Modern slavery is an amalgam of legal concepts defined in international law united by a shared characteristic – they are all forms of unfree labour: one person deprives another person of their freedom for profit. The introduction explains how unfree labour involving migrant workers and supply chains is particularly troublesome for states to govern because these transnational vectors do not fit within the ‘default’ territorial format of legal jurisdiction and, thus, challenge traditional ideas of state sovereignty. It treats modern slavery laws, which combine international, national, and (sometimes) regional laws, as an example of transnational law and shows how, in this context, the nation state is but one among an assemblage of governance actors. It develops a multidimensional conception of jurisdiction to explore the transnational legal governance of unfree labour and to illustrate how modern slavery laws reconfigure traditional understandings of sovereignty.

The European Union adopted region-wide binding legal norms and a multifaceted legal approach to human trafficking. This chapter explains that the EU has competence (legal authority or jurisdiction) over human trafficking because trafficking is seen as a crime that moves across borders. By contrast, the EU needs another source of competence to tackle forced labour in supply chains. These different sources of competence over different drivers of unfree labour resulted in a proliferation of gendered governance strategies. Pushed by the Council of Europe’s Convention on Action against Trafficking in Human Beings, the EU incorporated the rights of trafficking victims. The chapter illustrates how victim’s rights were subsumed under the EU’s primary goal of hardening Member States’ borders against undesirable outsiders, exemplified by migrant sex workers. The EU also promoted a corporate sustainability due-diligence directive and a product ban targeting unfree labour in supply chains, thereby extending EU values beyond Member States’ borders.

This chapter identifies striking convergences between the juridical techniques used in migration control and under colonial rule. These include strategic manipulations of jurisdiction, a legal system based on racialized status categories, normalization of a state of exception, and racialized determinations of culpability. Border externalization and extraterritorialization, reconsidered alongside the colonial practice of manipulating jurisdiction, should be understood as a juridical tactic that aims to evade responsibility for the state violence wielded against racialized migrants. On the basis of a comparative analyses of colonial and migratory juridical regimes, the chapter underscores the key role that law plays in maintaining and justifying racial domination in these two different contexts. The juridical regime in both can be best described as one of “lawful lawlessness,” to borrow a phrase introduced by Austin Sarat and Nassar Hussain, as the lines between “lawful” and “lawless” increasingly blur when law is put in the service of racial domination. To examine this blurring, the chapter turns to the 2020 ruling of the European Court of Human Rights in N.D. and N.T. v. Spain, which condoned the Spanish pushback operations and blamed migrants from “sub-Saharan Africa” for their “culpable” conduct.

Chapter 2 outlines normative challenges related to jurisdiction over data residing abroad. It illustrates how the law enforcement process involves different types of jurisdictional claim and highlights the challenges in bundling investigative measures with invasive enforcement measures. It also highlights that the traditional focus on territoriality does not meet the needs of law enforcement efforts in fighting cybercrime. Rather, basing claims of jurisdiction to enforce strictly on the location of data raises several questions in terms of the threshold of breaching sovereignty and the legality of accessing such data under international law. Further, the chapter looks at the inadequacies associated with single-factor jurisdictional tests and points to the need for multi-factor assessments. It discusses key actors being placed in a position where compliance with one state’s law necessitates violation of another’s. Last, it analyses international attempts to solve issues of transborder access to data, including the Council of Europe’s Second Additional Protocol to its Budapest Convention, the EU e-Evidence Regulation, the US CLOUD Act and the EU–US CLOUD Act agreement negotiations.

The transnational movement of peoples across the globe is one of the most bitterly contested political issues of our times, eliciting populist anger against migrants and refugees. This public outcry has muffled, however, a more dramatic process: the contemporaneous reconfiguration of territory, rights, and jurisdiction. This chapter highlights the formation of “shifting borders” that enable states to create lawless zones as well as rightless subjects. It then explores a combination of juridical and democratic possibilities for resistance and claims-making in a world of shifting borders and cosmopolitanism without illusions.

This chapter explores the Member States’ use of EU private international family law in the protection of children with links abroad from abuse or neglect by their family. These measures include rules governing the assumption of jurisdiction over the parental responsibility of a child, including both private and public law measures. The chapter argues that the abused and neglected child was not a central focus when regulating the cross-border family and, as a consequence, legal borders between Member States’ family law systems retain considerable significance for these children. Whilst each Member State has provision in place for public law child protection measures, the methods and approach adopted vary significantly between legal systems, as do the potential substantive outcomes for children. The EU’s private international family law rules are designed to obscure these differences and this has presented difficulties in supporting cross-national cooperation over child protection. The political nature of these decisions has meant that focus on the welfare of the child may consequently be lost.

This chapter maintains that the International Court of Justice (ICJ) may usefully intervene in the complex and multifaceted litigation that has developed before national and international tribunals, as well as human rights treaty bodies, concerning national climate policies adopted to implement international obligations. By considering the rationale and nature of climate litigation, the chapter seeks to point out what international law rules the ICJ should take into account (especially clarifying their existence and scope) in order to make a real contribution to national and international jurisprudence.

Legislation in all Australian jurisdictions allows courts to award damages either in addition to, or in lieu of, specific performance or an injunction. Although damages awarded under this legislation are sometimes known as ‘equitable damages’, to avoid confusion with equitable compensation, they are called ‘Lord Cairns’ Act damages’ in this book.

Lord Cairns’ Act damages are primarily awarded for proprietary torts such as trespass, and for breaches of contract or negative covenant where no other relief is available (either because it is impossible or for discretionary reasons). Their calculation varies according to the facts of the individual case, and the rules are complex. They have also been awarded for equitable or statutory wrongs, but this is controversial.

As noted in this chapter, the placement of this remedy within a functional structure presents difficulties. Lord Cairns’ Act damages have been said to perform multiple functions including compensation and restitution. Strictly speaking, they do not compel performance, but award money instead. However, because they are a monetarised version of specific relief, they follow specific performance and injunctions for the pragmatic reason that they ‘fit’ best here.

This chapter describes: the creation of the ICC; its main features (such as its jurisdiction and its rules for selecting cases); opposition and criticisms; and a brief assessment of its work, including its controversial and sometimes disappointing early efforts, and the challenges that the Court confronts. The chapter discusses the Court’s jurisdiction – including personal and territorial jurisdiction, temporal jurisdiction, and subject matter jurisdiction. It discusses the ‘trigger mechanisms’: State Party referrals (including self-referrals), Security Council referrals, and initiation by the Prosecutor. It explains preliminary examination, investigation, and prosecution, as well as the selection criteria of admissibility (complementarity and gravity), and the interests of justice. It discusses opposition to the ICC, including the criticisms from the United States and the African Union, as well as key developments, such as US attacks on the ICC and threats of withdrawal from the African Union. The chapter reviews the Court’s record, including problems of collapsed cases, slow proceedings, the early focus on Africa, and accusations of selectivity and bias, as well as recent indications of progress.

This chapter begins by discussing how the crime of aggression differs from all other core international crimes in being inextricably linked to an act of aggression by a state against another state. It then turns to a discussion of the history of the crime of aggression, including its inclusion in the Statute of the International Criminal Court (ICC). It covers the definition of the crime of aggression as set out in Article 8bis of the ICC Statute, as well as its relationship with other crimes. It also examines the material elements: (1) by a perpetrator in a leadership position in a state (2) who has participated (3) in an act of aggression by the state (4) which ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. It also explains the mental elements as set out in Elements 4 and 6 of the ICC’s Elements of Crime; the jurisdiction of the ICC over aggression, including the role of the Security Council; and the implications of an ICC prosecution of the crime of aggression.

In response to two conflicts in the 1990s - the Yugoslav wars of dissolution and the Rwandan genocide of 1994 - the United Nations (UN) UN Security Council created the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR). This chapter begins with the creation of the ICTY through UN Security Council Resolution 827, the court’s three organ structure (Registry, Office of the Prosecutor, and Chambers), jurisdiction, and relationship with national courts. The chapter examines the milestones of the ICTY, from its first case through to the conflict in Kosovo, prosecution of former Heads of States, and implementation of its Completion Strategy, and assesses the critiques of the tribunal. The chapter then turns to the history of the creation of the ICTR, its structure (which was similar to that of the ICTY), and its jurisdiction. It then examines the practice of the ICTR, from its initial troubles through the prosecution of the leaders of the genocide, and the implementation of its Completion Strategy. Both Tribunals have now closed and transitioned into a residual phase.

The ICC launched in 2002 to judge cases against individuals accused of war crimes, crimes against humanity, and genocide. It is unique among international institutions in this book in that it imposes its obligations upon individual persons rather than governments. This chapter shows the powers and limits on the authority of the ICC to punish people for large-scale atrocities. The practical power of the ICC is shaped by both the difficulty of apprehending people and the active work of those who wish to remain insulated from accountability.

This chapter examines the kinds of legal procedure adopted by various ancient legal systems to conduct legal proceedings in a court. The areas covered include the constitution of courts, preliminary court proceedings, valid evidence, presentation and evaluation of evidence, and the final verdict, including the possibility of appeals. Discussions include judges and court personnel, the physical space of courts, distinctions between civil and criminal cases, plaint and plea, sureties, and legal representation. Under evidence there is examination of witnesses, documents, oaths, ordeals, torture for evidentiary purposes, and forensic investigation, and punishment for perjury. Once a verdict is reached by the court, there are issues relating to the recording and the enforcement of the verdict. There is wide diversity in the legal procedure recorded in the sources from different legal traditions. Some deal with the topic explicitly, while in others we have to deduce the procedure from material on court cases.

Comparing ancient societies allows us to observe the variety of relationships that prevailed between states — in different forms and at different scales — and their complex legal environments. This chapter explores five dimensions of this relationship. First, we examine the capacity of law to shape state power. While constitutional law, strictly speaking, was comparatively rare in the ancient world, we can yet observe various ways in which law, law-like practices and other cultural norms operated collectively to both empower and constrain the state. The second and third parts of the chapter look at the inverse relationship: state power over law and legal practice in the form of legislative powers and jurisdiction, respectively. In the fourth part, we turn from ideational aspects of state law to the structure of state legal systems themselves, particularly in the context of private or non-state legal practices. Here we focus on those domains of law in which the state was most intimately engaged, what was left to non-state actors and the engagements between both across a sometimes indistinct boundary. The final part of the chapter explores the role of law in legitimizing state power.

Chapter 9 examines the relationship between IHL and international human rights law (IHRL). Both bodies of law are concerned with protection of the human person, but there are some stark differences between the two. First, many IHRL instruments permit parties to derogate from their IHRL obligations in times of public emergency such as armed conflict, while IHL applies precisely at such times and permits of no derogation. Second is the difference in scope. IHL applies to all territory where an armed conflict is taking place, whereas IHRL has only limited extraterritorial application. This can lead to a direct conflict for a State, such as in a situation of occupation: the local law might violate IHRL obligations, yet under IHL the Occupying Power is required to respect that local law. Third, where IHL applies to both States and non-State actors, IHLR is primarily addressed to the State. In cases of overlap, harmony is preferred – both bodies of law apply. Where that is not possible because the conflict is direct, there are different views on how such conflicts should be reconciled. One view is that IHL, as the lex specialis, should prevail; the other is that the lex specialis doctrine will not always be appropriate. The conclusion is that although IHL and IHRL are slowly converging over time, there will still be situations where the differences are irreconcilable.

The focus of Chapter 4 seeks to determine whether the dominant focus should be judicial or non-judicial. To that end, the manner in which the European Court of Human Rights has interpreted ‘jurisdiction’ under Article 1 of the ECHR in a representative sample of seminal cases pertaining to ‘grey zones’ is examined. The chapter highlights the inconsistency of Court practice, the manifestly inexecutable nature of many of the cases associated with grey zones and, consequently, the limits of the Court in affecting general or individual justice in practice in these regions. The chapter concludes by noting that effectiveness depends on looking beyond the Court.