Four years following the entry into force of the EU data protection framework (the GDPR) serious questions remain regarding its enforcement, particularly in transnational contexts. While this transnational under-enforcement is often attributed to the role of key national authorities in the GDPR's procedures, this article identifies more systemic flaws. It examines whether the GDPR procedures are deficient-by-design and, if not, how these flaws might be addressed. The conclusions reached inform our understanding of how to secure effective protection of the EU Charter right to data protection. They are also of significance to EU law enforcement more generally given the increasing prevalence of composite decision-making as the mechanism of choice to administer EU law.

Taking a law-and-governance approach, this article addresses legal certainty in international human rights law as it applies to artificial intelligence (AI). After introducing key issues concerning legal certainty, a comparative analysis of AI law-and-governance initiatives at the international, regional and national levels is undertaken. The article argues that many initiatives contribute to increased legal certainty and can partially compensate for some of the shortcomings of the international human rights law framework, but that further clarification is badly needed. This is especially true for the responsibilities of private businesses which are developing AI and the corpus of human rights beyond privacy and data protection.

The UN Human Rights Committee's finding in Teitiota v New Zealand has garnered widespread global attention for its recognition that the effects of climate change may put people's lives at risk or expose them to cruel, inhuman or degrading treatment, thus triggering States’ non-refoulement obligations. However, a secondary—and highly problematic—consequence of the decision has been its confusing and misplaced focus on ‘imminence’ of harm. This reflects a concerning, albeit uneven, trend in human rights cases generally (and cases concerning climate change and human rights, in particular) to recognize violations only where rights are immediately threatened. This short article reflects on the assumptions that Teitiota has triggered about the place of imminence in international protection claims, identifies the source of confusion, and suggests a more appropriate framework to guide a category of case that is likely to become the subject of intense litigation in the future.

Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.

The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.

States increasingly refer to ‘legal stability’ in connection with maritime zones, amidst concern to preserve their jurisdictional rights in the face of climate-change induced sea-level rise. Yet such a claim for preservation is at odds with the widely-expressed scholarly view that baselines, and their associated maritime zones, ‘ambulate’ with coastal changes. This article interrogates this tension by focussing on the understudied notion of legal stability as it relates to maritime zones, under the international law of the sea. The article examines the development of the term ‘legal stability’ in the discourse of States (what States say) and contends that a claim for the stability of maritime zones should be seen as an expression of the long-standing value placed on legal stability by States in the system of maritime zones. Further, the article presents the results of a global study of States’ implementation of the normal baseline in domestic legislation (what States do). The results show that many States have taken practical measures to secure legal stability for their normal baselines within their domestic frameworks, suggesting that existing international law may accommodate a greater degree of stability than widely appreciated. The article concludes by asserting that these findings matter not only for how we should receive States’ claims for maritime zone preservation on the basis of legal stability, but also prompts reconsideration of our overall understanding of the existing law on baselines and maritime zones.

This article explores how sovereignty fictions have been used to advance different legal, political and economic aims in the articulation of the United Kingdom's future approach to global regulation. By mapping the transformative shifts in sovereignty paradigms, this article highlights the disconnect between the absolutist sovereignty popularised in the UK government's political rhetoric and the concept of regulatory sovereignty that underpins the UK's future trading strategy. To maintain its status as a global leader in regulation and standards-setting, the UK government will need to diffuse power and delegate autonomy through networked orders of public and private actors. These competing sovereignty paradigms are analysed with reference to European Union (EU) law and practice, to highlight the opportunities and challenges for the UK as an independent trade actor. This article concludes by evaluating how sovereignty fictions can disrupt the objectives of the UK's proposed ‘common law’ approach to regulatory governance and discusses the policy interventions that may be required to enable the UK to harness its potential as a regulatory leader.

Under the International Health Regulations (IHR), States must consider decision-making criteria in applying travel restrictions during a public health emergency of international concern. Interpretation on the legal parameters of such restrictions varies widely. This article considers whether and how the permissibility of travel restrictions under the IHR may have changed given recent developments, including evolving scientific evidence about their efficacy and shifting World Health Organization (WHO) advice. It is argued that such determinations must conform to the principles of necessity and proportionality as articulated by the IHR, and must also be accompanied by the correlative IHR duties of collaboration and assistance rooted substantively in global solidarity.

This article makes a case for an international convention on expert determination (ED) and Dispute Boards (DBs) that would require its Contracting States to recognise agreements on ED/DBs and enforce ED/DB decisions. Whilst strong, the case for the convention may not be compelling as there are arguments against it. But at least the time has come for the international legal community to start thinking about and debating the need for such an international regime. This article takes the first step towards imagining this international regime by evaluating a number of key issues relating to its scope of application.

Article 16 of the Ireland–Northern Ireland Protocol annexed to the EU–UK Withdrawal Agreement is an escape clause which allows the parties to deviate from their obligations under certain conditions. This article maps out the main features of the safeguards provision in the Protocol in light of international trade law and international relations literature on treaty design. It provides a detailed examination of the safeguards provision in the Protocol and highlights the key design flaws associated with this regime as well as some potential solutions to such flaws.

In 2021, unconstitutional transfers of power in Myanmar and Afghanistan highlighted that while States may desire a coherent response to questions about the status of governments, and may look for international guidance in such regard, there is no established process for providing such guidance. Thus, attention focuses on the General Assembly's credentials process, designed to assess the eligibility of delegates to represent their States at the UN. This article proposes that rather than the credentials process being stretched in this way, greater use should be made of the Assembly's competence to pass determinative resolutions on government legitimacy.

The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention—grounded in an imagined history of the linear progress of humanity—that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.

In September 2021, the French Cour de Cassation reversed the annulment that the Paris Cour d'appel earlier had granted in regard to an arbitral award in Alexander Brothers v Alstom on grounds of corruption. This brought French courts in line with their English counterparts, at least in that one case, the latter having accepted the Alexander Brothers award as enforceable. Noteworthy beyond the welcome consistency that the recent French judgment imparts in one case, that and other recent judgments cast light on several issues in international arbitration, including the arbitrability of allegations of fraud or corruption, the relevance of evidence of corruption ‘downstream’ from a contract, and the legal effects (if any) on third parties of internal compliance regimes that enterprises adopt in response to national regulatory and enforcement actions in respect of corruption.

This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor–State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and non-discriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.

This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.

The article tests the claim of feminist scholars that concerns about gender have been marginalised in refugee law, by exploring the interpretation given to the concept of a ‘Particular Social Group’ set out in the 1951 Refugee Convention. It is argued that recent practice at the supranational level in the European Union has contributed to the deterioration of refugee protection standards for women seeking asylum from gender-based violence. However, the article demonstrates that a human rights-based approach to the interpretation of ‘Particular Social Group’, which is supported by extensive examples of good practice in individual Member States, has the potential to redress this.

This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in the field of public health. First, tribunals addressing the merits of health measures have exercised considerable deference to States under existing treaties. Second, the recent generation of treaties spells out health considerations to encourage respondents or tribunals to adopt broad interpretations of the right to regulate, general exceptions, or article-specific carve-outs. Clauses modelled on GATT exceptions may prove difficult to invoke due to the ‘necessity’ threshold. Finally, the Kyoto Protocol may serve as a model of incentivising private investment in the public health sector.

The International Law Commission's 2019 Draft Conclusions on Peremptory Norms of International Law assert that States have an obligation to cooperate to end serious breaches of peremptory norms. International law provides scarce guidance, however, regarding how States are expected to fulfil that obligation. This article seeks to elaborate: first, whether the prohibition of crimes against humanity and the ‘basic rules’ of international humanitarian law are peremptory norms; second, what States are required to do to fulfil their obligation to cooperate; and third, how States might utilise the General Assembly as a forum through which to fulfil that obligation.

Relying on examples from international, EU and comparative law and drawing on insights from the class action literature, this article argues that important advances in minority rights protection can be achieved without the revision of substantive legal provisions and the full-scale embracing of collective rights. Allowing minority members to present their claims on behalf of a larger group (collective procedure), even when such claims ultimately rest on the rights of individuals as opposed to those of the group, strengthens minority rights and can transform our vision of them. An overview of eight interrelated benefits shows not only how these advantages occur, but also why the procedural approach avoids the issues that motivate negative critiques of group rights.

This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.