This article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

In international legal historiography, it becomes a commonplace that the successful resolution of the Alabama dispute between Britain and the US by the 1872 Geneva Tribunal of arbitration – the 1872 Alabama arbitration – kindled the progressivist enthusiasm of liberal internationalists for projects of humanitarianism, the codification of international law, and international arbitration. The article aims to take this scholarship further by arguing that, against this backdrop of reformist enthusiasm for international law, two transnational social reform movements – pacifist internationalism and legalist internationalism – converged in a joint effort of social and intellectual mobilization in furtherance of an ordered system of international law and its judicial application in practice. The epitome of this encounter was the almost simultaneous creation of the International Law Association and the Institut de Droit International in 1873. The article shows that international jurists sought to delineate the nascent modern international law profession by strategically distancing their scientific cause of international law from the one embarked on by their pacifist counterparts. By demarcating international legal science in contrast to the contemporary pacifist activism of international law, international jurists set the parameters of their social networks, and manoeuvred for professional outreach. Yet it is precisely by bringing back the pacifist antithesis that had been deliberately relegated into the secondary by international jurists – ‘the men of 1873’ – that some previously under-emphasized aspects of the sensibility of l’esprit d’internationalité can be grasped.

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.

Philip Jessup’s 1956 Storrs Lectures, Transnational Law, developed a case for theorizing law beyond the state which continues to shape understandings of transnational law. Yet while transnational law has assumed increasing importance with globalization, it remains beset by conceptual difficulties. This article suggests that such difficulties are at least partly attributable to misreadings of Transnational Law primarily as proposing a more pragmatic concept to drive law’s progression. Contextualizing the Lectures within Jessup’s involvement in the US’s postwar worldmaking project and the contrasting project pursued by Third World states, and through close textual study, it contends that Transnational Law is better understood as geared to undermining the legal foundations of key efforts to counter Western dominance. It further shows how this reading can aid in clarifying misunderstandings of Jessup’s Lectures that still inform transnational law scholarship and in considering how law’s capacity to sustain inequality and exploitation may be challenged.

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.

From 1864 to the 1970s, international humanitarian law (IHL) changed through the path of formal treaty revision. Since 1977, however, purported changes to IHL have come not from treaty making but from interpretation, particularly through claims about the attainment of customary status by existing treaty rules. This article explains this shift as the result of the attitudes and choices of key IHL stakeholders under the changed conditions of post-Second World War multilateralism. It argues that the turn toward customary law claims-making was a reaction to the negotiation politics and contested outcomes of the 1977 Additional Protocols (APs) to the Geneva Conventions. After 1977, leading actors looked to custom as a means of arresting or encouraging legal change. The resulting, much-expanded IHL has proved influential and authoritative, even if its precise degree of acceptance by states remains unclear.

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.

Delimitation of the continental shelf beyond 200 nautical miles (nm) is a relatively novel exercise by international courts and tribunals, and a question that assumes theoretical and practical importance is whether the delimitation methodology primarily developed in maritime delimitation within 200 nm can be applied to the delimitation beyond that distance. In contrast to some prevailing arguments that the delimitation methodology for the continental shelf beyond 200 nm should somewhat differ, this article examines whether the delimitation beyond 200 nm can be integrated under the three-stage approach articulated by the ICJ in the 2009 Black Sea case and discusses what methodological problems have been raised in the delimitation process. By analysing the applicability and application of the three-stage approach to the continental shelf delimitation beyond 200 nm in the jurisprudence, this article argues that substantive integration of the delimitation methodology for the continental shelf beyond 200 nm has taken place and is likely to continue. The integrated approach to the delimitation methodology adopted in the Bangladesh v. India case and the Ghana/Côte d’Ivoire case may prove to be guiding precedents that indicate a way forward in the jurisprudence.

A pivotal point in time has been reached in the ongoing negotiations under the auspices of the International Seabed Authority (ISA) towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA has a mandate to ensure that activities in the Area, legally designated as ‘common heritage of humankind’, are carried out for the benefit of humankind as a whole. Yet, there is a growing sense of unease with the potential imminence of the commercial exploitation phase, and concern that the implementation of all components of the common heritage principle, including its environmental and distributive ambitions, will be compromised in the interest of a handful of industry stakeholders. This article dives under the surface of these tensions by asking how the public interest in a global commons can become constructed in a way that conflates diverse and opposing interests in favour of value extraction by the private sector, revealing the ambivalent role of international law in the process. It uses the concept of ‘false necessity’ to question the apparent urgency and inevitability of commercial exploitation, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind. By shifting the focus from the much-debated risks of deep seabed mining to the notion of benefit, the article illuminates the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation.

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.

Article 281 of UNCLOS allows states parties to a dispute to set aside the compulsory dispute resolution procedures under Section 2 of Part XV. This article discusses the recent jurisprudence that appears in the interpretations of Article 281. It discusses in turn whether, first, Article 281 provides requirements for agreements under Article 281(1) to activate the opt-out procedure from the compulsory dispute settlement mechanism; second, whether such agreements under Article 281(1) must include an explicit exclusion from the procedures under Section 2 of Part XV of UNCLOS; and, finally, whether agreements under Article 281(1) must include a compulsory dispute settlement procedure allowing binding decisions. It is concluded that Article 281 is not designed for compulsory dispute settlement procedures, which is the object and purpose of Article 282. Instead, Article 281 opts for consensual dispute settlement mechanisms which, under certain circumstances, may set aside the compulsory dispute settlement mechanism in Section 2 of Part XV.

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 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.

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.

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.