International organisations are inherently purposive actors within the international legal system, created and empowered by States to pursue finite common objectives. This teleological dimension has come to play a prominent role in the way in which international law rationalises international organisations, with their purposes given a significant, often determinative, role in delimiting their competences. This article argues that this is the product of a conscious shift in legal reasoning that took place in the aftermath of World War II. Through an analysis of a series of key post-War decisions, it identifies the common features of this ‘teleological turn’ and, disentangling it from other forms of legal reasoning, examines its unique underlying logic and normative claims. It demonstrates that while the teleological turn offers prospects for the systemic development of international governance, an increasingly abstract approach to the concept and identification of an organisation's ‘purpose’ raises a number of unresolved questions which cast a shadow of indeterminacy over the law of international organisations.

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one's own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Access and benefit sharing (ABS) is a transactional mechanism designed to allow countries to trade access to their sovereign genetic resources for monetary and non-monetary benefits, with the ultimate goal of channelling those benefits into sustainable development and environmental conservation. Arguments about how pathogens are not the sort of genetic resources the world ought to conserve eventually gave way to a recognition that pathogens are indeed sovereign genetic resources under the Convention on Biological Diversity and its Nagoya Protocol, and that the ABS transaction may be an effective way to deliver scarce vaccines to developing nations as benefits received in exchange for shared pathogen samples. This article argues that categorising vaccines as benefits given in exchange for access to pathogen samples creates opposing incentives for providers and users of virus samples and undermines the human right to health because it makes that right a commodity to be bought. The provision of pathogen samples to the global research commons and the fair and equitable distribution of medicines should be two parallel public goods to be pursued as goals in and of themselves. We conclude that the linking of these goals through the ABS transaction should be reassessed.

The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Few court cases in the history of European integration have been more controversial than the decisions of the Court of Justice of the EU and the German Federal Constitutional Court on the European Central Bank's public sector asset purchase programmes. This article regards consistency and coherence in the case law as uncontroversial minimum conditions that have to be satisfied for the decisions to gain legitimacy. It assesses the case law against this benchmark and determines the limits of asset purchase programmes under a consistent and coherent application of the legal tests developed by the courts.

Torture of persons living in poverty has traditionally been at the margins of human rights interventions that have primarily focused on political and conflict related torture. This article examines the extent to which the evolving practice of human rights bodies and organisations evidences an emerging paradigm shift. It finds that a combination of a growing body of empirical research, novel approaches by human rights organisations and the work of bodies such as the Subcommittee on Prevention of Torture has increasingly brought into focus the heightened vulnerability to torture resulting from economic marginalisation and discrimination. Drawing on evidence of innovative practices, the article develops the framework for a contextual approach to the interpretation and implementation of States’ obligations under the prohibition of torture that is alive to the realities of systemic violence and the nexus between poverty and torture.

This article argues that if there is a jus cogens norm in the jus ad bellum, it must be the customary norm which prohibits non-consensual uses of force that are neither validly authorised under the UN Charter nor lawful exercises of self-defence. In doing so this article will clarify the method by which jus cogens norms should be identified, based on a correct understanding and application of what it means for a norm to be ‘accepted and recognized as a norm from which no derogation is permitted’. It is argued that all existing jus cogens norms must be norms of customary law, and that the uncertainty regarding the scope of the jus cogens norm prohibiting force results from uncertainty as to the structure of the underlying customary and treaty law norms in the jus ad bellum.

This article considers the under-studied question of the interests that the international community may have in the protection of the marine environment within national jurisdiction. This question is addressed on the basis of a comprehensive analysis of the major documents that reveal the convictions of the international community, including UN General Assembly resolutions, major international treaties and the outcomes of multilateral conferences. The core argument is that, despite the dominance of the zonal jurisdictional regime in the law of the sea, the international community has, in fact, clearly and consistently demonstrated an interest in the protection of the marine environment within national jurisdiction. Although a finding of community interest does not affect the character of the coastal State's primary environmental protection obligations, it may have implications for the rights of third States to challenge a coastal State's failure to protect its own marine environment. Whether third States choose to exercise this right in practice remains to be seen; however, this article's findings should indicate to States that their actions and policies concerning the protection of the marine environment of their own maritime zones are a matter of concern to all States.

Capital controls—measures taken to regulate the outflow or inflow of capital—are employed by governments to maintain financial stability and prevent or mitigate the effects of economic crises. For many decades capital controls were out of favour among economists and policymakers. Of late, however, they have become acceptable, if somewhat controversial, tools of financial policy, with the International Monetary Fund stating that ‘in certain circumstances, [capital controls] can be useful to support macroeconomic adjustment and safeguard financial stability’. Yet, little is known about the legality of capital controls under the various international treaties and rules of international organisations. This article introduces capital controls, traces their evolution over time, considers the success of short-term and long-term controls implemented in Chile, Malaysia, Iceland and China, and examines the consistency of selected controls with international rules and obligations. We suggest treaty language will be the critical factor in determining the legality of a particular capital control under a trade or investment agreement.

The systematic protection of persons at sea remains flawed. This problem has become even more acute during the Covid-19 pandemic when port closures have caused an unprecedented humanitarian crisis at sea. This article looks at the impact of port closures on the rights of persons at sea and considers how international law can protect those rights. While persons at sea are afforded significant rights protections in international law, the rights and duties of States often clash, with the result that persons at sea can find themselves in something of a legal vacuum. In order to address this problem, this article argues that the various rights and duties of States must be interpreted and applied in a way that fully recognises the rights of persons at sea.

As the gatekeeper of international law, the CJEU determines the effects not only of international agreements but also decisions of compliance review bodies. This article analyses the Court's engagement with rulings of the WTO dispute settlement bodies (DSB) and findings of the Aarhus Convention Compliance Committee (ACCC). These case studies demonstrate the varied toolkit used by the CJEU to forge relationships with external regimes, while maintaining the EU's autonomy. The CJEU considers DSB reports and ACCC findings selectively and implicitly, demonstrating a qualified openness to international law and a reluctance to engage in a meaningful dialogue with international quasi-judicial bodies.

This article seeks to make sense of two seemingly contradictory aspects of the General Assembly's practice: its history of recommending to States that they impose unilateral sanctions; and its series of resolutions denouncing unilateral coercive measures as illegal. It examines the seeming discrepancy between the customary international law position regarding unilateral sanctions, and the position asserted by the Assembly, and argues that on a nuanced reading of the Assembly's resolutions, these positions are not so divergent as is often supposed. The article concludes by examining the scope for the Assembly to make future sanctions recommendations, consistently with its prior condemnation of unilateral coercive measures.

This article compares and contrasts the doctrine of adequate assurance of performance under the US Uniform Commercial Code (the UCC) and the UN Convention on Contracts for the International Sale of Goods (the CISG). The article argues that, in the context of the CISG, the mechanism of adequate assurance found in the UCC is a faux ami. Despite some similarities, the doctrine of adequate assurance regulated in the CISG is distinct and serves different functions to its UCC counterpart.

This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

International law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.

The proliferation and abuse of cyber surveillance technology is a global policy problem. The Wassenaar Arrangement is a central platform of international cooperation for regulating dual-use goods and technologies and the so-called ‘cyber’ amendments to Wassenaar have created a multilateral control mechanism for the export of cyber surveillance technology. Following criticism of the repressive use of ICT-powered surveillance tools supplied by private companies in the early 2010s, Wassenaar States revised the Arrangement to regulate certain types of surveillance. This article begins by examining key features of the cyber amendments. Based on the analysis of recent export control law reforms in the three leading State actors in the production, sales and governance of cyber surveillance technology—namely the United States, China, and the European Union—the article identifies the diminishing importance of the Wassenaar Arrangement. It also shows how approaches in the three jurisdictions diverge not only from the terms of equivalent Wassenaar controls, but also from one another. They all aim to become a stronger and more autonomous entity in the regulation of cyber surveillance technology. In the face of escalating confrontation between the G2 concerning emerging technologies, it will be interesting to see how the EU's turn to a more human rights-centred approach to governing the export of cyber surveillance technology will be received by the US and Chinese governments in the long run and how it will interact with export control reforms designed with competing geopolitical, commercial and security agendas.

The definition of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute) stipulates that a State act of aggression is a material element of the crime, suggesting an intrinsic link between individual criminal responsibility and State responsibility for aggression. This article argues that the Rome Statute provides a legal basis for the International Criminal Court (ICC) to determine State responsibility for aggression when considering the material elements of the crime of aggression, which has important practical and conceptual implications for the law of international responsibility. Although the content of State responsibility flows automatically from the breach of the obligation, it is argued that a finding of aggression pursuant to Article 8 bis of the Rome Statute may be considered as a form of satisfaction for the purposes of Article 37 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles). Furthermore, the material element of the crime in Article 8 bis of the Rome Statute requires the act of aggression by its character, gravity, and scale to constitute a manifest violation of the Charter of the United Nations, in line with the nomenclature used within the 2001 ILC Articles regarding serious breaches of obligations arising from peremptory norms of general international law (jus cogens). The article considers the important role that the ICC may play in relation to serious breaches of the jus cogens obligation to refrain from an act of aggression.

This article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

A dispute brought before an international court or tribunal pursuant to a compromissory clause in a specific treaty may involve issues under rules of international law found outside of the treaty in question. In what circumstances can a court or tribunal determine such external issues? At present, there is no clear answer to this question. This article sets out a framework for how courts and tribunals exercising jurisdiction under compromissory clauses could approach external issues.