Abstract The International Court of Justice (ICJ, the Court) increasingly addresses major regional and global conflicts and crises. In contentious proceedings, its limited jurisdiction—regarding both subject-matter and matters affecting third States—often confines the Court to examining a small portion of the actual dispute between the parties. In advisory proceedings, by contrast, the Court faces no such constraints when determining the legal positions of individual States. This article argues that legal determinations made in advisory opinions can, in principle, be relied on as ‘givens’ in subsequent contentious proceedings where the Court would otherwise be prevented from making such determinations. The Court’s advisory and contentious jurisdictions are both built on consent, which is required to protect States’ sovereignty from exercises of the Court’s authority. If the Court exercises its authority in an advisory opinion by determining the legal position of a State, it removes sovereignty concerns regarding this determination for subsequent contentious proceedings. The significant practical challenges in relying on legal determinations from advisory opinions as ‘givens’ are most likely to be overcome in relation to determinations of status, rather than for establishing specific internationally wrongful acts. ‘Givens’ from advisory opinions are thus not a general workaround to the limitations in the ICJ’s contentious jurisdiction. Still, relying on determinations from advisory opinions in subsequent contentious proceedings invites the Court to enter into an intricate dialogue between its two forms of jurisdiction, a dialogue which may further intertwine them and thereby enhance coherence in the ICJ’s exercise of its judicial function.
Common law courts will enforce jurisdiction agreements unless they find 'strong cause' or 'strong reasons' not to. This article argues that the strong cause test is the product of the fact that jurisdiction agreements should generally be viewed as weighty factors under forum non conveniens. In particular, this is because a jurisdiction agreement reflects parties' well-informed view that their chosen court is the appropriate forum for their dispute, to be departed from only in exceptional circumstances. This account explains various features of the strong cause test which otherwise prove difficult to rationalise, and also holds implications for the law's treatment of non-exclusive jurisdiction agreements and contractual anti-suit injunctions.
In December 2021, at the height of the COVID-19 pandemic, the World Health Assembly (WHA) authorised the creation of an intergovernmental negotiating body (INB) to draft and finalise a new international treaty to strengthen pandemic prevention, preparedness and response (PPPR). Early in the negotiations, a loosely formed coalition of World Health Organization (WHO) Member States formed the 'Group of Friends of One Health' to promote the integration of One Health as a core guiding principle. The concept of One Health, which emphasises how human, animal and environmental health are closely intertwined and interdependent, proved contentious during the negotiations because of concerns that it might lead to new obligations which low- and middle-income countries would struggle to fulfil. In April 2025, the INB concluded its work and the following month the 78th WHA adopted the Pandemic Agreement under Article 19 of the WHO Constitution. This article considers the significance of the Pandemic Agreement's inclusion of the One Health approach to PPPR and the subsequent legal and practical implications for States Parties. The central claim of the article is that while the Pandemic Agreement ultimately encourages a One Health approach, the various caveats and qualifications inserted during the intergovernmental negotiations permit those governments that want to circumvent their obligations to do so, at least until and unless moral and political pressure is brought to bear during the Conference of the Parties (COP) meetings. The article's findings have implications for future treaty negotiations given the importance of COP mechanisms for encouraging compliance.
Human rights litigation increasingly confronts claims that environmental degradation violates duties owed to future generations, yet existing doctrinal frameworks struggle to give these intergenerational obligations concrete effect. This article argues that the constructive trust offers a more coherent and workable private-law architecture for intergenerational equity than the public trust doctrine that dominates current scholarship and climate litigation strategies. The article traces the intellectual genealogy of intergenerational obligation in ideas of stewardship, usufruct and equity, and shows how these motifs have been channelled into trust-based vocabularies. Following this, it surveys international and domestic case law in which courts acknowledge temporal dimensions of environmental harm but hesitate to constitutionalise a general public trust, and highlights four structural defects that render public trust theory jurisdictionally fragile and remedially weak. The latter portion of the article develops an account of constructive trust reasoning grounded in unjust enrichment and unconscionable retention of benefits and shows how this framework can be used to attach proprietary consequences to profits generated by rights-violating environmental conduct, without requiring recognition of future generations as current rights-holders. The article concludes that constructive trust logic is transferable across legal systems, because it aligns with civil-law regimes of unjust enrichment, patrimonies by appropriation and constitutional environmental rights provisions. It further contends that an intergenerational constructive-trust approach can supply some of the 'missing architecture' of intergenerational justice within contemporary human rights law.
Article 292 of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a procedure of limited jurisdiction, directed at securing the prompt release of detained vessels and crews upon the posting of a reasonable bond or other security. The jurisprudence of the International Tribunal for the Law of the Sea (ITLOS) has nevertheless repeatedly invoked 'considerations of humanity' and 'international standards of due process of law' in applying that procedure. This article examines the role and content of due process within the law of prompt release. It argues that due process is a necessary implication of the prompt release regime itself, arising from the object of the regime and operating within the strict limits of Article 292. Through an analysis of the Tribunal's jurisprudence, informed by principles of international human rights law, the article identifies three domains in which due process is engaged: the timing of release, the fixing of a reasonable bond and the process by which confiscation is effected. It contends that attention to procedural fairness in these contexts neither enlarges the Tribunal's jurisdiction nor entails review of the merits of domestic enforcement action. Rather, it gives effect to the balance struck by UNCLOS between coastal State enforcement powers and the protection of navigational freedoms.
Legal scholarship has not addressed whether the persistent objector rule applies to general principles of law (GPLs). This article is the first to examine both theoretical and practical incompatibilities between the persistent objector rule and GPLs. It traces the brief history of the persistent objector rule and how it was raised in the International Law Commission (ILC) and the United Nations Sixth Committee (Legal), sparking debate over its applicability. Following the ILC's omission of a Draft Conclusion on the persistent objector rule in its work on GPLs, this article examines its theoretical and practical implications, noting its incompatibility with: (i) GPLs derived from domestic legal systems; (ii) internationally-derived GPLs; and (iii) regional or subregional GPLs applied beyond the region in which they originate. The analysis combines theoretical, conceptual and practical reasoning supported by evidence from State practice, jurisprudence and scholarship. It concludes that the persistent objector rule is incompatible with GPLs emerging from domestic or international legal systems. Furthermore, it argues that States' objections to the application of regional or subregional GPLs within subject-specific legal orders or autonomous regional or subregional legal systems do not pertain to the persistent objector rule as such. Rather, they concern the appropriateness of incorporating these norms into another regional or subregional legal system.
Activities in cislunar space are accelerating as spacefaring nations expand their lunar ambitions, raising urgent questions about how to ensure its peaceful and secure use. While the Outer Space Treaty provides a foundational legal framework grounded in the principle of 'peaceful purposes', it lacks provisions tailored to the emerging dynamics of cislunar space. This article argues for extending the 'exclusively peaceful purposes' principle, currently limited to the Moon and other celestial bodies, to this broader region. To support this extension, it proposes adopting an optional protocol to the Outer Space Treaty and developing soft law instruments to enable gradual, flexible implementation of enhanced security norms.
This article examines the tension between arbitration and insolvency in common law jurisdictions. Focusing on the divergence created by the English decision in Salford Estates and the Privy Council decision in Sian Participation Corp v Halimeda International Ltd, it critically assesses their approaches to disputes over a creditor's standing to present a winding-up petition. Through comparative analysis, including consideration of the judgment of the courts of Singapore in AnAn Group PTE Ltd v VTB Bank, it argues that a correct understanding of the test in the Hong Kong judgment Re Southwest Pacific Bauxite (HK) Ltd, commonly known as Lasmos, provides a more principled framework, balancing party autonomy and insolvency principles.
This article examines the legal foundations of an equitable global fossil fuel phase-out under international law and considers how legal principles could shape the scope of existing obligations and development of a future regime limiting the production of fossil fuels. While fossil fuel production remains largely unregulated in the international climate regime, emerging scientific, political and normative pressures demand clearer legal guidance. The article argues that a principle-based approach, grounded in established norms of international law, can clarify what equity entails in this context, and offer a coherent framework for a managed phase-out. Drawing on principles of permanent sovereignty over natural resources, common but differentiated responsibilities, cooperation, prevention, precaution and non-regression, it is demonstrated that the substantive and procedural obligations needed for an equitable transition away from fossil fuels are already part of existing international law.
This article returns to a 2005 criticism of international law's tolerance of State discretion in the regulation of nationality for creating 'holes in the rights framework'. The article sets out normative advances in international law since that date, aiming to show that they go further than recognised in more recent literature. It focuses on five interlinked elements of respect for the right to a nationality: the avoidance of statelessness; due process in case of loss or deprivation of nationality; the inclusion of arbitrary denial within the interpretation of arbitrary deprivation of nationality; the evolution in the interpretation of the definition of 'stateless person'; and, finally and in greatest depth, the challenge to racial discrimination, both direct and indirect. The article highlights the role of strategic litigation in these developments and foregrounds especially the contribution of the Inter-American and African human rights institutions, starting from the groundbreaking judgment of the Inter-American Court of Human Rights in the Yean and Bosico case against the Dominican Republic. In particular, the article argues for the potential significance of moves to reinterpret the 'genuine connection' condition for recognition of nationality-the lack of which was famously invoked by the 1955 Nottebohm judgment of the International Court of Justice as a reason to deny a State's right to exercise diplomatic protection on behalf of a naturalised citizen-to establish instead an individual's positive right to claim the nationality of a particular State.
This article examines the human rights impacts of counter-terrorism sanctions on third parties, with a novel focus on the dependent family members of sanctioned individuals. Employing a comparative analysis of public international law and European Union (EU) law, it highlights an underexplored dimension of sanctions regimes: the individual effects of asset freezes on family members, rather than on the sanctioned individuals themselves. While asset freezes are intended to disrupt terrorist financing, they often exacerbate humanitarian crises and may conflict with international legal norms, as seen in contexts such as Afghanistan and Gaza. In response, both the EU and the United Nations have introduced humanitarian carve-outs to facilitate aid delivery. This article's original comparative analysis shows that only the EU includes family exemptions, reflecting a unique legal recognition of the specific vulnerabilities faced by relatives of sanctioned individuals. Despite this progress, implementation of these exemptions remains inconsistent across sanctions regimes. Through an in-depth fundamental rights analysis, the article argues for harmonising family-related exemptions in EU sanctions and establishing an independent right for family members to seek the unfreezing of essential funds. By comparing family members with the broader population affected by sanctions, the article emphasises the need to balance security goals with fundamental rights protections. Advocating for individual review procedures, the article highlights how a rights-based approach can mitigate risks of resource diversion while safeguarding humanitarian needs. This research contributes to broader discussions on international sanctions and their social consequences, demonstrating that human rights concerns linked to asset freezes extend to other international security measures.
This article concerns the 'rule in Gibbs': a controversial principle of English private international law which provides that a debt is only discharged in a foreign insolvency proceeding if the contract is governed by the law of that proceeding. Critics of the rule consider that it undermines the foundation of corporate insolvency as a unitary process in which individual collection efforts are replaced by a collective proceeding for all creditors. This article offers a qualified defence of the rule. It suggests that it could be abandoned in 'true' insolvency cases, in which the company's assets are sold to a third party and the proceeds distributed to its creditors, but only if the rule is replaced with a cross-border insolvency law framework. It also suggests, however, that Gibbs is the 'right' rule in a cross-border corporate restructuring, in which only some of the company's creditors stay with the firm to benefit from any future upside that the third party would otherwise capture in a sale. It argues that European Union private international law adopts this approach to a restructuring and that the Gibbs rule is, therefore, not nearly as exceptional as it is sometimes made out to be.
This article considers the legal status of the prohibition on gender-based violence against women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) does not contain a prohibition on violence against women as such. However, the CEDAW Committee found in its General Recommendation 19 that the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women. As general recommendations are not binding, it is often suggested that, aside from the regional treaties on the issue, the prohibition exists only under soft law. By contrast, this article argues that the prohibition exists also under hard law. Whether the definition of discrimination against women in Article 1 CEDAW includes gender-based violence against women is a question of treaty interpretation. The article contends that, in line with Article 31(3)(b) of the Vienna Convention on the Law of Treaties, the subsequent practice of States Parties in the application of CEDAW has established their agreement that discrimination against women in Article 1 includes gender-based violence against women. It argues further that General Recommendation 19 served as the catalyst for this subsequent State practice. The article also explores the relationship between treaties and customary international law and contends that CEDAW has generated rules of customary international law, namely that gender-based violence against women is prohibited and that there is an obligation on States to exercise due diligence to eliminate it. The large number of States Parties to CEDAW has not proved an obstacle to the generation of these customary rules.
Ecological economics research on limits to growth has demonstrated that high-income countries are unlikely to succeed in 'making growth green' or, in other words, decoupling economic growth from ecological impacts fast enough to bring human activity back within planetary boundaries. At the European Union (EU) level, a paradigm shift is difficult because the EU's socioeconomic system is growth dependent: the continuation of economic growth is required to avoid significant psychological, social and economic harms. This article argues that the EU founding treaties entrench this growth-dependent model by constraining the policy reforms proposed by ecological economists to reduce the EU economy's reliance on growth. It therefore contends that treaty reform is necessary if the EU is to sustain human wellbeing without continued economic growth. Nevertheless, the article also finds in the treaties a limited degree of flexibility towards policies that would constitute first steps in the direction of growth independence.
The article is set against the near absence of external protection responses to the humanitarian catastrophe in Gaza. Querying the interplay between four recognised international legal norms in the context of armed conflict, it seeks to provide doctrinal clarity in a context where the range and interaction of diverse legal standards may generate uncertainty or claims of apparent norm conflict: the prohibition on forced displacement, the right to leave any territory, non-refoulement and the right to return to one's 'own country', including as part of the realisation of a collective right to self-determination. The article posits that a future realisation of the Palestinian people's right to self-determination has been coopted by external actors as a justification for infringing, in an immediate and tangible sense, the individual rights of Gazans to leave the strip in order to seek and to enjoy elsewhere protection from rights violations, some of which breach jus cogens norms. This latest manifestation of 'Palestinian exceptionalism' has had dire consequences for individual Palestinians and, unless unwaveringly rejected, could detrimentally affect those fleeing future armed conflicts.
This article analyses the role of comparative analysis in free movement judgments of the Court of Justice of the European Union (CJEU). It argues that comparative analysis plays an important role in how the CJEU decides the outcome of free movement cases and that free movement law should thus be characterised as a comparative law method. The argument is developed in three steps. First, comparative analysis takes place in all structural parts of free movement cases. It is not exclusively or even primarily limited to the proportionality test. Second, the role of comparative analysis is directly linked to the effective application of the free movement provisions. This means that comparative analysis is not only relied on to engage in standard-setting ('calibration') in free movement cases-it is also used to determine which cases should fall within the scope of application of the free movement provisions ('demarcation'). Third, because of the close relationship between comparative analysis and the effective application of the free movement provisions, it is possible to characterise negative integration as a comparative law method. Although one component of this method is based on the traditional functional method in comparative law, the main comparative method in free movement law is closely linked to cosmopolitan pluralism, because negative integration provides a 'frame' or structure through which Member States are required to investigate and respond to the national laws of other Member States. This method can be described as 'the law of differentiation', because it identifies, analyses the extent and assesses the legitimacy of differences in national laws in the context of the internal market.
