With the Timor-Leste v Australia spying scandal before the International Court of Justice, cyber espionage operations like GhostNet and the wiretapping of German chancellor Angela Merkel, legal questions on the legality of peacetime espionage arise. Peacetime espionage, however, is almost completely unregulated by international law and has no agreed upon legal definition. Scholarly work on this matter is scarce. Against this background, there is critical need for an in-depth public international law assessment of peacetime espionage. This article analyzes this very issue and examines the legality of peacetime espionage in light of classical notions of public international law.

The threat of the permanent physical disappearance of the territory of states no longer belongs to the mythical realm, and the situation is particularly imminent for small island developing states. While most international legal scholarship has so far focused on issues stemming from territorial disappearance, this article goes one step further. It questions the appropriateness of the classical notion of the territorial state — a socio-cultural and politico-legal entity evolving on a defined territorial area — as the basis for an international legal system faced with new realities created by climate change, sea-level rise, and globalization. After examining the current rules on statehood within the context of the physical disappearance of states’ territories and looking into the solutions suggested in the legal literature to address territorial loss, this article assesses a new way of understanding statehood by exploring theoretical lenses through which a new model of statehood could be contemplated.

The integration of sustainable development goals in the international sales contracts of biofuels highlights a new role for international contract law. This article examines how the substantive rules of the UN Convention on International Sale of Goods (CISG) may contribute to the implementation of sustainable development and the applicability of the “sustainability clauses.” The contracting parties, including the final buyers of a global supply chain have the right to demand enforcement of these contractual clauses. However, the CISG is limited as to the legal effects international contracts have for third-parties that benefit or are interested in the sustainable development of biofuels. In this context, the contractual tool used in the international trade of sustainable products becomes not only useful but also indispensable.

This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

This article explores and appraises international legal developments regarding the right to self-defence against vicarious aggression — that is, armed attacks by non-state entities that are sponsored or hosted by a foreign state. Despite efforts to develop a normative framework and mechanisms of accountability to curb states’ use of non-state entities as proxies for armed activity, some states continue to view these entities as valuable tools for the realization of their foreign policy goals. Consequently, international practice shows general recognition of a right of self-defence against non-state armed entities. There is also an emerging body of authoritative opinion, backed by an evolving state practice, that supports the extension of the application of this right against a non-state entity’s host or sponsoring state, provided some conditions are met.

Treaty obligations to afford foreign investors a minimum standard of treatment (MST) and/or fair and equitable treatment (FET) are hallmarks of international investment law. However, the relationship between such treaty-based obligations and customary international law has been the subject of considerable debate. In the North American Free Trade Agreement (NAFTA) context, the majority tribunal decision and dissenting opinion in Clayton and Bilcon of Delaware Inc. v Government of Canada (Bilcon) reflect ongoing disagreement regarding the threshold for breach of the MST under NAFTA Article 1105. This article charts NAFTA investment tribunals’ decisions regarding FET claims under Article 1105 and the development of the customary international MST on which that provision is based, in particular, the prohibition on arbitrary treatment. It argues that the majority in Bilcon applied an inappropriately low threshold in finding a breach of Article 1105, which could represent a new and unwelcome direction in NAFTA Chapter 11 jurisprudence.

This article offers a critical analysis of Canadian and international jurisprudence, which uneasily grants jurisdictional immunity to states and their officials who torture. The picture that emerges is one of inertia in the case law, which has stunted the development of an exception to state immunity for jus cogens violations where there is no other remedy. We argue that the Parliament of Canada should amend the State Immunity Act to include such an exception. This change could contribute to the progressive development of international law so that state immunity cannot be invoked to deny torture victims their right to justice.