For the third time in a century, the concept of critical minerals has become a central theme in international trade and security debates. Materials criticality discourse first arose in the late 1930s and 1940s. It was taken up again from the mid-1970s through to mid-1980s and has become ubiquitous in post-pandemic debates concerning the global energy transition in a context of escalating geopolitical volatility. This article examines the evolution of critical minerals discourse over a century, with a focus on these three periods. It seeks to identify the contexts in which criticality claims have emerged and to examine the politics of critical minerals discourse in this third wave. It argues that critical minerals discourse has evolved in response to geopolitical instability understood by the US to threaten its hegemony; and that critical minerals discourse in its third wave has thus far served four major political functions. First, critical minerals discourse has served as a rhetorical device for asserting that the security of the US and its allies lies in the defence of US hegemony, and not in the defence of international institutions and trade norms. Second, critical minerals discourse has served as an effective means of leveraging geopolitical instability in favour of extractive interests. Third, critical minerals discourse has worked to re-mystify the economics of market speculation and the predictability of state intervention in markets. Finally, critical minerals discourse has been used to leverage the existential urgency of the climate crisis in favour of elite and extractive interests and against local communities and ecosystems.

The International Law Commission’s (ILC) Draft Conclusions on Identification of Customary International Law represent an important attempt to provide organized doctrinal guidance on customary law-making. However, a conceptual issue figures prominently: the formation and development of custom are characterized in the Conclusions as distinct from the identification of custom, and the ILC offers little explanation as to why this must be the case. In essence, this distinction assumes that the formation of custom is an objective, spontaneous, and chronological process beyond the control of individual lawyers. Although seemingly innocuous, this assumption is directly responsible for various doctrinal problems, such as the relationship between the two traditional elements of custom, the requisite duration of its formation, and the ‘post-identification’ interpretation of custom. Drawing primarily on insights from historiography, this article explains why the formation and identification of custom should be understood as a single process, and why conceiving of it as a matter of narrative construction provides a better solution to the above-mentioned questions.

The European Union (EU) carbon border adjustment mechanism (CBAM) has come under attack for its alleged incompatibility with the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). This article provides a normatively informed analysis of the justification of the EU CBAM under the Chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT), as interpreted in light of CBDR-RC. The article builds on the principle’s capabilities limb to advocate a dynamic and forward-looking interpretative approach. As the article illustrates, this narrower interpretation is normatively desirable for several reasons. First, it safeguards and reinforces the environmental effectiveness of the CBAM’s arrangements. Second, it aligns more closely with the operationalization of the principle of CBDR-RC under the Paris Agreement. Third, it is more faithful to the WTO dispute settlement organs’ interpretation and application of the Chapeau.

As industrial policy and national security become increasingly integrated, the extent to which national security may be abused to foster select economic sectors requires more dedicated studies. We make two major contributions in this paper. First, we offer a critical analysis of China’s digital industrial policy, focusing on data security regulation and practices. We show that China has sought to maintain a balanced approach towards data liberalization and protection without compelling evidence to suggest abuses of national security to bolster its data sector. Yet, major loopholes remain in China’s regulatory framework leaving room for discretion and abuse in deploying data security measures. As geopolitical tensions and strategic rivalries intensify, a data trade war in the name of national security is not a remote possibility. Second, we argue that the security exceptions under existing trade or digital economy agreements can hardly strike a desirable balance between data liberalization and security. Governments should join forces to modernize these exceptions, ideally via multilateral venues, by deliberating on data security goals and regulatory practices to build transparency and trust and lay the groundwork for negotiating more detailed exceptions for data security.

Despite the significant strides made in international law to empower non-flag and non-coastal state jurisdiction, the main catalysts of fisheries regulation remain primarily connected to the location or nature of marine fishing. When seafood processing chains tainted by fraud and labour abuses become front and centre in public discussions, legal questions are raised about whether the international regime of fisheries jurisdiction is sufficient and whether a more explicit assurance of the processing state’s regulatory duty is warranted. To answer these questions, this article analyses the processing state’s regulatory responsibility for fisheries based on existing threshold concepts, jurisdictional foundations, and normative restraints established by international fisheries law. The study further draws on empirical evidence from the European Commission’s evaluation of the regulatory performance of processing states as a condition for border access approval for processed fish products. In conclusion, the article calls for better clarity and responsiveness in the development of international fisheries law with respect to the processing state’s specific regulatory duty for global fisheries.

International courts and tribunals (ICTs), especially the ICJ, are increasingly confronted with ‘public interest’ litigation aimed at protecting common values. This trend raises questions as to whether and how international procedure should adapt as the substantive legal order becomes more value-oriented, including in the field of jurisdiction. While jurisdiction is traditionally portrayed as a binary, consent-bound gateway that legitimizes adjudication, a closer examination reveals a more nuanced picture, in which flexibility operates alongside formal constraints. This is in line with the general observation that procedure can also serve as an expression of the international judicial function’s public dimension: it structures standing, incidental proceedings and the reach of judicial decision-making. The article argues that common values may inform the exercise of procedural discretion also with regard to jurisdiction, softening the role of consent. Focusing on the ICJ, it identifies jurisdictional ‘inlets’ through which value considerations can operate balacing both internal and external values in the exercise of the judicial function. It thereby shows that questions of jurisdiction are not merely technical and binary in nature, but they also constitute a context in which ICTs exercise procedural discretion against the background of a value-oriented international legal order.

Recent conflicts have revived interest in a subject that has remained largely untouched since the trials of war criminals after the Second World War: prosecuting individuals for the crime of aggression. Due to its restricted jurisdictional regime, the International Criminal Court has so far been unable to investigate this crime and remains barred from doing so in, for example, the context of the Ukraine situation. When exploring alternative domestic (or hybrid) venues for prosecuting aggression, discussions have come to focus on the possibility of exercising universal jurisdiction (UJ), a concept increasingly used to counteract substantive selectivity of international criminal justice. However, scholars and practitioners have expressed differing views on the extent to which the notion of UJ has come to extend to the crime of aggression under customary international law. This study contributes to the ongoing debates by providing a legal-empirical analysis of the practice and opinio juris of 126 states, as presented to the Sixth Committee of the UN General Assembly under the agenda item on the ‘scope and application of universal jurisdiction’. These empirical quantitative and qualitative insights provide a foundation for evaluating the customary status of UJ over the crime of aggression and exploring the legal challenges of prosecuting aggression under this jurisdictional title.

This article offers a critical analysis of gender in life-history narratives of children born of war (CBOW) and in the construction of legal recognition of CBOW in recent decisions of the International Criminal Court (ICC). As this article shows, the perceptions of the biological mother and father have shaped narratives by and on this group, albeit to different effects. An analysis of interview and documentary data shows that the mother is perceived by the CBOW participants with critical ambivalence, while the father is a symbol of personal identification, which has informed the participants’ understanding of harm and blame. In light of these findings, this article analyses recent decisions by the ICC and the way the biological mothers and fathers of CBOW are framed by the Court. In reference to gender theory, a critical discussion follows of the images of the ‘good mother’ and the ‘bad father’ the Court is employing to recognize CBOW as victims. The gendered dichotomies at play and their implications are discussed in light of the growing attention paid to CBOW in international criminal law. The findings challenge the recent and still evolving legal narrative on CBOW at the ICC, with implications for how recognition for CBOW might be reimagined in light of their own voices.