The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.

This article analyses the ICJ, one of the most eminent actors of the international legal regime, as an actor of the international tax regime. So far, the ICJ’s role in tax dispute resolution has been a blind spot in the literature.

The descriptive part of this article first discusses the case law of the PCIJ and ICJ that considers – albeit incidentally – questions of taxation. These tax-related cases are categorized as (i) ‘wrongful taxation’ constituting the subject matter of the dispute; (ii) taxation as evidence for a ‘genuine link’ between the state and a national; or (iii) taxation as an ‘effectivité’ to prove the de facto exercise of state authority over a given territory.

The second half of the descriptive analysis assesses the Court’s jurisdiction over tax disputes. Tax treaties usually lack compromissory clauses. Yet, there are a number of jurisdictional bases that vest the Court with the competence to sit over hypothetical tax treaty disputes, although certain reservations may render the Court’s jurisdiction residual to other means of tax dispute settlement. Further, Article 344 TFEU possibly precludes EU member states from initiating ICJ proceedings concerning tax treaty disputes with other EU states.

The second, normative part of this article contemplates the Court as a future ‘World Tax Court’. It briefly addresses (i) possible effects of the ICJ’s hypothetical involvement in tax disputes; (ii) whether the ICJ might have a future role in tax dispute settlement in light of recent developments; and (iii) whether it is even desirable to involve the Court in tax disputes.

The EUNAVFOR MED anti-smuggling mission, Operation Sophia, ended in March 2020 and is largely viewed to have failed in its objective of ‘disrupting the business model’ of migrant smugglers in the Mediterranean region. The mission relied on purported enforcement powers in the 1982 United Nations Convention on the Law of the Sea and the 2000 Migrant Smuggling Protocol to seize and destroy stateless smuggling vessels on the high seas. Despite repeated claims to such powers by the European Union, neither treaty provides a strong jurisdictional basis for seizing stateless smuggling vessels outside territorial waters. However, ambiguous drafting in the Migrant Smuggling Protocol viably permits some claims to extraterritorial enforcement jurisdiction over stateless smuggling vessels on the high seas, and the European Union has relied on this ambiguity to tackle migrant smuggling. This article argues that the recent European Union anti-smuggling operations, most notably Operation Sophia, have reinterpreted the ambiguous term ‘appropriate measures’ in the Migrant Smuggling Protocol as permitting the states parties to exercise enforcement jurisdiction over stateless smuggling vessels at sea.

The recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges.

One particularly intense critical debate over interpretation in international law concerns the role of moral factors – specifically, the degree to which such factors influence legal interpretation, and how the law should deal with them. A formalist approach argues that moral considerations should be excluded as non-legal; a critical legal studies approach suggests they are an inevitable part of the functioning of international law and must therefore be acknowledged; and an inclusivist approach would suggest their influence is permissible, albeit only under certain circumstances. In this article, we are concerned with the question of whether moral factors influence interpretation at all, taking international treaties as the object of study. To address this question, we take a novel approach, proposing an experimental linguistic framework to test whether linguistic categorizations (originally developed for the analysis of everyday language) can be successfully applied to treaty interpretation, relying on both laypersons and experts as participants. Although some caveats must be made, the experiments deliver clear results: both groups are influenced by morals in their interpretation of international treaty norms. On this basis, we draw conclusions regarding (i) how the process of interpretation of international law operates; and (ii) what the institutions managing that process, such as courts, should factor-in when deliberating their decisions. By adopting this novel perspective, we also contribute to linguistic and experimental approaches to international law at the methodological level.

This article considers the international laws applicable to irresponsible state behaviour in cyberspace through the lens of the problem of election hacking. The rule of sovereignty has taken centre stage in these discussions and is said to be preferred to the non-intervention rule because it evades the problem of coercion. Proponents of the cyber rule of sovereignty contend that there is such a rule; opponents reject the existence of the rule as a matter of existing law. The objective here is to explore the methodologies involved in the identification of the cyber rule of sovereignty under customary international law. The work first frames the debate in the language of regulative and constitutive rules, allowing us to show that a regulative rule of sovereignty can, logically, and necessarily, be deduced from the constitutive rule of sovereignty. The content of the regulative rule can also be deduced from the constitutive rule of sovereignty, but it has a more limited scope than claimed by the proponents of the rule, notably the Tallinn Manual 2.0. The rule of sovereignty prohibits state cyber operations carried out on the territory of the target state and remote cyber operations which involve the exercise of sovereign authority on that territory, e.g., police evidence-gathering operations. The rule of sovereignty does not, however, prohibit other remote, ex situ state cyber operations, even those targeting ICTs used for governmental functions, including the conduct of elections. The rule of sovereignty is not, then, the solution to the problem of election hacking.

Conferences of the Parties (COPs) are intergovernmental meetings established by treaties to review and promote the implementation of their provisions. The literature on COPs is limited and almost exclusively based on multilateral environmental agreements. The article departs from this scholarship to show that COPs are now present in different areas of international law and to discuss some of the ways in which these bodies influence the conventions that establish them. In particular, it considers how COPs affect the content and the implementation of their parent treaties. The article focuses on the bodies established by four treaties selected as case studies: the WHO Framework Convention on Tobacco Control; the Convention for the Protection and Promotion of the Diversity of Cultural Expressions; the Convention on Cluster Munitions; and the United Nations Convention against Corruption. Based on the examination of the normative decisions adopted by these organs, the article argues that COPs’ activities (i) specify and develop the content of their parent treaties by setting procedural and substantive standards that states parties must meet to comply with their obligations; and (ii) support the implementation of their parent treaties by seeking to strengthen their social and political position, facilitating the adoption of measures by states parties. COPs pursue this second goal by building momentum in favour of the implementation of their treaties, stigmatizing their adversaries, and connecting their conventions with established international legal narratives.

In the wake of the #metoo and #blacklivesmatter movements, the masculine and ‘methodologically white’ nature of the core of the international legal profession has received renewed attention, and attempts to diversify it are well underway. Absent from the conversations that accompany such diversification efforts are reflections on the pervasiveness of ableism in the profession. Ableism describes implicit assumptions about the species-typical condition of the human body and the ways in which it interacts with the material and social world. The importance of ableism in excluding and marginalizing persons with disabling differences in international legal academia has widely been overlooked. This neglect simultaneously contributes to ableist re-productions of the profession and affects how international law understands and governs disability.

In an attempt to reassert the relevance of international human rights law in contemporary urban contexts, this article considers the extent to which the provisions of the African Charter on Human and Peoples’ Rights lend themselves to fruitful application in African cities, appropriation by African cities and the development of rights to African cities. The article ultimately argues that, despite the rural inclinations of its drafting context, certain textual shortcomings and the existence of major political hurdles to its effective implementation, the African Charter, as interpreted and applied by the African Commission and African Court on Human and Peoples’ Rights, is well-placed for the regional human rights system’s adaptation to the urban age.

We introduce this symposium of articles by explaining the notions of hard and soft law, and reviewing UN developments on business and human rights in this light. We move to a more detailed discussion of existing hard law, particularly the state duty to protect, before examining examples of fulfilment of that duty via the domestication (especially the judicialization) of human rights norms for business. We also note the many pitfalls in contemporary approaches, before examining how the proposed legally binding instrument might address those pitfalls. We conclude with commentary on how soft and hard norms to date have failed to grapple with corporate power, the issue which animates the need for a business human rights debate in the first place, before introducing the articles to follow.

The Sustainable Development Goal’s (SDG) blueprint to global sustainability exemplifies the global governance trend towards the displacement of law by indicators. Indicators purport to produce objective measurement and comparison, a desirable trait for international public authorities that struggle to bolster the legitimacy of environmental and sustainability norms. This paper adopts a pragmatic approach to indicators by taking seriously their limitations, weaknesses, and dangers, but also their potential contributions to international sustainability objectives. We explore a reframing of the relationship between law and indicators in complementary, not adversarial, terms. Several examples of this complementarity are explored, including the potential use of the SDGs for evaluating the instrumental effectiveness of legal regimes, as well as the ways that international sustainability law supplements the SGDs by providing legal ramifications for violations of state-specific obligations. Finally, we argue that law and legal normativity make invaluable contributions to international environmental and sustainability governance, contributions that metrics and other managerial and technocratic forms of governance cannot make.

Unlike its European counterparts, Canada appears to remain firmly entrenched in a soft approach to ensuring that Canadian extractive companies respect human rights abroad. Canada’s powerful extractive industry has been very successful in resisting attempts to introduce hard law measures to regulate their transnational conduct. This article considers business and state motivations for supporting or pursuing the shift to hard law measures in the business and human rights context. It assesses Canada’s 2022 policy on responsible business conduct and the implications of the government’s failure to endow the Canadian Ombudsperson for Responsible Enterprise with the necessary powers to engage in credible independent investigations of transnational business conduct. It also considers the potential impact of three leading cases brought in Canadian courts against Canadian extractive companies in relation to their overseas operations. The article argues that these developments may not yet be sufficient on their own to shift extractive sector views on the introduction of domestic human rights due diligence legislation. It concludes with some thoughts on the impact that the legislative developments in Europe and treaty negotiations at the United Nations may have in Canada.

Military support to Ukraine has been accompanied by debates as to when Western states would find themselves ‘at war’ with Russia. This political and legal discourse reminds us that international law needs concepts to identify who is a party to an international armed conflict. Identifying parties is crucial because the international legal regulation of armed conflict remains, in many ways, structured by reference to party status – even if the legal meaning of being a party today differs significantly from the traditional implications of being ‘at war’. To capture the increasingly complex co-operation patterns of today’s and tomorrow’s wars, this article identifies the contours for a framework of legal criteria for establishing when a state has become a party to an ongoing international armed conflict. To become a party under this framework, a state must knowingly make a contribution to the conflict that is of a character such that it is directly connected to harm caused to the adversary. That contribution must be sufficiently closely co-ordinated with fellow parties to allow for involvement in the decision-making processes regarding co-ordinated military operations. Applying these criteria to key support scenarios, as exemplified in Russia’s war against Ukraine, permits reasonable distinctions, also with a view to future conflicts. More widely, the analysis of party status may enhance our understanding of the architecture of the international legal regulation of armed conflict as a whole, and its ability to respond to the realities of contemporary conflicts.

Mandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.

This article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

Human rights violations by corporations are widespread and have a broad spectrum: damage to people’s health through pollution, environmental accidents and health and safety failures, forced labour or child labour, underpaid workers, displaced communities, contaminated water sources, use of excessive force, and discrimination, for example by race, gender or sexuality. Corporate violence, resulting from a long history of corporate power and colonialism continues today as corporations have grown into powerful global conglomerates. Through complex and opaque multinational groups and supply chains, use of corporate law concepts such as the corporate veil, as well as other actions such as tax avoidance and lobbying of national and international political institutions, corporate actors remain free to pursue their goals. Despite efforts to combat corporate harm through the development of a business and human rights movement success has been limited and significant gaps remain in the global governance required to ensure protection. This article argues that, similar to a cat and mouse game, corporations find new ways to defend themselves against those seeking to dismantle their power or to prevent human rights infringements. The problem is rooted in structural and systemic inequalities within the international legal framework and in company laws that maintain corporate structures that obstruct the human rights movement’s progress. The current drive towards a more sustainable business agenda requires a just transition, including transformation of global and corporate structures to tackle human rights violations and the inequalities of power and wealth that facilitate such violations.

One of the central components of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is its victim assistance and environmental remediation provisions (known collectively as the Treaty’s ‘positive obligations’). While there is much to celebrate about efforts to remedy the damage caused by nuclear weapons, the way the TPNW distributes responsibility for this work is troubling. Under the Treaty, the primary responsibility for fulfilling the positive obligations is placed on the states parties that have individuals under their jurisdiction who are affected by the use or testing of nuclear weapons and areas under their jurisdiction or control that have been contaminated by the use or testing of nuclear weapons (‘the affected states’) despite the fact that, often, these were not the states responsible for detonating the nuclear weapons. This article examines and critiques the reasons the Treaty’s drafters placed the main responsibility for victim assistance and environmental remediation on affected states. It argues that the rationales underpinning these provisions rest on shaky grounds, and that the Treaty’s approach has potential negative ramifications for nuclear disarmament and understanding the history of the use and testing of nuclear weapons. Further, it explores how the Treaty may play into worrying broader dynamics in public international law whereby the Global North is frequently absolved of responsibility for the harms it causes while the Global South is saddled with obligations to redress an array of harms.

The term ‘ambition’ appears to have infiltrated international legal discourses: it is used to, for instance, lament the lack of state action to tackle major global challenges, praise progress towards difficult goals, or evaluate the outcomes of international law-making processes. Often mobilized, the concept of ambition in international law remains, however, poorly understood. And yet, each narrative offers a specific analytical frame that influences our understanding of the world and sets distinct policy prescriptions. What argumentative functions do ambition narratives play and what implications do they carry for international law, in both its practice and study? To respond to this question, the article explores the occurrence of the term in a field where the rationale of ambition has recently taken centre stage – international climate law – and uses the crisis narrative as a means of comparison to highlight the specificity of ambition discourses. The argumentative implications of ambition are identified in terms of vision, means and temporality: this article suggests that an ambition discourse fulfils objectives that a crisis narrative is unable to accommodate by calling for structural transformations, motivating states to commit to far-reaching objectives and adopting a long-term perspective focused on incremental change. The shortcomings of an ambition narrative are also highlighted, in relation to its determination and evaluation. The study contributes to shedding light on a new international law discourse to offer a different analytical frame for the discipline.

Social memory studies start from the premise that people acquire their memories not only through individual means, but through social processes as well. Social groups often provide materials for memory, and prod individuals into recalling particular events. One of the distinctive differences between the practice of the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) concerns memory-related remedies. While the IACtHR quite frequently orders respondent states to commemorate grave violations of human rights (including the construction of monuments), the ECtHR has refrained from granting such commemorative remedies. Some organizations representing victims have called upon additional tribunals to embrace the IACtHR’s remedial approach to address grave breaches of international law. Drawing on social memory scholarship, this study is aimed at empirically assessing the impact of four sites of memory in Colombia established by order of the IACtHR. The study’s findings suggest that international tribunals alone cannot shape collective memories that are inconsistent with sociocultural features characterizing the local society. On the other hand, judicially-ordered sites of memory are meaningful for the victims’ families and small-scale social units. These findings turn our attention to micro-level sociological perspectives, and particularly to the symbolic-interactionist approach to international law, highlighting the vital symbolic role of international tribunals for individuals and small social units. The valuable role of such memorial sites for the victims’ relatives and related communities suggests that international tribunals addressing grave human rights violations should consider granting commemorative remedies.