Abstract The extension of coastal state sovereign rights over the sea and seabed up to 200 nautical miles was a seismic change in global order. It nearly doubled the amount of the globe subject to state sovereignty, an equivalent change in geopolitics to that of European colonialism. This article searches for the origin of this fundamental change, going back to the first international lawyers to write about the continental shelf, and following where they found historical precedent. I find the origin of the continental shelf in a mid-19th century dispute between the British Crown and the Duchy of Cornwall, over tin mines in that county. In this dispute the legal arguments and conceptual innovations needed for the continental shelf are invented. These innovations allowed for the extension of territory and sovereignty out to sea for the first time in a way which is familiar today. The invention of the continental shelf required nothing less than to fundamentally change how territory and sovereignty are understood.
Abstract How has the jus contra bellum operated and performed in state practice since the establishment of the UN Charter? This article presents a precise account based on an evaluation of an original dataset produced for the purposes of the present research project. The article builds on the structured analysis of how international law has been used to justify, evaluate, and criticize uses of force in 81 major armed conflicts fought between 1945 and 2020. First, we establish whether, to what extent, and how given actors have justified their participation in armed conflicts as well as what legal grounds have been invoked. Second, we explore exactly what it is that various actors have contested in practice (eg, the facts, the application of the law, the validity of rules, new justificatory grounds) and draw conclusions about the effects of these legal disputes on international law. Third, we assess how international actors – that is, UN organs as well as states – have reacted to military interventions and accompanying legal justifications. Via a detailed analysis of how the jus contra bellum operates as a conflict-driven order, the article develops a nuanced understanding of the functioning and limits of this order. It furthermore provides proof and concrete numbers concerning some commonly held views, such as views about states’ general affirmation of international law as the only relevant justificatory system in use thus far. The article simultaneously debunks some commonly held views, such as the assumption that the jus contra bellum is a particularly dynamic order in which legal change is regularly triggered by states’ legal claims. Moreover, the article additionally explores current sources of threats to the law against war. The obtained data demonstrate that – as well as how – the law against war operates as a stable legal order, with dynamic elements only occasionally occurring in a few substantive areas. The article builds on and is accompanied by original data, including extensive case studies and statistical evaluations, which can be accessed online and used in further research.
From the Russian Revolution to the Venezuelan constitutional crisis, it has not been uncommon for English courts to deal with cases that concern the identity of foreign governments, including in situations that raise questions of international law. Indeed, such cases have arisen in relation to the representation of a state, the privileges and immunities of a state, the conferral of private rights, and the construction of private-law instruments. The article examines judicial and executive practice over the years to offer a systematic analysis of English law on questions related to the identity of foreign governments and to assess the extent to which it ensures the UK’s compliance with international law. The article finds that, as a matter of English law, the enjoyment of governmental status is, at least to a considerable extent, unnecessary for the conferral of private rights and possibly for the identification of a ‘government’ in the construction of private-law instruments too. Conversely, governmental status is generally determinative for the representation, and in relation to certain privileges and immunities, of a state, as required by international law. For the UK to be in conformity with its international legal obligations, English courts must nevertheless correctly identify the government of the state in question. In practice, this often depends on executive conduct, given the judicial deference to executive recognition or denial of governmental status. The importance of the executive acting in accordance with the international legal criteria for governmental status—as was understood to have been historically the case and as the 1980 policy itself can be understood to confirm—is thus difficult to overstate. There are nevertheless situations in which English courts autonomously assess governmental status. In so doing, they may—and, as a matter of public policy, perhaps ought to—apply the Somalia common-law factors in accordance with the international legal criteria for governmental status.
Two systems might be said to govern the world: a system of public international law, and the climate system. Both systems endure in an epoch popularly described as the Anthropocene, during which drastic changes to the Earth’s atmosphere, land and oceans have been wrought by human activities. Amidst the existential challenges to both systems posed by these conditions, judges at the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) have delivered advisory opinions about the obligations of States to protect the climate system. This review essay explores whether systemic integration of the norms of public international law, which comprises techniques of treaty interpretation and institutional practices, serves to protect the climate system. It does so by drawing on concepts in systems theory, before reviewing three works: Campbell McLachlan’s The Principle of Systemic Integration in International Law (OUP 2024), Andrea Bianchi’s and Fuad Zarbiyev’s Demystifying Treaty Interpretation (CUP 2024), and Oran R Young’s Addressing the Grand Challenges of Planetary Governance: The Future of the Global Political Order (CUP 2023). By situating the discussion of these works against the later climate change advisory proceedings, and in particular the questions from the bench during the public sittings at the ICJ, this review essay demonstrates the constraints, assumptions, and opportunities of systemic integration in an era of climate change. The Principle of Systemic Integration in International Law. By Campbell McLachlan KC, Oxford University Press, Oxford, 2024. LXIV + 453pp. £140 Demystifying Treaty Interpretation. By Andrea Bianchi and Fuad Zarbiyev, Cambridge University Press, Cambridge, 2024. XIV + 290pp. £25.99 Addressing the Grand Challenges of Planetary Governance. By Oran R Young, Cambridge University Press, Cambridge, 2023. V + 64pp. £17
Abstract This study considers State silence which may entail acquiescence and can thus contribute inter alia to the formation of historic rights, the identification of customary international law, and the interpretation of treaties over time. Relying on the historical understanding of acquiescence in British and francophone literature, it argues that there are probability and normative justifications for establishing acquiescence as a ‘presumption of acceptance’ in international law, and that these considerations have influenced the modern international law understanding of acquiescence as an exceptional occurrence subject to stringent qualifications.
Journal Article The International Law of Energy. By Jorge E. Viñuales Get access The International Law of Energy. By Jorge E. Viñuales, Cambridge University Press, Cambridge, 2022, xcvi + 482pp Anatole Boute Anatole Boute The Chinese University of Hong Kong anatole.boute@cuhk.edu.hk Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, brae003, https://doi.org/10.1093/bybil/brae003 Published: 09 February 2024
ABSTRACT International disputes often require determining, as a preliminary matter, the content of rights and obligations at the municipal level. These rights and obligations are varied and include inter alia the rights in tangible and intangible property, domicile, status of foreign corporations, contractual and tortious obligations. However, the method of determining these matters is unclear. International tribunals rarely elaborate on the precise source of the conflict-of-laws rules they apply and their practice is at times inconsistent and incoherent. Nor are their constituent instruments necessarily determinative. The article examines the various sources of conflict-of-laws rules applicable before international arbitral tribunals, with lessons that could be useful for other international courts and tribunals. The article’s key contribution is to offer guidance, even if descriptive, for the determination of the governing law by international arbitral tribunals.
Journal Article Decisions of British Courts during 2018 Involving Questions of Public or Private International Law: A. Public International Law Get access Eirik Bjorge, Eirik Bjorge Professor, School of Law, University of Bristol Search for other works by this author on: Oxford Academic Google Scholar Cameron Miles, Cameron Miles Barrister, 3 Verulam Buildings cmiles@3vb.com https://orcid.org/0000-0002-1375-9003 Search for other works by this author on: Oxford Academic Google Scholar Odette Murray, Odette Murray Senior Lawyer, Government Legal Department Search for other works by this author on: Oxford Academic Google Scholar Natasha Simonsen Natasha Simonsen Barrister, Blackstone Chambers Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, brad018, https://doi.org/10.1093/bybil/brad018 Published: 09 January 2024
Journal Article German Practice in International Law 2019. By Stefan TalmonGerman Practice in International Law 2020. By Stefan Talmon Get access German Practice in International Law 2019. By Stefan Talmon. Cambridge University Press, Cambridge, 2022. xxviii + 467pp HB £170German Practice in International Law 2020. By Stefan Talmon. Cambridge University Press, Cambridge, 2023. xxviii + 534pp HB £170 Michael Wood, KC Michael Wood, KC mwood@20essexst.com Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, brae001, https://doi.org/10.1093/bybil/brae001 Published: 08 February 2024
Abstract For better or for worse, the ‘English school’ or ‘British tradition’ of international law has eluded systematization or definition. This article examines the responses of a UK legal adviser, a British judge on the International Court of Justice and influential scholars to a particular case, the Corfu Channel case. In doing so, it is possible to identify clear synergies in the mainstream legal method of British international lawyers. It should not be surprising that this method follows in the common law tradition, displaying its three key hallmarks of connection to social practice, focus on courts and an anti-theoretical tendency. Identity and analysis of these characteristics helps us to understand the distinctive contribution of British approaches to international law and the work this ‘common law method’ has done in strengthening and shaping international law. Identifying these characteristics is also important in order to understand the more problematic implications of their application in the international legal context. The common law method has consequences for the structure and direction of the international legal system, including the parameters of its community, the site of its authority and the role of theory in its development. Reflection on these strengths and weaknesses helps us better understand British contributions to international law. Paradoxically, the route to a more universal international law requires us first to understand the ways in which it is plural.
Journal Article James Richard Crawford: An Appreciation Get access Philippe Sands Philippe Sands Professor of Law, University College London; Samuel Pisar Visiting Professor of Law, Harvard Law School; barrister, 11 Kings Bench Walk p.sands@ucl.ac.uk Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, brad011, https://doi.org/10.1093/bybil/brad011 Published: 04 November 2023
Journal Article Robert Cryer Get access Gerry Simpson Gerry Simpson Chair of International Law, London School of Economics g.j.simpson@lse.ac.uk Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, brad012, https://doi.org/10.1093/bybil/brad012 Published: 29 September 2023
