This article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

In international legal historiography, it becomes a commonplace that the successful resolution of the Alabama dispute between Britain and the US by the 1872 Geneva Tribunal of arbitration – the 1872 Alabama arbitration – kindled the progressivist enthusiasm of liberal internationalists for projects of humanitarianism, the codification of international law, and international arbitration. The article aims to take this scholarship further by arguing that, against this backdrop of reformist enthusiasm for international law, two transnational social reform movements – pacifist internationalism and legalist internationalism – converged in a joint effort of social and intellectual mobilization in furtherance of an ordered system of international law and its judicial application in practice. The epitome of this encounter was the almost simultaneous creation of the International Law Association and the Institut de Droit International in 1873. The article shows that international jurists sought to delineate the nascent modern international law profession by strategically distancing their scientific cause of international law from the one embarked on by their pacifist counterparts. By demarcating international legal science in contrast to the contemporary pacifist activism of international law, international jurists set the parameters of their social networks, and manoeuvred for professional outreach. Yet it is precisely by bringing back the pacifist antithesis that had been deliberately relegated into the secondary by international jurists – ‘the men of 1873’ – that some previously under-emphasized aspects of the sensibility of l’esprit d’internationalité can be grasped.

Philip Jessup’s 1956 Storrs Lectures, Transnational Law, developed a case for theorizing law beyond the state which continues to shape understandings of transnational law. Yet while transnational law has assumed increasing importance with globalization, it remains beset by conceptual difficulties. This article suggests that such difficulties are at least partly attributable to misreadings of Transnational Law primarily as proposing a more pragmatic concept to drive law’s progression. Contextualizing the Lectures within Jessup’s involvement in the US’s postwar worldmaking project and the contrasting project pursued by Third World states, and through close textual study, it contends that Transnational Law is better understood as geared to undermining the legal foundations of key efforts to counter Western dominance. It further shows how this reading can aid in clarifying misunderstandings of Jessup’s Lectures that still inform transnational law scholarship and in considering how law’s capacity to sustain inequality and exploitation may be challenged.

From 1864 to the 1970s, international humanitarian law (IHL) changed through the path of formal treaty revision. Since 1977, however, purported changes to IHL have come not from treaty making but from interpretation, particularly through claims about the attainment of customary status by existing treaty rules. This article explains this shift as the result of the attitudes and choices of key IHL stakeholders under the changed conditions of post-Second World War multilateralism. It argues that the turn toward customary law claims-making was a reaction to the negotiation politics and contested outcomes of the 1977 Additional Protocols (APs) to the Geneva Conventions. After 1977, leading actors looked to custom as a means of arresting or encouraging legal change. The resulting, much-expanded IHL has proved influential and authoritative, even if its precise degree of acceptance by states remains unclear.

Delimitation of the continental shelf beyond 200 nautical miles (nm) is a relatively novel exercise by international courts and tribunals, and a question that assumes theoretical and practical importance is whether the delimitation methodology primarily developed in maritime delimitation within 200 nm can be applied to the delimitation beyond that distance. In contrast to some prevailing arguments that the delimitation methodology for the continental shelf beyond 200 nm should somewhat differ, this article examines whether the delimitation beyond 200 nm can be integrated under the three-stage approach articulated by the ICJ in the 2009 Black Sea case and discusses what methodological problems have been raised in the delimitation process. By analysing the applicability and application of the three-stage approach to the continental shelf delimitation beyond 200 nm in the jurisprudence, this article argues that substantive integration of the delimitation methodology for the continental shelf beyond 200 nm has taken place and is likely to continue. The integrated approach to the delimitation methodology adopted in the Bangladesh v. India case and the Ghana/Côte d’Ivoire case may prove to be guiding precedents that indicate a way forward in the jurisprudence.

A pivotal point in time has been reached in the ongoing negotiations under the auspices of the International Seabed Authority (ISA) towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA has a mandate to ensure that activities in the Area, legally designated as ‘common heritage of humankind’, are carried out for the benefit of humankind as a whole. Yet, there is a growing sense of unease with the potential imminence of the commercial exploitation phase, and concern that the implementation of all components of the common heritage principle, including its environmental and distributive ambitions, will be compromised in the interest of a handful of industry stakeholders. This article dives under the surface of these tensions by asking how the public interest in a global commons can become constructed in a way that conflates diverse and opposing interests in favour of value extraction by the private sector, revealing the ambivalent role of international law in the process. It uses the concept of ‘false necessity’ to question the apparent urgency and inevitability of commercial exploitation, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind. By shifting the focus from the much-debated risks of deep seabed mining to the notion of benefit, the article illuminates the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation.

Article 281 of UNCLOS allows states parties to a dispute to set aside the compulsory dispute resolution procedures under Section 2 of Part XV. This article discusses the recent jurisprudence that appears in the interpretations of Article 281. It discusses in turn whether, first, Article 281 provides requirements for agreements under Article 281(1) to activate the opt-out procedure from the compulsory dispute settlement mechanism; second, whether such agreements under Article 281(1) must include an explicit exclusion from the procedures under Section 2 of Part XV of UNCLOS; and, finally, whether agreements under Article 281(1) must include a compulsory dispute settlement procedure allowing binding decisions. It is concluded that Article 281 is not designed for compulsory dispute settlement procedures, which is the object and purpose of Article 282. Instead, Article 281 opts for consensual dispute settlement mechanisms which, under certain circumstances, may set aside the compulsory dispute settlement mechanism in Section 2 of Part XV.

This article aims to enrich the emerging, multi-coloured tapestry of ‘international law in context’ through a study of how international economic law operates in complex investment-related disputes. Focusing on the Eco Oro v. Colombia investor-state arbitration, and drawing on both doctrinal analysis and sociolegal research, the study investigates how different actors make sense of the issues, of the dispute, and of the law. Besides shedding light on the neglected multi-actor, multi-layered dimensions of investment disputes, and on tensions between often incommensurable values, juxtaposing arbitral proceedings and underlying social realities highlights how investor-state arbitration involves a socio-political process of re-presenting actors, territory, the environment, and livelihoods through the prism of international arrangements that are primarily designed to protect foreign investment. The findings provide policy pointers on the need for systemic reform of international investment law, moving away from the predominant emphasis on investment protection and investor-state dispute settlement, towards a governance model that effectively considers the social, political, and environmental dimensions of foreign investment projects.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

Despite Article 68(3) of the Rome Statute of the International Criminal Court (ICC) granting victims an autonomous standing in proceedings, victims’ participatory rights have often been tailored to fit within the retributive structure of the trials. This contribution aims to provide a different perspective on victims’ role and their narratives in proceedings at the ICC, building upon the expressivist model of international criminal justice and focusing on a specific strand that engages with the adjudication process’s performative and communicative features. In providing a better understanding of how victims’ narrative unfolds in trials at the ICC, the article addresses two issues: how the concept of the victim is constructed at the ICC; and whether and, eventually, how this construct impedes progress in recognizing their narratives in proceedings at the ICC. Concerning the first issue, drawing on criminologist Nils Christie’s theorizing of the ‘ideal victim’, it will be observed that the construct of victims in proceedings at the ICC reflects three main attributes: weakness; innocence; and dependency. The second issue shed light on the extent to which the emphasis on the ‘ideal victim’ can serve as a tool in the hands of institutional actors at the ICC to pre-empt, constrain and subordinate victims’ narratives, in a manner that oversimplifies victimhood. To impose a particular narrative upon victims’ experiences, three main procedural mechanisms have been identified: appropriation of victims’ interests; legal representation of abstract victimhood; and exclusion from the trial of victims who do not conform to the ideal victim.

The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the ad hoc tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite per se or indirectly integrated into a wider prognosis of the risk of recidivism.