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.

This article aims to enrich the emerging, multi-coloured tapestry of ‘international law in context’ through a study of how international economic law operates in complex investment-related disputes. Focusing on the Eco Oro v. Colombia investor-state arbitration, and drawing on both doctrinal analysis and sociolegal research, the study investigates how different actors make sense of the issues, of the dispute, and of the law. Besides shedding light on the neglected multi-actor, multi-layered dimensions of investment disputes, and on tensions between often incommensurable values, juxtaposing arbitral proceedings and underlying social realities highlights how investor-state arbitration involves a socio-political process of re-presenting actors, territory, the environment, and livelihoods through the prism of international arrangements that are primarily designed to protect foreign investment. The findings provide policy pointers on the need for systemic reform of international investment law, moving away from the predominant emphasis on investment protection and investor-state dispute settlement, towards a governance model that effectively considers the social, political, and environmental dimensions of foreign investment projects.

The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.

Persons with disabilities suffer disproportionately in every armed conflict, and Russia’s war in Ukraine is no exception. The atrocities committed against persons with disabilities in this conflict, however, are in part a consequence of the state’s longstanding policy of institutionalization, which heightens existing vulnerabilities and places persons with disabilities at an unacceptable risk of acute harm. The Independent International Commission of Inquiry for Ukraine must investigate the extensive and varied acts of violence that have been committed against persons with disabilities in Ukraine since the beginning of the Russian invasion, with a focus on persons with disabilities who are institutionalized. In recommending future action, the Commission must be driven by a victim-centred approach to accountability that contributes both to the criminal prosecutions of individual perpetrators, and to systemic reforms that contribute to the project of deinstitutionalization. This article can assist the Commission’s analysis by: (i) canvassing the reports of violence against persons with disabilities during the war in Ukraine, particularly those persons in institutions; (ii) reviewing the Commission for Ukraine’s mandate and explaining its primary purpose – that is, to ascertain the facts of the conflict, through an intersectional lens, with the aim of promoting accountability – with reference to the work done by United Nations commissions of inquiry in the past; and (iii) providing concrete examples on how the Commission’s investigations and report can further both legal accountability and systemic accountability for violence against persons with disabilities in Ukraine.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

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.

Despite Article 68(3) of the Rome Statute of the International Criminal Court (ICC) granting victims an autonomous standing in proceedings, victims’ participatory rights have often been tailored to fit within the retributive structure of the trials. This contribution aims to provide a different perspective on victims’ role and their narratives in proceedings at the ICC, building upon the expressivist model of international criminal justice and focusing on a specific strand that engages with the adjudication process’s performative and communicative features. In providing a better understanding of how victims’ narrative unfolds in trials at the ICC, the article addresses two issues: how the concept of the victim is constructed at the ICC; and whether and, eventually, how this construct impedes progress in recognizing their narratives in proceedings at the ICC. Concerning the first issue, drawing on criminologist Nils Christie’s theorizing of the ‘ideal victim’, it will be observed that the construct of victims in proceedings at the ICC reflects three main attributes: weakness; innocence; and dependency. The second issue shed light on the extent to which the emphasis on the ‘ideal victim’ can serve as a tool in the hands of institutional actors at the ICC to pre-empt, constrain and subordinate victims’ narratives, in a manner that oversimplifies victimhood. To impose a particular narrative upon victims’ experiences, three main procedural mechanisms have been identified: appropriation of victims’ interests; legal representation of abstract victimhood; and exclusion from the trial of victims who do not conform to the ideal victim.

The article focuses on reparations, as ordered by the International Criminal Court (ICC) against a convicted individual. It has long been orthodoxy that such measures fulfil solely compensatory objectives, for they lack any punitive intent. This article offers a rival account. An analysis of the respective regulatory and contextual framework reveals that, by design, reparations are allowed to pursue compensatory and punitive goals equally. An analysis of the reparations orders themselves affirms that, in practice, the ICC utilizes reparations as a means to accomplish compensatory and punitive objectives both. It is maintained that reparations orders are both remedial and punitive in nature. Ignoring this reality has a negative impact on individual prerogatives, and contradicts fundamental sentencing ideals of international criminal justice. It follows that the current reparations order regime should be reformed. The ICC should either explicitly acknowledge reparations as punishment, or detach them from criminal proceedings altogether.

The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the ad hoc tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite per se or indirectly integrated into a wider prognosis of the risk of recidivism.

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.