Abstract Past investment treaty arbitrations (ITAs) that have arisen out of armed conflicts in Libya and Ukraine, as well as the current geopolitical climate, highlight the increasing relevance of international humanitarian law (IHL) before investor–State tribunals. Whilst previous scholarship has focused primarily on the legal bases upon which tribunals may consider IHL, this article examines both the legal and, more importantly, the theoretical foundations for its consideration in ITA. It first provides a brief overview of the ITAs in this field, and then addresses the legal basis on which IHL may be taken into account in ITA. As its principal contribution, the article proceeds to examine the theoretical relationship between IHL and international investment law. It argues that, notwithstanding their apparent differences, the two regimes share important historical, structural, and normative points of convergence which support their concurrent consideration in ITA. The fifth part of the article addresses some of the practical difficulties that investor–State tribunals might face in considering IHL in ITA, and argues that the procedural flexibility of ITA enables such challenges to be addressed. Overall, the article demonstrates that there are strong legal and theoretical bases for the consideration of IHL in ITA.
Abstract The South China Sea dispute has generated a series of confrontations between China and the Philippines, including China’s efforts to impede Philippine resupply missions to the grounded BRP Sierra Madre at Second Thomas Shoal. Although these incidents are frequently described as a ‘blockade’ in political and media discourse, blockade is a term of art under international law carrying specific legal requirements and consequences. This article critically evaluates whether the ‘blockage’ of the BRP Sierra Madre at Second Thomas Shoal qualifies as a blockade within the legal framework of jus in bello or whether it more closely resembles the historically contested concept of a pacific blockade—a peacetime measure that falls within grey-zone strategy. The analysis demonstrates that China’s conduct exhibits certain characteristics traditionally associated with blockade but falls short of satisfying several core legal requirements. In particular, the measures have been implemented in the absence of an armed conflict, have produced limited practical effects, and have not generated a level of harm sufficient to trigger the right of self-defence under contemporary jus ad bellum. The article argues that, while the concept of pacific blockade remains controversial, it provides a useful analytical framework for understanding coercive maritime measures that operate below the threshold of armed conflict. The BRP Sierra Madre incidents illustrate how states increasingly employ grey-zone tactics to advance strategic objectives while avoiding the legal consequences traditionally associated with war.
Abstract Article 57 of Additional Protocol I requires constant care, verification of military objectives, feasible precautions aimed at avoiding incidental civilian harm and, where avoidance is not feasible, minimizing it, effective advance warning unless circumstances do not permit, an excessiveness assessment, and cancellation or suspension. Article 57(3) governs choices between military objectives offering similar advantage. This article examines those duties when the information, alternatives, and safeguards available during attacks were shaped upstream by acquisition, design, testing, or information management. A bounded two-condition test identifies architectural deficits that cannot practicably be cured within the decision window and can be characterized ex ante through specifications, tests, records, or procedures. The test defines the article’s subject, not the limits of applicable law. Two applications distinguish technical positional assurance from legal verification and show how information about cumulative degradation of civilian services affects the precautionary sequence. For States bound by Protocol I, it identifies the roles of weapons review under Article 36, implementation measures under Article 80 and access to legal advice under Article 82. It separates attribution, breach, and the consequences of State responsibility, and examines architectural records as evidence of elements in proceedings for an attack without equating institutional possession with personal knowledge. Known limitations may require restrictions, another feasible course or non-use where the applicable legal conditions cannot be met. Neither a general duty to acquire superior technology nor automatic individual criminal responsibility follows; the legal result depends on the obligation, evidence, and contemplated use.
Abstract Malicious cyber operations against the International Criminal Court in 2023 and 2025 have demonstrated the Court’s vulnerability to such threats. While labelled as cyber espionage, the sensitivity of the information stored by the Court indicates that such cyber operations could significantly undermine the integrity of criminal proceedings before the Court and its mandate. This article submits that cyber espionage against the Court presents a three-fold legal issue. First, it might violate the territorial sovereignty of the Netherlands, a Host State, when attributable to a State. However, this depends heavily on the approach a Host State takes to the rule of sovereignty in cyberspace; the Netherlands follows the effect-based approach. Secondly, cyber espionage may infringe upon the Court’s privileges and immunities when the responsible State has corresponding obligations. It remains unclear whether certain privileges and immunities are part of customary international law and could bind non-State parties. Thirdly, the article contemplates how information obtained through cyber espionage could facilitate the commission of offences against the administration of justice under Article 70(1) of the Rome Statute. While cyber espionage is not an offence under Article 70(1) itself, it can facilitate the commission of such an offence. The article argues that the most appropriate mode of liability to capture the nature of cyber espionage within the framework of individual criminal responsibility is under Article 25(3)(c) of the Statute—aiding, abetting, or assisting. This mode of liability captures factual contribution made by a person who provided information obtained through cyber espionage, while preserving the threshold of substantive contribution (actus reus and mens rea). Lastly, the question of functional immunity for officials of non-State parties for espionage against the Court remains unsettled.
Abstract Although international rules and commitments increasingly influence arms exports, the matter is still considered a national prerogative due to its close connection with national security. Consequently, national laws and policies on arms export control differ among states, including member states of the EU. In the Netherlands, the Strategic Goods Decree is the cornerstone of Dutch arms export control legislation, which prohibits the transit through and the export and transfer of military goods from the Netherlands without authorization. Several general authorizations facilitate the shipment of military goods, inter alia, between NATO and EU member states, as well as states involved in the F-35 programme. In line with the Dutch system of ministerial accountability, the government reports all arms transfers to parliament and annually informs parliament about its arms export policy. This policy and related decisions are subject to parliamentary scrutiny, with discussions between the responsible ministers and parliament, occasionally in closed sessions when necessary. Recently, civil society groups have challenged specific arms export-related decisions before the civil court based on a general class action provision in the Dutch Civil Code. A case in point is a summary proceeding initiated shortly after Israel’s military response to the Hamas attack on October 2023. In this proceeding, three Dutch civil society groups asked the court to halt all exports and transfers of F-35 spare parts from a warehouse located in the Netherlands to Israel.
