This article illustrates the power of discourse in free trade agreement (FTA) negotiation, elucidating the concept from the perspective of a country’s abilities of rule control, rule assimilation and rule contestation. To enhance rule control, the G2 (the US and EU) have chosen their FTA partners, designed the FTA rules, and offered offensive-defensive exchange strategically. They have approached weak or trade-dependent parties first in FTA negotiation, innovated new rules to accelerate FTA negotiation, skillfully constructed intentional ambiguity and exemptions to remove rule discrepancies and made offensive-defensive exchange with their negotiating parties. Some of these strategies have been copied by China although in a different way. Further, a template approach for negotiating an FTA and exporting domestic laws and normative values to others contributes to the G2’s rule assimilation. A de facto FTA template has also been established by China recently, but its legal culture and political stance have led it to sign incomplete contracts and tolerate rule differences with its negotiating parties instead of transposition of domestic law. In facing the rival rules adopted by their competitors, the G2 have incorporated counteractive rules in their FTAs with their competitors’ close trading nations. China has also contested rules treating China as a non-market economy in its FTAs, but its stance toward state-owned enterprises (SOE) disciplines and rules forbidding forced technology transfer is milder due to its lack of experience in dealing with unfavourable rules.

Additional opinions (AOs) – dissenting opinions, separate opinions and declarations, whether authored individually or jointly – are a distinctive characteristic of the ICJ’s jurisprudence. Few decisions of the International Court of Justice (the Court, ICJ) are delivered without any additional opinion attached to it. Yet, despite their ubiquity, there is still significant disagreement as to their relationship to the authority of the Court and its decisions. Although this disagreement is commonly attributed to the different approaches and attitudes traditionally associated with the ‘civil law’ and ‘common law’ traditions, few ask specifically why those traditions take the approach they do, and even fewer consider the appropriateness of the extension of those attitudes to the ICJ, which of course is neither ‘civil law’ nor ‘common law’. In this article, using the work of Mirjan Damaška, I offer a contextually coherent and contextually contingent understand of the theory and practice of additional opinions at the ICJ upon which engagement with this practice – by judges, scholars and practitioners – can be premised. This effort to understand the relationship between additional opinions and institutional authority will, by its very nature, lead to a broader enquiry into the very nature of institutional authority at the ICJ. Having explained the importance of AOs to the structural integrity of the Court’s authority, I will close this article by highlighting the role of various stakeholders when engaging with that practice to ensure that their institutional function is discharged.

This article sets out two case studies to examine the evolving reality of ‘boat migration’ and the intersecting legal frameworks at play. Our analysis takes a systemic integration approach to reflect on the complex dynamics underpinning responses to the phenomenon in Australia and the Central Mediterranean. The regime that governments purport to act under in any given instance reflects the way they choose to frame incidents and possibly exploit legal gaps in, or contested interpretations of, the relevant rules. The ‘closed ports’ strategy adopted by Italy and Malta against the MV Lifeline and the detention-at-sea policy pursued by Australia are investigated from the competing perspectives of what we call the ‘security lens’ and the ‘humanitarian lens’ to demonstrate how a good faith interpretation of the applicable (if apparently conflicting and overlapping) norms can (and should) be mobilized to save lives, and how that goal is unduly undercut when security concerns trump humanitarian interests.

The right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within the jus ad bellum paradigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986 Nicaragua decision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

Nearly three decades after the Cold War, the present-day hostilities between India and Pakistan have shifted the focus of the threat of nuclear escalation to South Asia. It is in this context that this article seeks to assess the legality of India’s military nuclear doctrine under international law.

Academic literature on the use of nuclear weapons has largely shied away from discussing the legality of specific military doctrines or ‘policies of deterrence’ of the nuclear weapon states, treating them as issues of military strategy that are beyond the realm of international law. This article hopes to challenge that dichotomy.

Though several branches of international law are relevant to any discussion on nuclear weapons, this article shall only examine India’s nuclear doctrine through the lens of jus ad bellum. Specifically, this article shall focus on whether India’s nuclear doctrine constitutes a threat to use force, and if so, whether such threat is lawful. The article concludes that India’s nuclear doctrine can be construed to be a specific threat to use force against Pakistan, and that such threat may be unlawful for contemplating the disproportionate use of force.

Over the last decade, the concept targeted killing has received much attention in debates on the customary interpretation of the right to self-defence, particularly in the context of practices such as US armed drone attacks. In these debates, government silence has often been invoked as acquiescence to the jus ad bellum aspects of targeted killing. Focusing on the question of state silence on targeted killing practices by the Israeli and US governments in recent years, this article investigates over 900 UN Security Council and Human Rights Council debates and argues that there has been no tacit consent to targeted killing. The analysis firstly shows that the majority of states have condemned Israeli targeted killing practices and have raised concerns about armed drone attacks, while falling short of directly protesting against US practices. The article, secondly, applies the customary international law requirements for acquiescence and challenges the idea that silence on US armed drone attacks can be understood as a legal stance towards targeted killing. The article, finally, investigates the political context and engages with alternative interpretations of silence. Contextualizing acts of protest and lack of protest within an asymmetrical political context, the article posits that the invocation of silence as acquiescence in the case of targeted killing is problematic and risks complicity of legal knowledge production with the violence of hegemonic actors.

Tu quoque, meaning in Latin ‘you too’, is a fallacy of relevance which targets the hypocrisy of the arguer rather than the truth of the advanced argument.

In international criminal tribunals, defendants who advance the defence choose not to argue for their innocence, but rather seek to shift the spotlight on the crimes committed by the prosecuting authority or by the opposing side to the conflict, so as to delegitimize the entire prosecution as a form of ‘victor’s justice’. According to legal doxa, the argument has never been accepted in court. As a consequence, it has also been completely neglected within academia. Yet, the tu quoque defence is extremely powerful, as not only proven by its recurrent use over time, but also by its ability to turn trials into ‘show-trials’. This delegitimization of international prosecutions not only does impact the memory and reconciliation of war-torn communities, but also weakens the edifice of international criminal law.

‘The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment,’ written by Sienho Yee in 2004 is the only existing in-depth treatment of the defence. Departing from a critique of Yee’s theorization, this article attempts to fill the scholarly lacuna that exists around tu quoque. It departs from a critique of Yee’s theorization and questions whether the defence can be legally legitimate. The article concludes that the defence is legally void, but international criminal tribunals and academia must not disregard its underlying argument because of its political pertinence.

In deciding whether to rule against a state party, international courts regularly confront a compliance dilemma: declare the state in breach of the international regime but with the risk that it will defy the court’s authority; or defer to the state but at the price of acquiescing to an unjust or undesirable outcome. Specifically, international adjudicators must solve this dilemma in a context of uncertainty, that is, without knowing with exactitude whether or not the state will prefer complying with an adverse ruling over overt defiance. I use a simple strategic model to cast light on this aspect of the compliance dilemma. Building off from the model’s insights, I then discuss the practices, doctrinal tactics and institutional mechanisms apt to reduce uncertainty and minimize state defiance. I highlight, in particular, the advantages of defiance avoidance mechanisms that help create informational feedback loops like test-the-water dicta and double-tier review. I illustrate how these mechanisms have been deployed by two of the world’s most powerful international courts, the European Court of Justice and the European Court of Human Rights. Finally, I consider the limitations of these mechanisms along with the possibility for other international dispute settlement bodies to replicate them.

This article presents a timely and relevant critical examination of the customary international law principles of distinction and proportionality, and the doctrine of military necessity and the extent to which they can be better interpreted to protect the environment during the conduct of hostilities in non-international armed conflict. In so doing, this article contributes new perspectives to the ongoing debate on how environmental protection ought to be enhanced during non-international armed conflict. The article also suggests ways in which the International Law Commission (ILC) might approach the development of draft principles based on these customary principles as part of their current programme of work.

The sheer amount of non-state participation in the creation of the World Bank Environmental and Social Framework (ESF) is surely noteworthy. The aim of the Bank’s consultation was to get ‘global’ input and feedback, and with over 8,000 stakeholders from over 63 countries taking part, it is laudable. The extent of the participation challenges the positivist approach to international law-making, which views only states as having the power to make law and raises questions about how to legitimize such international soft-law making. Legitimacy is entangled with democracy, as scholars debate whether democracy is the required benchmark for decision-making processes at international organizations. This article uses deliberative democracy to analyse the ESF consultation process. Whilst, democratic legitimacy has been interpreted to mean inclusivity and participation, deliberative democracy raises a series of hard questions about equality and power that scholarship on global governance needs to grapple with. Although this participatory process at the World Bank challenges traditional narratives in international law, analysing it through a lens of deliberative democracy exposes the work that still needs to be done to discuss democracy in international decision-making.

Within international institutions such as the International Criminal Court (ICC), lawyers increasingly encounter managerial practices which are designed to improve organizational efficiency and cost-effectiveness. Charting this trend, scholars have analyzed these practices with a view to make them more legitimate. However, this scholarly focus overlooks the role of managerial practices in legitimizing and thus sustaining the institutions in which they are embedded. In this article, I ask how managerial practices operate to boost the ICC’s reputation among its global audience. I find the answer in the Court’s use of the juxtaposed images of bureaucracy and management, with all their negative and positive associations. The Court uses these images to narrate a story of its own internal evolution from inefficient bureaucracy to efficient and well-managed organization. This hidden narrative of institutional progress functions rhetorically to frame, focus and distract the attention of the Court’s global constituencies.

While civil society groups have been urging the World Bank to integrate human rights concepts into its policies, borrower countries have increasingly made the case for flexibility and deference to domestic standards in the implementation of bank-funded projects. This article analyses how the World Bank has navigated these conflicting legitimacy demands in the context of its 2016 Environmental and Social Framework (ESF). Drawing on insights from organizational sociology, we focus on practices of decoupling, which allow organizations to correspond to legitimacy demands by different audiences while not having to substantially adjust their core activities. The labour and indigenous peoples’ safeguards serve as cases in point. Specifically, the article argues that the Bank has decoupled its discourse concerning the ESF from the framework’s actual content by making statements about the ESF’s coherence with key human rights concepts which, upon closer scrutiny, do not fully correspond to its actual requirements. The article also shows how the design of the ESF furthers a decoupling of relevant requirements from its actual implementation. In particular, the confined scope ratione personae of the relevant safeguards and the discretion granted to the Bank’s staff and the borrower to add meaning to undefined key concepts may render their human rights-related requirements in a number of cases inconsequential. By and large, the decoupling practices identified regarding the Bank’s ESF entail problematic effects for the normativity of relevant human rights concepts and may, in the long run, undermine the Bank’s legitimacy as a whole.

This article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

The World Bank has reviewed its environmental and social policies at a moment of intense production of international instruments dealing with land tenure, all of which take the form of soft law. This endeavour is motivated by the progressive acknowledgement of the importance of secure and equitable access to land for the realization of human rights and food security. The latest contribution of the World Bank to this debate is of great significance. This article aims to unveil the effects that the new Environmental and Social Framework is likely to generate in this context. It analyses the protection of access to land and security of tenure contained in the World Bank’s Environmental and Social Standards in light of the developments occurring at the international level. To this end, the article reviews the changes to the standards in the context of the social impacts when a lending project affects land holders or users directly or indirectly; addresses the mechanisms for protecting, compensating and improving livelihood opportunities for those affected by the projects; and comments on the safeguarding of indigenous peoples’ lands. The article finds that the World Bank, by incorporating some of these emerging standards, has confirmed the relevance of emerging principles and guidelines on land, even if they are contained in non-binding instruments. On a critical note, the article recognizes the refusal of the World Bank to adopt the underlying discourse and fully embrace human rights achievements in the context of land issues.

This article looks at the development of the concept of crimes against humanity at the International Criminal Tribunal for Rwanda (ICTR). It contends that the ICTR’s interpretation of crimes against humanity is generally seen by international lawyers as a commendable, but unsurprising, step in the historical development of this category. In much the same way, the ICTR’s historical account is considered to be a standard attempt by a war crimes court to relate a liberal history of crimes against humanity in a way that upholds civilized values. Yet, although the historical and legal work of the ICTR appear unexceptional, this article will argue that they do demonstrate a particular conceptual approach towards warfare, history, humanity, and the nature of international law. Moreover, this is a conceptual approach that is quite different to that taken by the International Military Tribunal at Nuremberg. The article suggests that these differences, and the invisibility of the change, are due to the ICTR’s reliance on familiar narrative tropes. These narratives were established through poststructuralist theory but could be expressed in a variety of more or (often) less theoretical forms. By exploring the influence of these narratives on the Tribunal, it is possible to examine some of the ways in which conceptual change is facilitated and knowledge is created in international law. In particular, it shows how theories that are often considered marginal to international law have had a significant impact on some of the central provisions of international humanitarian law.

In the summer of 2017, the International Law Commission adopted a draft article on exceptions to immunity. The Draft Article adopted provides that immunity ratione materiae does not apply with respect to certain international crimes, namely crimes against humanity, the crime of genocide, war crimes, the crime of apartheid, torture, and enforced disappearances. These exceptions do not apply to immunity ratione personae. The Draft Article was adopted after a vote and was severely criticized by some members of the Commission. It has also received mixed reaction from states, with some supporting its content while others have opposed it. In the aftermath of the adoption of the Draft Article, there has also been academic commentary, some of which has been critical. The (main) criticism levelled against the Draft Article is that it does not represent existing law and has no basis in the practice of states. This article seeks to evaluate the criticism by considering whether there is any state practice in support of the Draft Article proposed by the Commission.