The intriguing relationship between jus ad bellum and jus in bello has provoked perennial academic debates. This article examines this issue from Chinese perspectives and offers a cultural critique of the well-entrenched norm of the ad bellum/in bello separation in international humanitarian law. Based on its distinctive traditional perception of the world order and the meaning of war, China embraces a holistic understanding of the ad bellum/in bello relationship. This relationship is construed as essentially harmonized. The cardinal moral principle underpinning it is that a just war should be conducted in a just way. The ad bellum/in bello separation in international humanitarian law has a Western origin, and the rationale behind it intimates Western sensitivity to the European just war tradition in which jus in bello was parasitic on jus ad bellum. It is assumed that jus ad bellum and jus in bello are irreconcilably in conflict once they come into contact with one another. This assumption is followed by a widely-held belief that any attempt to reconnect the two concepts would bring nothing but the subordination of jus in bello to jus ad bellum as experienced in European just war and, consequently, the collapse of the former. Chinese perspectives nevertheless evidence that this conventional line of thinking, hampering scholars from thinking beyond the sealed ad bellum/in bello separation, is not sound. A proposal for a more constructive solution should be taken into consideration.

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

This article presents selected findings on India relating to the effects of international investment agreements (IIAs) on national governance. Our research used ethnography-inspired methods to explore the often-voiced hypothesis that IIAs induce good governance reforms in their state parties. Our findings demonstrate that the good governance hypothesis is too sweeping and lacks subtlety, but they also bring forward new conceptualizations of the impact of the international investment regime on national governance. Our research shows that governance actors use IIAs selectively in order to advance various agendas and interests. The Indian case study shows that rather than acting like a monolith when reacting to the experience of IIAs, the state is instead a site of struggle between different actors with different motivations, agendas, and interests. In such context, IIAs produce various formal–institutional as well as ideological–discursive effects that have not been captured by the existing literature. First, IIAs lead to the simultaneous practices of internalization through external adjustment and internalization through accommodation. At the same time, these modes of internalization lead to rearrangements by internalization within the public administration. Second, governance actors resort to various narratives about IIAs, which we present in this article. Importantly, the deployments of various narratives about IIAs are context-dependent and are used by governance actors tactically as convenient tools in internal political struggles within the public administration. These findings have important consequences for the design and reform of international investment regulation, should such regulation have ambition, as it does, to promote good governance.

The Paris Agreement (2015) and the Rulebook (2018) introduce the terms ‘fair’ and ‘climate justice’ for burden-sharing and differentiation. The article analyses to what extent these terms amend the existing term ‘equity’ and the principle of common but differentiated responsibilities (CBDR).

The principle of CBDR is an open balancing concept with one clear requirement: Contracting parties contribute to climate protection to a different extent. The terms which appear to have normative weight (‘equity’ and ‘climate justice’), in international climate agreements, are limited to their procedural relevance. They aim at an equal participation in sub-institutions of the Paris Agreement or at making arguments for differentiation transparent. The term ‘fair’ focuses on the discourse on individual concepts of differentiation and on narrowing down common criteria in the long-run.

Considering the operationalization of differentiation beyond the terms, it becomes clear that criteria are hardly specified, not weighted against each other and that self-differentiation dominates pre-defined criteria, in particular within the central rules on mitigation and financial transfers. However, the Paris Agreement still specifies criteria with different relevance: Capabilities are followed by vulnerability and the responsibility for emissions.

After all, the prevailing procedural terms and rules of differentiation might give orientation, inspire subsequent decisions and the nationally determined contributions (NDCs). The more transparent the various specifications of differentiation are, the more the rules of differentiation can be narrowed. If the reference of criteria to individual states is possible, the Paris Agreement might be implemented effectively which allows for better compliance with the Agreement.

The article analyses the individual communications of the UN Human Rights Committee (HRC) on how the latter conceptualizes equality under the International Covenant on Civil and Political Rights (ICCPR). It finds an implicit taxonomy in the case law that is not reflected in the doctrinal formulae that the HRC applies. The argument proceeds in several steps: First, I argue that the concept of equality in human rights treaties depends heavily on its operationalization by courts and quasi-judicial bodies, like the HRC. Second, I analyse the doctrinal formulae that the HRC has developed in order to specify equality. I argue that the doctrine is rather inconsistent and does not give significant guidance for resolving actual cases. Third, I present the results of a systematic analysis of the case law of the HRC. The latter shows a rather stable pattern which is not reflected in the doctrinal formulae: The best predictor whether the HRC finds a violation of Article 26 ICCPR or another equality norm of the Convention is the existence of a suspect criterion on which the challenged distinction was based. There are only very few cases in which a violation is found in the absence of a suspect criterion. The majority of these cases arguably concern arbitrary state actions. At the same time, the HRC has only rarely held that a state has not violated an equality norm despite the existence of a suspect criterion.

The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.

Environmental changes, such as sea level rise and coastal erosion, have an increasing impact on coastlines worldwide. Unilaterally declared maritime limits are generally determined by reference to coastlines and they are only binding insofar as they conform to the applicable law. Bilateral maritime boundaries are not equally affected by changing coastal geography because, once established, they are binding on parties to the arrangement under the pacta sunt servanda and res judicata principles. Maritime delimitation generally produces geographically stable boundaries. In principle, these remain fixed notwithstanding changes to the coastal geography that generates maritime entitlements or the ecosystems central to national interests. Indeed, stability and predictability are among the objectives of maritime delimitation. However, legal stability can be achieved without geographic stability and the requirement of predictability may be unattainable in a new world of environmental uncertainty. After all, baselines and derived outer limits fluctuate to reflect changing coastal geography and the same is true of bilateral boundaries, unless and until otherwise agreed. States have concluded boundary agreements that refer to fluctuating concepts, such as the equidistance line, instead of fixed co-ordinates. Furthermore, the International Court of Justice has left a segment of a maritime boundary to fluctuate until otherwise agreed and a Chamber of the Court has addressed the possibility of establishing a boundary by reference to a fluid oceano-biological boundary in the marine environment. This suggests that maritime boundaries can fluctuate if established by reference to sufficiently clear and relevant limits in the natural environment.

To adjudicate a claim on individual criminal responsibility, the court has to establish objective and subjective links between the individual and the crime. This article studies the material (actus reus/objective) elements of the crime of aggression (conduct, consequence and circumstance) and suggests a reading that solves most of the conceptual and practical issues regarding criminal responsibility for this crime. The main contribution is an ontological distinction between the material act of use of violence and the act of aggression, which are both subsumed under the term ‘state/collective act’. The former is a consequence element and therefore is to be understood in its naturalistic meaning – a perceivable result of one’s action. The latter is a legal-evaluative notion and as such constitutes a circumstance that renders the violation of the prohibitory norm (the union of conduct and consequence) as being wrongful. This distinction is crucial for the system of attribution of criminal responsibility, as different mental (subjective) elements apply to consequences and circumstances.

A number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.