Letter to the Journal Today as Yesterday? Unilateral Coercive Measures and Human Dignity

The purpose of this article is to use the question of unilateral coercive measures (UCMs) as a vantage point to explore what it tells us about the degree of transformation of international law from a horizontal to a mixed “horizontal-vertical” legal order. We show that such transformation is manifested not by the mere existence of limits to horizontal reactions but by the values from which such limits increasingly arise (above all human dignity) and the legal mechanisms through which they find expression. When considered together, these values and mechanisms instil a significant degree of verticality in the international legal order

‘Parity with all nations’: the ‘coolie’ trade and the quest for recognition by China and Japan

This article explores the quest for sovereign equality by China and Japan as it unfolded in a specific historical moment, the third quarter of the nineteenth century. It does so by focusing on the debate around the ‘coolie trade’, i.e., the traffic of Chinese indentured labourers, which offered an opportunity for non-Western countries such as China and Japan to position themselves with respect to Western conceptions of ‘modernity’ or ‘civilization’ and thereby advance their quest for ‘parity with all nations’. Through a study of the Maria Luz case, decided in the early 1870s by Czar Alexander II and drafted by de Martens, the article sheds light on the different approaches of Japan and China with respect to international law at this critical historical juncture. Specifically, it shows that, although the coolie trade mostly affected China, it was Japan who first managed to reap a parity dividend by firmly condemning the practice, whereas China’s action was steered by the circumstances. Eventually, however, China’s growing interest in Chinese populations abroad paved the way for the establishment of its first permanent diplomatic representations overseas. For both countries, the events encapsulated by the Maria Luz case unveil an important, yet overlooked, moment in their quest for parity with all nations and, more generally, in their engagement with international law.Exploring the Frontiers of International La

Intruders in a Balancing Act: Black Economic Empowerment, Transitional Justice and Investment Arbitration Tribunals

This article examines the role of ad hoc investment arbitration tribunals in arbitrating highly sensitive matters in transitional justice contexts, focusing on disputes arising from black economic empowerment (BEE) policies in countries formerly under racially discriminatory regimes. After an overview of the investment protection system, the article introduces the historical context of BEE policies. It subsequently analyses three main disputes, one against South Africa and two against Zimbabwe, where white concession holders and landowners relied on Bilateral Investment Treaties to claim compensation for the consequences of BEE mining and land redistribution policies. These disputes provide a testing ground to shed light on the role of investment arbitration in the context of transitional justice. The article concludes that such a role essentially amounts to an intrusion in the perilous ‘balancing act’ of managing a transitional justice process.Exploring the Frontiers of International La

State Responsibility and the Global Environmental Crisis

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Amnistie e giustizia transitoria

Exploring the Frontiers of International La

One health and the prevention of Pathogens’ spillover

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The containment bias of the WHO International Health Regulations

The ordinary meaning of the term ‘prevention’ is to prevent harm from occurring. But what ‘harm’? For over 170 years, the system now embodied in the World Health Organization’s (WHO) International Health Regulations (IHRs) has answered this question by focusing on the prevention of disease ‘spread’ across countries, rather than on the ‘spillover’ of pathogens from animals to humans, which constitute the main source of pandemic risk today. This bias towards the containment of disease has deep roots. In the historical context from the IHRs emerged, focusing on pathogen spillover was beyond the possibilities of the science of the time; it was also pointless to the extent that the effort focused on pathogens which were already prevalent in humans, causing diseases such as cholera or plague. Transposed to the present day, this containment bias has important consequences for global health governance. Most importantly among these is that the global health security architecture still lacks a specific system to prevent spillovers of pathogens at the origin of outbreaks and subsequent spread of diseases such as COVID-19, SARS, MERS or Ebola. This article investigates the roots of this focus on containment. Relying on the proceedings of the International Sanitary Conferences that preceded the IHRs, as well as on an untapped documentary archive relating to the revision of the IHRs between 1995-2005, the article explains the reasons underpinning this enduring bias and its implications for global health governance.Exploring the Frontiers of International La

Customary International Law and the Environment

This chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force remain largely unimplemented. Secondly, treaties only bind those states parties to them, and that introduces sometimes important variations in the scope of environmental agreements. Thirdly, there is at present no treaty formulating binding overarching principles interweaving sectorial environmental agreements. As a result, it is often necessary to revert to customary norms when difficulties of interpretation or implementation arise. Fourthly, custom is important to mediate between a range of environmental and non-environmental interests governed by different treaties. Finally, custom plays an important role in disputes concerning a disputed area or where there is no applicable treaty. The chapter then analyses the process of custom formation with reference to environmental norms in order to show both the ‘banality’ and the peculiarities of this process. It also looks at the content of customary international environmental law as recognized in the case law.Exploring the Frontiers of International La

A global pandemic treaty should aim for deep prevention

Exploring the Frontiers of International La