While many international lawyers are familiar with Francisco de Vitoria (1483–1546), very few have even heard of Paulus Vladimiri (1370–1435) – a Polish priest and jurist who made striking similar arguments to Vitoria on legal universality and the rights of non-Christians a full century before Vitoria. This divergence of consciousness, I argue, provides a unique opportunity to explore questions of canon, reception, and the role of ‘founding fathers’ within international legal thought. Centring Vladimiri as an ‘Eastern European’ figure, I argue that his non-reception is largely the result of how Eastern Europe implicitly functions as a distinctly liminal space within international legal thought that makes any possible ‘founding father’ from this region immensely difficult to imagine. I examine this dynamic through the differing postwar efforts of the Polish jurists Kazimierz Grzybowski and C. H. Alexandrowicz to include Vladimiri within the international legal canon. In examining the background structures of twentieth-century international law, I conclude that, in a manner directly connected to the liminality of Eastern Europe, neither Soviet nor Third World nor Western imaginations could easily receive Vladimiri within their fundamentally political narratives of normative order that shaped their international legal approaches. However, despite this historic non-reception, I argue that Vladimiri, and the question of Eastern Europe more generally, holds great promise in our current global moment. Particularly, engaging Eastern Europe’s liminal character offers a more sociologically grounded alternative to the reductionist Schmittian view of international law as a product of inescapable conflict in a world of exclusionary ‘greater spaces’.

This article begins with a study of the political economy of welfare capitalism to demonstrate how the private quest for profit was never going to be undermined by the advance of socio-economic rights. Contrary to the conventional view among human rights lawyers, capital draws power from its rights or welfarism. It is in recognizing the role that socio-economic rights play in serving capitalism that the field of international law concerned with structurally transformative human rights can begin to explore how socio-economic rights inhibit alternative forms of social organization. This work then turns to recovering property rights through a study of recent evictions and housing rights case law of the UN Committee on Economic, Social and Cultural Rights that problematizes structural inequities and calls the financialized capitalist system into question. Next this work investigates radical legal positivism in international indigenous rights jurisprudence for how it transcends the private ownership of indigenous lands and control over the means of production. The social function of property rights is then revisited and extended, drawing to a close an article that unearths how socio-economic rights might yet emancipate people from capitalist property relations, alter the underlying structure of the economy, and, in time, sever its concordance with the capitalist welfare state.

Understanding law as a continuous process with circular and interacting phases of selection, construction, and reception makes it possible to account for the variety of actors and resources implicated in the process of incrementally changing a norm of international law. This process is visualized through an analogy to knitting. One can start the knitting project with one needle, but to actually construct anything, more than one needle is necessary: at least two actors need to collaborate and build upon each other’s work. If those two actors neatly agree upon the pattern to be knitted, the resulting product may be uniform and dense, able to cover all situations it is intended for. However, it is not that easy to knit in exactly the same pace and pattern. The constructed law may not fit perfectly all situations it is intended for, because the different actors may have had different patterns in their head. Also, sometimes, the wool is held too tightly, and the net becomes too dense; sometimes the wool is held too loosely, and the net will have holes. With this visualization in mind, we can think of legal changes as continuously intermingling and building upon each other: international law is generally knitted with different colours of wool, each colour representing a different normative resource. Thus, ‘norm knitting’ provides for an analytical tool that makes it possible to demonstrate the variety in ‘successful’ change of a given norm in international law in response to specific challenges which the actors face.

This article analyses the ICJ, one of the most eminent actors of the international legal regime, as an actor of the international tax regime. So far, the ICJ’s role in tax dispute resolution has been a blind spot in the literature.

The descriptive part of this article first discusses the case law of the PCIJ and ICJ that considers – albeit incidentally – questions of taxation. These tax-related cases are categorized as (i) ‘wrongful taxation’ constituting the subject matter of the dispute; (ii) taxation as evidence for a ‘genuine link’ between the state and a national; or (iii) taxation as an ‘effectivité’ to prove the de facto exercise of state authority over a given territory.

The second half of the descriptive analysis assesses the Court’s jurisdiction over tax disputes. Tax treaties usually lack compromissory clauses. Yet, there are a number of jurisdictional bases that vest the Court with the competence to sit over hypothetical tax treaty disputes, although certain reservations may render the Court’s jurisdiction residual to other means of tax dispute settlement. Further, Article 344 TFEU possibly precludes EU member states from initiating ICJ proceedings concerning tax treaty disputes with other EU states.

The second, normative part of this article contemplates the Court as a future ‘World Tax Court’. It briefly addresses (i) possible effects of the ICJ’s hypothetical involvement in tax disputes; (ii) whether the ICJ might have a future role in tax dispute settlement in light of recent developments; and (iii) whether it is even desirable to involve the Court in tax disputes.

The EUNAVFOR MED anti-smuggling mission, Operation Sophia, ended in March 2020 and is largely viewed to have failed in its objective of ‘disrupting the business model’ of migrant smugglers in the Mediterranean region. The mission relied on purported enforcement powers in the 1982 United Nations Convention on the Law of the Sea and the 2000 Migrant Smuggling Protocol to seize and destroy stateless smuggling vessels on the high seas. Despite repeated claims to such powers by the European Union, neither treaty provides a strong jurisdictional basis for seizing stateless smuggling vessels outside territorial waters. However, ambiguous drafting in the Migrant Smuggling Protocol viably permits some claims to extraterritorial enforcement jurisdiction over stateless smuggling vessels on the high seas, and the European Union has relied on this ambiguity to tackle migrant smuggling. This article argues that the recent European Union anti-smuggling operations, most notably Operation Sophia, have reinterpreted the ambiguous term ‘appropriate measures’ in the Migrant Smuggling Protocol as permitting the states parties to exercise enforcement jurisdiction over stateless smuggling vessels at sea.

The article scrutinizes some of the surprising commonalities in the reasonings of two recent decisions by two separate judicial forums: the ITLOS’s judgment in the M/V Norstar case and the award of an ad hoc arbitral tribunal in the Enrica Lexie case. One key connection between the two decisions is their heavy reliance on the Lotus judgment of the PCIJ. Another similarity between the two disputes is that both of them revolve around the concept of exclusive flag state jurisdiction under UNCLOS Article 92(1) and adjacent questions of jurisdiction on the high seas. The article is going to subject both decisions to criticism and argue that some of the more problematic positions adopted by the tribunals in both cases amount to no more than obiter dicta – thus establishing an additional parallel with Lotus, which also received heavy criticism for its controversial obiter dictum. The two tribunals’ new-found interest in Lotus also provides an opportunity to discuss the utility and legal weight of Lotus as a precedent in the face of a century of developments in treaty law and judicial practice. In this sense, this article builds on and attempts to continue the recent trend in scholarship advocating for a renewed appreciation of the Lotus case against the backdrop of decades of criticism against it. Accordingly, the article aims to facilitate a better understanding of all three disputes, the principles they applied, and the dynamics of international adjudication and international law in general.

This article examines COVAX, a public private partnership, from a public law perspective. It asks whether COVAX is a legitimate and appropriate instrument with regard to the goal of distributing COVID-19 vaccines in a globally equitable manner and enabling equal access to vaccination worldwide. By developing public-legal legitimacy standards for this purpose, the article critically distances itself from the outset from considering the use of private actors and forms of action in public functions (‘privatization’) essentially as a release of market economy rationality, which enables efficiency and effectiveness gains and relieves the public sector. With the public law perspective, the article questions precisely whether private-law, market-based action is appropriate with respect to the global distribution of vaccines in the pandemic.

This article examines the precedential value of Russia’s ‘special military operation’ against Ukraine in February 2022 for the purpose of interpreting the rules of jus contra bellum. Following the methodology set down by the ICJ in its Nicaragua judgment, self-defence is identified as the legal basis explicitly invoked by Russia in order to justify its operation in Ukraine. The authors then examine closely the reactions by third states with respect to the legality of Russia’s military operation and establish that the legal arguments put forth by Russia – including, more specifically, an innovative reading of the right to self-defence of entities unilaterally recognized as states – have been overwhelmingly rejected by third states. On that basis, the authors conclude that this precedent does not challenge the established understanding of the prohibition to use force in international relations and of its exceptions.

What is striking about recent scholarship on the application of customary international law to cyber activities is how little has been dedicated to the preliminary question of how one identifies the applicability of existing rules of customary international law to cyber operations. Yet, the answer to this preliminary question holds the key to answering many of the questions which arise regarding whether existing rules of customary international law apply to cyber activities. This article seeks to answer the preliminary question. After providing background on the nature of customary international law, and in light of recent scholarly trends and what is often implied in literature on cyber activities, it makes the argument that rules of customary international law are not interpretable. Accordingly, reference must be made to state practice accepted as law for the purpose of identifying applicable customary international law; the article provides guidance on how this should be done. For a precedent of state practice to be relevant to determining the existence of a customary rule applicable to a cyber activity, pursuant to the International Court’s jurisprudence, the precedent must not have significant distinguishing features from the cyber activity concerned. For determining whether a precedent of opinio juris recognizes the existence of a customary rule applicable to the cyber activity, it is necessary to determine whether the relevant state pronouncement intended to accept as law a rule applicable thereto. In anticipation of objections, the article also addresses the practicability of the approach laid out.

Since its first judgment on the merits in 2013, the African Court of Human and Peoples’ Rights (the African Court or ACtHPR) jurisprudence has bourgeoned. In building this jurisprudence, the African Court has borrowed significantly from the case law of the European Court of Human Rights and the Inter-American Court of Human Rights. This article empirically maps judicial borrowing in the jurisprudence of the African Court and connects this practice to the theoretical framing of the semantic authority of interpretive actors in international law. The article argues that judicial borrowing allows the African Court to borrow the semantic authority of these more established actors in the field of international human rights law. The practice has allowed the Court to boost its interpretive claims. The article posits that the Court is simultaneously internalizing external references: it transforms them into an internal part of its jurisprudence. Therefore, the African Court is transforming what was initially the semantic authority of its homologues in Strasbourg and San José, into assertions of its own semantic authority. This transformation allows the Court to assert itself as the central authority for the interpretation of human rights in Africa. These findings shed new light onto wider scholarly debates on the characteristics of African human rights jurisprudence in the field of international human rights law.

It is the task of the International Court of Justice to establish the operative facts from which to draw normative conclusions in all contentious cases that come before it. This task, however, is complicated where those facts necessitate engagement with specialized epistemic fields other than law such as science. Drawing on legal theory and epistemology I propose a coherence framework for the establishment of the facts in such cases. In essence, this means that the Court need not show that its factual determinations have been established beyond all doubt, nor even that they satisfy a certain standard of probability. Rather, what the Court must show is that a factual determination it has made has been arrived at through a rational process and that it is coherent. The coherence framework also has both descriptive and normative value as it both maps neatly on to the current (best) practice of the Court and provides a justification for why it should operate this way in the future.

Russia’s full-blown invasion of Ukraine has reinvigorated the debate over international criminal law’s selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the ‘Ukraine moment’, others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law’s post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine’s liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious ‘Ukraine effect’ on international criminal law enforcement are less persuasive after the International Criminal Court’s decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.

On its seventy-fifth anniversary last year, the Nuremberg war crime trials moved again into the spotlight of public attention. To the present day, Nuremberg is mainly portrayed as the birth of international criminal law being the first tribunal that held individuals accountable for war crimes committed during the Second World War. As we argue in this article, there is an often-overseen dark legacy of Nuremberg as it represents an unused opportunity to establish accountability for inhumane military practices, especially in air warfare, being of tragic influence for the postwar development of International Humanitarian Law (IHL) as a whole. Going beyond the existing criticism already voiced on Nuremberg’s shortcomings, we hold that the Tribunal’s reluctance to prosecute bombing practices sowed the seeds for the decay of IHL by creating institutionalized silences, especially for massive violations of the principle of distinction. The tribunal thereby sidelined pre-war IHL and infected the development of post-war IHL by retroactively legitimating the bombing practices of the Axis powers and at least indirectly of the Allies. We argue that the failure to prosecute ‘total war’-practices and reestablish former restrictive legal structures regarding aerial bombardment has fundamentally eroded the pre-war meaning of the principle of distinction leading to its downfall in the First Additional Protocol to the Geneva Convention of 1977. We describe these developments as a form of judicial desuetudo, meaning the abrogation of a rule through its subsequent non-enforcement by an international court during and after massive law violations because of perceived or real political constraints.