While the founder of international law was long considered to be Hugo Grotius, attempts were made in the late 1920s and early 1930s to dethrone him in favour of the Spanish theologian Francisco de Vitoria. This took place as the professionalization of the field of international law was reaching its golden age both in Europe and the Americas. Leading this case were the prominent US jurist James Brown Scott, one of the founders of the American Society of International Law, and the Spanish jurist Camilo Barcia Trelles. But why did they decide to revive Vitoria then, and why would they couch him specifically as the founder of international law? This article focuses on the intellectual history of the canonization of Vitoria in the context of the formation and consolidation of a continental Pan-American ideal and network of American international law in the Americas. Particular attention is paid to the American Institute of International Law, presided by Scott, and the formation of a Spanish Americanist cultural tradition in Spain. The latter deeply influenced Barcia, who developed a profound interest in Latin American questions, notably around the Monroe Doctrine. The article argues that these geopolitical Pan-American and Spanish-Americanist anxieties of re-unifying the Americas and Spain/America strongly influenced the depiction of Vitoria as a new founding father of international law and allowed Scott and Barcia to elevate themselves as Vitoria’s heirs.

G. W. F. Hegel is one of the most significant philosophers in history yet the reception afforded to him in International Relations (IR) does not compare with his peers, most notably Immanuel Kant. Although by no means absent from IR he cannot be described as a canonical figure. Given his stature in philosophy this comparatively minor interest in Hegel prompts investigation into his failure to enter the pantheon of ‘Great Thinkers’ in IR. The critical-historical investigation of Hegel’s reception in IR undertaken in this article reveals that Hegel, unlike Kant, was cast as an intellectual villain – a blood-soaked Priest of Moloch, whose demonic ideology of state-worship led to the slaughter of the First World War, the rise of the Nazis, and the catastrophe of the Second World War. Condemned by an array of leading intellectuals from John Dewey to Karl Popper, Hegel was side-lined and erased until his work was reconsidered by revisionist scholarship in philosophy and – eventually – in International Relations. From the 1980s, a number of hotly contested, decidedly uncanonical ‘Hegels’ have found expression in IR, from a ‘realist’ Hegel to a postcolonial Hegel. Ultimately, the article argues that the treatment of Hegel reveals that the formation of the IR canons was not an innocent, dispassionate process but rather was imbricated in the great ideological and military conflicts of modernity.

The main query of this contribution concerns the circumstances and conditions under which the concept of jus gentium as it existed in Roman law is included in or excluded from the historical canon of international law. Paradoxically, according to the major twentieth-century handbooks on the history of international law the term ‘law of nations’ derives from the Latin jus gentium. However, historians of international law tend to indicate the jus gentium does not amount to any ‘international law’ in the modern sense. The contribution argues that the idea of the Roman jus gentium as equivalent to our modern international law was rediscovered in the 1930s and 1940s, first by a group of leading Roman law scholars who were ousted from Germany by the Nazi regime, and second by a larger group of thinkers and academics they came into contact with in their new academic surroundings. The reason for this rediscovery is a change in the definition of ‘international law’ especially beyond legal positivism, to encompass two qualities the Nazis despised: individualism and universalism. The purpose of the contribution is to show an instance of a change in canon due to the political circumstances, one with consequences for the formation of actual institutions in international law.

In this article, I will show how literary imitation qualifies as a specific mode of transmission of jus gentium texts and ideas. Focusing on this specific angle allows us to see how Gentili and Grotius were not just literary erudites, using poetic references to craft their own international legal arguments; they professionalized the use of literary canons in such a way that they became constitutive of jus gentium as a discipline. Canonical references were transmitted through marginalia, the printed annotations we find abundantly in the margins of their texts, and that constituted for at least two centuries the argumentative structure of how jus gentium was written. Thus, a parallel legal history unfolds between the lines of marginalia, a story made of textual interpretations, omissions, and intentional interpolations. I will offer a concrete example of this textual machinery at play, namely Gentili’s and Grotius’ discussion of the same passage from Virgil’s Aeneid. The passage in question, known by literary historians as the ‘Helen episode’, is a case of contested Virgilian authority. The ‘Helen episode’, regardless of its textual reliability, is used by Gentili and Grotius to make a specific claim: that women cannot legally qualify as enemies under the law of nations. Such a story is particularly revealing, as it allows us to acknowledge the jurisgenetic role of literary canons, as well as their powerful role in the production of arguments of order that became constitutive of international law.

This article addresses the dispute between Greece and Turkey concerning the reach of their sovereign rights and jurisdiction in the Eastern Mediterranean, which is essentially about delimitation of the continental shelf and exclusive economic zone (EEZ). Turkey has delineated its continental shelf in the region to extend directly to the outer limits of the territorial waters of the Greek islands, specifically Crete, Rhodes, and Kastellorizo. Greece sees this as an attempt to deprive the islands of their maritime zones. The present article discusses what the two states might expect if they would request the International Court of Justice (ICJ) to determine the course of their maritime boundaries. The outcome of such a process would be difficult to foresee because international case law regarding the effect of islands on the delimitation of the continental shelf and EEZ is rather diffuse. Nevertheless, this article will explore what an equitable solution could look like. In particular, the small island of Kastellorizo, Greece’s most remote outpost in the Eastern Mediterranean, which lies just off the Turkish coast, requires special consideration. The present article discusses different options for dealing with this island in a future delimitation.

This article focuses on the correlation between the secondary objectives of the European Central Bank (ECB) and the right to a healthy environment. Whereas the primary mandate of the ECB is maintaining price stability, the applicable law also envisages secondary objectives, such as supporting economic growth and sustainable development. Crucially, however, there is an emerging scientific literature suggesting a trade-off between economic growth and environmental sustainability. This results in a balancing problem: To what extent environmental protection and sustainability can be balanced with economic growth within the ECB’s monetary policy? This article aims to analyse this issue with a specific focus on legal implications in terms of the right to a healthy environment. This study reveals the failure of the member states to comply with the international obligations under the right to a healthy environment in shaping the law of the ECB.

International treaties create a layer of law that is particularly hard to change: While modern treaties entail significant constraints on domestic law-making, amendments require a new consensus of state parties. This creates a conflict with a core aspect of democratic constitutions: the power of new majorities to revise the laws made by their predecessors. In particular, several obligations of international economic law, namely regulatory stability promises in investment protection treaties, but also criminalization requirements under the UN drug control conventions face critique for overly diminishing domestic policy space. How can democratic constitutions deal with those tensions? One approach that is common in some countries accepts a power to legislate in violation of treaty obligations. But denying treaties the quality as real law in the domestic sphere risks to undermine the benefits of the instrument without truly solving the democracy concerns. Instead, democratic constitutions can be read to entail certain standards for engaging in treaties, namely (i) procedure-related duties to include denunciation clauses and political reform mechanisms in the treaty, and (ii) the need to establish a substantive justification for treaty constraints on future domestic law-making by legitimate aims of international constitutionalism or co-operation.

This article takes issue with the assumption the policy research literature, specifically that produced by the World Trade Organization (WTO), makes about the role of law as one which is mainly reactive to an exogenous economic reality, that of value chain trade. It argues instead that law has played a much more active role, shaping the so-called fragmentation and fractionalization of production that has led to the proliferation of Global Value Chains (GVCs). By tracing the evolution of post/colonial international economic law, the article shows how trade and investment provisions in particular have been (and still are) an important terrain over which the relationship between companies and states is articulated, with important consequences for all actors involved in GVCs. If this active role is acknowledged then law can be seen not only as contributing, together with other market-making mechanisms, to the making of those economic processes it is assumed to only respond, but also as a means through which these processes can be shaped otherwise.

In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future.

This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.

Prosecutor v. Jean-Pierre Bemba Gombo was the International Criminal Court’s first case directly addressing the command responsibility doctrine. As the first permanent international criminal court who can exercise jurisdiction over a majority of the world’s nation states, its interpretation of the doctrine was potentially an important development in international criminal law and an opportunity to affirm the legal responsibility of commanders for their subordinates’ crimes. However, rather than providing a clear articulation of the doctrine and its scope, the Appeals Chamber was split. By a 3–2 majority, it reversed the Trial Chamber’s decision and the Appeals Chamber’s judges were sufficiently divided in their reasoning that they felt compelled to deliver separate opinions.

A key disagreement within the doctrine is whether command responsibility is a mode of liability or a separate offence of dereliction of duty. This disagreement feeds into further contestation about the doctrine’s core elements, including the standard of fault necessary under its actus reus or mens rea elements. This article examines the judges’ reasoning in Bemba to illustrate that, despite decades of jurisprudence and academic debate, there is still confusion on these foundational elements. Instead of being ‘settled law’, the debate on command responsibility is still live. The article maintains that the current law supports a mode of liability interpretation but proposes that reclassifying the doctrine as a separate offence could resolve many of its tensions while observing the culpability principle, satisfying its justifications, and facilitating an adequately wide scope of accountability.

It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.

One of the revolutionary aspects of the Rome Statute was the decision to grant the Prosecutor the power to trigger the International Criminal Court’s (ICC or the Court) jurisdiction in the absence of a state or United Nations Security Council referral. To guard against the abuse of this power, the Prosecutor was granted the power to initiate investigations proprio motu subject to a caveat that the decision to initiate investigations will be reviewed by the Pre-Trial Chamber (PTC) pursuant to Article 15(4) of the Statute. The interpretation of this provision came under the spotlight in the situation in Afghanistan where a turf battle between the Prosecutor and the PTC over the control of Prosecutor-initiated investigations emerged. While the Appeals Chamber’s decision to authorize investigations in Afghanistan gave a lifeline to the Prosecutor’s power to initiate investigations, it also raises questions regarding the extent of the PTC’s powers vis-à-vis the Prosecutor’s decision to initiate investigations. This article argues that the Appeals Chamber erred in its finding that the PTC has no review powers over the Prosecutor’s decision to open investigations. It further argues that the Appeals Chamber erred in its determination of the factors which the PTC must take into account when it considers the Prosecutor’s request to initiate investigations. The article argues that the decision undermines the balance of power between the Prosecutor and the PTC which was an important consideration for some states when they agreed to be part of the Rome Statute. The article also contests the Prosecutor and the Court’s interpretation of Article 18 of the Statute.