A stream of recent judgments by the Grand Chamber of the European Court of Justice has shed light on the procedures that govern treaty-making by the European Union. This article explores how this case law approaches the principle of institutional balance and the duty of cooperation between the institutions. It argues that the former is construed in a balanced manner on the basis of a literal interpretation of primary law that promotes strict compliance with procedural rules and does not favour a particular institution. As for the duty of cooperation, whilst its procedural dimension is strengthened, its scope remains somewhat elusive. The analysis identifies a pragmatic streak in the Court's balanced approach, and argues that there is an inherent limit to the impact of constitutional law on inter-institutional disputes. Ultimately, the less time and energy the institutions waste on turf wars about their procedural powers, the greater their contribution to inceasing the efficiency of the Union's treaty-making practice.

Withdrawal from international adjudication is a contemporary phenomenon with wide implications. The act of treaty withdrawal is not to be seen as merely the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States to peaceful settlement of disputes through international adjudication is central, not incidental, to the successful operation of the international legal system.

This article addresses some of the changes in international law and foreign relations law which have impinged on the operation of the State Immunity Act 1978 in the first 40 years of its operation and some of the ways in which it has been supplemented by judicial decisions. It addresses, in particular, the initial need for legislation in this field, the circumstances in which agents of a State may be entitled to immunity, the relationship between State immunity in domestic law and Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights, the relationship of State immunity and rules of jus cogens, and the respective scope of State immunity and principles of non-justiciability.

International law prohibits slavery and slavery-like practices under treaties that have been in force for more than a century. Yet, contemporary forms of slavery are one of the prevailing challenges for the international community, with 40.3 million people in modern slavery on any given day in 2016. The State has been largely overlooked as a perpetrator or accomplice in the global movement to eradicate modern slavery. The hand of the State can however be found in contemporary cases of modern slavery. This article identifies five scenarios of State involvement in modern slavery and aims to uncover and bridge the responsibility gap.

Environmental assessment (EA) is established in most countries as a procedure to ensure that administrative authorities are aware of the environmental impacts likely to result from the activities they approve. Many jurisdictions have moved towards including consideration for climate change mitigation in EA. Through a review of the law and practice of various States, this article suggests that such Climate Assessment is now emerging as a norm of customary international law.

In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.

This article explores the phenomenon of ‘disaggregation’ of disputes in international law, that is, the carving up of broader disputes into discrete legal claims based on different international legal rules and subject to the jurisdiction of different international tribunals. In particular, its focus is on certain under-explored consequences of this phenomenon for the jurisdiction of international tribunals, asking whether the relationship between the specific claims and the broader dispute might affect the jurisdiction of the tribunals. Employing the ongoing Ukraine/Russia dispute, which has yielded multiple claims before different international tribunals, the article offers an original analysis of these jurisdictional questions. It presents three approaches discernible from case law where tribunals face claims over which they appear to have jurisdiction that implicate a broader dispute over which they do not. The article ends with a consideration of possible explanations for why a tribunal might follow one approach over the others in any given case.

In early 2018, the Polisario Front and the Saharawi Arab Democratic Republic (SADR) obtained a favourable ruling from the South African Courts, granting the SADR ownership over a cargo of phosphate aboard the NM Cherry Blossom originating from a mine in the Moroccan-controlled part of the Western Sahara. Although hitherto largely unnoticed in legal circles, the Cherry Blossom case raises important questions concerning the outer bounds of State immunity and the scope of the act of State doctrine. In addition, the case holds potentially far-reaching ramifications for the international legal order if other domestic courts were to follow suit.

Humanitarian actors sometimes have to decide whether to render assistance in situations that put them at risk of liability for aiding and abetting under international criminal law. This is the problem of the virtuous accomplice—the idea that knowingly contributing to the wrongdoing of others might, exceptionally, be the right thing to do. This article explains why the problem arises and clarifies its scope, before turning to criminal law in England and Wales and Germany to assess potential solutions. It argues that the best approach is to accept a defence of necessity—of justified complicity—and shows that such an argument works in international criminal law.

This article ponders the possibilities existing for legal re-understandings of vulnerability and adopts the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters (2016) as its principal discursive context. Despite some promise and potential, the draft Articles retreated to conservative understandings of disaster-vulnerability and missed an opportunity for a sophisticated formulation. This article argues for disaster law's engagement with contemporary social science research. The work of critical geographers, historians and anthropologists in political ecology is particularly apposite. By rejecting geophysical outlooks in favour of structuralist understandings of disaster-vulnerability, such research facilitates consideration of interrelated histories and the role of economics in producing disaster-vulnerability. This article argues that such perspectives allow for reconsideration of current legal understandings regarding disaster-vulnerability (particularly in relation to international cooperation and risk and reduction) and thereby offer some promise for enriching disaster law's comprehensiveness and relevance.

Existing approaches to ‘algorithmic accountability’, such as transparency, provide an important baseline, but are insufficient to address the (potential) harm to human rights caused by the use of algorithms in decision-making. In order to effectively address the impact on human rights, we argue that a framework that sets out a shared understanding and means of assessing harm; is capable of dealing with multiple actors and different forms of responsibility; and applies across the full algorithmic life cycle, from conception to deployment, is needed. While generally overlooked in debates on algorithmic accountability, in this article, we suggest that international human rights law already provides this framework. We apply this framework to illustrate the effect it has on the choices to employ algorithms in decision-making in the first place and the safeguards required. While our analysis indicates that in some circumstances, the use of algorithms may be restricted, we argue that these findings are not ‘anti-innovation’ but rather appropriate checks and balances to ensure that algorithms contribute to society, while safeguarding against risks.

This article examines how the jurisdictional rules of the recast of the Brussels I Regulation, namely the rules of exclusive jurisdiction for immovable property and company law and governance matters and the rules of special jurisdiction for contracts and torts, deal with unjust enrichment claims and issues concerning unjust enrichment. It also asks whether a new special jurisdiction rule for unjust enrichment should be added to the Regulation.

In recent years several commentators have identified a ‘procedural turn’ by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to ‘process-based review’ is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans.

This article explores how a procedural approach in the case law of the ECtHR combines subsidiarity and progressive development of international obligations. Rather than constituting a simple retreat from substantive commitments, it renders the obligations of Conventions States more flexible and has the potential to enhance the democratic legitimacy of the Court's rulings. This article first sets out various aspects of proceduralization in international human rights law. This is followed by a discussion of how procedural approaches are linked to subsidiarity. In the case law of the ECtHR, procedural approaches facilitate dynamic evolution, both in the practice of Convention States (analytic or bottom-up approach) or by the Court itself (constructive or top-down approach). This interaction of the procedural approach and arguments based on European Consensus allows the ECtHR and domestic institutions to fulfil their ‘shared responsibility’ for the effective protection of human rights in Europe.

Owing to soaring energy needs and improved drilling technology, offshore hydrocarbon activities have been on the rise in recent years. A delimited maritime boundary is an essential precondition for the establishment of a safe and stable environment which will facilitate investment and development. Nevertheless, the conclusion of delimitation agreements can be a difficult task due to competing interests and long-standing enmities among neighbouring countries. Significant maritime areas remain undelimited. In order to avoid the problems of both unilateral activities and a complete ‘moratorium’ in undelimited areas, Articles 74(3) and 83(3) of the 1982 United Nations Convention on the Law of the Sea impose two obligations of conduct: pending delimitation agreement, States are under duty to ‘make every effort to enter into provisional arrangements of a practical nature’, while, at the same time, the interested parties should refrain from acts that might ‘jeopardize or hamper the reaching of the final agreement’. Bearing this in mind, it is argued that unilateral drilling and, under certain circumstances, unilateral seismic surveys in undelimited maritime areas should not be allowed and such conduct might trigger State responsibility. However, given that complete inactivity in such areas was not the intention of the drafters of the Convention, it is argued that several activities may be permitted as long as they are performed in good faith and do not put any final agreement at risk.

The existing international scope of English freezing injunctions in support of foreign proceedings is excessively claimant-friendly and inconsistent with the need for a level playing field in litigation. The English courts must reconsider the current boundaries of relief by taking into account an international systemic perspective of the purpose of private international law rules. This requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law. The traditional justifications for the availability of collateral freezing injunctions with respect to assets located abroad rest on a series of fundamental theoretical flaws. This article proposes a range of reforms with the aim of strengthening the equality of the parties and eliminating encroachment on the sovereignty of foreign States.

China has confirmed its ambition to join the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now begun operation following a judicial interpretation issued by the Supreme People's Court. By examining the trial process of the CICC as set out by the Supreme People's Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues surrounding cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China's existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China's institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

This article is an output of a major research project examining the notion of imminence in the law on international protection. It is the first piece of scholarship to identify an emerging trend, namely the introduction of imminence—whether invoked implicitly or explicitly—as a potential barrier to refugee status or complementary protection. The article analyses the jurisprudence of relevant international bodies and courts and critiques the validity of this notion as a tool for assessing States’ protection obligations.

Punitive measures taken against vessels listed on RFMO IUU vessel lists often have very direct effects on the individuals associated with those vessels, such as the owner or operator. With developments such as cross-listing mechanisms and cross-references in international agreements, the number of actors that are encouraged or obliged to take measures against listed vessels now extends to a much wider group, well beyond just the Members of the listing RFMO. The impacts of these punitive measures on such individuals are accordingly very significant. Despite this, however, these listing procedures contain relatively limited due process features. This article considers whether this could contribute to diminishing the perceived legitimacy of IUU listings and generate a risk of reluctance by some actors within the international community to impose punitive measures on listed vessels.

Movement towards enhanced due process in decision-making processes appears to be emerging within many international organizations in recognition of the fact that increasingly, individuals are directly affected by decisions of international organizations. Examining such developments in other fora, this article considers possible adjustments to listing procedures, which might assist in safeguarding the legitimacy and effectiveness of IUU vessel lists. IUU lists play a significant role in international efforts to combat IUU fishing, and upholding their effectiveness is accordingly of critical importance.