This article explores traditional conceptions of non-justiciability in British Courts in honour of Francis Mann. It highlights the move by domestic courts away from traditional ‘no-go’ areas towards a more nuanced and balanced understanding of the respective roles and competences of the executive and the judiciary; and sees this as a not unfavourable development in an era when domestic recourse is often the only practicable means by which an individual, as opposed to a State, may obtain redress for alleged misconduct on the international plane.

Can a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.

Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realization of Convention rights. The article discusses the context for Protocol 15, notably the Brighton Declaration, and the democratic principles it engages. A selective retreat from substantive supranational review towards systemic supranational review in political expression cases may be occurring. The article questions the emerging pattern by which newer and transitional democracies remain subject to strict levels of supranational scrutiny, whilst their more established counterparts look set to be the main beneficiaries.

The EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

In recent years there has been a trend towards independent and more transparent ethical regulation for sitting judges, which is said to promote public confidence in the judicial institution, and reflect a move towards accountability and transparency as judicial values. However, regimes governing sitting judges largely fall away when the judge retires from the bench. Increasing longevity and rising numbers of former judges raise complex ethical regulation questions. Drawing on judicial ethics regimes in England and Wales, Australia, the United States and New Zealand, and instances where the conduct of former judges has reflected poorly on the integrity of the judiciary, this article argues that there are strong reasons for extending ethics regulation beyond judicial retirement. By reference to the principles that inform the rules regulating the conduct of sitting judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating former judges. In doing so, we propose a model for the development of ethical regulation for former judges.

This article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter's request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analysing the threshold requirements of Article 16 of the Articles on State Responsibility (ASR),1 which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.

The 2015 Paris Agreement on climate change is relevant to human rights law, not for what it says about human rights— which is next to nothing—but for what it says about the need to address the risk of climate change taking global temperatures above 1.5 or 2 °C. The Agreement could work, or it could fail by a large margin, but those who want to influence the outcome can still do so. That includes the human rights community. Since climate change is plainly a threat to human rights, how should the UN human rights institutions respond? Should they use their existing powers of oversight to focus attention on how States parties implement (or fail to implement) commitments made in the Paris Agreement? Or should they recognize a right to the enjoyment of a safe, clean, healthy and sustainable environment? Either choice would represent a significant contribution to the debate on human rights and climate change, giving humanity as a whole a voice that at present is scarcely heard.

Asymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.

This article compares the law and practice of the European Union and Australia in respect to the search and rescue (SAR) of boat migrants, concluding that the response to individuals in peril at sea in both jurisdictions is becoming increasingly securitized. This has led to the humanitarian purpose of SAR being compromised in the name of border security. Part I contrasts the unique challenge posed by SAR operations involving migrants and asylum seekers, as opposed to other people in distress at sea. Part II analyses the relevant international legal regime governing SAR activities and its operation among European States and in offshore Australia. Part III introduces the securitization framework as the explanatory paradigm for shifting State practice and its impact in Europe and Australia. It then examines the consequences of increasing securitization of SAR in both jurisdictions and identifies common trends, including an increase in militarization and criminalization, a lack of transparency and accountability, developments relating to disembarkation and non-refoulement, and challenges relating to cooperation and commodification.

With the resurgence of the field of international criminal justice in recent decades, expectations have increasingly been placed on international criminal courts to construct consistent and authoritative historical narratives about the mass atrocity situations that fall within their purview. Taking this expectation as its focus, this article seeks to illuminate the historical narrative pluralism that can arise both within and beyond the international criminal courtroom. Within the courtroom, two types of narrative pluralism are identified: first, inter-court narrative pluralism, which arises when different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which emerges when narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. Beyond the courtroom, it is contended that even when international criminal courts manage to achieve inter-court and intra-court narrative consistency, in practice a range of social psychological and practical factors tend to generate a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences. By illuminating the historical narrative pluralism that can arise both within and beyond the international criminal courtroom, this article calls for greater critical awareness of the constructed nature of the historical narratives rendered within international criminal judgments, as well as a sobering of the expectations that are typically placed on international criminal courts both with respect to the construction of narratives within the courtroom and their reception beyond it.

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court's current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

This contribution examines access to the African Court on Human and Peoples’ Rights in the first decade of its operation. Compared with other regional human rights Courts over the corresponding period, the African Court has decided more contentious cases. Direct access accounts for this difference. Acceptance by States of optional direct access is a necessary but insufficient condition for actual access. The reasons for the Commission's reluctance to refer cases, which hampered indirect access to the Court, are investigated. Although the Court's advisory jurisdiction has found limited application, it has welcomed amici curiae and showed some acceptance of the role of original complainants before the Court.

Judicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’. However, for the many UK and EU citizens, families and businesses who work, live, travel and do business abroad, the current European framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance. The article, therefore, explores how that framework might look like after Brexit and explores the merits and demerits of the various ways forward. It argues that the best option for both the UK and the EU would be to agree on the continued application of the existing EU instruments or to strive for conclusion of a new agreement that closely replicates these instruments. If no such agreement can be reached the UK should decide to apply the Rome I and Rome II Regulations unilaterally and sign the Lugano Convention of 2007 as well as the Hague Convention on Choice of Court Agreements of 2005.

The second half of the twentieth century saw major improvements in the legal regime for fisheries management. This notwithstanding, the deep seas remain largely unregulated under international law, until recently only being covered by the general environmental and management provisions found in UNCLOS. In light of this regulatory gap, this article evaluates the potential law-making effects, if any, of the FAO Deep-Sea Fisheries Guidelines, a voluntary instrument designed to provide States with a regulatory framework for the management of their deep-sea fisheries. It considers how the Guidelines may inform, interpret and influence the content of the general high-sea obligations in UNCLOS. Despite the vagueness and generality of those provisions, some indication of their substantive content has been given in recent decisions, particularly the South China Sea Arbitration. By assessing their compatibility, and their level of acceptance by the international community, this article argues that the FAO Deep-Sea Guidelines are beginning to have a law-making effect by providing an authoritative interpretation of the general high-sea obligations found in UNCLOS relating to deep-sea fisheries.

The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

This article undertakes a comparative legal analysis of the scope of an emerging legal duty to find the truth about historical human rights abuses after periods of political transition. There is substantial inconsistency between human rights regimes on how they establish temporal jurisdiction in their transitional jurisprudence, which has not yet been systematically investigated. This contribution fills the gap in the literature by identifying and critiquing the way in which the right to truth in times of transition is both expressly and implicitly vindicated in the decisions of the Human Rights Committee, and the regional jurisprudence of the Inter-American Court of Human Rights and European Court of Human Rights (the conclusion also addresses the less voluminous African regional jurisprudence). It is argued that the ‘underlying values’ of human rights treaties can provide a foundation for a powerful but finite right to truth.

Since the Canada – Renewable Energy (2013) dispute at the World Trade Organization (WTO), the WTO Agreement on Subsidies and Countervailing Measures (SCM) has been the focal point of academic debate on the trade-environment interface, with a growing consensus that WTO subsidy rules need to be revisited with a view to securing ‘policy space’ for government support for renewable energy. This article explores whether, as suggested by some scholars, the European Union (EU)’s system of justifications for renewable energy aid could serve as a source of inspiration for the WTO. While this proposition may appear attractive at first sight, it is hardly conceivable, or even desirable, that the EU's approach to sheltering government support for renewable energy could be transposed to the WTO. This is because the two systems of subsidy control are fundamentally different in both substantive and procedural terms and, importantly, these differences reflect distinct objectives and political/institutional contexts. Nonetheless, this comparative analysis sheds light on where the key challenges lie for the WTO in ensuring that international trade rules and climate change mitigation objectives are mutually supportive. It is argued that the case for reviewing the SCM Agreement cannot be made by simply forging parallels with the EU's regulatory model, but needs to be carefully construed on the basis of a proper understanding of whether and how green policy space is actually constrained under the current WTO subsidy and trade remedy rules. However, this requires better information on existing WTO members’ practice in relation to renewable energy subsidies, as well as on their environmental effectiveness and possible trade-distortive impact. In this sense, the most valuable lesson that the WTO can draw from the EU's regulatory experience is the imperative of improving the transparency and knowledge-enhancing elements of its subsidy control system.

This article proposes a model of treaty-based veil piercing for civil liability claims by victims of human rights harm inflicted by businesses. The primary inspiration for this model comes from investment treaty provisions dealing with corporate investors. Our examination of investment law for this purpose exposes the double standard in the treatment of the corporate veil between these two remedy regimes, and offers a way to address this. The test we propose for lifting the veil in order to allow victims to claim against the parent company in a corporate group is one of ‘legal control’. It aims to capture cases where the parent did not necessarily take an active role in the subsidiary's business, but it is still treated as being in control of the subsidiary by virtue of its direct or indirect ownership or ability to appoint management.

The United Kingdom remains one of the world's last industrialized nations not to have adopted the CISG. The UK CISG debate has endured for decades, with existing analysis largely focusing on competition, assessing the relative merits of the CISG and English law. This article's analysis is complementary; focusing instead on coherence, and the private international law implications of UK accession. This article assesses contractual interpretation, and commodity sales, within an overarching private international law framework. Recognizing the necessity of existing competitive analyses, it makes the case for UK CISG accession on the basis of its complementary coherency perspective.

The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 came into force in 2009, providing a much-needed international legal framework for the protection of underwater cultural heritage (UCH). This article explores the reasons why the UK has neglected to ratify the Convention and why accession should now be prioritized. In doing so, the article reconciles the UK's stance with the agreement; moving the State into a position where it can reconsider ratification. In this context, it examines the definition of UCH and the purpose of the Convention, the extension of sovereign immunity for wrecked warships, and the likelihood of creeping coastal State jurisdiction beyond the competences conferred by the UN Convention on the Law of the Sea. This transformative analysis moves forward the debate on these issues and is of international significance to States that have been similarly hesitant to ratify the Convention until now.