Business and Human Rights (BHR) scholarship has long recognized the exercise of corporate power as resembling functional sovereignty, advocating for the extension of the rule of law to private actors, establishing accountability regimes, and providing remedies for victims. With the proliferation of binding BHR instruments, such as human rights due diligence legislation, the BHR project finds itself at a critical juncture, where calls for hard obligations are no longer sufficient. Our article, and the broader Symposium, seek to push the boundaries of the discourse by interrogating the legal foundations of private power. Drawing from Law and Political Economy scholarship, we challenge the prevailing notion of ‘governance gaps’ that often frames BHR debates. Rather, we argue that the legal infrastructure itself enables and facilitates the forms of exploitation and structural inequality embedded in the global political economy, leading to predictable patterns of human rights violations. By uncovering the institutional foundations of private power, we also show how efforts to leverage mechanisms of private governance, including human rights due diligence, risk naturalizing corporate power and limiting institutional imagination. However, a critique only focused on institutional design does not sufficiently account for the hardwiring of social relations of global production and the systemic constraints these impose on projects of legal reform. Acknowledging these limitations, we outline two modes of critique: an ‘internal’ critique, which seeks to reimagine institutional frameworks, and an ‘immanent’ critique, which emphasizes the role of collective action and social movements in transforming the underlying social relations of production.

‘Business and Human Rights’ (BHR) has congealed as the predominant framework to conceive and address violence in the context of transnational production networks. This article presents an analysis of the assumptions regarding the nature of violence, its underlying economic causes and potential remedies that underpin contemporary BHR regulations. Drawing from literature on primitive accumulation and taking the German ‘Supply Chain Due Diligence Act’ as an example, the text argues that the Act distinguishes legal and illegal forms of doing business in a way that reproduces liberal accounts of capitalism’s relation to violence. In outlawing extreme forms of labour exploitation, environmental harm, illegal evictions and physical repression, the Act disconnects violent dispossession, repression, and over-exploitation from the normal, everyday workings of global capitalism. At the same time, it posits the normal functioning of capitalist accumulation as a non-violent alternative, thus failing to account for the violence of the market and the structural relation between capitalist and other forms of accumulation. Against this backdrop, the challenge for a critical BHR practice consists in using BHR norms to highlight instances of primitive accumulation, while simultaneously envisioning a future of work that does not seek redemption in ‘normal’ capitalist exploitation.

Global value chains (GVCs) function as a distributive arrangement at a global scale, generating and relocating wealth while often exacerbating inequalities across and within countries. The recent rise in GVC-related regulation must hence also be assessed in its distributive implications. Human rights due diligence, the current heart of the playbook of GVC regulation, largely refrains from challenging lead firms’ business models, pricing strategies, and sourcing practices. Given thick evidence that sourcing squeeze translates into vulnerabilities on the ground that are conducive to rights violations, this lacuna significantly limits the potential of human rights due diligence to address wrongful conduct deeply entrenched in economic inequality, such as modern slavery. This article argues that human rights due diligence is marked by a ‘distributional self-restraint’, i.e., a self-inflicted reluctance to engage with deeper underpinnings or root causes of human rights violations. This self-restraint has a pedigree in the intellectual history of the United Nations Guiding Principles on Business and Human Rights (UNGP) and of human rights more broadly, as well as in the naturalizing narrative from neo-classical economics around ‘free markets’ and price formation that have immunized prices in value chains from being seen as conducive to harm. It also manifests itself in the legislative texts and debates around the EU Corporate Sustainability Due Diligence Directive. To overcome such limitations, this article develops the notion of a reflexive governance of pricing and sourcing practices that requires companies to assess and reflect, with stakeholders at different tiers, the impact of lead firm pricing down the chain, especially on living wages and incomes.

While international investment law (IIL) and business and human rights (BHR) could have been one legal domain, they are today seen as distinct legal worlds. States’ National Action Plans (NAPs) on BHR, aimed at prescribing policies to realize the UN Guiding Principles, are one of the many places where this phenomenon can be observed. Embracing a Law and Political Economy (LPE) perspective, this article contributes to the existing literature by enhancing the understanding of how NAPs on BHR currently engage with the intersection between BHR and the international investment regime. This article is the first to offer an analysis of the integration of BHR with the IIL in all publicly available NAPs, through the lenses of Fineman’s ‘vulnerability theory’, which we relate to LPE. Our analysis shows that NAPs, while not binding, can in principle be mobilized for change. Yet, despite their relevance and potential, we have also shown that, in their current forms, these instruments tend to replicate the BHR/IIL separation. As such, they perpetuate existing power dynamics that favour foreign investors over other actors negatively impacted by foreign investments. The analysis also demonstrates that the limited recognition of the interplay between foreign investment and human rights in separate NAPs, coupled with restricted inclusiveness of affected stakeholders and states’ readiness to adapt their legal and policy frameworks, significantly hampers the ability of NAPs to foster the resilience of individuals adversely affected by foreign investment.

Amidst initiatives and international agreements that call for a stronger consideration of sustainable development in international investment law, there is a need to assess whether the concept has found its way in decisions rendered by investment arbitration tribunals. References to the concept of sustainable development in investment arbitration can eventually make the adjudication of investment disputes more consistent with an increasingly important aspect of the context in which the terms of international investment agreements are embedded. Have arbitration tribunals acknowledged the relevance of the concept of sustainable development when adjudicating international investment disputes? To answer this question, this article adopts an exploratory research design and relies on a content analysis of 91 decisions that include at least one reference to the term ‘sustainable development’. It argues that the use of sustainable development by tribunals is both marginal and problematic, thus showing a strong disconnect from efforts deployed in investment policymaking and international adjudication. The article proceeds in three steps. First, it focuses on international initiatives encouraging the consideration of sustainable development in investment policymaking. Second, it briefly explores the reliance on sustainable development that has emerged in international adjudication, outside investment arbitration. Third, by analysing express references to sustainable development in international investment arbitration, it shows that these decisions demonstrate a general lack of engagement with the concept in the tribunals’ findings and a failure to fully acknowledge its integrative nature.

Space is an increasingly militarized domain, with the potential to be a source and place of armed conflict. Tests of anti-satellite (ASAT) weapons capable of neutralizing civilian and military satellites have fuelled fears of warfare in that domain. Resulting space debris from ASAT weapon use is of particular concern, as it threatens other satellites in orbit, many of which underpin the operation of human societies and the functioning of global economies. Although states recognize this threat, attempts at weapons control have failed. Instead, we must look to existing international law that governs military activities in space. Yet, how the jus ad bellum, which regulates when states may use force, applies to ASAT weapons has received little attention. This is despite state assertions of their right to act in self-defence in space. This article argues that jus ad bellum regulation of ASAT technologies directly addresses state concerns regarding protecting their space assets and avoiding conflict in space. This author contends that states acting defensively in space are restricted by the requirements of jus ad bellum necessity and proportionality in their choice of targets, thereby protecting civilians and the interests of other states. A clearer understanding of how these jus ad bellum requirements apply in space helps decision makers avoid putative defensive acts being characterized as unlawful uses of force. Adherence to these requirements ultimately helps to secure international peace and security on Earth and in space.

This article examines the recent work of the ILC on ‘Succession of States in Respect of State Responsibility’. While the ILC decided in 2024 to stop working on the topic, the five reports submitted by Special Rapporteur Šturma and the Guidelines provisionally adopted will have a long-lasting impact on state succession scholarship and may influence states in their practice. This article provides a critical analysis of the Guidelines by comparing its content with the Resolution adopted by the Institute of International Law in 2015 on the same issue. It will show that while the solutions which were initially put forward by Special Rapporteur Šturma in his reports followed many of the same features as the Institute’s Resolution, the final version of the Guidelines are significantly different in both content and tone. A major shift occurred when each provision was examined by the Drafting Committee. This is because some ILC members, and many states, rejected any presumption of succession to responsibility. Instead, they favoured the opposite general rule of nonsuccession. As a result, none of the provisions provisionally adopted by the ILC impose any obligations whatsoever on states. They only go so far as to encourage them to reach agreements on matters of succession to responsibility. Ultimately, the Guidelines leave wide open the possibility that a wrong remains unpunished in the context of a succession of states. As such, the Guidelines do little to protect the interests of injured states.

The WTO’s 30-year history has been marked by a well-known imbalance: while WTO Members have largely failed to negotiate new legal rules, the WTO’s dispute settlement system has been extraordinarily active. This imbalance has created the perception that WTO law is mostly developed by the WTO’s judicial organs, which has in turn sparked a backlash against the WTO’s dispute settlement system. The article explores the reasons why WTO Members have failed to do their part in shaping norm development in the WTO. The article builds on the existing explanations to provide a fuller picture of what has blocked Member-driven norm development. Specifically, it highlights the ways in which divergent views about the scope of the judicial function in the WTO have shaped the approaches of key players to legislative overruling; the negotiating principles in the WTO that legitimize demands for ‘payment’ even for interpretations that would simply restore the original bargain; and WTO Members’ desire to preserve the pragmatic and legally innocuous character of the WTO’s councils and committees. The article proposes a conceptual framework for thinking about the institutional design challenges that are at the heart of the crisis of WTO dispute settlement and situates various reform proposals within that framework. As WTO Members contemplate the revival of legislative-judicial dialogue as one of the key planks of the reform of the WTO dispute settlement system, developing a fuller understanding of why that dialogue has failed in the past is more important than ever.

In recent times, several international courts (ICs) have faced resistance from their member states. A recurring narrative used to justify states’ backlash against ICs has been that ICs are increasingly overreaching and essentially interfering with states’ sovereignty. This article explores what backlash over sovereignty actually entails, highlighting a diverse set of political agendas and strategies. The article first develops an analytical matrix of three forms of sovereignty politics – by design, as a shield and as reprisal – to capture different aspects of sovereignty politics. This framework is then used in an empirical analysis of four African states that, within a four-year time-period, all withdrew their declarations granting direct access to the African Court on Human and Peoples’ Rights (Court) for NGOs and individuals from those states. In all cases, sovereignty was claimed as the reason for withdrawal but as we demonstrate, the cases vary. Overall, we find that resistance against the African Court does not necessarily emerge from a challenge to a principled concept of sovereignty, but from sitting governments’ narratives of what human rights ought to be, who ought to invoke them, and when. In other words, sovereignty arguments work mainly to safeguard member states from the authority of the African Court where state practices collide with international commitments to human rights. This takes on a distinct rhetorical framing that utilizes and evokes a set of different meanings of sovereignty, for example that the Court is outside its delegated competences or the issue is inside a vague notion of internal affairs. By using these legal-rhetorical strategies, member states seek to avoid having to address directly the challenges being brought against them at the IC.

This article examines recent developments relating to the use of third-party findings of fact at the International Court of Justice (ICJ). A proliferation of fact-finding mechanisms creates more opportunities for litigants to ask the ICJ to rely on third-party facts. This demands renewed attention to how the ICJ responds to this type of evidence, especially given the rise of public interest litigation that may depend especially heavily on such materials. The analysis focuses on the ICJ’s approach in recent requests for the indication of provisional measures and asks whether the Court’s approach to third-party evidence differs depending on the phase of litigation, using the 2024 judgment in Ukraine v. Russia as a case study. Ultimately, recent decisions suggest that the ICJ’s efforts to distinguish evidence generated through an adversarial, court-like process from findings of fact based on investigation and fieldwork are often blurred in practice. Moreover, while the Court’s liberal approach to third-party evidence at the provisional measures phase may be justifiable, the quest for coherence in how the Court approaches third-party evidence, especially on the merits, remains a work in progress. To that end, the article suggests ways in which the Court could engage more closely with third-party fact-finding reports in the fulfillment of its adjudicatory function.

This paper contributes to an underdeveloped yet critical feature of international criminal law – victim assistance. With the creation of the ICC and the Trust Fund for Victims, the idea of victim assistance in situations of mass criminalities was provided an institutional backbone. However, much of its operational principles remain theoretically ill-defined. Through a methodological study of over a decade of assistance programmes administered by the Fund, this paper sheds light on some of the critical operational principles which have emerged in practice. Additionally, in light of these principles, this paper argues that there exist two major causes of ineffectiveness which hamper the Fund’s assistance work – first, the problem of defining its goals in definite, strategic terms, and second, the overlap between assistance mandate of the Fund and reparations regime of the ICC. It concludes by making course-correction suggestions for the Fund to chart a future towards an effective organization building.