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.

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.

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 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.

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.

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.

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 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.

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.