Legal systems across the world contain the obligation to prevent ‘absurd interpretations’ of law. In international law, an instruction to avoid ‘manifestly absurd’ interpretations can be found in Article 32 of the Vienna Convention on the Law of Treaties. This gives rise to at least two questions that I will take up in this article. First, what is meant by the ‘absurd’ that is to be avoided in legal interpretation. The short answer to this question is: no one knows exactly. The absurd, by its very nature, resists definition in pre-given categories, as I will argue on the basis of four core thinkers on the absurd: Søren Kierkegaard, Jean-Paul Sartre, Albert Camus, and Thomas Nagel. The second question is more technical and easier to answer: how should lawyers try to avoid absurd interpretations? Here, I turn to absurdist writing and the theatre of the absurd for assistance. Absurdist writing and theatre have developed a number of techniques to make the absurd appear, to let the audience experience that something is fundamentally out of tune. Lawyers use similar techniques, but in reverse and with an opposite purpose: they add exposition, narrative, reasonable language, and stable, rational legal personae. In this way, they boost the rationality and reasonableness of the legal order. However, to come full circle, it is exactly the pretension of rationality and reasonableness that makes the law vulnerable to manifestations of the absurd. The rationality of law is the springboard for the very same absurdity it tries to suppress.

This article argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive nor block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately, the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system. This opened the door for certain actors – transnational coalitions of expert body members, human rights advocates and issue professionals – to use General Comments in a way that not only impacts international legal change but can also withstand state opposition.

In this article we adopt a political economic lens to analyse the revival of the concept of ecocide in present international legal scholarship and practice. The current campaign to codify the crime of ecocide under international criminal law represents the epitome of a problem-solving approach, which conceives of the law as external to society and as a corrective to its evils. Yet, a large body of critical literature has drawn attention to the constitutive role of international law and to the problems with its depoliticized approach when it comes to tackling global injustices. We build upon this diverse scholarship to illuminate how the technical, acontextual, and ahistorical legal debate on the codification of ecocide ends up normalizing the violent structures of extractive capitalism and its hierarchies. Further, we situate the proposed crime within the wider context of how international law regulates and constitutes the natural world. Drawing on critiques of sustainable development and of business and human rights discourse, we argue that the ‘imbroglio’ of ecocide, in its current legal definition, lies in presenting ecological preservation and devastation as simultaneously legitimate aims. The article ultimately raises the question of the role of international law in progressive political agendas, a question that could not be more pressing in times of entangled socio-ecological-economic disruptions.

Treaty amendments constitute a critical but under-researched aspect of international law. In this article, we present a comprehensive survey of 491 amendment procedures across 691 multilateral environmental agreements. We use this data collection to build a typology of amendment procedures based on various combinations of control, adaptability, and flexibility. We introduce the property space reduction method as a valuable tool for building typology and analysing international law. We find a clear trend towards the inclusion of amendment procedures, which makes treaties increasingly adaptable. This adaptability is generally coupled with flexibility to avoid infringing on consent. As a result, amended treaties risk being increasingly fragmented into differentiated bundles of obligations split among subsets of members. We also examine how key features of treaty membership, such as power distribution, correlate with the occurrence and types of amendment procedures.

Many contemporary armed conflicts are shaped by the reliance on airstrikes using traditional fighter planes or remotely piloted drones. As accounts of civilian casualties from airstrikes abound, the ethics and legality of individual airstrikes and broader targeting practices remain contested. Yet these concerns and debates are not new. In fact, a key attempt to regulate aerial warfare was made 100 years ago. In this article, we approach the regulation of aerial warfare through an examination of the 1923 Hague Draft Rules of Aerial Warfare and the contemporary scholarly discussion of these rules. While the Draft Rules have never been converted into a treaty, they embody logics of thinking about civilians, technologies of aerial warfare, and targeting that are still resonating in contemporary discussions of aerial warfare. This article argues for a contextualized understanding of the Draft Rules as an attempt to adapt International Humanitarian Law (IHL) to the new technological realities while maintaining distinctions between different kinds of spaces and non-combatants. We argue that the Draft Rules prefigure later debates about the legality of aerial bombing by tacitly operating with a narrow understanding of the civilian and by offering a range of excuses and justifications for bombing civilians.

The subject of this analysis is the role that regional trade agreements (RTAs) play in balancing between personal data commodification and protection of privacy and personal data, approached from the perspective of Karl Polanyi’s theory of double movement. We analyse provisions on cross-border information transfers and data protection in order to establish the models for balancing between the ideas of personal data commodification and social protection, understood as allowing for the use of measures that ensure privacy and personal data protection. Our analysis indicates that there are two general models concerning the liberalization of cross-border information transfers: one model restricts states’ ability to restrict data flows while the other is more open to such measures. Next, we identify three primary models governing how data protection is treated in the agreements that liberalize data flows: one that is based on the inclusion of substantive standards of protection in the content of the given agreement; one that uses international standards as a proxy for establishing certain level of protection; and one that is based on national data protection laws. Combining identified models of liberalizing data flows with identified models of ensuring data protection allows us to show that the inclusion of seemingly similar provisions on cross-border data transfers in various RTAs has resulted in developing several different models for balancing between commodification of personal data and data protection.

This article maps the elements of the epistemically legitimate argumentative space of judges in scientific disputes, where scientific facts and arguments intrude into the legally relevant aspects of the legal controversy. The article distinguishes four main forms of legitimate hybrid reasoning styles. It identifies the epistemic risks threatening the legitimacy of decisions in light of the corresponding limits of the epistemically legitimate argumentative space. The article concludes by discussing the parameters which help judges to select the appropriate reasoning style in particular cases, such as the judicial institution’s epistemic capacities, practical feasibility, and the role science plays in the fabric of legal rules.

International law today recognizes that cultural heritage includes not only tangible but also intangible cultural heritage, encompassing traditions, customs, practices, and beliefs. While protections for tangible cultural heritage have existed since at least the nineteenth century, only relatively recently has the law gone beyond piecemeal human rights protections and extended direct and specific treaty protections to intangible cultural heritage through the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. The push for this Convention was linked with broader discontent within the Global south at the prioritization of Eurocentric ‘monumentalism’ in international cultural heritage law. Nevertheless, in situations of armed conflict, the emphasis reverts to protection of tangible cultural heritage as international humanitarian law does not go beyond general civilian protections to directly address the protection of intangible cultural heritage in conflict. While the 2003 Convention provides for emergency assistance, its broadly-worded terms do not indicate the shape its other obligations would take in armed conflict or the manner in which they would interact with rules governing the conduct of hostilities. This article examines, first, the degree and extent to which the 2003 Convention’s various obligations in relation to safeguarding intangible cultural heritage circumvent de-prioritization and continue to apply in conflict; and second, the manner in which they can be integrated with rules of international humanitarian law to better protect intangible cultural heritage during active hostilities.

Res judicata is a core belief of international law; the ICJ’s judgments are seen as final and without appeal, to doubt that is apparently equal to calling the entire international legal order into question. But the doctrine is not as absolute as the orthodoxy makes it out to be, neither as a matter of positive international law nor as a statement of legal theory. Even final judgements are not always final and appeals procedures and judicial review are not special in that they engage res judicata whereas regular legal change does not; rather, both do from a legal-theoretical vantage-point. This article makes the point by looking at ICJ interpretation judgments under Article 60; it argues that, far from leaving the original judgment’s res judicata intact, interpretation judgments actually impinge or even disrupt it. The article discusses ICJ interpretation judgments (the 2013 judgment in Preah Vihear serving as convenient example), introduces Adolf Julius Merkl’s Error Calculus theory as the theoretical framework best suited to analysing the nomomechanics and critiques the Preah Vihear interpretation judgment as change disguised as a hermeneutic exercise. It then turns the critical enterprise on its head to look at the Error Calculus theory itself to lay the groundwork for an even more audacious argument that the Error Calculus does not depend on errors in the narrow sense of the word: it is neither an ex post ratification of an imperfect norm nor a confirmation of invalidity, but the derogation of a perfectly valid norm.

Digital open-source evidence has become ubiquitous in the context of modern conflicts, leading to an evolution in investigative practices within the context of mass atrocity crimes and international criminal law. Despite its extensive promulgation, international criminal tribunals have had few opportunities to address the admissibility of user-generated open-source evidence. Through semi-structured interviews with experts and analyses of primary and secondary sources, this article examines the current standards and practices governing the use of user-generated open-source evidence. Current practices illuminate a number of gaps in the realm of digital open-source evidence in international criminal law. This article posits the establishment of a standing international, investigative mechanism as a solution to a need for increased standardization and co-ordination within the realm of user-generated open-source evidence. By standardizing the collection and use of such evidence, investigative bodies will be prepared to more effectively serve the international justice community.

The discrimination faced every day by LGBTQIA+ individuals does not disappear during armed conflict. On the contrary, such persons have been, and continue to be, targeted for particularly heinous human rights violations due to their sexual orientation and/or gender identity. And while international human rights law has, in the last two decades, made significant leaps in prohibiting discrimination on these grounds, international criminal law lags behind. The Rome Statute of the International Criminal Court only criminalizes persecution, an extreme form of discrimination, on grounds of gender and other grounds universally recognized in international law rather than on grounds of sexual orientation or gender identity. In the absence of clear textual criminalization of queer persecution, this article argues international law can be queerly reinterpreted to fit sexual orientation and gender identity into the confines of ‘gender’. However, while acknowledging the normative and expressive gains that could come from using international criminal law to pursue queer persecution, this article also notes the costs, including the flattening of queer discrimination into the narrow rubric of gender and suppressing its more radical principles. Therefore, while concluding international criminal law can be queerly reinterpreted, this article expresses doubts as to whether, in fact, it should.

This article addresses the question of whether the violence between Türkiye and the Kurdistan Worker’s Party (PKK) constitutes an armed conflict within the meaning of international humanitarian law. The article first explains the different non-international armed conflict descriptions provided by (i) the ICTY’s famous Tadić decision, (ii) Additional Protocol II, and (iii) the Rome Statute of the ICC and discusses the different applicability thresholds set by these sources. After noting that the terrorist nature of the acts of violence in a situation will not prevent them from being characterized as an armed conflict and that the application of the international humanitarian law norms would not in fact affect the legal status of the PKK, this article examines whether Türkiye’s struggle against the PKK could be classified as an armed conflict subject to international humanitarian law norms.