Unlike its European counterparts, Canada appears to remain firmly entrenched in a soft approach to ensuring that Canadian extractive companies respect human rights abroad. Canada’s powerful extractive industry has been very successful in resisting attempts to introduce hard law measures to regulate their transnational conduct. This article considers business and state motivations for supporting or pursuing the shift to hard law measures in the business and human rights context. It assesses Canada’s 2022 policy on responsible business conduct and the implications of the government’s failure to endow the Canadian Ombudsperson for Responsible Enterprise with the necessary powers to engage in credible independent investigations of transnational business conduct. It also considers the potential impact of three leading cases brought in Canadian courts against Canadian extractive companies in relation to their overseas operations. The article argues that these developments may not yet be sufficient on their own to shift extractive sector views on the introduction of domestic human rights due diligence legislation. It concludes with some thoughts on the impact that the legislative developments in Europe and treaty negotiations at the United Nations may have in Canada.

Military support to Ukraine has been accompanied by debates as to when Western states would find themselves ‘at war’ with Russia. This political and legal discourse reminds us that international law needs concepts to identify who is a party to an international armed conflict. Identifying parties is crucial because the international legal regulation of armed conflict remains, in many ways, structured by reference to party status – even if the legal meaning of being a party today differs significantly from the traditional implications of being ‘at war’. To capture the increasingly complex co-operation patterns of today’s and tomorrow’s wars, this article identifies the contours for a framework of legal criteria for establishing when a state has become a party to an ongoing international armed conflict. To become a party under this framework, a state must knowingly make a contribution to the conflict that is of a character such that it is directly connected to harm caused to the adversary. That contribution must be sufficiently closely co-ordinated with fellow parties to allow for involvement in the decision-making processes regarding co-ordinated military operations. Applying these criteria to key support scenarios, as exemplified in Russia’s war against Ukraine, permits reasonable distinctions, also with a view to future conflicts. More widely, the analysis of party status may enhance our understanding of the architecture of the international legal regulation of armed conflict as a whole, and its ability to respond to the realities of contemporary conflicts.

Mandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.

This article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

Human rights violations by corporations are widespread and have a broad spectrum: damage to people’s health through pollution, environmental accidents and health and safety failures, forced labour or child labour, underpaid workers, displaced communities, contaminated water sources, use of excessive force, and discrimination, for example by race, gender or sexuality. Corporate violence, resulting from a long history of corporate power and colonialism continues today as corporations have grown into powerful global conglomerates. Through complex and opaque multinational groups and supply chains, use of corporate law concepts such as the corporate veil, as well as other actions such as tax avoidance and lobbying of national and international political institutions, corporate actors remain free to pursue their goals. Despite efforts to combat corporate harm through the development of a business and human rights movement success has been limited and significant gaps remain in the global governance required to ensure protection. This article argues that, similar to a cat and mouse game, corporations find new ways to defend themselves against those seeking to dismantle their power or to prevent human rights infringements. The problem is rooted in structural and systemic inequalities within the international legal framework and in company laws that maintain corporate structures that obstruct the human rights movement’s progress. The current drive towards a more sustainable business agenda requires a just transition, including transformation of global and corporate structures to tackle human rights violations and the inequalities of power and wealth that facilitate such violations.

The long-simmering process of sidelining and side-stepping migrants’ rights protection while attempting to regulate cross-border movement of people was heated up by the 2015 migration crisis and has recently been brought to the boil with the crisis-fuelled adoption of the UN Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. The GCM represents an endorsement at the international level of soft-law, goal-setting frameworks for international co-operation on migration as it pertains to migrants’ rights, and a corresponding disavowal of any role for binding legal obligations in this field. Focusing on the EU, I argue in this article that states’ sovereign powers in the realm of control of non-EU migration have been largely undiluted by the development of the international system of human rights protection. I show how the 2015 migration crisis galvanized multilateral international co-operation on the part of the EU and its member states in the field of non-EU migration in a way that entrenched EU states’ sovereign self-interest by institutionalizing a soft-law approach, thereby producing a crisis from the perspective of migrants’ rights protection. I also argue, however, that the migration crisis facilitated a resurgence of state sovereignty in the EU to the detriment not only of migrants’ rights, but also of internal EU co-operation and co-ordination. Finally, I suggest that in times of crisis supranational courts are particularly susceptible to being recruited to EU states’ rights-restrictive approach to international migration.

One of the central components of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is its victim assistance and environmental remediation provisions (known collectively as the Treaty’s ‘positive obligations’). While there is much to celebrate about efforts to remedy the damage caused by nuclear weapons, the way the TPNW distributes responsibility for this work is troubling. Under the Treaty, the primary responsibility for fulfilling the positive obligations is placed on the states parties that have individuals under their jurisdiction who are affected by the use or testing of nuclear weapons and areas under their jurisdiction or control that have been contaminated by the use or testing of nuclear weapons (‘the affected states’) despite the fact that, often, these were not the states responsible for detonating the nuclear weapons. This article examines and critiques the reasons the Treaty’s drafters placed the main responsibility for victim assistance and environmental remediation on affected states. It argues that the rationales underpinning these provisions rest on shaky grounds, and that the Treaty’s approach has potential negative ramifications for nuclear disarmament and understanding the history of the use and testing of nuclear weapons. Further, it explores how the Treaty may play into worrying broader dynamics in public international law whereby the Global North is frequently absolved of responsibility for the harms it causes while the Global South is saddled with obligations to redress an array of harms.

The term ‘ambition’ appears to have infiltrated international legal discourses: it is used to, for instance, lament the lack of state action to tackle major global challenges, praise progress towards difficult goals, or evaluate the outcomes of international law-making processes. Often mobilized, the concept of ambition in international law remains, however, poorly understood. And yet, each narrative offers a specific analytical frame that influences our understanding of the world and sets distinct policy prescriptions. What argumentative functions do ambition narratives play and what implications do they carry for international law, in both its practice and study? To respond to this question, the article explores the occurrence of the term in a field where the rationale of ambition has recently taken centre stage – international climate law – and uses the crisis narrative as a means of comparison to highlight the specificity of ambition discourses. The argumentative implications of ambition are identified in terms of vision, means and temporality: this article suggests that an ambition discourse fulfils objectives that a crisis narrative is unable to accommodate by calling for structural transformations, motivating states to commit to far-reaching objectives and adopting a long-term perspective focused on incremental change. The shortcomings of an ambition narrative are also highlighted, in relation to its determination and evaluation. The study contributes to shedding light on a new international law discourse to offer a different analytical frame for the discipline.

Social memory studies start from the premise that people acquire their memories not only through individual means, but through social processes as well. Social groups often provide materials for memory, and prod individuals into recalling particular events. One of the distinctive differences between the practice of the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) concerns memory-related remedies. While the IACtHR quite frequently orders respondent states to commemorate grave violations of human rights (including the construction of monuments), the ECtHR has refrained from granting such commemorative remedies. Some organizations representing victims have called upon additional tribunals to embrace the IACtHR’s remedial approach to address grave breaches of international law. Drawing on social memory scholarship, this study is aimed at empirically assessing the impact of four sites of memory in Colombia established by order of the IACtHR. The study’s findings suggest that international tribunals alone cannot shape collective memories that are inconsistent with sociocultural features characterizing the local society. On the other hand, judicially-ordered sites of memory are meaningful for the victims’ families and small-scale social units. These findings turn our attention to micro-level sociological perspectives, and particularly to the symbolic-interactionist approach to international law, highlighting the vital symbolic role of international tribunals for individuals and small social units. The valuable role of such memorial sites for the victims’ relatives and related communities suggests that international tribunals addressing grave human rights violations should consider granting commemorative remedies.

In its jurisprudence, the ICJ has developed a hierarchy of sources it will rely on to resolve territorial disputes: it prioritizes a boundary treaty between the state litigants, followed by agreements between the states’ colonial predecessors, and finally state litigants’ actions displaying their authority over the disputed territory. The Court’s practice therefore leaves no room for local populations to contribute to boundary-making decisions. Given the status self-determination holds in international law today, and the repercussions possibly faced by such populations in certain territorial disputes, there is cause to consider that the desires of local populations should be considered in the Court’s legal reasoning. This article first unpacks the reasons that self-determination is not brought up by state litigants on one hand, nor by the Court on the other hand. It notes that self-determination is only rhetorically addressed by states if buttressing their interests. It therefore attempts to reconcile self-determination with territorial disputes, suggesting how peoples’ desires may be factored into the Court’s approach.

This article explores the conditions and modalities under which a state can incur responsibility in relation to violations of international law involving military applications of artificial intelligence (AI) technologies. While the question of how to attribute and allocate responsibility for wrongful conduct is one of the central contemporary challenges of AI, the perspective of state responsibility under international law remains relatively underexplored. Moreover, most scholarly and policy debates have focused on questions raised by autonomous weapons systems (AWS), without paying significant attention to issues raised by other potential applications of AI in the military domain. This article provides a comprehensive analysis of state responsibility in relation to military AI. It discusses state responsibility for the wrongful use of AI-enabled military technologies and the question of attribution of conduct, as well as state responsibility prior to deployment, for failure to ensure compliance of AI systems with international law at the stages of development or acquisition. Further, it analyses derived state responsibility, which may arise in relation to the conduct of other states or private actors.

Lomé Conventions I (1975) and II (1979) were the first regional trade agreements (RTAs) between the European Community (EC) and the group of postcolonial countries in Africa, the Caribbean, and Pacific (ACP). Specialized scholarship offers rich analyses of those Conventions; however, little is known about the role of law and lawyers in their making, and their relevance for present-day debates about RTAs.

This article advances existing knowledge in two ways. First, it historicizes the more visible role of law in constituting Lomé as a legal regime for governing EC-ACP regionalism. It then argues that the Conventions were distinct from existing RTAs due to their unique centrality on social and economic development; and from present-day RTAs, because they were conceived not simply as instrumental to but also as constitutive of development.

Second, by historicizing the less visible role of law and lawyers in the Lomé regime, the article identifies that a specialist conception of South-North RTAs was refined to govern which ideas, projects, norms, and institutions were applicable to Lomé. This distinct conception – called the development framework – was critical in creating the conditions of possibility for decision-makers negotiate, interpret, and manage the Conventions.

Those findings challenge conventional wisdom on two grounds. They suggest that Lomé was unique not for embodying a new model but for consolidating the development framework’s dominance. They contest present-day understanding of RTAs as textual manifestations of a universal concept by demonstrating the existence of competing conceptions, which express distinct notions of RTAs’ purpose, content, and form.

In August 2021, Protocol 15 inserted the doctrine of the margin of appreciation into the preamble of the European Convention of Human Rights, presumably cementing what President Spano has referred to as the ‘Age of Subsidiarity’, in which the European Court of Human Rights applies the margin of appreciation more often and increases deference to state parties. This insertion was done on the behest of the High Contracting Parties as part of the Interlaken reform process, and there is already a strong narrative in certain member states and parts of the scholarly literature that this focus has prompted the Court to increase the usage of the margin of appreciation and therefore the deference to states, judging more frequently in their favour. This article hypothesizes, however, that the increased usage of the margin of appreciation language which has been taken as proof for this narrative, might not, in fact, indicate higher levels of deference. Rather, the language of the margin of appreciation could be the result of usage by other actors or a marker of complexity for so-called ‘hard cases’. To investigate this relationship, the article applies a mixed legal-doctrinal and quantitative methodology to analyse who in the case law invokes the doctrine, what their purpose is for doing so, and what adjudicative consequences follow. It finds that usage of the margin-language topped well before the Interlaken process began, that governments are not the most frequent invokers and that, statistically speaking, states are no more likely to win margin-cases than other cases.

Looking at the migration management policies at Europe’s external Aegean border, this article examines how and why infrastructures of protection come to function as technologies of border violence. The repurposing of rescue rafts for extreme border violence in the Aegean Sea reveals a little-examined dark side of European ‘migration management’ as a process purportedly aimed to ‘civilize’ Greek coastguard operations. In transforming life-saving materials into life-threatening ones, patterns of border violence tell an alarming story about the relationship between law, politics, and the materiality of physical objects: absent concrete political and moral commitments to international protection, rescue’s physical infrastructure has been weaponized. The weaponized life raft further challenges the assumptions underpinning European ‘migration management’: the idea that technocratic solutions can fix structural injustices, or that ‘neutral assistance can ensure human rights compliance. The case study thus demonstrates the incompatibility of managerialism with human rights protection in the context of contemporary migration.

In 2018, the Dutch Government proposed to establish an independent international ombudsman, known as the International Ombuds for Humanitarian and Development Aid (IOHDA), to hold non-governmental organizations (NGOs) accountable for their safeguarding and accountability failures, notably the Oxfam GB sexual abuse scandal in Haiti (March 2018) and in the Democratic Republic of Congo (April 2021). While establishing an international ombudsman would fill a regulatory and accountability gap in global governance, there are many legal and logistic challenges, some of which have been identified by the IOHDA proposal itself, that undermine the creation of this brand new body. Besides the legal and logistic challenges outlined in the proposal, this article argues that the IOHDA is unlikely to succeed because of three additional challenges. First, the IOHDA’s scope is too broad and misinterprets the ombudsman’s jurisdiction and traditional role. Second, the IOHDA neglects that existing ombudsman schemes present limitations in enacting accountability and does not learn any lessons from them. Third, the IOHDA lacks support from NGOs, a driving force, and the principal standard-setters for an international accountability mechanism, like the proposed ombudsman. This article provides a series of recommendations to mitigate these three challenges whilst identifying alternative routes to enact NGO accountability.

This article examines China’s Polar Silk Road (PSR) and its legal implications for the future governance of the Northern Sea Route (NSR). It first discusses China’s economic and geopolitical interests in the so-called Polar Silk Road. The article then focuses on comparing Russian regulation of the NSR and Chinese regulation of foreign vessels as a coastal state. Both China and Russia are contracting parties to the United Nations Convention on the Law of the Sea (UNCLOS). The comparison of domestic legislations aims to provide a detailed analysis on convergence and divergence of their implementation and enforcement of the UNCLOS on issues related to freedom of navigation, especially when it comes to foreign vessels, including military vessels, within national jurisdiction. The comparative study, therefore, helps determine to what extent China could vocally shape the development the NSR regulations in an era of climate change.

This Symposium Issue looks at how personal traits of international judges matter in their judging. The articles selected shed light on the ways that international judges’ personality, that is, their character differences and personal backgrounds, shape, control, or modify their conduct and their rulings. The articles in the Symposium reveal that individual international judges have different personal attributes and identities that affect: (i) different aspects of judicial reasoning, problem-solving and case management; (ii) the ways judges interact, deliberate and affect each other in collectively deciding cases; and (iii) the outcomes of international trials. This Symposium, therefore, looks beyond the traditional ‘legal formalistic’ understanding (prevalent also among international judges themselves) that judges – as impartial, rational, and mechanical decision-makers – simply apply existing, recognized rules or principles of law to the facts and questions before a court in the context of concrete cases without regard to any personal leanings and biases. It examines how and to what extent judges at international courts make their choices conditioned on their personal identity characteristics, and when such characteristics exhibit greater or lesser effects on their decision-making.