This article presents a critical postcolonial analysis of international human rights law’s engagement with human trafficking through the lens of seven UN treaty bodies. Drawing on content analysis of 1,197 documents (33 General Comments/Recommendations, 1,049 Concluding Observations, and 115 Individual Communications), the article reveals how international human rights law is implicated in the status subordination of subaltern people. The article identifies 54 documents containing evidence of colonial legacies, with 76% of relevant Concluding Observations addressing Global South states. It argues that treaty bodies reinscribe colonial patterns through problematic conflation of trafficking with slavery, promotion of repressive migration policies, inconsistent treatment of prostitution and sex tourism, perpetuation of ‘raid and rescue’ approaches, and essentialization of trafficking victims as ‘innocent’. It also exposes limited engagement with intersectionality in individual communications, potentially overlooking complex, multifaceted experiences of trafficking victims. The article concludes by proposing concrete strategies to decolonise anti-trafficking law and practice, including interrogating assumed neutrality in legal instruments, embracing a politics of recognition, integrating the concept of ‘burdened agency’, and meaningfully countenancing intersectionality in legal analyses. This analysis contributes to understanding how international human rights law can better serve its emancipatory potential while avoiding the perpetuation of status subordination.

Since 1996, international human rights law (IHRL) has attempted to address caste-based discrimination through the rubric of racial discrimination by reading caste into ‘descent’ under Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). However, this framing of discrimination remains inadequate. The Committee on Elimination of Racial Discrimination (CERD) and the UN Sub-Commission for the Promotion and Protection of Human Rights sought to identify caste-based discrimination by identifying practices of untouchability without analysing caste as a system of entitlement to knowledge, wealth, and land. Therefore, IHRL envisioned caste-based discrimination as primarily inflicting recognition harms on its victims. This meant that even material manifestations of caste-based discrimination were framed as consequences of untouchability. Furthermore, the creative legal move to read caste into ‘descent’ meant deracinating caste from its particular context in South Asia — where it remains imbricated with Brahmanical Hinduism1 — into a general form of ‘descent’ like any other ascriptive category. This process of abstraction erases the interdigitation of caste and Hinduism. These two moves mean IHRL remains ill-equipped to identify, let alone redress, caste-based discrimination.

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.

‘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.

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.

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.

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.

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 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.

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 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.

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.

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.

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.

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.

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.

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.