For the third time in a century, the concept of critical minerals has become a central theme in international trade and security debates. Materials criticality discourse first arose in the late 1930s and 1940s. It was taken up again from the mid-1970s through to mid-1980s and has become ubiquitous in post-pandemic debates concerning the global energy transition in a context of escalating geopolitical volatility. This article examines the evolution of critical minerals discourse over a century, with a focus on these three periods. It seeks to identify the contexts in which criticality claims have emerged and to examine the politics of critical minerals discourse in this third wave. It argues that critical minerals discourse has evolved in response to geopolitical instability understood by the US to threaten its hegemony; and that critical minerals discourse in its third wave has thus far served four major political functions. First, critical minerals discourse has served as a rhetorical device for asserting that the security of the US and its allies lies in the defence of US hegemony, and not in the defence of international institutions and trade norms. Second, critical minerals discourse has served as an effective means of leveraging geopolitical instability in favour of extractive interests. Third, critical minerals discourse has worked to re-mystify the economics of market speculation and the predictability of state intervention in markets. Finally, critical minerals discourse has been used to leverage the existential urgency of the climate crisis in favour of elite and extractive interests and against local communities and ecosystems.
The international community is not on track to achieve the Paris Agreement's objectives. Global temperatures have already risen by more than 1.3 degrees C, and greenhouse gas emissions continue to increase year after year. Nevertheless, the IPCC asserts that staying within the safe threshold remains achievable. Against this backdrop, and in light of the recent ICJ Advisory Opinion on the Obligation of States in respect of Climate Change, this paper examines the content and legal nature of the Paris Agreement's long-term temperature goal. First, it analyses whether the legal threshold should be set at 1.5 degrees C or 2 degrees C. Second, by interpreting the Paris Agreement within the framework of international law, it identifies this temperature objective as the treaty's object and purpose. Consequently, Article 2(1)(a) assumes a critical interpretive role. Moreover, drawing inspiration from Articles 18 and 26 of the Vienna Convention on the Law of Treaties, this article upholds that states have an obligation to refrain from acts that would defeat this collective goal. Contrary to traditional perspectives, this article argues that this obligation applies both before and after the treaty's entry into force. This commitment is characterized as an integral obligation of due diligence.
Recent conflicts have revived interest in a subject that has remained largely untouched since the trials of war criminals after the Second World War: prosecuting individuals for the crime of aggression. Due to its restricted jurisdictional regime, the International Criminal Court has so far been unable to investigate this crime and remains barred from doing so in, for example, the context of the Ukraine situation. When exploring alternative domestic (or hybrid) venues for prosecuting aggression, discussions have come to focus on the possibility of exercising universal jurisdiction (UJ), a concept increasingly used to counteract substantive selectivity of international criminal justice. However, scholars and practitioners have expressed differing views on the extent to which the notion of UJ has come to extend to the crime of aggression under customary international law. This study contributes to the ongoing debates by providing a legal-empirical analysis of the practice and opinio juris of 126 states, as presented to the Sixth Committee of the UN General Assembly under the agenda item on the ‘scope and application of universal jurisdiction’. These empirical quantitative and qualitative insights provide a foundation for evaluating the customary status of UJ over the crime of aggression and exploring the legal challenges of prosecuting aggression under this jurisdictional title.
Marine genetic resources (MGRs) sit at the centre of emerging biotechnological innovation, yet the international legal regimes governing their access, use, and benefit-sharing remain fragmented and often contradictory. This article operationalizes Hohfeld’s relational framework to map the legal relations embedded in six core instruments that regulate MGRs: the United Nations Convention on the Law of the Sea (UNCLOS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Convention on Biological Diversity (CBD), the Nagoya Protocol, the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge (GRATK), and the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement. The resulting Hohfeldian mapping shows how claim-rights, obligations, powers, and other legal positions are distributed across these regimes, revealing overlapping and sometimes competing legal logics within MGR governance. This approach clarifies the relational structure of these legal positions and highlights how legal form shapes, and occasionally obscures, the exercise of authority, the creation of regulatory gaps, and the persistence of asymmetries, particularly in relation to benefit-sharing and the treatment of digital sequence information. The analysis draws on a manually curated, machine-readable dataset that serves as a resource for further research. The article places the legal governance of MGRs within wider debates on the international law of global commons and sets out a methodological scaffold for comparative and critical legal analysis. It ultimately invites a reconsideration of who owns and who owes what within the evolving governance of MGRs.
The privatization of rights and obligations of states under the influence of international organizations (IOs) is a challenge for international law. The difficulty resides in the lack of a clear public status of those organizations. This article purports to identify an ‘international public law’ of both states and IOs. Only such a law could indeed institute international organizations as ‘public’ institutions of their member states’ peoples and thereby ‘reinstitute’ those peoples. The article’s first section presents an institutional-normative account of publicness. A second section presents how, even though an international law ‘of the public’ gradually developed after the nineteenth century, that public dimension was never very strong, not the least because of the role played by IOs. The third section explains indeed how, due to IOs’ construction as functional and apolitical organizations and the private law analogies that have dominated their organization, the international law of IOs quickly turned into a vector of public/private hybridization of both states and IOs. To address this challenge, the fourth section argues not only for a general and minimal common public status of IOs under international law, but also against quick analogies with states’ sovereign rights and obligations. To help consolidate the proposed distinct albeit continuous public status of IOs, the fifth section spells out what could be the common but differentiated public rights of states and IOs which may not be conferred to private persons, and their common but differentiated public obligations that could set limits on the private exercise of these rights.
Children associated with armed forces or armed groups (‘child soldiers’) experience conflict in highly differentiated ways, including in their exposure to gender-based violence. Cognisant of that reality, this article seeks to enrich current understandings of gender-based violence against female child soldiers by focussing on one relatively under-examined type: reproductive violence against female child soldiers. It revisits relevant cases from three jurisdictions which have most engaged with female child soldiers: the International Criminal Court, Special Court for Sierra Leone, and Colombian national courts. In each jurisdiction, the author closely examined publicly available court records, in order to detect references to (mostly uncharged) acts of reproductive violence against girls in armed groups. Forms of reproductive violence against child soldiers identified through this method include forcible impregnation and/or forced pregnancy, forced maternity, forced contraception and forced abortion, being forced to bear children before being sufficiently developed themselves, and the denial of reproductive health care. The article then explores how such reproductive violence might be charged as war crimes and crimes against humanity in future cases. This lens on child soldiers is especially timely, given the recent ‘reproductive violence’ turn in the field of international criminal law.
This article examines three key cases decided by the CERD Committee to show how the semantic conundrum of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) becomes an obstacle in extending protection against racial discrimination to various racialized groups. It is argued that the wording of Article 1 of ICERD creates a tripartite classification of semantics, in which meaning generated through different protected grounds obscures the conception of racial discrimination. This places constraints on the Committee’s ability to decide in favour of racialized non-citizens. The article proceeds to examine the jurisprudence of direct, indirect, and positive discrimination in the context of Article 1. It contends that while the semantic conundrum of ICERD confines racial discrimination to limited grounds, using the forms of discrimination can yield positive results. This is shown by re-examining the three cases, this time using the lens of forms of discrimination. It is argued that this approach can enable the Committee to transcend the semantic conundrum of ICERD and arrive at more nuanced conclusions.
In their submissions to the International Court of Justice in the context of the Policies and Practices of Israel Advisory Opinion, states assessed the legality of Israel’s prolonged occupation using various legal frameworks, including international humanitarian law. In doing so, some participants in the proceedings appear to have endorsed a doctrinal position suggesting that an occupation may become unlawful under international humanitarian law due to its prolonged character. This article demonstrates that such an interpretation of the law of occupation lacks consensus and does not fully align with the law as it currently stands. Building on this observation, and based on the language deployed by states in their most recent submissions, this article suggests an alternative argument: the protracted character of Israel’s occupation is more accurately framed as an abuse of the law of occupation, rather than a violation of this regime.
Academic and judicial discussions about the preparatory works of treaties are usually focused on the definition of travaux and the circumstances in which such materials may be relied upon to interpret an international agreement. By contrast, little has been said about how the travaux themselves should be interpreted. This article attempts to fill this gap, through an analysis of international case law and scholarship from which a list of seven relevant factors to elucidate travaux can be drawn.
From the World Bank’s ‘Climate-Smart Mining’ initiative or ‘Resilient and Inclusive Supply-Chain Enhancement’ program to the IMF’s ‘Energy Transition Strategies’, international development institutions have plenty to say about the role of the supply chain in securing critical minerals for green energy technologies. 1 This article forms part of a bigger project that examines how the form of the supply chain, in the context of the contemporary energy transition, entrenches the patterns of distribution and accumulation that we often associate with the fossil fuel economy. In this way, I argue that the supply chain contributes to suppressing alternative legal forms of decarbonization. 2 Multiple international legal practices and modes of thought are involved in this suppression. In this article, I offer an account of how logistics, as a practice, discipline of supply chain management, and form of governance or jurisdiction contribute to foreclosing possibilities for alternative forms of decarbonization in ways that both implicate international law and point to possibilities for contestation.
The relationship between time and international law is intricate and multifaceted, long evading methodical analysis. However, recent years have seen a surge in scholarly efforts to address this relationship. Taking a broad view of this burgeoning literature, this article recounts the temporal assumptions, narratives, and dynamics at play in the international legal sphere, while highlighting their logics and limitations. In doing so, it develops a critical typology of international law’s temporalities, distinguishing between three overarching paradigms: modern, postmodern, and hypermodern. The modern temporal paradigm, commonly seen as dominating the discipline, views international law as progressing uniformly and linearly from a dark past toward a brighter present and future. In contrast, the postmodern paradigm challenges the modern narrative of universal progress over time, shifting the focus to the past and the ways in which international law allows past wrongs to reverberate into the present. While each of these paradigms serves important functions, the article argues that neither provides a sufficient framework for navigating international law in the current era of accelerated technological, social, and environmental change, where the future increasingly diverges from the known past and present. The article thus calls for greater incorporation into the discipline of a third, hypermodern temporal paradigm, which takes a sober look at the future and recalibrates international law’s temporal modalities in response to rapidly evolving and increasingly complex global challenges.
This article addresses how air services agreements (ASAs) are starting to be used to regulate carbon emissions from international aviation. International aviation is regulated by a combination of multilateral aviation-specific conventions and bilateral ASAs. The Chicago Convention of 1944 and annexes that contain the Standards and Recommended Practices (SARPs) are the primary multilateral sources of international aviation law. These SARPs mainly cover the technical requirements of aviation safety with the notable exception of Annex 16: Environmental Protection. With the goal of reducing the climate impact of aviation-related carbon emissions, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) was adopted as SARPs. However, the legal status of SARPs remains controversial. Since they are not an integral part of the Chicago Convention, they do not have the same legal force as the convention itself. Although the International Civil Aviation Organization (ICAO) adopts and manages SARPs, it lacks a way to enforce compliance. Despite this limitation, however, bilateral ASAs give SARPs legal force. ASAs determine the level of aviation market access between states, and most ASAs permit the imposition of operational bans in case of non-compliance with SARPs on safety standards. From exclusively dealing with the exchange of commercial rights for international air transport, a new generation of ASAs has started to cover environmental protection. Based on a review of 620 publicly available ASAs, this article assesses how SARPs on aviation safety are effectively enforced by ASAs and anticipates how SARPs on carbon emissions will gradually follow suit.
The use of amnesties in transitional justice remains a contentious issue. The fight against impunity at the international level has left little room for the application of amnesties for international crimes and human rights abuses. Nevertheless, amnesty measures continue to be applied in many jurisdictions and the permissibility of conditional amnesties enacted as part of wider processes of reconciliation remains under debate. This paper argues that the judicial discussion of amnesties under international law has followed dynamics of path dependence, where initial decisions adopted in very specific contexts have strongly determined the subsequent treatment of amnesties in completely different situations. The influence of early decisions rejecting blanket amnesties in the aftermath of autocratic regimes in Latin America pulled domestic and international courts towards a general rejection of amnesties. However, in more recent years, transitional justice ideas have influenced the trajectory of the discussion on amnesties, opening courts to the permissibility of conditional and negotiated amnesties accompanied by alternative mechanisms of accountability. Mapping the judicial dialogue on amnesties, this paper shows a cautious shift in the approach to conditional amnesties. This is significant because international courts have mostly engaged with the most problematic amnesties, leaving some uncertainty around the way conditional amnesties enacted as part of complex transitional frameworks will be evaluated. Reading a significant number of decisions from different jurisdictions, this essay aims to shed some light on the way domestic courts have addressed the discussion of amnesties when they are part of wider efforts to bring peace, reconciliation, and democracy.
This article examines the EU’s Corporate Sustainability Due Diligence Directive (Directive) and its proposed amendment, especially from a Third World view. It establishes that, practically, the Directive has a limited value for Africans because it cannot stop corporate human rights abuses and economic exploitation in Africa. In contrast, the Directive entrenches neocolonial norms in the Business and Human Rights (BHR) field. This article also argues that it is futile for Third World Peoples to look to international law, given its capitalist history and the growing EU dominance in the BHR treaty discussions. Instead of looking to Europe or international law to save Africans from corporate abuses and economic exploitation, African states must look inward to create subsidiary norms that challenge and resist neocolonialism in the BHR field. To achieve this, it discusses the normative agency of the African Union in leading an Africanization agenda.
Treaties are the most visible, some would even say the ‘main source of international law’. This is true not only at the global level, but even more so in Europe. However, these treaties hardly explain the idiosyncratic, sometimes exceptionalist ways in which international law is identified, interpreted, and applied in this region. Still less do they explain the disproportionate normative influence of European legal rules outside Europe. Attributing these particularities and imbalances to ‘eurocentrism’ in international law is considered almost a truism these days. Yet, when examining how the European legal tradition translates into positive international law one category of rules has received little attention so far: the unwritten European rules that are resorted to within and beyond Europe. The idea of ‘unwritten’ European rules is not only historically charged but also conceptually vague. However, this article argues that a close analysis of their role is central to both understanding and overcoming the persistence of ‘eurocentrism’ in international law. To demonstrate this claim, the article introduces the term ‘unwritten’ European rules in international law. A historical section illustrates their ambivalent role since the beginning of the nineteenth century. It then analyses the continuing relevance of unwritten European rules in contemporary legal practice. The final section discusses how a common framework of secondary rules can help to distinguish between hegemonic and integrative uses of unwritten European rules, before concluding.
In considering the charges brought against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the ICC has been forced to address the question of Islamic criminal law. Following the reasoning of the Prosecution, Trial Chamber X considered Sharia punishments mandated by the Islamic court and implemented by the Islamic police to be evidence of the existence of an organizational policy to commit a widespread or systematic attack against a civilian population with the aim of denigrating and subjugating the community in Timbuktu. Trial Chamber X also accepted the Prosecution’s conclusion that applying different forms of Sharia punishments amounted to the crime of torture. Such an expansive view of core international crimes has the potential to send an alienating message to Muslim communities around the world and particularly those countries that apply Sharia criminal law. The overriding narrative of the article does not diminish the harm caused by Ansar Eddine but rather presents an alternative to the Trial Chamber’s and the Prosecution’s reasoning, campaigning for more active engagement with the principles of Sharia. As discussed at length, the duty of an international court is to adapt a multicultural and diverse interpretative guidelines by considering more traditional systems of justice. In that regard, the ICC has yielded to the universalists and Eurocentric agenda by deciding to dismiss Islamic traditions in their entirety. While Sharia based punishments remain shocking for the Western societies, their spiritual, religious, and exonerating value remains poignant for the Muslim majority states and communities. The practices cannot be therefore dismissed, and if looked at in line with the Third World Approaches to International Law could enrich the legal reasoning for future investigations and trials.
Why do communist countries sign bilateral investment treaties (BITs)? This article explores this question through the case of Yugoslavia, the first communist state to do so. In 1974, Yugoslavia signed a BIT with France, paving the way for further investment treaties – both in Yugoslavia and, soon after, in other communist countries. These developments sparked intense debate within the Yugoslav Communist Party, with some factions viewing them as a betrayal of Marxist–Leninist principles. While Western powers welcomed the move, it was strongly criticized by Eastern Bloc countries, particularly the Soviet Union, as ideological heresy. This paper analyses the complex motivations behind Yugoslavia’s foreign investment policy in the 1960s and 1970s, arguing that it was driven by domestic political, geopolitical, and ideological factors – not just economic considerations. Domestically, BITs were linked to the Communist Party’s efforts to maintain political power and stability. Geopolitically, they served as tools to secure international allies. Ideologically, the policy sought to promote a distinct Yugoslav model of socialism – one that blended socialist principles, workers’ self-management, market economics, and coexistence with both capitalist and socialist states. This ideological dimension, overlooked in the literature, highlights how BITs were not merely economic instruments but also tools for advancing a hybrid economic and foreign policy that challenged both capitalist and Soviet orthodoxies.
Transitional justice has become the legal and moral grammar for articulating victims’ demands for justice in conflict-affected societies. Yet it is a grammar that deftly places the responsibility for addressing impoverished victims’ main concerns, namely economic and social rights (ESR), in other fields. This is largely possible thanks to the ‘separability thesis’, according to which ESR and reparations are conceptually distinct, and therefore the guarantee of ESR cannot be considered a means of reparation. This thesis, now widely accepted by scholars, UN special procedures, and the Inter-American Human Rights System, places victims in a situation where they can be repaired while remaining poor. This article critically examines the development of this thesis during the encounter with transitional justice in Colombia and clarifies the important role it has played in the remaking of the field and its application in conflict-affected societies. Drawing on the lessons of this conceptual history, the article argues for the development of a framework that articulates victims’ everyday ESR claims in terms of reparation, and explores human rights bodies, traditionally neglected in the transitional justice literature, that are well suited for this purpose. Reconsidering the separability thesis requires rethinking the state–individual relationship, understanding state power not only as a source of mistrust and a target of stigmatization, but also as an active agent in addressing socioeconomic wrongs. With this shift, the article anchors the literature on transformative reparations within the normative framework of the ICESCR, while acknowledging the realpolitik constraints that affect the guarantee of ESR.
