The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention—grounded in an imagined history of the linear progress of humanity—that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.

In the 36 years since Francis Mann published Foreign Affairs in English Courts, the engagement of the United Kingdom courts with issues of international law has greatly increased. This article addresses the reasons underlying this trend and identifies four key developments: first, the nature of international law has evolved to embrace individuals as subjects; second, the Human Rights Act 1998 has had a profound influence, often requiring domestic courts to rule on matters of international law in order to give effect to the European Convention on Human Rights; third, in recent decades there has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law; and fourth, these developments have been accompanied by a shift in attitudes to the relationship between customary international law and the common law.

The International Law Commission's 2019 Draft Conclusions on Peremptory Norms of International Law assert that States have an obligation to cooperate to end serious breaches of peremptory norms. International law provides scarce guidance, however, regarding how States are expected to fulfil that obligation. This article seeks to elaborate: first, whether the prohibition of crimes against humanity and the ‘basic rules’ of international humanitarian law are peremptory norms; second, what States are required to do to fulfil their obligation to cooperate; and third, how States might utilise the General Assembly as a forum through which to fulfil that obligation.

States increasingly refer to ‘legal stability’ in connection with maritime zones, amidst concern to preserve their jurisdictional rights in the face of climate-change induced sea-level rise. Yet such a claim for preservation is at odds with the widely-expressed scholarly view that baselines, and their associated maritime zones, ‘ambulate’ with coastal changes. This article interrogates this tension by focussing on the understudied notion of legal stability as it relates to maritime zones, under the international law of the sea. The article examines the development of the term ‘legal stability’ in the discourse of States (what States say) and contends that a claim for the stability of maritime zones should be seen as an expression of the long-standing value placed on legal stability by States in the system of maritime zones. Further, the article presents the results of a global study of States’ implementation of the normal baseline in domestic legislation (what States do). The results show that many States have taken practical measures to secure legal stability for their normal baselines within their domestic frameworks, suggesting that existing international law may accommodate a greater degree of stability than widely appreciated. The article concludes by asserting that these findings matter not only for how we should receive States’ claims for maritime zone preservation on the basis of legal stability, but also prompts reconsideration of our overall understanding of the existing law on baselines and maritime zones.

Four years following the entry into force of the EU data protection framework (the GDPR) serious questions remain regarding its enforcement, particularly in transnational contexts. While this transnational under-enforcement is often attributed to the role of key national authorities in the GDPR's procedures, this article identifies more systemic flaws. It examines whether the GDPR procedures are deficient-by-design and, if not, how these flaws might be addressed. The conclusions reached inform our understanding of how to secure effective protection of the EU Charter right to data protection. They are also of significance to EU law enforcement more generally given the increasing prevalence of composite decision-making as the mechanism of choice to administer EU law.

Over the last three decades, transnational certification standards have proliferated to fill perceived ‘governance gaps’ in developing countries. Transnational non-governmental organisations and private standards-setting agencies have developed standards that cover a vast range of areas such as labour rights, social justice and environmental protection. As a form of private transnational regulation, certification standards travel through transnational production networks that link lead firms in developed countries with supplier firms in developing countries. This article draws on a case study about coffee certification to challenge the conventional understanding of transnational certification as a contractual conduit that transfers encoded certification standards from senders to receivers. It shows how transnational certification standards interact with, and remake local regulatory landscapes as they pass through. This interaction between global and local knowledge compels us to see transnational standards as a protean, highly localised regulatory process rather than stable universal norms. The article concludes that transnational certification does not function like an integrated ‘joined-up’ process and it is better understood as a mode of polycentric regulation that decentres and fragments transnational norms and standards.

The English Court of Appeal and German Bundesgerichtshof recently decided that Article 31(2) of the Brussels I Recast Regulation applies to asymmetric jurisdiction clauses. This article contends that while this conclusion is sound, separating the ‘clause’ into two ‘agreements’ to reach it is not. This disaggregation prevents a solution to the anomaly that Article 31(2) creates for asymmetric clauses, where a lender sues under its option and the borrower subsequently sues in the anchor court. This article proposes a solution, based on a uniform characterisation of the clause as a whole, which protects the lender's option and mitigates the risk of parallel proceedings.

Article 16 of the Ireland–Northern Ireland Protocol annexed to the EU–UK Withdrawal Agreement is an escape clause which allows the parties to deviate from their obligations under certain conditions. This article maps out the main features of the safeguards provision in the Protocol in light of international trade law and international relations literature on treaty design. It provides a detailed examination of the safeguards provision in the Protocol and highlights the key design flaws associated with this regime as well as some potential solutions to such flaws.

Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.

Relying on examples from international, EU and comparative law and drawing on insights from the class action literature, this article argues that important advances in minority rights protection can be achieved without the revision of substantive legal provisions and the full-scale embracing of collective rights. Allowing minority members to present their claims on behalf of a larger group (collective procedure), even when such claims ultimately rest on the rights of individuals as opposed to those of the group, strengthens minority rights and can transform our vision of them. An overview of eight interrelated benefits shows not only how these advantages occur, but also why the procedural approach avoids the issues that motivate negative critiques of group rights.

This article explores how sovereignty fictions have been used to advance different legal, political and economic aims in the articulation of the United Kingdom's future approach to global regulation. By mapping the transformative shifts in sovereignty paradigms, this article highlights the disconnect between the absolutist sovereignty popularised in the UK government's political rhetoric and the concept of regulatory sovereignty that underpins the UK's future trading strategy. To maintain its status as a global leader in regulation and standards-setting, the UK government will need to diffuse power and delegate autonomy through networked orders of public and private actors. These competing sovereignty paradigms are analysed with reference to European Union (EU) law and practice, to highlight the opportunities and challenges for the UK as an independent trade actor. This article concludes by evaluating how sovereignty fictions can disrupt the objectives of the UK's proposed ‘common law’ approach to regulatory governance and discusses the policy interventions that may be required to enable the UK to harness its potential as a regulatory leader.

This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor–State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and non-discriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.

Value-added tax, the most common form of consumption tax in the world, operates on a destination principle to ensure it is levied only in the place of final consumption in cases of cross-border transactions. The international trade in services and intangibles through digital means poses two challenges: finding the place of consumption and collecting the tax when services supplied by businesses in one jurisdiction are instantaneously consumed by customers in another. This article examines these challenges and considers how unilateral action and soft international responses have so far failed to achieve consistent destination basis taxation. An alternative option would be to adopt a hard multilateral response that would overcome the limitations of unilateralism and soft-law approaches and achieve consistent destination basis taxation in the digitalised economy.

The constant exchange of investment assets poses a risk of ‘commoditisation’ of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State ‘insiders’ and third State ‘intruders’ to create artificial access to arbitration. First, the definition of ‘investment’ can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between ‘investor’ and ‘investment’ strongly implies that ‘active contribution’ in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).

European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

In 2021, unconstitutional transfers of power in Myanmar and Afghanistan highlighted that while States may desire a coherent response to questions about the status of governments, and may look for international guidance in such regard, there is no established process for providing such guidance. Thus, attention focuses on the General Assembly's credentials process, designed to assess the eligibility of delegates to represent their States at the UN. This article proposes that rather than the credentials process being stretched in this way, greater use should be made of the Assembly's competence to pass determinative resolutions on government legitimacy.

This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.

This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in the field of public health. First, tribunals addressing the merits of health measures have exercised considerable deference to States under existing treaties. Second, the recent generation of treaties spells out health considerations to encourage respondents or tribunals to adopt broad interpretations of the right to regulate, general exceptions, or article-specific carve-outs. Clauses modelled on GATT exceptions may prove difficult to invoke due to the ‘necessity’ threshold. Finally, the Kyoto Protocol may serve as a model of incentivising private investment in the public health sector.

Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.