International climate law is often represented as a set of rules and institutions that scholars have tracked for nearly 30 years, whether to document them, assess their effectiveness, or prescribe reforms. This article, in contrast, adopts a critical perspective to uncover the everyday life of international climate law. From this viewpoint, international climate law is a purposive endeavour that is grounded in the small places where people create and live out the law. ‘International climate lawyers’ are among those who produce the law within these sites, and they propagate international climate law across multiple institutions. Using legal-ethnographic description, the article shows how lawyers operationalize the law in the United Nations climate regime, World Bank, and international human rights system. In each case, lawyers effect some overlapping aspirations for the law as well as legal techniques, but they also adapt their practices to the places where they work. In the process, they simultaneously build and diversify their professional community. Both in their field and community then, lawyers generate heterogeneity and homogeneity through the proliferation of international climate law. They do so on multiple registers, in terms of diverging ethical commitments, multivalent legal forms, and relative authority to speak the law, notably between institutions and the Global North and Global South. If lawyers reproduce sameness and difference in international climate law, moreover, this article suggests they may reify analogous traits in the broader field of international law, including persisting power relations.

To what extent do rules of general international law apply between international organizations and their members? The article tackles this question by distinguishing between two categories of relations: those that take place on the international plane and those that are, rather, situated on the institutional plane constituted by the organization’s internal law. I argue that general international law applies by default to relations belonging to the first category, only being displaced when the internal law of an organization contains applicable lex specialis, but that it cannot claim a similar role at the level of internal institutional relations. The question there becomes one concerning the dialogue between relatively autonomous international legal orders, so that it is the internal law of each organization that defines the terms on which rules of international law are allowed in. At the same time, a normative argument can be made for a ‘monistic presumption’ for the application of general international law in cases where the rules of the organization are silent. By delving into such questions of applicable law and identifying the relevant analytical frameworks, the article aims to help international lawyers dealing with complex disputes opposing international organizations and their members to structure the legal analysis.

The environmental and economic realities of Arctic climate change present novel problems for international law. Arctic warming and pollution raise important questions about responsibilities and accountabilities across borders, as they result from anthropogenic activities both within and outside the Arctic region, from the Global North and the Global South. Environmental interdependencies and economic development prospects connect in a nexus of risk and opportunity that raises difficult normative questions pertaining to Arctic governance and sovereignty. This article looks at how the Arctic has been produced in international legal spaces. It addresses the implication of states and Indigenous peoples in processes of Arctic governance. Looking at specific international legal instruments relevant to Arctic climate change and development, the author attempts to tease out the relationship between the concepts of Indigenous rights and state sovereignty that underlie these international legal realms. What do these international legal regimes tell us with respect to the role of Arctic Indigenous peoples and the role of states in governing the ‘global’ Arctic? It is argued that while international law has come a long way in recognizing the special status of Indigenous peoples in the international system, it still hesitates to recognize Indigenous groups as international law makers. Comparing the status of Indigenous peoples under specific international regimes to their role within the Arctic Council, it becomes evident that more participatory forms of global governance are entirely possible and long overdue.

The United Kingdom’s withdrawal from the 1964 Fisheries Convention and from the European Union has raised questions concerning the potential existence of third states’ fishing rights in the UK’s maritime zones post-Brexit. Historic fishing rights are a complex and controversial issue in the law of the sea. Uncertainty remains regarding their nature, the process for their formation and ascertainment, as well as their contemporary relevance in the light of the Law of the Sea Convention (LOSC) and other fisheries agreements. This article explores the concept of historic fishing rights in the law of the sea. First, it examines the nature and scope of historic fishing rights as discussed in the jurisprudence of international courts and tribunals and their relationship with other akin terms such as ‘customary’ and ‘traditional’ fishing rights. Issues related to the formation and establishment of these rights are also explored. The article also examines whether these rights have been superseded by the LOSC in the territorial sea and exclusive economic zone (EEZ), or whether they are still relevant in the post-LOSC era and maritime zones. It finally explores the relationship between historic fishing rights and treaty-based fishing access rights, and addresses the question posed by Brexit whether withdrawal from a fishing access treaty can unilaterally eliminate any related pre-existing historic rights. This discussion will provide an answer to the question whether it is possible for other states to have historic fishing rights in the UK’s territorial sea and EEZ following its withdrawal from the London Fisheries Convention and the European Union.

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.

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.

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.

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.

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.

The international criminal courts and tribunals have heard thousands of witnesses in cases of extreme complexity and breadth. Their evidentiary record is overwhelming, with live witness testimony standing out as one of its defining features. Keeping in mind the arguments and policies of judicial efficiency and fairness, this article empirically examines the trends and patterns in viva voce witness numbers at the International Criminal Tribunal for the Former Yugoslavia (ICTY), for Rwanda (ICTR), and the International Criminal Court (ICC). We observe clear differences between institutions and individual cases, and discuss the underlying reasons for such divergences. As well as providing a general overview, we demonstrate the complex interaction between case-related characteristics, institutional and situational contexts, and the number of witnesses called at trial.

The drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined.

As the glow that accompanied the kinetic judicialization of the field of international criminal justice has faded over time, scholars have increasingly turned to expressivist strands of thought to justify, assess, and critique the practices of international criminal courts. This expressive turn has been characterized by a heightened concern for the pedagogical value and legitimating qualities of international criminal courts. This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between three strands of expressivism: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts. Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which concerns whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.