Today, it seems self-evident that human rights are enshrined at the international level because they protect universal human dignity—a cosmopolitan entitlement that cannot be left to the contingencies of domestic law. The prevalence of this received wisdom, however, masks a fundamental transformation in the idea of human rights over the last century. When human rights were first enshrined in international law—during and following the Second World War— their international status was not seen to be justified primarily by the inherent dignity of persons, but by the instrumental role human rights were understood to play in securing interstate peace. This article uncovers the history of these dual justifications for the international status of human rights and the interactions between them. And it shows that as one justification and then the other dominated prevailing thinking over the last century, this had a significant effect on both human rights law and the structure of the contemporary international legal order as a whole. As it concludes by observing, by better understanding the arc of the relationship between human rights and interstate peace over the past century, we can better understand challenges that have emerged for this relationship today.
Notwithstanding the recognition of select gender-based crimes as international crimes and the International Criminal Court’s prosecutors’ professed commitment to seeking justice for gender-based crimes, core doctrines of international criminal law (ICL) obstruct accountability for gendered violence. This article identifies the overlooked gendered implications of a few substantive pillars of ICL: a de facto insistence on a connection to war (“war fetish”), a preoccupation with powerful men, and a focus on the “mastermind” of the crime to the exclusion of other culpable perpetrators. These substantive pillars, some long-standing and some more recently erected, obscure the vast landscape of gender-based crimes and narrow accountability to a thin slice of gendered violence. The article examines ICL’s current architecture, revealing the ways it systematically shields perpetrators and proposes steps to remodel it to better accommodate the important goal of combatting gender-based harms.
Procedural defenses refer to tactical devices that object to either a court’s jurisdiction or to the admissibility of an application, aimed at stopping a court from deciding on the merits of a case or, at least, at limiting the scope of its decision. From its creation in June 1945 and up to the end of 2024, the International Court of Justice (“ICJ”) has adjudicated 101 cases, with almost 80% of them featuring procedural defenses raised by states. These defenses have not only been plentiful, but have been extremely effective, leading to the ICJ’s refusal to decide on the merits of twenty-nine disputes, while restricting the scope of the Court’s rulings on twenty-one occasions. Although an effective tactical device, the use of procedural defenses by states has also been marked by its inefficiency, with just over 20% of the objections raised being upheld by the Court. Through the examination of the ICJ’s judgments and states’ written and oral pleadings, this article analyses the 486 procedural defenses raised in all the cases decided by the ICJ throughout almost eighty years and explores the behavior of a selected group of ‘insistent’ objectors: Ten states that have interposed more than 50% of the total number of procedural defenses raised before the Court. The article reflects on the reasons behind, and the consequences of, the effective but inefficient use of procedural defenses before the ICJ.
Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime. This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford unique advantages for human-made space objects to loiter indefinitely with minimal expenditure of propulsive energy. Lagrange points constitute a scarce resource that is just beginning to be occupied; existing international law is inadequate for optimal governance of their future occupation and use. This article proposes that the Lagrange points should be regarded as “the common heritage of mankind.” That structure has been applied—with intense controversy—in other domains, even though it remains imprecisely defined. The article offers a more comprehensive understanding of the concept, a portrait of how it could be applied to Lagrange points, and an argument in favor of that resolution.
The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from beginning to explore space on their own and challenging the traditional monopoly that nation states have had over space, creating even more pressure to act quickly. To move forward, the international legal community will have to break out of this standstill and find a way to efficiently and effectively address the new challenges that space exploration poses. Towards this end, this note proceeds in four parts to suggest a possible solution for space’s governance. The first part contextualizes the convergence of technological developments and international relationships and interests to introduce the pressures under which international law must develop to address the ongoing space race. The second part provides a survey of the current body of international law of space including popular, competing proposals of how the legal regime should be structured. The third part reviews hard- and soft-law structures that could become partial models for the governance of space and clarifies common misconceptions that served as obstacles to progress within space law until now. The fourth part proposes a solution based on the environmentally conscious legal structures governing the Arctic Circle, a legal body largely omitted from scholarly discourse around space law, and other features from existing hard-law structures that could be incorporated over time to create a sustainable framework. The note concludes with a summary conclusion of the best path forward to alleviate ongoing tensions and save celestial environments from irreversible harm.
This article recovers a critical episode in the history of economic sanctions and considers its implications for international legal order. Beginning in 1905, a group of Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the typical forms of state and empire. The debates over the early twentieth-century Chinese boycotts invite us to rethink the relationship between economic sanctions and legal orders. Through historical and theoretical work, this article demonstrates that boycotts were understood at the time as a form of “insurgent legal ordering,” which threatened the unity of the state-based legal system. Drawing on the history of the boycotts, this article develops a theory of insurgent legal ordering. And it shows how lawyers of the period developed a response to the perceived threat of insurgent ordering that required states to centralize and control the means of economic warfare. The result sheds light on the history of economic sanctions and suggests a broader critique of the role that economic sanctions play in the international legal order today.
Beginning in 2011, the European Union (“EU”) began to include independent Trade and Sustainable Development (“TSD”) chapters in its trade agreements. These chapters seek to protect international labor standards, environmental laws, and corporate social responsibility practices within the scope of the EU’s trade agreements. Trading states that sign onto TSD chapters are meant to engage in ongoing dialogue regarding the substantive commitments outlined in the chapters. If one of the states fails to uphold its substantive commitments, the other state may invoke a unique enforcement mechanism contained within TSD chapters. But unlike arbitration proceedings for non-TSD trade disputes, the TSD enforcement mechanism does not contain clearly spelled-out compliance measures. Instead, the gentle-appearing TSD enforcement mechanism relies on collaboration and dialogue between the trading states. Continued discussion over politically popular goals is likely in the interests of both states, but TSD chapters are uniquely beneficial to the EU’s expansion of regulatory authority. Rhetorically, TSD chapters fit within the EU’s claims of championing multilateral cooperation and upholding international law. And from a practical standpoint, TSD chapters allow the European Union to gracefully expand its trading relationships and its web of legal authority. This note examines the TSD enforcement mechanism, looking at how it differs from the enforcement mechanism for non-TSD trade disputes. Although the TSD enforcement mechanism appears weak due to its language, this note argues that the TSD chapters are quasi-enforceable and therefore a clever tool for advancing EU interests. An analysis of the 2018 EU-Korea proceedings uncovers the potential implications of TSD chapters. Notwithstanding their effectiveness in promoting their actual objectives, TSD chapters are an unsuspecting but effective method for expanding EU regulatory authority and indirect lawmaking through trade.
While artificial intelligence (AI) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiative do not address this threat but merely instead focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What legal obligations, if any, does public international law impose on states to regulate its development. Grounded in the precautionary principle, we argue that there exists an international obligation to mitigate the threat of human extinction by AI. Often invoked in relation to environmental regulation and the regulation of potentially harmful technologies, the principle holds that in situations where there is the potential for significant harm, even in the absence of full scientific certainty, preventive measures should not be postponed if delayed action may result in irreversible consequences. We argue that the precautionary principle is a general principle of international law and, therefore, that there is a positive obligation on states under the right to life within international human rights law to proactively take regulatory action to mitigate the potential existential risk of AI. This is significant because, if an international obligation to regulate the development of AI can be established under international law, then the basic legal framework would be in place to address this evolving threat.
International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of damages. In contrast, we reject the use of algorithms or artificial intelligence (“AI”) to predict whether a state has violated a human rights treaty. In between these polar categories we discuss semi-automated programs that cluster similar cases together, summarize and translate key texts, and recommend relevant precedents. We weigh the benefits of introducing these tools to improve international human rights adjudication—which include greater speed and efficiency in processing and sorting cases, identifying patterns in jurisprudence, and enabling judges and staff to focus on more complex responsibilities— against two types of cognitive biases—biases inherent in the datasets on which ADM is trained and biases arising from interactions between humans and machines. We also introduce a framework for enhancing the accountability that mitigates the potential harms caused by ADM technologies.
The Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter. This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the veto of the P5 members, advocates of change should support change through evolving interpretations of the Charter. Non-amendment reform can provide a way for the United Nations to act in the face of a veto threat. Indeed, thanks to an earlier non-amendment reform, the Uniting for Peace Resolution, paralysis of the Security Council during the wars in Gaza and Ukraine has not prevented the United Nations from acting. Although non-amendment reform has been overlooked by scholars, it has long been critical to the capacity of the United Nations to respond to crises. This article demonstrates that a four-stage process—trigger, proposal, contestation leading to a new interpretation, and consolidation—has led to non-amendment reform at key moments throughout the United Nations’ history. Learning a lesson from the past, today’s advocates of change should channel their efforts towards non-amendment reform to enable the United Nations to meet the challenges of the moment. This article outlines four current opportunities to do just that.
International cooperation depends on adaptation to changing conditions. International dispute settlement bodies can play a key role in maintaining cooperation over time. Evidence suggests that when legal bodies successfully adapt the law through the reinterpretation of rules, they can promote state compliance. However, this process is incremental and may not happen quickly enough, which can lead to backlash against international courts. In this article, we analyze these dynamics at the World Trade Organization (“WTO”), the global institution regulating international trade. Relying on data and case studies, we show how the Appellate Body modified its interpretations to promote compliance. Because this cannot happen in every dispute, the WTO illustrates the tensions between consistency and adaptation legal institutions face.
Observers of the international investment law (IIL) system regularly complain about the system’s lack of transparency and accountability. Major reform efforts, both past and present, inevitably turn to “more transparency” as a solution to the system’s problems. But what does transparency mean, and why do we want more of it? In this article I draw upon an extensive interdisciplinary literature on transparency to argue that the IIL literature gets much about transparency wrong. I argue that transparency is primarily aimed at producing information that allows key system actors to exert influence over system outputs. And while transparency is often linked to accountability, I show that accountability, properly understood, is often lacking in the IIL system. I apply a system framework to highlight how increased transparency can have unexpected and perhaps undesirable effects on influence over system outputs. More transparency may, problematically, increase stress on the IIL system by diminishing the ability of states to influence system outputs.
Climate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact of climate risks on the right to life undermines the protection of historically disadvantaged and minority communities, including women and girls. This article offers a novel account of an ecofeminist approach to climate risks. Ecofeminism is a branch of feminist philosophy that considers the links between the exploitation of nature and the oppression of women, asserting that both forms of domination are interconnected. This article makes two key contributions to the existing literature. First, it establishes how climate change exacerbates domestic violence, and exposes the disproportionate effects of climate change on the lives of women and girls. Second, the article argues that human rights responses to domestic violence can serve as a model for addressing climate risks. International human rights bodies, including the European Court of Human Rights, have long identified violations of the right to life in domestic violence cases involving disproportionate harm, even where the harm was seen as uncertain or prospective. Adopting a similar approach to address climate risks, courts could begin to recognize the unequal impacts of climate change and the recurring nature of climate risks. An ecofeminist approach to climate risks has the potential to highlight avenues for reform, such as by mandating strict proactive due diligence obligations on states and ultimately corporations.
Recent events have sparked a renewed interest in the law and practice of war reparations. While today it is uncontroversial that unlawful uses of force, including acts of aggression, entail the obligation of the wrongdoing state to make reparations, including by way of compensation, the precise extent of this obligation remains subject to debate. One particularly contentious aspect is whether, and to what extent, states that violate the prohibition on the use of force are obligated to pay compensation not only for harm caused to civilians and civilian objects, but also for damage caused to the armed forces of the defending state. In this article, we demonstrate that states that engage in unlawful uses of force are indeed obligated to provide compensation for this type of harm. However, we also explain how issues of causation, evidentiary standards, and the financial capacity of the wrongdoing state may in some cases limit the scope of such claims. Moreover, we demonstrate that compensating combatants is not only doctrinally sound but also normatively desirable as it highlights their role as the core victims of unlawful wars. Finally, we elaborate on some of the consequences of this conclusion, including in relation to the individualization of reparation claims, the moral and legal equality of combatants, as well as the normative principles underlying international humanitarian law (“IHL”).
The arena of the law of the sea has become a battlefield for Sino-American legal warfare, commonly referred to as “lawfare,” and it is in the tumultuous waters of the South China Sea where this fierce contest of great powers rages. The divergent perspectives on international law, particularly regarding maritime law, between China and the United States stem from the countries’ distinct historical experiences, memories, and outlooks. This inherent disparity in epistemology shapes their comprehension of the fundamental tenets of the United Nations Convention on the Law of the Sea (“UNCLOS”), specifically the conflicting notions of mare clausum and mare liberum. Consequently, the universality of the law of the sea becomes compromised, tending towards a less comprehensive international framework. This article contends that any legal resolution to the South China Sea dispute must be scrutinized through the lens of balance-of-power considerations. It further proposes practical recommendations to enhance the clarity and efficacy of some of the UNCLOS institutions in response to the pressing demands of our time.
The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond the traditional debate. The article shows that investment arbitration displays important commonalities with international court systems, with its presumed unique features—including party autonomy—appearing a little less unique on closer inspection. Ultimately, a system is what states make it, irrespective of whether its particular features are described as public or private.
This note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, the note probes the existing schemes of responsibility under international law and corporate law to delve into how international law should approach citizens of an aggressor state.
Over the last two decades, references to intersectionality have become increasingly common in international human rights law. Many human rights bodies now make use of intersectionality in some form, and scholars propose more widespread and in-depth intersectional analysis as a way to better capture how human rights are realized or violated. Against the backdrop of this intersectional turn, this article scrutinizes the dynamics of intersectionality’s travels to international human rights law, asking how power structures influence where and how intersectionality can travel, and how its meaning and use change across contexts. This article provides a bird’s-eye view of different human rights institutions and identifies a number of factors that condition the use of intersectionality, including the presence of political precommitments and the flexibility to express them, the kind of document or procedure at issue and how it is structured, as well as the institutional culture of any given human rights body and the weight it gives to legitimacy concerns and controversy avoidance. This article also analyzes how scholarship conceptualizes intersectionality in the context of its travels to human rights, arguing that it is presented as an always-already legal notion that impedes attention to the dynamics of depoliticization within human rights. To challenge this depoliticization, this article suggests that it is necessary to loosen our commitment to human rights institutions as forces of social good and instead approach the intersectional turn in human rights from a perspective grounded in political commitments to Black feminism and other emancipatory projects.
Traditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when a dispute occurs, there is often no clear path forward for an Indigenous or Global South community to demand accountability, particularly in cases where the expressions or knowledge fit poorly with pre-existing IP law. There is also no established model for groups wishing to partner to use these resources in a non-exploitative fashion. This note recommends transferring restorative justice principles—which emphasize accountability and forming longer-term, sustainable relationships— to this context. Under the restorative justice model, communities with these valuable expressions and knowledge take the lead in determining what agreements or restitution best suit their cultural and economic values, and outsiders work to adhere to those wishes and requirements. While there are limitations to a restorative justice approach, the benefits are meaningful and worthy of ongoing development.
Discussions about the Indo-Pacific contestation between China and the United States often focus on both superpowers’ geopolitical strategies and economic and military might. The experiences of small and less powerful Indo-Pacific states navigating these tensions are relatively overlooked or even discounted. Yet, they are not passive bystanders in their longstanding neighborhood drama— they often seek strength in unity via their regional organizations and produce regional law to safeguard their collective interests. In short, they exercise legal agency. Using the Association of Southeast Asian Nations’ (“ASEAN”) experience of regional law cooperation to navigate challenges (including, but not limited to, the U.S.-China contestation), this cross-disciplinary article conceptualizes how small Indo-Pacific states have exercised legal agency amid geopolitical pressures to safeguard common security and economic interests. This has resulted in the exercise of legal agency corresponding to three distinct geopolitical environments: via realist rhetoric laws in the Cold War, constructivist cooperation laws amid globalization, and rules-based ordering in the contemporary Indo-Pacific. Through the intensification of legal agency over fifty-seven years, ASEAN has transformed from a diplomatic grouping with a basic aim of preventing inter-member aggression to promote national economic development, to a rules-based integrationist community that pursues ASEAN centrality in foreign power engagement to safeguard members’ intraregional and external security and economic interests. ASEAN’s experience may have generalizable lessons for how other Indo-Pacific or Global South regimes facing geopolitical pressures exercise their legal agency. As the former Singapore Prime Minister Lee Hsien Loong put it: “Small states [have] little buffer against shocks. But [we] are by no means without agency . . . we can make up . . . through . . . cooperation . . . and upholding the multilateral rules-based system.”
