Reflections on a decade of change in international environmental law

This article examines the profound ways in which international environmental law has evolved over the last decade in response to a shifting geopolitical context, as well as a better understanding of the possibilities and limits of global regulation to address complex, polycentric and intractable environmental harms. It identifies as emerging trends in the field the maturation of the customary norms and fundamental principles of international environmental law, in addition to changes in its modes of implementation and the actors involved in those processes. This article also highlights the increasing activity at the interface with other fields of law and policy that has expanded the sites at which international environmental law is made, applied and implemented. It concludes by asking whether this body of international law remains ‘fit for purpose’ as it seeks to adapt to constraints on its nature and operation imposed by the current architecture of international law and politics.

The ICC's Al Bashir jurisprudence over the last decade: enforcer of the will of States Parties or of a global jus puniendi?

Over the course of the past decade, the question of whether States Parties to the International Criminal Court (ICC) could rely on Al Bashir's Head of State immunity when refusing to execute the Court's arrest warrants has occupied the Court through five different cases, finally reaching an Appeals Chamber decision in May 2019. Although Al Bashir has been deposed from power and the controversy around the case has diminished, there are still valuable lessons to be learned from the case law produced. This article poses the question of what kind of court the ICC really is: is it merely enforcing the will of its States Parties or does it develop an independent existence following its own agenda? In the process, the article will shine a light on how the Appeals Chamber is moving the ICC towards a path of judicial independence: it is willing to stretch the limits of the Rome Statute and to possibly disregard the interests of its States Parties. By pronouncing on the absence of a customary rule of Head of State immunity before international courts, the Appeals Chamber aims to broaden the ICC's jurisdiction and to sharpen its profile as an international court acting on behalf of the international community and enforcing a global jus puniendi. Examining the decade of Al Bashir jurisprudence, it becomes clear where these findings originate and why they were by no means unavoidable. Finally, the article will indicate how the distilled features of the Court's character might be put to the test – or how the result of a decade of case law will silently evaporate.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.

Impacts of the interpretative interaction between international human rights law and the Refugee Convention

The article addresses the issue of interpretative interaction between international human rights law (IHRL) and the Refugee Convention against the background of an ongoing academic debate on the primacy or complementarity of the protection granted to refugees through IHRL. Specifically, it highlights the multifarious ways in which decision-makers and academics have sought interpretative guidance from IHRL in order to interpret the provisions of the Refugee Convention and vice versa. Moreover, it identifies the interpretative patterns to which this guidance has led. Ultimately, the article contributes to the debate through the identification of the impacts of interpretative interaction between IHRL and the Refugee Convention on the question of protection of refugees.

The 2018 Fisheries White Paper, the Fisheries Act 2020 and their international legal dimension

The 2018 Fisheries White Paper and the Fisheries Act 2020 were designed to govern United Kingdom (UK) fisheries management in the post-Brexit era irrespective of whether the UK and the European Union (EU) succeeded in settling their differences on fisheries and other matters that for much of 2020 made it uncertain whether the Trade and Cooperation Agreement could be concluded. This article considers several international legal issues raised by the White Paper and Fisheries Act, including the choices made by the UK as to which regional fisheries management organisations to (re)join now that the EU no longer speaks for the UK within them, and the treaty processes for doing so, before moving on to further matters given only sketchy treatment in, or omitted altogether from, those documents, on which a firmer position ought to have been taken. Lastly, a new problem apparent for the first time in the Fisheries Act is discussed: navigational freedom of foreign fishing vessels in the UK's exclusive economic zone, and a missed opportunity to legislate a related evidential presumption that would assist future prosecutions for illegal fishing.

The proportionality of provisional measures in ICSID arbitration

International Centre for the Settlement of Investment Disputes (ICSID) tribunals increasingly regard proportionality as a requirement for the indication of provisional measures. While proportionality's relevance to the application of substantive investment protection standards has received significant scholarly attention, less discussed is proportionality's potential impact in the provisional measures context. In light of proposals raised in the ongoing ICSID Rules Amendment Project to codify a requirement of proportionality for provisional measures, this article analyses how proportionality might be used to address State concerns regarding the effect of provisional measures on their sovereign prerogatives. It argues that the proportionality requirement's codification could meaningfully alter the approach of ICSID tribunals to provisional measures in a way which is valuable to States, but which remains fair to investors. To do so, this article outlines specifically what is meant by the ‘proportionality requirement’ in the context of the ICSID provisional measures framework, as well as the concerns which have animated State comments regarding its proposed codification in the ICSID Rules (Section 2). This article then contends that the proposed codification has the potential to meet State concerns at little cost to investors (Section 3). In order to illustrate the point, ICSID tribunals’ treatment of requests for the suspension of domestic tax enforcement is contrasted against their treatment of requests for the suspension of criminal investigations or proceedings.

Is the rules-based multilateral trade order in decline? Current practices, trends and their impact

Since its establishment, the World Trade Organization has suffered numerous blows. Today, however, it is going through a perfect storm: from a paralysis in its lawmaking function to the demise of the Appellate Body. Powerful economies such as the United States, China and the European Union are moving away from multilateralism, in different ways, in order to shape novel approaches. Non-transparent practices like informal trade instruments, geoeconomics, and the domestication of international trade rules are appearing as new tools of global economic governance. How to make sense of these practices and approaches from a legal perspective? The common thread in all these factors is the relative decline of the rule of law. This article explores and critically assesses these developments and calls for urgent action in order to remedy and strengthen the multilateral rules-based trade order.

Due diligence: the risky risk management tool in international law

As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.