evidence in RSD by authorities and the human rights concerns that arise from some of these practices. We then move to outline some examples of how digital evidence might also present new opportunities for scholars, practitioners, and asylum seekers themselves, helping to substantiate claims and document underlying inequities in existing RSD practices. In the process, we seek to navigate a balance between the techno-solutionism that hails digital evidence as a panacea and those a priori dismissing digitization as techno-hype and inherently problematic.

Ownership over the deep seabed and its mineral riches was unsettled until well into the twentieth century. Yet, by the 1960s, a remarkable spirit of universalism prevailed. States declared the deep seabed to be the common heritage of [hu]mankind, determining that its exploitation and protection would require collective management. The seabed beyond national jurisdiction (or, the “Area”)1 spans roughly half of the surface of the Earth. It contains critical minerals, such as cobalt and copper, which technological advances have rendered increasingly within reach. States have worked collectively and proactively to regulate the near-future exploitation of the deep seas, thus far acting squarely within the law of the sea. As the possibilities of commercial mining appear clearly on the horizon, and as the impacts of mineral extraction come more and more sharply into view, the time has come to reassess whether the (monumental) concept of common heritage—part of the law of the sea—is enough to balance equities among states, mining companies, and human populations affected by mining. Is the current law capable of adequately preserving fairness and equity among all stakeholders in isolation from the legal regimes for human rights, environmental protection, cultural heritage, and the protection of Indigenous peoples and local communities? These regimes emphasize that deep seabed mining is not just an economic pursuit, it is also one that affects the lives and identities of individuals and peoples—and provide legal tools and strategies for harmonizing those interests. Yet established rules and norms around participatory governance and cultural rights have been all but ignored within recent international negotiations about how to regulate seabed mining.

Some forty years ago, the UN Convention on the Law of the Sea 1982 (UNCLOS) created an unusual regime for states to collectively manage common natural resources on the international seabed beyond national jurisdiction (known as “the Area”) through the International Seabed Authority (ISA). In the intervening years, scientists have increasingly been warning about the serious environmental risks of mining seabed minerals. At this pivotal point in time, when states are negotiating whether or not to allow seabed mining, this essay explores the risk of undermining by mining, that is, contravening international marine environmental law and the obligations and responsibilities of states thereunder by allowing commercial mining activities to commence. We argue that allowing seabed mining in the Area at this juncture, when so much about the deep ocean remains unknown, would risk frustrating a host of measures, achievements, and progress to enhance marine environmental protection, particularly in areas beyond national jurisdiction. We begin with an overview of the ISA and its work to date, before discussing potential interactions between seabed mining and marine environmental law and policies, with a particular focus on the new ocean biodiversity agreement. We conclude by urging states to take cognizance of their overarching duty to protect and preserve the marine environment and ensure that all decisions taken with respect to seabed mining are consistent with their obligations and responsibilities under international law.

Ongoing deep seabed mining negotiations evoke two competing visions of the ocean: as a vast (social) emptiness rich in wealth for the taking; or as a place where deep human connections exist despite arbitrary lines drawn to distribute states’ legal authority over it. The first tends to be the prevailing view, and the second is a challenger grounded on culture and identity. In this essay, I wish to unpack the roles of traditional knowledge and cultural heritage in deep seabed mining negotiations. I argue that attention to states’ broader international legal obligations requires the deep seabed mining regime to take heritage and identity more seriously than it does at present, and thus to provide better pathways for communities with cultural links to the ocean to be involved in deep seabed mining negotiations. In particular, I show that intangible cultural heritage, a form of cultural heritage largely absent from deep seabed mining negotiations thus far, provides more solid doctrinal and practical ground for the regime's engagement with culture and identity.

Free, prior, and informed consent of Indigenous peoples (prior consent) is a principle of international law that requires states to consult and obtain the consent of Indigenous peoples before projects or legislation that may affect their rights are approved. This principle is applicable to land-based mining projects unfolding in lands titled to Indigenous peoples. The extractive industry's extension to the deep sea is imminent, with the promising but controversial prospect of critical minerals essential for the transition to renewable energy. The application of prior consent in deep seabed mining is open to question because these projects are being developed beyond Indigenous peoples’ territories and the impacts on their rights would primarily manifest indirectly. In this essay, I focus on the current plans to approve the new International Seabed Authority (ISA) mining code and to award grant exploration and exploitation contracts to mining companies. I put forward three arguments for why the consent principle applies to deep seabed mining projects. First, despite being developed outside lands titled to Indigenous peoples, mining projects can affect the rights of Indigenous peoples, and therefore, their consent is required. Second, the prior consent principle is applicable to deep seabed mining as a matter of treaty law under the International Labour Organization Indigenous and Tribal Peoples Convention No. 169. Finally, prior consent has the potential to qualify as a rule of international customary law applicable to the “specially affected states” with Indigenous populations under the United Nations Declaration on the Rights of Indigenous Peoples.

I have been asked by the symposium editors to write about the participatory scope of the concept of common heritage of humankind for Indigenous peoples, local communities, and future generations. Leaning into the possibilities of the Unbound format, I approach the topic in an athwart way. With a focus on seabed mining, I begin with describing a recent occasion on which Indigenous leaders joined a meeting of the International Seabed Authority (ISA) to discuss the mining regime that is in progress. I tease out the meanings that may be drawn from this instance of participation, including the claims that it made to the ocean as common heritage. Next, I turn to the limits of such participation, given the set parameters of the regime. My overall argument, discussed in the final section, is that the real issue at stake is not the possible conceptual scope of the common heritage principle. Rather, its actualization has been such that the burden is effectively shifted to marginalized voices to seek goals that do not disturb the overarching seabed mining regime.

In this essay, I reflect on the challenges and opportunities in ensuring the genuine and meaningful participation of Indigenous peoples at the International Seabed Authority (ISA), with a view to giving due consideration to Indigenous peoples’ human rights and integrating their knowledge into international decisions on deep-seabed mining. The essay begins with an assessment of how the current limitations in transparency and public participation in the practice of the ISA1 constitute barriers for the participation of Indigenous peoples. I then argue that existing international human rights obligations require Indigenous peoples’ participation at the ISA and that entry points within the ISA regime already exist to comply with these obligations. I conclude by emphasizing the need to support meaningful participation by Indigenous peoples through social sciences expertise and the involvement of independent international human rights experts, to actively address any biases vis-à-vis Indigenous knowledge.

Exploitative mining in the deep seas is coming, and with it will arrive a new wave of international disputes. Numerous stakeholders will be interested in these disputes, such as those seeking to profit from exploitative mining activity; developing states seeking to benefit from equitable sharing of wealth and lessons learned; and environmentalists all over the world worried about environmental catastrophes that could result from such activity. Stakeholders include the mining contractor, the sponsoring state of the contractor, the International Seabed Authority (ISA) created by the UN Convention on the Law of the Sea (UNCLOS) to control mining activity in the deep seas, states (both states parties to UNCLOS and those that are not) and affected communities, which includes Indigenous peoples and climate activists. However, the dispute settlement system of UNCLOS treats these different stakeholders unequally in terms of whether they may be parties to a dispute proceeding and, if so, what claims they may bring. Unsurprisingly, the system excludes non-states parties and non-state entities (apart from the International Seabed Authority and the contractor), such as Indigenous peoples and climate activists, from serving as parties (claimant or respondent) to a dispute. This essay explores the limited ways in which excluded stakeholders nonetheless may be able to participate in a dispute initiated under UNCLOS. Specifically, they may serve as witnesses, experts, or amicus curiae in proceedings before the International Tribunal for the Law of the Sea (ITLOS), the Seabed Disputes Chamber, or a commercial arbitral tribunal. This essay also advocates for the ISA to establish administrative processes for ongoing monitoring and whistleblower complaints. Such processes would allow excluded stakeholders to submit relevant evidence and information that could—and should—be used in any formal dispute settlement processes initiated by those stakeholders who enjoy direct participatory rights.