Since the end of the Cold War, the content, scope, and extent of extraterritorial human rights obligations has become a pressing concern for international lawyers. On one end of the debate, mainstream scholarship argues that jurisdiction is primarily territorial, identifying a limited range of situations in which jurisdiction (and responsibility) is triggered. On the other end, critical scholars suggest that Empire still haunts jurisdiction. By reconstructing the history of this doctrine, they show that the imperial reach has always been extra-territorial and that the intimate linkage between state, territory, and population is of a rather recent and tenuous origin. In both of these narratives, however, lies the assumption that jurisdiction operates as a secularized power. Even if empires/states were once religious, faith’s legacy remains confined to the past. In this article, conversely, I trace a critical genealogy of Christian authority as a jurisdictional structure, in which territoriality was never presumed. After all, one cannot forget that Catholicism and Universalism were forged in the same etymological crucible. By drawing from Foucault’s analysis of pastoral power, I argue that international law has deep roots in Christianity’s claims of governmentality upon ‘men and souls’ instead of over defined territories.

This article explores the quest for sovereign equality by China and Japan as it unfolded in a specific historical moment, the third quarter of the nineteenth century. It does so by focusing on the debate around the ‘coolie trade’, i.e., the traffic of Chinese indentured labourers, which offered an opportunity for non-Western countries such as China and Japan to position themselves with respect to Western conceptions of ‘modernity’ or ‘civilization’ and thereby advance their quest for ‘parity with all nations’. Through a study of the Maria Luz case, decided in the early 1870s by Czar Alexander II and drafted by de Martens, the article sheds light on the different approaches of Japan and China with respect to international law at this critical historical juncture. Specifically, it shows that, although the coolie trade mostly affected China, it was Japan who first managed to reap a parity dividend by firmly condemning the practice, whereas China’s action was steered by the circumstances. Eventually, however, China’s growing interest in Chinese populations abroad paved the way for the establishment of its first permanent diplomatic representations overseas. For both countries, the events encapsulated by the Maria Luz case unveil an important, yet overlooked, moment in their quest for parity with all nations and, more generally, in their engagement with international law.

In parallel to the negotiation of international investment agreements to protect foreign investment, intergovernmental organizations have deployed considerable efforts to adopt and implement standards of conduct for business enterprises operating abroad. Despite their informal character under international law, these instruments are increasingly mentioned in international investment agreements and investment arbitration. How can references to informal instruments elaborated by intergovernmental organizations contribute to the imposition of human rights obligations on foreign investors in international investment law? Drawing upon the interactional theory developed by Jutta Brunnée and Stephen J. Toope, this article considers these references as a practice that has the potential to strengthen the normative pull towards compliance with human rights norms. In addition to emphasizing the role of international investment law as a relevant forum to develop a practice surrounding these informal instruments, it assesses whether the use of these instruments by members of a community of practice is intended to establish a genuine sense of obligation and to impose human rights obligations on foreign investors. Even if some instances evidence a practice that strengthens such a sense of obligation, most of the references included in international investment agreements and investment arbitration do not render a practice of legality.

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 recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

This article maps the legally varied sovereignty claims in the contemporary South Pacific; whether secessionist, self-determination based, or consisting of territorial disputes or lesser disagreements. The analysis reveals that Pacific practice in this domain is consistent with general international law; that despite any fractures at the domestic level, relations between the states and territories of the region is peaceful, that their shared values have instead given rise to innovative solutions to legal problems concerning territory, either through the leveraging of regional institutions – so vital to the region’s identity – to pursue claims against metropolitan powers, or through innovative arrangements to alleviate territorial problems left by colonial powers. Indeed, the region is replete with innovative legal solutions based on shared values and peaceful international relations. As such, Pacific practice and engagement with international law can provide a blueprint for others around the globe.

This article examines how the encounter between China and international law is narrated in the English-speaking and Chinese literature and sheds light on the politics thereof. It particularly shows that the English-speaking and Chinese-speaking literature diverge as to the order of meaning in which the encounter between China and international law is registered. It demonstrates that the divergences between these bodies of literature are everything but innocent.

The article offers a new perspective on the interaction of international investment law with other fields of international law based on an empirical study of the use of conflict clauses in over 1,000 investment treaties, providing a first systematic account of this type of provision. The use and content of conflict clauses serve as an indicator of state priorities regarding the coordination of investment standards of protection with other disciplines in the international law matrix. Both numerically and from qualitative perspectives, the clauses’ survey reveals important asymmetries in the engagement on the part of investment treaty makers with international economic disciplines, as compared to non-economic disciplines and human rights more specifically. Indeed, conflict clauses on international economic law are much more common, more detailed and establish clearer priority rules than similar provisions on any other field of international law; and the disparity is only likely to deepen over time. This analysis suggests that negotiators already have the toolkit to create effective links between international norms and institutions, and it is only its use that is uneven. As a result, the article suggests a shift in policy perspective to reflect that reality. Such a shift seems all the more relevant considering the growing body of literature showing that investment arbitrators (and international adjudicators more generally) pay only limited attention to norms from fields beyond their own, thus casting doubt on their capacity to develop a principled approach on the issue without treaty guidance.

At the intersection of imperial rule and private power, Shanghai rose to international prominence in the second half of the nineteenth and first half of the twentieth century. It did so by taking advantage of the extraterritorial status and the dynamic, cosmopolitan population of the International Settlement. In evaluating the fate of the Shanghai Municipal Council, we seek to ascertain how private authority could have been constituted on a transnational basis within the framework of a treaty port. The rise of Shanghai was linked to some of the ambiguities of overlapping imperial rule and the possibilities it created for legal and governance experimentation. This is particularly clear in realms most associated with sovereign power, namely the International Settlement’s attempts to claim some taxation power and maintain law and order. That power, however, was interstitial at best and the product of fragile balances, as shown by the Council’s ultimate failure to secure a full international legal status for Shanghai. Nonetheless, the rise and fall of the International Settlement at Shanghai are worth reflecting upon, not only in relation to the history of China, imperialism and international law, but also as a way of thinking how the authority of large metropolitan centres might be constituted.

This article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.

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.

Previous research has analysed a range of domestic stakeholders that make national governments’ commitments to international human rights law credible, including an independent judiciary, legislative veto players, political opposition groups, and non-governmental organizations. But how do the power dynamics within the government affect state compliance with international human rights law? Building on the basic understanding that international human rights law needs to pass through domestic political and administrative processes before it can be implemented on the ground, this article articulates a reputation-based theoretical framework to explain how the lack of reputational mechanisms at the local level and national leaders’ shifting of blame for non-compliance to sub-national officials and the internal governance structure – two salient characteristics in a decentralized political system – make international human rights law less effective. A case study of US compliance with Article 36 of the 1963 Vienna Convention on Consular Relations sheds light on how international reputational concerns interact with divided authority structure to shape national leaders’ and subnational authorities’ policy responses to the enforcement of international human rights standards.

The article explores the current stagnation in multilateral law-making based on an analysis of recent treaty attempts across various subfields of international law. It further examines why the law of the sea has continued to evolve despite this trend. The article demonstrates that states still regularly seek multilateral treaties to address new challenges. While there is some evidence of general treaty saturation, it is the current inability of traditional great powers to negotiate new binding norms which is the most constraining factor on multilateral law-making. This in turn is related to deeper geopolitical shifts by which traditional great powers, notably the United States and its allies, have seen their relative influence decline. Until the current great power competition ends or settles into a new mode of international co-operation, new multilateral treaties with actual regulatory effect will rarely emerge. The law of the sea has avoided the current trend of stagnation for primarily three reasons (i) a global commitment to the basic tenets of the law of the sea; (ii) a legal framework that affords rights and obligations somewhat evenly disbursed, allowing less powerful states to use their collective leverage to advance multilateral negotiations, despite intermittent great power opposition; and (iii) the avoidance of entrenched multilateral forums where decisions are reached by consensus only.

There is a long-standing claim and ambition in international investment law that treaties and customary law contribute to economic development in countries hosting investment. However, this claim remains controversial and has been hotly debated among academics. The article explores how international investment law, understood as international investment agreements (IIAs) and their associated dispute settlement mechanisms, can support the right to development. It does so by analysing how rules regarding protection and flow of foreign direct investment have and can contribute to realizing the right to development and help achieve sustainable development goals. It finds that IIAs have had limited effects for promotion of investment into or restricting the policy space for least developed and low-income countries. It argues that potential effects of IIAs cannot be properly understood without taking into account other means of protecting and promoting foreign direct investment, i.e., national investment legislation and contracts. So far, national investment legislation is likely to have had more significant impact on flows of foreign direct investment and policy space of host countries than IIAs. Reforms of IIAs to increase synergies with the right to development will, therefore, have to be based on knowledge about and assessments of the dynamics between IIAs, domestic investment legislation, and investment contracts.

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.

Commentators now regularly declare that the International Criminal court (ICC) – and international criminal law as a whole – is in crisis. It is certainly the case that the ICC faces a number of operational challenges, and that these challenges worry its defenders. However, one unexamined rationalist assumption is that the Court’s inability to deliver consistent outputs will mean waning influence. This article explores an alternative constructivist theory that the ICC produces diffuse social impacts that are not necessarily tied to its operating effectively. This theory is tested statistically using Google Trends data. Specifically, the article examines whether ICC intervention in a country is associated with more internet search for ‘human rights’. Taking this to be a measure of changing discourse in countries, the article finds that some types of ICC involvement are associated with a far higher interest in human rights, and that this interest only increases as ICC involvement extends in time. In short, despite its disappointments, evidence suggests that the ICC still serves a socio-pedagogical function. Though it does not fit well within a rational evaluation framework, this kind of information should be considered in ICC performance reviews.

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.

This article presents a theoretical framework by which to understand how disasters are reconciled with a state’s existing obligations under international law. This ‘reactive’ model of disaster regulation hinges on two regulatory techniques, ‘disapplication’ and ‘exculpation’, both of which involve a deviation from the ordinary application of a norm owing to the occurrence of a disaster or to measures adopted by a state in relation to it. It proceeds to outline the various doctrines and mechanisms across different subfields of international law, including international human rights law, investment law and trade law, which may operationalize these techniques in disaster situations. Finally, it argues that the applicability of certain disapplication and exculpation mechanisms to disasters relies on an anachronistic view of such disasters as rare and episodic occurrences beyond human control. This puts these mechanisms at odds with the central objectives of international disaster law and their underlying sociological and scientific premises, which emphasize the need for an ‘adaptive’ model of comprehensive and prevention-oriented disaster regulation. Accordingly, this analysis exposes the conceptual limitations of the reactive model for disaster regulation and explains and validates the inclination toward an adaptive model within international disaster law. It also indicates how mechanisms within the reactive model could be recalibrated to better regulate disasters.

Recognizing the needs of victims in international criminal justice, the International Criminal Court (ICC or the Court) has introduced an innovative reparation scheme including the establishment of the Trust Fund for Victims. Besides the Fund’s role to implement reparation orders, a second mandate has been developed to provide immediate help to victims independent from a criminal conviction: the general assistance mandate. Surprisingly, this mandate has to date attracted little attention from scholars and remains vastly under-researched. By exploring in detail the work of the general assistance mandate, this article exposes its structural weaknesses as well as the negative impact it has on the procedures of the Court as a whole. It will demonstrate how the general assistance mandate weakens the legitimacy of the ICC as it undermines the presumption of innocence, risks compromising international and national Court proceedings, and masks the weaknesses of the Court. While there is no doubt that humanitarian assistance is urgently needed in situations that are investigated by the ICC, the mechanism chosen, namely the Trust Fund’s general assistance mandate is not an adequate solution. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.