This article focuses international legal scholars’ attention on consular relations, consular work, and related international law. It does so for two main reasons. First, as scholars of diplomatic history and international relations have observed, consular work is of growing significance in global affairs. Second, there are largely unrealized possibilities for thinking about international law, and grappling afresh with its dilemmas, through a consular optic. International law conducted through consular offices and officials advances views of the international legal plane, its key actors, and relations among them, that are distinguishable from those advanced by diplomacy and international law as traditionally conceived. This article theorizes this distinctive logic as consular internationalism. Its argument is that consular internationalism is a richer resource for thought and practice in international law than commonly acknowledged. It is especially relevant, this article aims to show, for analyzing historical and contemporary entanglements of imperial and commercial power, grappling with the role of lay people and unofficial communities in shaping international legal order, and, potentially, supporting anti-hierarchical struggles.

The commons are defined by non-excludability – the idea that none can exclude another from access or use. Likewise, space lawyers portray their discipline’s origin story as uniquely egalitarian and inclusive, in part because of how it was made. The 1963 Principles Declaration and 1967 Outer Space Treaty were drafted by a committee of 28 states that decided by consensus – the first permanent UN body to do so. They worked in the midst of significant colonial and Cold War tensions to form a body of law which implicated the interests of every state. This article argues that the lawmaking which made space ‘common’ was made possible by excluding the Third World. It uses historical sources from 18 archives to shed new light on the process of making space law from 1957 to 1967. Based on this, it explores various factors, from UN documentation practices to American racial segregation, that cumulatively prevented Third World representatives from meaningful participation in space lawmaking. These factors had broad impacts on the drafting committee’s membership, attendance, decision-making procedure, and final products. By seeking to understand this ‘small history’ of a niche field at a specific historical moment, this article also adds to ongoing work that questions the axioms by which international lawyers interpret treaties today.

On 16 March 2022, Russia became the first state to be expelled from the Council of Europe (CoE). The reshaping of power dynamics between international law actors is providing a favourable space to international organizations to use membership as a strategic tool. In order to understand under what circumstances the CoE decides to end membership, the article elucidates the substantive and symbolic grounds of Russia’s expulsion. Substantive grounds are defined as non-compliance with the membership criteria of the CoE and its founding principles as regulated in Article 3 of its Statute. Symbolic grounds are what motivates the CoE in its positioning within the international legal order as indicated in the preamble of its Statute. The analysis of the substantive grounds will reveal that the violation of the CoE Statute and the prohibition on the use of force because of the invasion of Ukraine are not enough to explain Russia’s expulsion. This article argues that Russia’s expulsion relies on symbolic grounds that allowed the CoE to preserve its position as the guardian of European imperialism. The clash of the two actors’ irreconcilable imperial policies proved for the CoE that Russia would no longer be at the receiving end of its demands. The Ukraine invasion signals a breaking point, escalating the inter-imperial rivalry to a level where the CoE believes Russia will no longer submit itself to the European international legal order as shaped by the Western European founders of the Organization.

Population growth was a pivotal issue in the United Nations during its first decades. The global population was growing steeply, and most of this growth took place in the formerly colonized states. Population trends were framed as an aspect of development and became object of extensive international activities, outside the UN and within. The paper explores the population discourse of those years with a focus on the UN and on the relationship with international law. It traces, firstly, the UN documents engaging directly with population growth and aiming to influence national population policies. Secondly, the paper suggests that the framing of population growth as problem of development stressed its causal role for poverty and food insecurity. The struggles for a New International Economic Order coincided with the international focus on population growth, partly with competing interpretations of reasons for global economic inequality. Thirdly, the paper suggests that the activities within the UN played a central role in shaping the discourse. While the activities of governments and private organizations were significant, it was through the authority of the UN that the development-population-nexus achieved such dominance.

The use of informal instruments in international governance has raised concerns about their legal status, including questioning whether they should be approved by domestic parliaments. These concerns are often dismissed by reference to the legal non-bindingness and claimed harmlessness of the instruments. Yet informal instruments have various effects in society as legal and political communications. These effects emphasize the need to address the democratic deficit of informal instruments resulting from their isolation from the parliaments and the undemocratic nature of international decision-making. This article proposes a twofold approach to address this deficit. At the domestic level, better engagement of parliamentarians through deliberative ‘feedback loops’ established between the parliament and the government should be sought, complemented by parliamentary approval of important informal instruments. At the international level, so-called ‘culture of deliberativism’, that is, a turn to deliberation by embracing deliberative democratic standards for better representation of public opinions, is proposed to induce democratic sensibility into international decision-making and its products. The legal status and potential bindingness should not be the focus of public debate on informal instruments; their subtle effects and undemocratic origin are the real ‘phantom menace’ in need of addressing.

This article compares China’s stance during the UNCLOS negotiations – the starting point of contemporary law of the sea, with its engagement in the latest development of negotiations on the United Nations agreement on biodiversity beyond national jurisdiction (BBNJ). It answers the question, how does China participate in these two important rules-making processes of the international law of the sea? By identifying salient positions China took in each set of lengthy negotiations and explaining the reasons behind, the article also aims to reflect what a rising China may bring to the international legal maritime order in the foreseeable future. The first part of this article, on the nature of China’s engagement in the UNCLOS negotiations, draws on archival study of official records of the UNCLOS III (1973–1982), as has been digitalized by the UN Office of Legal Affairs. The second part examines the period between the adoption of the UNCLOS (1982) and the start of the BBNJ process (2004), paying attention to China’s shifting practice towards the exploration and exploitation of the deep seabed mineral resources, and its concerns over the ratification of the UNCLOS and the 1995 FSA. Then the article focuses on China in the BBNJ negotiations – Working Groups, Preparatory Committee Meetings and Intergovernmental Conferences. Drawing upon the evolution of China’s positions over the past five decades, the article concludes with some insights on the likely future directions and implications of China’s engagement with the international law of the sea.

A dispute’s existence can be a requirement for establishing the jurisdiction of numerous international courts and tribunals. It requires that a state opposes the claim of another state. Yet, when a state is silent in response to a claim directed at it, there is ambiguity about the silent state’s view. This article argues that opposition and a dispute can be inferred from state silence under specific cumulative conditions: when a claim has been made in circumstances that call for the silent state’s reaction; when the silent state is aware of the claim; and when reasonable time of silence passed. Because it prevents tactical silences from undermining international justice, the inference must be encouraged. The conditions, under which the inference can be made, should also be retained in international adjudication, because they perform primarily an evidentiary function, as well as a cautionary and a channelling function.

States’ current emission policies are far from being aligned with what is needed to meet the Paris Agreement’s temperature goal. Against this backdrop, an increasing number of lawsuits have been filed around the world. As of March 2024, most courts have exercised restraint in imposing substantive limits on the legislator’s discretion in determining emission levels. Judicial restraint commonly rests on two premises: Climate models yield wide uncertainty ranges and choosing emission reduction levels is a normative decision belonging to the political domain. By engaging best available science on climate tipping points, this article examines the reasoning in favour of political discretion through a due diligence and equity lens. The analysis concludes that all factual requirements are met for states to be under an obligation to align their mitigation policies with a global carbon budget which is expected to limit global warming to 1.5°C at a likelihood as high as state capacities allow for.

This article studies how ‘cybercrime’ is framed under the pre-existing regional prohibition regimes and how it would be reshaped under the auspices of the UN. This article adopts a sociolegal approach by integrating transnational criminal law (TCL) and the conceptual framework of recursivity. Observations and analyses show that (i) only the Budapest Convention has institutional capacity to shape ‘cybercrime’, while state behaviour of framing ‘cybercrime’ is actually subject to human rights instruments; (ii) states reach an exceptional compromise in transforming ‘cybercrime’ at the global level during the negotiations under the UN; and (iii) protection from cybercrime is emerging as a common interest. This author proposes that the normative changes of framing ‘cybercrime’ reflect the competition of states for normative power on the international plane; therefore, a pursuit of a universalist formula for countering cybercrime would not succeed owing to a lack of a global commitment to what basic norms and rules govern state behaviour in cyberspace. Lastly, this author proposes that transnational criminalization of cybercrime should seek a minimum public order at the first place because it is premature to provide any real global regulation at this moment.

The Geneva Declaration on Human Rights at Sea is a recent initiative of the non-governmental organization (NGO), Human Rights at Sea, and provides an opportunity to examine how an NGO-led initiative may contribute to international law-making. This article compares the Geneva Declaration to other NGO-led endeavours that resulted in the adoption of international treaties, including the Ottawa Convention, Cluster Munitions Convention, and Nuclear Weapon Ban Treaty. It also assesses how NGOs may contribute to the development of informal agreements that influence state decision-making. In doing so, the discussion draws on interviews with the drafters of the Geneva Declaration to further assess the possible trajectory of the instrument in international law-making. The experience of Human Rights at Sea in developing the Geneva Declaration provides a striking example of the current potential and limits of civil society actors in international law-making.

Despite the growing recognition of representation as a fundamental principle in global governance, the ICJ Bar continues to exhibit pronounced gender imbalances. This study adopts an empirical frame of reference to scrutinise the gender and professional composition of legal teams appearing before the ICJ over the last decade. It involves a systematic examination of oral proceedings in contentious cases before the Court between 2013 and 2023, breaking down the gender and professional role of counsel for each party in every case. The manifest invisibility of women in international courtrooms challenges the perceived neutrality of the international legal system and raises the question; is international law gendered? This article posits that the predominance of male and academic perspectives delimits the interpretation and application of international law as issues and viewpoints that could strengthen the adjudicatory process are at risk of being overlooked. Thus, the findings herein seek to contribute to a nuanced and holistic discourse that not only informs academic scholarship, but also empowers practitioners to navigate the complexities of the ever-evolving international legal order. The integration of representative voices and heterogeneous perspectives in representations to the Court is a cornerstone of a legitimate, equitable, and effective international system. This article calls for a concerted effort by the international community to diversify the faces of ICJ advocacy.

This article challenges the prevailing view that after the Second World War, the war crime trials of Nationalist China were guided by the principle of ‘leniency and promptness’. This study reveals that the Ministry of National Defense (MND), the entity responsible for formulating war crime laws, had a desire for vengeance and sought to appropriate international law to bolster China’s hegemonic position. In contrast, the Chinese Supreme Court judges, influenced by their commitment to fostering a civilized state, interpreted the law in alignment with international norms, thereby curbing the MND’s vindictive intentions. As a result, the MND and the judiciary emerged as competing interpreters of international law.

The study compares China’s War Criminal Trial Act of 1946 (WCTA) with the Nuremberg Charter, the Hague Conventions, and the legislation of other Allied states. When compared to similar legislative texts, the WCTA has the following distinctions: 1) it has an expansive scope, 2) it adopts a stricter liability, 3) it asserts extraterritorial rights for overseas Chinese, and 4) it promotes Chinese nationalism by encompassing racially Chinese as eligible victims of crimes against humanity.

In contrast, the Judicial Yuan, which was responsible for unifying legal interpretation, limited the scope of the WCTA, hindered its promotion of Chinese nationalism, and restrained the political revenge on Taiwanese people by interpreting the WCTA per international law. This article traces the background of the Supreme Court judges making these decisions and demonstrates how their vision of ‘pursuing a civilized state’ triumphed over the MND’s impetus for vengeance.

This article introduces a new analytical category to provide a more accurate, comprehensive, and nuanced account of universal jurisdiction defendants: defendants living in fear. In contrast to defendants living with impunity, defendants living in fear are defendants whose home state is very much willing and able to prosecute and punish them. Using an original database, this article shows that there is a substantial number of universal jurisdiction defendants who live in fear, and that their percentage has increased since the early 2000s. The article also shows that defendants living in fear are more than ten times more likely to be arrested and more than 30 times more likely to be tried than defendants living with impunity.

In addition, this article argues that the function and justification of universal jurisdiction for defendants living in fear is not (only) the traditional justification of avoiding impunity, but (also) providing a fair trial that prevents wrongful convictions, and then assigning proportionate punishment if the defendant is found guilty.

Finally, this article discusses what democracies should do with living-in-fear cases to avoid being instruments of autocratic regimes that often prompt or encourage universal jurisdiction cases in other states against their military and political opponents.

Although criminal trials are primarily designed to repress individual acts, a new role has emerged in the era of French jihadist trials. They have transformed into a ‘forum’ giving voice to different actors to comprehend the phenomenon in all its complexity, as in truth commissions: defendants presented their path to radicalization, victims related their trauma, experts situated jihadism in a socio-political context, and security forces disclosed their work. Aligned with forms of justice, which seeks to return control ‘stolen’ by professionals to the parties involved, they also place significant emphasis on emotions, in contrast to the cold, impersonal authority of conventional law, which relies on legal rhetoric, justified to maintain neutrality and impartiality.

Employing an ethnographic approach, we examine this trial as an experiment that challenges the way justice is administered after mass violence. Our premise is that this judicial experiment can propose a new paradigm for the prosecution of mass crimes, in line with contemporary new mechanisms that more effectively incorporate restorative objectives. It could serve as inspiration for procedures in international courts by attributing space to the direct participation of both the victims and the defendants, basing the procedure on narrative rather than strict legalistic rules, and engaging with social science expertise.

The standards of the Inter-American Court of Human Rights on amnesties and pardons in mass atrocity cases have been influential in Latin America and beyond. In turn, discussions about possible transitional justice mechanisms related to the Russo-Ukrainian war have involved issues of amnesty and pardon. However, the dicta of the Inter-American Court of Human Rights do not formally bind Ukraine and Russia. By connecting the two (semi-)peripheries of international law – namely, Latin America and Eastern Europe – the present article examines whether and to what extent the jurisprudence in question can shed light on legal and policy solutions for addressing the amnesty and pardon challenges posed by the Minsk agreements, domestic developments in Ukraine and Russia, and a potential future peace accord.