Current efforts to address the challenges faced by migrants at sea are not effective, as the attention is deflected to security measures for deterring people to leave their countries in the first place, rather than efforts to provide for an adequate search and rescue system which will preserve their rights and lives. This article puts an individual right to be rescued at sea on the legal map mindful of evolving migration challenges and the need to be responsive to human rights crises. By contextualizing philosophical theories that have shaped our understanding of the idea of human rights, it turns to examine the pathways in which rights on the horizon emerge and achieve full recognition. This article contends that irregular migration by sea necessitates normative change and activates an international dialogue on recognizing a right to be rescued at sea that will utmost challenge the boundaries of rights beyond national borders.

Humankind’s exploration and use of outer space are first and foremost limited by the obligation of non-appropriation. This prohibition, with an aim to prevent conflicts arising from competing territorial claims, does not extend to the exploitation of abiotic resources in space. Recent state practice has shown a clear trend of regarding such exploitation as a freedom of exploration and use of outer space. The future international legal regime should prohibit property claims over natural resources in place on celestial bodies, avoid the controversial issue of ownership, co-ordinate the resource activities of different entities by a stage-specific and priority-right-based mechanism, and harden the obligations of capacity-building and co-operation. The ideas of parallel system and monetary benefit sharing should not be discarded although resistance from major space-faring countries is foreseeable.

In 2014 Japan’s Cabinet Order No. 302 declared the outer limits of its continental shelf beyond 200 nautical miles (OL) to the west and north of Oki-no-Tori Shima (Area 302). Oki-no-Tori Shima consists of two small, barren, and uninhabitable rocks in the West Pacific. The northern part of Area 302 is broader than what the 2012 recommendations of the Commission on the Limits of the Continental Shelf (CLCS) specify. A question arises whether Order No. 302 violates Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that the OL established by a coastal state ‘on the basis of’ the CLCS recommendations shall be final and binding. Another question is the role played by the CLCS in ‘assisting’ the coastal states to delimit their national jurisdiction so as to know where the Area (i.e., the Common Heritage of Mankind under UNCLOS Articles 1(1)(1) and 136) begins. The essential questions arising from Area 302 concern how well the UNCLOS mechanism can perform to safeguard the Common Heritage of Mankind through preventing encroachment thereupon by individual coastal states. This article looks at the context and explores the obligations implied by Article 76(8) for coastal states to ‘follow’ the recommendations in establishing the OL, with special reference to the northern part of Area 302. The article also examines legal consequences arising from a breach of these obligations.

In this article, I will show how literary imitation qualifies as a specific mode of transmission of jus gentium texts and ideas. Focusing on this specific angle allows us to see how Gentili and Grotius were not just literary erudites, using poetic references to craft their own international legal arguments; they professionalized the use of literary canons in such a way that they became constitutive of jus gentium as a discipline. Canonical references were transmitted through marginalia, the printed annotations we find abundantly in the margins of their texts, and that constituted for at least two centuries the argumentative structure of how jus gentium was written. Thus, a parallel legal history unfolds between the lines of marginalia, a story made of textual interpretations, omissions, and intentional interpolations. I will offer a concrete example of this textual machinery at play, namely Gentili’s and Grotius’ discussion of the same passage from Virgil’s Aeneid. The passage in question, known by literary historians as the ‘Helen episode’, is a case of contested Virgilian authority. The ‘Helen episode’, regardless of its textual reliability, is used by Gentili and Grotius to make a specific claim: that women cannot legally qualify as enemies under the law of nations. Such a story is particularly revealing, as it allows us to acknowledge the jurisgenetic role of literary canons, as well as their powerful role in the production of arguments of order that became constitutive of international law.

This article offers one of the first comprehensive analyses of China’s emerging practice in subsidizing the low carbon energy (LCE) transition by using the new energy vehicles (NEVs) industry as a case study. It puts forward a fresh framework for this analysis by dividing the NEV value chain into three segments: upstream, midstream, and downstream. Based on this framework, it expounds a strategic shift of China’s subsidization strategy across the NEV value chain, that is, from disproportionately subsidizing the midstream segment that produces NEVs and parts to increasingly subsidizing the upstream and downstream segments to promote research and development (R&D) and expansion of NEV infrastructure and consumption throughout the economy. It argues that this shift mainly comes out of the evolution of China’s industrial policies and economic priorities, which will continue to play a decisive role in the future restructuring and transformation of the NEVs sector. This shift may also reflect China’s intention to reduce potential trade conflicts and maximize WTO-compliance but only to the extent that doing so would not unduly constrain its capacity to pursue its economic goals and industrial policies. In addition, while the WTO rules and jurisprudence may accommodate some of these subsidies (e.g., NEV infrastructure subsidies), the relevant rules will need to be further developed to provide more policy space for other types of subsidies used worldwide (e.g., R&D subsidies). Until then, it remains debatable as to whether the WTO provides sufficient room for countries to facilitate a green recovery in the post-pandemic era.

This article examines China’s Polar Silk Road (PSR) and its legal implications for the future governance of the Northern Sea Route (NSR). It first discusses China’s economic and geopolitical interests in the so-called Polar Silk Road. The article then focuses on comparing Russian regulation of the NSR and Chinese regulation of foreign vessels as a coastal state. Both China and Russia are contracting parties to the United Nations Convention on the Law of the Sea (UNCLOS). The comparison of domestic legislations aims to provide a detailed analysis on convergence and divergence of their implementation and enforcement of the UNCLOS on issues related to freedom of navigation, especially when it comes to foreign vessels, including military vessels, within national jurisdiction. The comparative study, therefore, helps determine to what extent China could vocally shape the development the NSR regulations in an era of climate change.

This article addresses the dispute between Greece and Turkey concerning the reach of their sovereign rights and jurisdiction in the Eastern Mediterranean, which is essentially about delimitation of the continental shelf and exclusive economic zone (EEZ). Turkey has delineated its continental shelf in the region to extend directly to the outer limits of the territorial waters of the Greek islands, specifically Crete, Rhodes, and Kastellorizo. Greece sees this as an attempt to deprive the islands of their maritime zones. The present article discusses what the two states might expect if they would request the International Court of Justice (ICJ) to determine the course of their maritime boundaries. The outcome of such a process would be difficult to foresee because international case law regarding the effect of islands on the delimitation of the continental shelf and EEZ is rather diffuse. Nevertheless, this article will explore what an equitable solution could look like. In particular, the small island of Kastellorizo, Greece’s most remote outpost in the Eastern Mediterranean, which lies just off the Turkish coast, requires special consideration. The present article discusses different options for dealing with this island in a future delimitation.

Argentina’s 1980s transition to democracy is globally admired for pioneering a state-led process addressing the 1976–1983 dictatorship’s state-violence. The role of international law in the transition is well documented, especially through human rights and crimes against humanity. Yet, the extent to which Argentina’s transition was intertwined with international law and subject to its jurisdictional force deserves greater attention. This article analyses how the Argentinian truth commission (TC) accounts for the dictatorship’s state-violence, and how international law is implicated in the making of this account. It argues that the TC’s account draws on the authority of international law to establish the unlawfulness of the dictatorship’s state-violence. In turn, the TC subjects the meaning and interpretation of the dictatorship’s state-violence to a Eurocentric/Anglo-American lawfulness embedded in, and mobilized by, international law in the late-Cold War. To examine this, the article re-reads the Prologue to the TC’s Report as a literary text that does international legal work, harnessing the authority of international law in a way that has enabled the TC to deploy an authoritative, internationally acceptable, account of the unlawfulness of the dictatorship’s state-violence. This reading is based on original archival research, on scholarship in the fields of ‘law and literature’ and the history and theory of international law.

In 2018, the Dutch Government proposed to establish an independent international ombudsman, known as the International Ombuds for Humanitarian and Development Aid (IOHDA), to hold non-governmental organizations (NGOs) accountable for their safeguarding and accountability failures, notably the Oxfam GB sexual abuse scandal in Haiti (March 2018) and in the Democratic Republic of Congo (April 2021). While establishing an international ombudsman would fill a regulatory and accountability gap in global governance, there are many legal and logistic challenges, some of which have been identified by the IOHDA proposal itself, that undermine the creation of this brand new body. Besides the legal and logistic challenges outlined in the proposal, this article argues that the IOHDA is unlikely to succeed because of three additional challenges. First, the IOHDA’s scope is too broad and misinterprets the ombudsman’s jurisdiction and traditional role. Second, the IOHDA neglects that existing ombudsman schemes present limitations in enacting accountability and does not learn any lessons from them. Third, the IOHDA lacks support from NGOs, a driving force, and the principal standard-setters for an international accountability mechanism, like the proposed ombudsman. This article provides a series of recommendations to mitigate these three challenges whilst identifying alternative routes to enact NGO accountability.

Geographical phenomena impacting the shape of coastlines may have implications for the stability of maritime boundaries delimited by agreement or judicial process. Sea level rise resulting from human-caused climate change has recently arisen as an additional phenomenon compelling the re-assessment of the stability of maritime boundaries over time. In a recent article published in this Journal, Dr. Snjólaug Árnadóttir has argued that a solution to the challenges of coastline change could be for maritime boundaries to fluctuate following the fluctuation of the baselines on which their course depends. By way of reply to Dr. Árnadóttir’s suggestion, this article argues that fluctuating boundaries have no legal basis either in the United Nations Convention on the Law of the Sea or in judicial decisions. Moreover, the delimitation process in three stages, commonly applied by international courts and tribunals since the Black Sea judgment, appears to be ill-suited for establishing fluctuating boundaries. There seems to be other solutions to the problem of coastline change, which this article also briefly explores.

This article focuses on the correlation between the secondary objectives of the European Central Bank (ECB) and the right to a healthy environment. Whereas the primary mandate of the ECB is maintaining price stability, the applicable law also envisages secondary objectives, such as supporting economic growth and sustainable development. Crucially, however, there is an emerging scientific literature suggesting a trade-off between economic growth and environmental sustainability. This results in a balancing problem: To what extent environmental protection and sustainability can be balanced with economic growth within the ECB’s monetary policy? This article aims to analyse this issue with a specific focus on legal implications in terms of the right to a healthy environment. This study reveals the failure of the member states to comply with the international obligations under the right to a healthy environment in shaping the law of the ECB.

The article examines the theoretical concept of interregionalism in the context of the evolving framework between the European Union (EU) and the Association of Southeast Asian Nations (ASEAN). As the EU’s first free trade agreement (FTA) with an ASEAN country, the EU-Singapore FTA is a pathfinder agreement that signifies a new phase of interregionalism and the EU’s new Asia strategy after the Treaty of Lisbon. The article argues that the innovative designs of the EU-Singapore FTA will shape the normative development of EU-ASEAN relations in the post-pandemic era. It also cautions that a comparative analysis of EU and US agreements reveals deficiencies in the FTA that require remedies. To buttress the contention, key provisions on ASEAN cumulative rules of origin, banking and legal services and non-tariff barriers are analysed in light of contemporary Asian agreements. The research further provides insight into the effectiveness of new-generation rules on geographical indications, competition, and investor-state arbitration and mediation. Hence, the findings contribute to the understanding of interregionalism and the EU’s Asia-Pacific trade and investment agreements from global and interdisciplinary perspectives.

This article is a rejoinder to Dr. Massimo Lando’s ‘Stability of maritime boundaries and the challenge of geographical change’ which proposes that positive international law offers no legal basis for the delimitation of fluctuating boundaries and discusses the many complexities involved in the delimitation and management of such boundaries. This rejoinder delves deeper into the main point of contention: the legal basis for fluctuating boundaries. It argues that coastal states have an inherent entitlement to a territorial sea and that Article 15 of The United Nations Convention on the Law of the Sea (UNCLOS) entails a default rule for the establishment of provisional fluctuating boundaries. This limit is not necessarily a strict median line because it may be adjusted by reference to special circumstances. Furthermore, the lack of explicit reference to provisional arrangements in UNCLOS Article 15 should not be read as an indication that there are no provisional boundaries in the absence of boundary agreements.

This article further argues that there are judicial precedents for fluctuating boundary-segments. The Nicaragua v. Honduras decision left a segment of the territorial sea un-delimited, resulting in a partially fluctuating boundary, until otherwise agreed. Moreover, the International Court of Justice (ICJ) explicitly established a mobile boundary-segment in Costa Rica v. Nicaragua but as highlighted by Dr. Lando, this was done with the permission of the parties. Much depends on the claims brought by disputing parties and their stance on fluctuating boundaries but this decision demonstrated the ICJ’s willingness to employ fluctuating boundaries in response to coastal instability.

International treaties create a layer of law that is particularly hard to change: While modern treaties entail significant constraints on domestic law-making, amendments require a new consensus of state parties. This creates a conflict with a core aspect of democratic constitutions: the power of new majorities to revise the laws made by their predecessors. In particular, several obligations of international economic law, namely regulatory stability promises in investment protection treaties, but also criminalization requirements under the UN drug control conventions face critique for overly diminishing domestic policy space. How can democratic constitutions deal with those tensions? One approach that is common in some countries accepts a power to legislate in violation of treaty obligations. But denying treaties the quality as real law in the domestic sphere risks to undermine the benefits of the instrument without truly solving the democracy concerns. Instead, democratic constitutions can be read to entail certain standards for engaging in treaties, namely (i) procedure-related duties to include denunciation clauses and political reform mechanisms in the treaty, and (ii) the need to establish a substantive justification for treaty constraints on future domestic law-making by legitimate aims of international constitutionalism or co-operation.

This Symposium Issue looks at how personal traits of international judges matter in their judging. The articles selected shed light on the ways that international judges’ personality, that is, their character differences and personal backgrounds, shape, control, or modify their conduct and their rulings. The articles in the Symposium reveal that individual international judges have different personal attributes and identities that affect: (i) different aspects of judicial reasoning, problem-solving and case management; (ii) the ways judges interact, deliberate and affect each other in collectively deciding cases; and (iii) the outcomes of international trials. This Symposium, therefore, looks beyond the traditional ‘legal formalistic’ understanding (prevalent also among international judges themselves) that judges – as impartial, rational, and mechanical decision-makers – simply apply existing, recognized rules or principles of law to the facts and questions before a court in the context of concrete cases without regard to any personal leanings and biases. It examines how and to what extent judges at international courts make their choices conditioned on their personal identity characteristics, and when such characteristics exhibit greater or lesser effects on their decision-making.

Bilateral relations between states which are parties to a multilateral treaty may not be governed by that treaty. This may depend on an agreement between the two states concerned, which could subject their bilateral relations to a different regime that is considered to suit their specific needs better. The exclusion of bilateral relations under the multilateral treaty may also be the consequence of a unilateral expression of the will of one of these states, for instance in view of its non-recognition of the other state. The present article seeks to examine the conditions under which bilateral relations may be excluded on the basis of the unilateral determination of one of the states concerned.

This article takes issue with the assumption the policy research literature, specifically that produced by the World Trade Organization (WTO), makes about the role of law as one which is mainly reactive to an exogenous economic reality, that of value chain trade. It argues instead that law has played a much more active role, shaping the so-called fragmentation and fractionalization of production that has led to the proliferation of Global Value Chains (GVCs). By tracing the evolution of post/colonial international economic law, the article shows how trade and investment provisions in particular have been (and still are) an important terrain over which the relationship between companies and states is articulated, with important consequences for all actors involved in GVCs. If this active role is acknowledged then law can be seen not only as contributing, together with other market-making mechanisms, to the making of those economic processes it is assumed to only respond, but also as a means through which these processes can be shaped otherwise.

Judges like to claim that they are impartial decision-makers fully capable of suppressing their personal proclivities, as the rule of law requires. But a century’s worth of studies undermines that view. Going under the name ‘judicial behaviour’, this vast literature shows that many extraneous (non-legal) factors affect the choices judges make. This article focuses on one strand of that literature – the effect of personal characteristics on judging, with emphasis on social identity and social diversity. We show that the literature is bifurcated: studies focusing on the social identity of individual judges (such as their gender, race, and nationality) generate findings consistent with in-group bias, whereas research on the social diversity of judges sitting in panels suggests that benefits can accrue from socially diverse courts. What the two sets of studies have in common, though, is just as important: both could make profound academic and policy contributions but require far more development if they are to realize their potential. We offer proposals for forward movement.

The International Court of Justice recognized the legitimacy of ‘non-party intervention’ under Article 62 of the Statute in its 1990 landmark decision on Nicaragua’s intervention in the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras). Such form of intervention ‘is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court’. Its purpose is ‘protecting a State’s “interest of a legal nature” that might be affected by a decision in an existing case’. Whereas non-party intervention under Article 62 now forms part of the law in action within the Court’s system, its precise features and regime remain uncertain. Doubts concern the identification of its precise objects and the potential binding effects for a non-party intervener of the judgment issued between the original parties. The present article explores these issues in the light of the Court’s case law and state practice. It demonstrates that non-party intervention can have various potential objects, depending on how the intervener intends to influence the future judgment between the original parties. Building on the identification of these objects, it then questions the traditional construction denying any binding effect of the decision for a non-party intervener and argues that a judgment issued following intervention is binding as between the original parties and the intervener in so far as this judgment, whether expressly or by implication, decides issues related to the object of intervention.