This article considers the relationship between the uses and forms of history within international law and questions of method in the development of histories of international law. It focuses on the advantages of genealogy as an approach to the history of international law given its capacity to both explain the way in which the law itself makes use of the past and intervene in this.

Elaborating on the compatibility between genealogy and elements of the contextual approach to history associated with the ‘Cambridge School’, this article challenges recent suggestions that anachronism is irrelevant, unavoidable, or even a ‘method’ that might be fruitfully embraced in studies of international law’s past directed towards explaining and potentially altering its present. It argues that historians of international law should take the dangers of anachronism seriously, particularly if the histories they develop are to operate as a form of critique and basis for change. Genealogy is a form of history that allows a particularly potent critique of international legal thought and practice. It opens up possibilities for more radical change by questioning and moving beyond the normative framework that usually structures (and limits) calls for reform in international law.

Taking the opportunity of this LJIL special lecture, Professor Alter provides an interdisciplinary retrospective that explains, defends and critiques six common visions of international law: The naïve political scientist’s expectations about international law as a fixed reflection of political choices; the legal formalist and structural theorist who believes that formal rules, institutions, and processes should generate similar outcomes in different parts of the world; the Western centric scholar’s notion that one can draw general lessons based on European and American experiences; the liberal internationalist who believes that multilateral processes generate consent based agreements and outcomes; the law and society scholar whose focus on the local can minimize international structural elements; and the international legal sociologist who believes that meanings and practices constitute international law. After reflecting on what each vision captures and misses about international law, Professor Alter identifies the policy stakes of residing within a vision. While we need to draw from multiple visions to understand the hybridity of international law, we also need to understand the implicit presumptions of each vision, as these presumptions generate contradictory prescriptive recommendations.

This article uses the case study of the Commission for International Justice and Accountability (CIJA) and its work on Syria as a way to reflect on the challenges international lawyers face in conducting research in relation to secret, highly constrained spaces. In particular, the article engages with debates within anthropology on the nature of para-ethnographic research as a way to think about research relationships between international legal scholars and practitioners as conducive of collaboration, (inter)dependency and dialogue. Yet this type of research, especially without the grounding of legal texts, raises questions about the legal researcher’s integrity and author(ity). Thus, the article’s core concern is to explore the inter-relationship between a variety of risks that can occur for both scholars and research subjects operating in secret spaces.

The Monroe Doctrine was originally formulated as a US foreign policy principle, but in the late nineteenth and early twentieth centuries it began to be redefined in relation to both the hemispheric policy of Pan-Americanism and the interventionist policies of the US in Central America and the Caribbean. Although historians and social scientists have devoted a great deal of attention to Latin American anti-imperialist ideologies, there was a distinct legal tradition within the broader Latin American anti-imperialist traditions especially concerned with the nature and application of the Monroe Doctrine, which has been overlooked by international law scholars and the scholarship focusing on Latin America. In recent years, a new revisionist body of research has emerged exploring the complicity between the history of modern international law and imperialism, as well as Third World perspectives on international law, but this scholarship has begun only recently to explore legal anti-imperialist contributions and their legacy. The purpose of this article is to trace the rise of this Latin American anti-imperialist legal tradition, assessing its legal critique of the Monroe Doctrine and its implications for current debates about US exceptionalism and elastic behaviour in international law and organizations, especially since 2001.

The law is implicated in many of the relations that produce inequality and precarity in the global economy. It contributes in different ways to the unequal bargaining power between states, capital, and labour. One way that has attracted less attention so far relates to how the law accelerates economic relations. This article examines the role of law in the global economy not by focusing on the international economic institutions, such as the World Trade Organization (WTO), the European Union (EU) or the International Monetary Fund (IMF), but on the transactions that plug maquila workers and freelancers into the global economy. The argument is that the speed of these economic relations favours those who command international production, creating what Hartmut Rosa calls a ‘frenetic standstill’. Importantly, the law can also contribute to changing these bargaining dynamics by slowing down some of these transactions and facilitating their territorial re-embedding. This strategy, however, requires a better understanding of the role of law in transnational networks of contracts as well as more state and non-state international co-ordination: The opposite of nationalist attitudes, such as Brexit and Trump’s trade policy.

In 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

What should be the role of law in response to the spread of artificial intelligence in war? Fuelled by both public and private investment, military technology is accelerating towards increasingly autonomous weapons, as well as the merging of humans and machines. Contrary to much of the contemporary debate, this is not a paradigm change; it is the intensification of a central feature in the relationship between technology and war: double elevation, above one’s enemy and above oneself. Elevation above one’s enemy aspires to spatial, moral, and civilizational distance. Elevation above oneself reflects a belief in rational improvement that sees humanity as the cause of inhumanity and de-humanization as our best chance for humanization. The distance of double elevation is served by the mechanization of judgement. To the extent that judgement is seen as reducible to algorithm, law becomes the handmaiden of mechanization. In response, neither a focus on questions of compatibility nor a call for a ‘ban on killer robots’ help in articulating a meaningful role for law. Instead, I argue that we should turn to a long-standing philosophical critique of artificial intelligence, which highlights not the threat of omniscience, but that of impoverished intelligence. Therefore, if there is to be a meaningful role for law in resisting double elevation, it should be law encompassing subjectivity, emotion and imagination, law irreducible to algorithm, a law of war that appreciates situated judgement in the wielding of violence for the collective.

Expanding now familiar debates about the impact of the ‘historical turn’ upon the field of international law, this article considers some of the different ways in which ‘turn to history’ scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law. We suggest that the anxiety over the sources of international law as the basic methodological precepts of the discipline has been a catalyzing element for a radical reengagement with the canon of international law, one with a significant impact on the field’s existing parameters and doctrinal limits. Within the three streams of scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created, and new issues, sources, subjects, and approaches can be explored. Yet, by opening up international law’s sources doctrine, reactionary causes and unjust ends may equally well be the result. This account is an attempt at diversifying the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques and epistemological foundations behind the history of international law as an evolving discipline, and of the different scholarly motivations of its specialists.

State-owned enterprises (SOEs) have long constituted, and are likely to remain, an important instrument in any government’s toolbox for a variety of economic and societal goals. However, the significant extent of state ownership among the world’s top companies, and the quantitative and qualitative transformation and hybrid nature of SOEs, raises the issue of their impact on international trade flows and the competitive process. This article addresses the question of how international trade agreements regulate SOEs, with a view to furthering the international contestability of markets, while, at the same time, allowing governments to provide support to SOEs as a means of dealing with market failures and the pursuit of public goals. After a brief introduction to contemporary state capitalism, the argument is developed in three main parts. The first part situates SOEs within the GATT and WTO frameworks and elaborates on the findings of previous literature with a view to highlighting the main shortcomings of such discipline. The second part re-examines the notion of ‘competitive neutrality’ by locating contemporary trade agreements within the larger contextual relationships between the state, the market, and the social, and thus reconstructs the normative rationales and general policy implications of the disciplines under examination. Against this background, the third part critically assesses the new disciplines on SOEs in recent preferential trading areas (PTAs). The main conclusion is that the search for binding rules has not led to balanced regimes and, despite the wider scope of the new rules, notable problems that have emerged within the WTO context remain unsolved.

The article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

On 5 July 2018, the European Parliament adopted a recommendation to the Council endorsing a proposal for the establishment of a United Nations Parliamentary Assembly. Conceived as a new primary organ of the United Nations (UN), the Parliamentary Assembly aims at complementing the work of the General Assembly by giving direct representation to the peoples of the world and passing binding legislation. This article reconstructs the historical roots of the proposal and speculates about the possible legal implications for both the UN and its member states stemming from the establishment of an elected citizens’ chamber within an intergovernmental organization. An argument is made that in order to achieve the stated goals of the model of United Nations Parliamentary Assembly endorsed by the European Union (EU), the required institutional changes to the UN system would be so radical as to effectively repudiate it in favour of a newly established system of international co-operation.

International law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.

As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

In framing investment treaty claims against host states, foreign investors routinely assert that the state’s conduct was ‘politically’ motivated. Arbitral tribunals must then grapple with these allegations. Yet, tribunals lack both a coherent conception of what constitutes politically motivated conduct and a consistent understanding of the relevance, if any, of such motivations for the disposition of an investor’s legal claims. This uncertainty points to an underlying tension within the investment treaty regime between the protection of investors’ interests on the one hand, and the legitimate scope for democratic decision-making and responsive politics on the other.

Using concepts drawn from political science, we develop a new framework to map the variety of conduct that tribunals characterize as ‘political’. Our framework draws attention to different types of influence over government decision-making, as well as differences between government actors responsible for the conduct. We use this framework to show that tribunals have adopted different conceptions of what constitutes illegitimate political influence over government decision-making in factually similar cases. We then evaluate tribunals’ competing approaches in light of normative theories spanning both public law and private law. Engaging with multiple normative theories allows us to examine whether tribunals’ different approaches to politically motivated conduct might reflect diverse underlying normative commitments. We argue, however, that many arbitral tribunals demonstrate a reflexive distrust of domestic political contestation that is difficult to justify within any of the theories that we consider.

This article examines the usefulness of an encounter with queer theory to contribute to the peaceful resolution of armed conflicts, to question the traditional frontiers of international law, and to lay the groundwork for envisaging different forms of peace and peace-making. In a field where, arguably, little genuine progress has been made to resolve armed conflicts and to address underlying forms of violence, queer theory can reinforce a pluralistic understanding of law and suggest much-needed unsettling and creative approaches. The article focuses on queer theory’s specific critique of the construction and normalization of hierarchies, categories, and identities, which almost always – whether explicitly or implicitly – lie at the heart of armed conflicts and frame peace negotiations, without ever being truly reconsidered. Moreover, queer theory allows appreciating both peace and law beyond predetermined categorizations and as aspirational endeavours that are constantly evolving. Through a dialogue between two figures, which imagines what Peace and qt* might want to tell each other, this article also attempts to queer the standard academic format and to question the dominant forms of expression and knowledge-production in academia.

This article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.

The European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.