The field of global migration law looks beyond international law to incorporate all levels of the law, including the regional. This essay explores the regional regulation of mobility, which has indeed become a central subject of discussion and academic analysis. The expansion of human rights law coupled with the explosion of regional processes of integration are the two most important phenomena that have limited the state's capacity to restrict the entry of foreigners and their rights. It should come as no surprise that regional agreements facilitating mobility have proliferated and now involve around 120 countries, either at a bilateral or multilateral level. For one thing, most global migration is regional, whether in Europe, Africa, Asia, or Southern and Central America. In addition, regional instruments can be agreed on more rapidly and, in principle, introduce higher standards of protection and rights due to the more limited number of actors involved in the negotiations. There is, of course, huge variation across regions as to the degree of development of the various agreements, the categories of individuals entitled to mobility and equal treatment and their effective application and enforcement mechanism devices.

We are grateful to AJIL Unbound for organizing this symposium on the work of the International Law Commission on identification of customary international law. We are particularly grateful to all who have contributed to the symposium for their interest and insights.

We shall not here reply comprehensively to everything that has been said. Many points will be addressed in the Special Rapporteur’s third report, to be submitted to the UN Secretariat toward the end of March 2015 in preparation for the Commission’s session beginning in May 2015. We would only say that many of the points made in the symposium thus far seem eminently sensible, and will hopefully be seen as such by the Commission. It has to be noted, however, that the work of the Commission is collegiate, and the eventual output does not belong to the Special Rapporteur (who is just a facilitator) but to the Commission as a whole—and eventually to the General Assembly and the international community.

The end of the Cold War wrought a shift in international legal priorities and preoccupations, including among feminists. When feminist approaches to international law, particularly to human rights and humanitarian law, began to make headway in the early 1990s, they had already left behind some of the anti-imperial and anti-military emphases of much of the internationally informed feminism of the 1970s and 80s. Here, I revisit some of those Cold War feminist approaches, with the hope of informing today's much-needed international legal attention to peace, disarmament—including nuclear disarmament—and global inequality.

This essay explores some of the reasons why the recognition by the UN General Assembly of the human right to a healthy environment could catalyze the codification of ecocide as a crime under international law. It argues that even though the two concepts fall within distinct areas of international law, their potential for a synergistic interaction derives from the right's rhetorical and normative aspects. The right's rhetorical dimension refers to the communicative value derived from phrasing calls for responsive action in the language of rights, while the right's normative dimension alludes to its legal or juridical character.

In “Are There ‘Inherently Sovereign Functions’ in International Law,” Frédéric Mégret suggests that the fact that international legal practice has sought to preserve a state monopoly over the use of force strengthens the argument that international law considers some functions to be inherently sovereign. Mégret's analysis goes much further than this in seeking to develop a thicker and broader understanding of inherently sovereign functions (ISFs) by reasoning inductively from international human rights law. This essay largely supports this approach through a case study of the approach taken by the United Kingdom to outsourcing military and security functions. It explores an understanding of inherently sovereign functions based on the state's monopoly on the legitimate use of force and claims that outsourcing military and security functions undermines state sovereignty.

On two occasions in the recent past, the International Court of Justice has misstated its own prior holdings by selective quotation. In each instance, the partial quotation was invoked as authority for the opposite of what the previous Court had said. Neither matter was de minimis: in each instance, the issue for which authority was being sought was central either to the case at bar or to an important aspect of the Court’s role. The consequences for the future of international adjudication and the stability of authoritative expectation, which is such an important strut of international law, are serious and merit examination.

This essay proposes a matrix for understanding the dynamics of investment treaty reform. It tracks incremental, systemic, and paradigmatic reform options as applied across procedure, substance, and form. Although stylized and thus unable to capture all the nuances of individual positions, the reform matrix creates a framework for understanding some of the main debates about investment treaty reforms and offers a template for locating and comparing the approaches of key international actors, including the United States, the European Union, and Japan, together with Brazil, Russia, India, China, and South Africa (the BRICS).

The Sykes–Picot agreement embodies a certain style of diplomacy: an assumption of European predominance, given expression through cartographic line-drawing, terms of art (“protection,” “independence,” “interests”), and a structural secrecy which kept agreements from rival European powers, on the one hand, and from the peoples most affected, on the other. It is this element of secrecy that constitutes the focus of the present contribution. I situate the Sykes–Picot agreement in a prewar pattern of secrecy as diplomatic technique, explore its role in spurring a new regime of publicity for treaties, and take it as a touchstone for exploring whether this new regime could achieve a fundamental transformation of prevailing modes of diplomacy.

In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante.

Party “intent” is not one of the tools that the Vienna Convention on the Law of Treaties (VCLT) gives to treaty interpreters. To be sure, party intent is presumably reflected in the “object and purpose” of the treaty, but it is not a separate criterion; in fact, the VCLT implicitly excludes party intent from playing an interpretive role. Yet many decision-makers, counsel, and academics persistently look to party intent for guidance when interpreting treaties. The most favored nation (MFN) debate illustrates why party intent endures as an interpretive touchstone: treaty language, even when analyzed in context and in light of the convention's object and purpose, does not always lead to clear answers. Both Simon Batifort and J. Benton Heath and Stephan Schill, in their different ways, depart from traditional VCLT analysis and hark to party intent as a reason to endorse a modified approach to treaty interpretation. Yet they also illustrate why party intent is an imperfect tool: party intent is too malleable to be a conclusive guide to treaty meaning.

I have been asked by the symposium editors to write about the participatory scope of the concept of common heritage of humankind for Indigenous peoples, local communities, and future generations. Leaning into the possibilities of the Unbound format, I approach the topic in an athwart way. With a focus on seabed mining, I begin with describing a recent occasion on which Indigenous leaders joined a meeting of the International Seabed Authority (ISA) to discuss the mining regime that is in progress. I tease out the meanings that may be drawn from this instance of participation, including the claims that it made to the ocean as common heritage. Next, I turn to the limits of such participation, given the set parameters of the regime. My overall argument, discussed in the final section, is that the real issue at stake is not the possible conceptual scope of the common heritage principle. Rather, its actualization has been such that the burden is effectively shifted to marginalized voices to seek goals that do not disturb the overarching seabed mining regime.

Advisory opinions of the International Court of Justice (ICJ) are non-binding and lack operative clauses requiring compliance. At the same time, they reflect the ICJ's views as to rights and obligations of states under international law. In that sense they are not different from binding judgments and generate expectations of implementation of the Court's determinations. Although some states may reject an opinion, others have pursued implementation through the requesting organ, or through alternative political and legal means. And although it is not always easy to ascertain the effect of an opinion on states’ behavior, advisory opinions often have practical ramifications, even if they are not implemented.

Sara Mitchell and Andrew Owsiak's examination of the impact of UN Convention on the Law of the Sea (UNCLOS) and Article 287 declarations on the peaceful resolution of maritime disputes significantly advances the literature on the relationship between international law/international courts and maritime issues. To their credit, the authors employ a wide range of empirical tests in the article to provide readers with confidence in the empirical results. Nonetheless, there are some important limitations in their approach. Drawing on insights from the causal inference literature, I argue that Mitchell and Owsiak's empirical analyses suffer from two biases that both (1) raise concerns about the causal relationships identified in the article, and (2) suggest some important scope conditions in its empirical findings. I investigate the biases and propose suggestions for legal scholarship to produce more credible results.

Jacqueline Peel and Jolene Lin note that a “transnational understanding of the nature, significance and effects of climate litigation is incomplete if it fails to encompass the Global South experience.” This is especially important because the broader aim of climate litigation—namely, to provide redress to victims for climate harms—requires a collective global effort. Peel and Lin thus call for a broadening of our understanding of climate change litigation to include the experiences of the Global South. The term “Global South” has been used to refer to the collection of mostly developing countries with similar agendas that have often collaborated in environmental negotiations. These countries form a significant bloc in climate change negotiations. However, the experiences and views of many of the countries of the Global South differ in the way climate change matters are conceived and tackled. This essay demonstrates as much by examining climate change litigation in Ghana.

As a field of practice, international human rights law (IHRL) is in constant motion. The four books under review explore the legal, political, and civic dynamics that continuously shape and reshape this vibrant area of law. In this Essay, I underscore two important trends in contemporary IHRL scholarship that these books highlight. First, these works share a strong emphasis on agency, understood as human action that makes a difference in the world, be it the agency of individuals, domestic civil society organizations, transnational organizations, or courts. Highlighting agency, rather than overarching political, economic, and social structures, in turn shifts the attention from human rights law and doctrine “in the books” to an understanding of human rights law as a purposive and dynamic practice.

Queering international law involves dreaming. It requires stepping outside the framing presumptions of “normal” law to reveal and challenge the heteronormative underpinnings of the hierarchies of power and value that the law sustains. Reclaiming the nomenclature of queer from its history as a term of insult and dehumanization, queer theory interrogates the normative framework that naturalizes and privileges heterosexuality and its binary regime of gender. In its reclamation, “queer” gestures toward affirmative assemblages of new meanings and emancipatory imaginaries. In international law, queer theory has been used in many different ways. For some, queerly troubling the normative involves expanding the existing normal to be more inclusive of queer lives, as can often be seen in the field of international human rights law. As life-giving as inclusion is to those barely existing on the margins, without changing the terms of inclusion this approach risks leaving heteronormativity intact and may even buttress it, as with the legal recognition of same-sex marriage. For others, queering international law involves a more fundamental critique of its regimes of the normal that, together, regulate our relations with each other and the planet. The objects of queer theory's structural critique are the conceptual foundations of international law, which rely on heteronormativity as a fundamental organizing principle that helps to normalize inequality, poverty, exploitation, and violence. One example is the “civilizing mission” which justified colonialism and continues to animate present legal norms. As Teemu Ruskola argues in his seminal queer critique, international legal rhetoric attributed normative masculinity to (Western) sovereign states and cast the “deficient” sovereignty of non-Western states in terms of variously deviant masculinities which, together with their civilizational and racial attributes, justified their “penetration.” My “troubling” of international law's account of peace takes a queer structural approach and then outlines some alternative imaginaries suggested by queer theory and activism.