This chapter of the emerging new Research Handbook on International Law and Domestic Legal Systems offers concluding observations on the centrality of different visions of the international for the relationship between domestic and international law. The contributions demonstrate that competing perceptions of the international as a space for co-operation and solidarity on the one hand and as an arena of conflict on the other are competing with each other. The editors point to key doctrinal responses to these opposite trends: accepting conflict, deference by international courts, the presumption of compatibility and the deepening of pluralist approaches.

The author discusses the UN International Law Commission’s 2022 draft conclusions on jus cogens, and suggests that it is in the interest of all States that the General Assembly take note of them in 2023. The debate in the Sixth Committee of the General Assembly in 2022 showed that some States remain highly critical of particular points in the draft conclusions. The conclusions do remain problematic in at least one important respect, the possible effect of jus cogens norms on binding Security Council decisions. Overall, however, they offer carefully judged clarifications on what is an important topic for the present and future of international law.

The systematic and rigorous approach proposed by the ILC’s draft conclusions for the identification of jus cogens norms, and the limited consequences of such norms set out in the conclusions, should enhance stability and the international rule of law. It may be concluded that recent developments in relation to jus cogens represent an advance for the rule of law as compared with 1969 when the term was included in the Vienna Convention on the Law of Treaties. This will be particularly so if the General Assembly now proceeds to adopt a resolution annexing the 2022 conclusions. Doing so would help to consolidate a sound understanding of jus cogens, and would be without prejudice to the positions of States on particular points of concern.

The paper provides a meta-analysis of the structural impact of digitalisation on interna-tional law. It synthesises the contributions of this special issue [German Law Journal Special Issue (vol. 24/3) on “The Impact of Digitalisation on International Law”], showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analysing the impact that digitalisation has on key reference points: actors, norms and values. From this assessment, it draws the conclusion that digitalisation is changing and will continue to change structural features of international law.

The relationship between domestic and international law is generally conceptualized through the lens of three notions: monism, dualism and legal pluralism. Scholars refer to these concepts as a whole, while however often only meaning one aspect of the relationship. This can somewhat distort the discussion. This chapter thus offers an alternative way of engaging with the relationship between legal spaces. It disentangles the different aspects that are relevant for theorizing how we understand this relationship. Regarding the analytical dimension of this relationship, the chapter outlines how the three concepts engage with the (apparent) dichotomies of unity or plurality of law(s), autonomy or intertwinement and hierarchy or heterarchy of legal spaces. The normative dimension is shaped, in particular, by questions pertaining to the notion of law as well as by values such as coherence and diversity and their impact on resolving conflicts between norms stemming from different legal spaces.

This Working Paper draws on the mounting research produced by economists and political scientists that links support for populism with the economic, social and cultural grievances arising from record levels of economic inequality, driven by globalisation, in particular free trade and the technology revolution. It seeks to identify the sources of the harmful effects of free trade in WTO law and free trade agreements, and suggests possible measures to address these harmful effects. It finds in particular that the limited exceptions to free trade that were available to States during the "embedded liberalism" of the first three decades of international trade under the GATT 1947 have been eroded to the extent that the national "policy space" available to regulate in the public interest to avoid free trade's negative economic, social and cultural consequences are no longer adequate. Ever-deepening neoliberal trade relations since the late 1970s and under the 1994 WTO Agreements have largely removed the ability of States to protect nascent or vulnerable industries and jobs, and to protect national social and cultural values and interests. If international law is to play a role in mitigating economic inequality and reducing its potency in driving populism, ways and means to reopen this policy space for States need to be considered.

This paper consists of two parts: In the first part, some of the challenges with which the Internationaal Criminal Court is currently confronted are being presented. First of all, the article will describe the current state of the International Criminal Court and the Rome Statue. Afterwards, the article analyses the Court’s efforts to deal with cases against third-country nationals and the challenges it is facing in that regard. In addition, the Court’s case law will be analyzed in order to determine an increasing ‘emancipation’ of the case law of the International Criminal Court from international humanitarian law. The second part of the paper will briefly discuss the role of domestic international criminal law and domestic courts in the further development and enforcement of international criminal law. As an example of the role that domestic courts may have in clarifying classic issues in international law, the judgment of the German Supreme Court of January 28, 2021 (3 StR 564/19), which deals with the status of costumary international law on functional immunity of State officials before domestic courts, shall be assessed.

The question of whether the monitoring bodies have competence concerning reservations (alone or shared with state parties) is at the center of the discussion of reservations to human rights treaties that has occupied many international legal scholars over the last few decades. The Istanbul Convention’s treaty monitoring body, the Group of experts on action against violence against women and domestic violence (GREVIO), is the only human rights treaty monitoring and adjudication body with a direct competence (one that stems directly from the treaty) concerning reservations. However, as practice to date shows, it does not make much use of this power. This is a big disappointment considering all the efforts of other bodies in the past and the doctrinal positions of various scholars. The main aims of the article are threefold: to present GREVIO's practice to date concerning reservations, to provide a brief historical overview of how other human rights treaty bodies have approached their role concerning reservations, and finally, to attempt to explain why GREVIO has abandoned a more proactive position on reservations.

Mainly in reaction to the use of torture by the United States after the attacks of 9/11, international relations scholars began asking under which circumstances the content of an international norm changes and at which point it becomes void of its normative content if it is repeatedly violated, a concept known as “norm erosion”. International lawyers have until very recently not engaged with this debate. This working paper aims to change that by looking at the example of the prohibition of torture to display legal scholarship perspectives on how norms of treaty law and customary law come into being, how treaties can be modified or renounced, how customary law can be changed, as well as how re-interpretation processes take place that may affect a rule’s content, scope and effect. Furthermore, international relations research has developed criteria which allow to determine whether a certain norm is more robust and thus resilient to change and erosion. These criteria also find a correspondence in the rules of international law and can be translated to, and framed in, international law terms. The findings from the perspective of international law reinforce international relations research which has identified the prohibition of torture to be very robust and resilient. Also, both disciplines underline that pure non-compliance does neither lead to norm change nor to norm erosion. Although international law has not played a decisive role in most international relations research on norm erosion, in the end, both disciplines still arrive at similar explanations under which circumstances norm change and norm erosion take place. Through uncovering this, the working paper also demonstrates how interdisciplinary scholarship may strengthen mono-disciplinary scholarship by arriving at the same conclusions via different avenues.

Four years after the much-discussed voting on limitations and exceptions to functional immunity of State officials (draft article 7) by the International Law Commission (ILC), the ILC has provisionally adopted new draft articles at its session in 2021. These proposals set out procedural safeguards of immunity of State officials. Such procedural safeguards are essential for a balanced approach to the topic of immunity of State officials from foreign criminal jurisdictionwhich will help to overcome divisions on the matter in the international community and within the ILC. This may pave the way for an international treaty on immunity of State officials which would provide crucial guidance for practitioners dealing with cases of immunity of State officials. However, while the type and structure of the procedural safeguards provisionally adopted by the ILC are helpful, some key aspects remain unclear and should be refined.

Meta, formerly the Facebook Company, faces immense pressure from users, governments and civil society to act transparently and with accountability. Responding to such calls, in 2018, it announced plans to create an independent oversight body to review content decisions. Such a forum is now in place in the form of the Oversight Board. To Meta’s credit, the speed at which the Oversight Board has been established is remarkable. Within two years, a global consultation process was completed with input obtained from users as well as experts, the regulatory infrastructure for the Oversight Board built, its members selected, and the first decisions of the Board already rendered in January 2021. No expense has been spared. Facebook has created a trust worth 130 million US dollars to fund the Oversight Board. With its institutional structure in place, and plenty of resources to tap into, the Oversight Board could have a real impact on how some transnational disputes are resolved. Thus, the Oversight Board may very well be setting the direction for how tech companies in particular, and multinational corporations in general, go about providing grievance mechanisms to individuals who their actions adversely impact. Through a study of the Oversight Board, this paper considers whether we are witnessing the birth of a special type of ‘transnational hybrid adjudication’. The paper first clarifies what is meant by the phrase ‘transnational hybrid adjudication’. And then using the example of the Oversight Board, it considers whether the Oversight Board can properly be characterised as a transnational adjudicative body that joins the myriad of other international dispute resolution mechanisms that exist today. Giving an affirmative answer to that question, the paper finally discusses whether the Oversight Board is a new type of adjudicative mechanism that could have a systemic impact on international law, or an experiment with limited relevance.

Today, we are witnessing the making, operation, and evolution of two gigantic development programs at the global level: the United Nations Sustainable Development Goals (SDGs), adopted by the General Assembly in 2015, and China’s Belt and Road Initiative (BRI), launched by President Xi Jinping in 2013. Perceived and real ideological differences notwithstanding, BRI and SDGs place infrastructures at the very heart of global development, strongly favoring pragmatism and immediate responsiveness. This paper analyzes the relations of this new developmental paradigm with law. By resorting to the Infrastructures as Regulation project (InfraReg), it focuses on the regulatability and regulatory effects of physical, informational, and digital infrastructures underlying both initiatives. The fluid re-arrangement of public and private, formal and informal legal frameworks regulating BRI indicate the emergence of a transnational legal infrastructure tied to and facilitated by material pragmatism, which stands in tension with China’s rhetorical embracement of international law as we know it. The implementation infrastructure of SDGs, on its part, reveals a resilience-driven governance style that is hard to reconcile with the futurity attached to the idea of (international) law. Although these findings would suggest a retreat from international law (and with it a decline of the international rule of law), the paper makes the case that actually many types of international and global law are emerging and resurfacing from infrastructural developmentalism which coexist in mutually determining and evolving ways. The hard question remains, nonetheless, whether such a relational condition can uphold the aspiration of order at the global level.

The development and expansion of international law have also led to greater demands on national courts to interpret and apply international law. However, while this increased demand has confirmed the role of the domestic court as an organ of international law, it has also led to a tension between its tasks as guardian of the rule of law at the domestic level and as guarantor of compliance with the international rule of law. The Kadi case of the European Court of Justice (ECJ), the Solange case of the German Constitutional Court and the Mara’abe case of the Israeli High Court of Justice (HCJ) are some of the symbols of this tension and illustrate the techniques and strategies developed by the domestic courts to apply international law while preserving the domestic legal order. This paper analyses the application of international law by domestic courts and tries to identify the techniques and strategies used by them to oppose, circumvent, undermine or resist international law, sometimes arguing that it is necessary to develop it. In so doing, the paper highlights the difficulties of role splitting (dédoublement fonctionnel) as conceived by Georges Scelle: even in its application of international law, the domestic judge never ceases to be the agent of a domestic legal order whose interests he or she has at heart.

Cities and local governments have become both important sites for international development as well as actors which aspire to shape the practice in this field. This paper retraces the emergence of cities and local governments as having this dual character, in order to provide the ground for a more forward-looking deliberation on some of the emerging themes on the role of cities in and for international law and development today. We see in particular a friction between two seemingly competing and broader understandings of global development, in both of which cities play a prominent role: the SDGs as adopted in 2015, and China’s Belt and Road Initiative (BRI). The SDGs are the most important multilateral articulation of ideas of development today. To this extent, they are considerably shaped by the long shadow of the post-Cold War era and the shifting priorities of influential actors like the United States, the European Union, but also increasingly vocal states from the ‘Global South’. The BRI follows a different idea of international development, built around the notions of non-interference and ‘win-win cooperation.’ What unites these two blueprints for global development is that international law, as traditionally understood, does not seem to take center stage. Or rather, we wish to expound, it may be a new type of international law which emerges from these global constellations of international development which comes not only, but also from below.

Commitment to the ‘rules-based order’ (RBO) has emerged as a leading discourse among advocates for stability in global order. Yet, despite the most authoritative rules being those agreed between States to be legally binding, it is primarily political voices that advocate in these terms, often assuming that they also embody lawyers’ commitment to the ‘international rule of law’. Legal scholarship has in contrast remained sceptical regarding both the meanings of the RBO and the perils of uniting legal and non-legal rules within a single normative ideal. This paper defines the RBO in jurisprudential terms in order to interrogate a core strategic assumption driving the discourse: that establishing accessible and pragmatic non-legal rules that are consistent with international law, complements and reinforces legal rules governing the same subject matter. Using the case of the proposed ASEAN-China Code of Conduct in the South China Sea (COC), the paper demonstrates that the RBO and the international rule of law are antagonistic normative ideals in cases where legal rules have failed to constrain the competitive ambitions of a geopolitically dominant state. In such cases, a lack of distinction between legal and non-legal rules tends to reinforce underlying power imbalances and facilitate interpretations detrimental to the integrity of law. States must instead look beyond substituting one category of rules for another and seek strategies for reconfiguring power itself. Expanding recognition of the ‘Indo-Pacific’ connects the Asia-Pacific and Indian Oceans as a single geostrategic domain, which thereby takes into account considerations of the balances of power necessary for a RBO consistent with international law.

As part of the current overall process of de-formalization in international law States increasingly chose informal, non-legally binding agreements or ‘Memoranda of Understanding’ (‘MOUs') to organize their international affairs. The increasing conclusion of such legally non-binding instruments in addition to their flexibility, however, also leads to uncertainties in international relations. Against this background, this article deals with possible indirect legal consequences produced by MOUs. It discusses the different legal mechanisms and avenues that may give rise to secondary legal effects of MOUs through a process of interaction with and interpretation in line with other (formal) sources of international law. The article further considers various strategies how to avoid such eventual possible unintended or unexpected indirect legal effects of MOUs when drafting such instruments and when dealing with them subsequent to their respective ‘adoption’.

The paper scrutinizes the purported synergies between the Belt and Road Initiative (BRI) and the United Nations 2030 Agenda for Sustainable Development by examining the normative framework of the Initiative. The examination focuses on whether and how the conduct of relevant actors is regulated, particularly with regard to the environmental and social impacts of the economic activities – bulk of which consists of infrastructure projects – along the Belt and Road. One problematic feature of the existing legal and regulatory framework is its fragmentation – the variability of applicable sustainability standards – due to the predominantly bilateral character of the pseudo-formal agreements between China and the BRI participating States. Using a narrow, outdated view of sovereignty, these agreements rely on the environmental and social standards of the host/borrowing State. Such reliance poses challenges to achieving sustainable development along the Belt and Road, given the weak or sometimes inexistent safeguards for the protection of people and the environment within the domestic legal and regulatory systems of many host/borrowing States. Recent reports of polluted or dried-up rivers, inhuman working conditions, and displacement of indigenous peoples or local communities in some BRI States are symptomatic of this broader problem.

To remedy such problem, I argue for the multilateralization of the international lawmaking process along the Belt and Road. Given the transnational or cross-border character of the BRI and the interdependent, multi-dimensional (economic, environmental, social) impacts of many of its projects, its legal and regulatory framework needs to be informed by and aligned with the normative framework and standard-setting efforts concerning sustainable development at the multilateral level. The related international obligations of China and of the other BRI participating States on environmental and human rights protection and their commitments to sustainable development have to be taken into account when designing, approving, financing, and implementing infrastructure projects along the Belt and Road. I further posit that, consistent with the duty of international cooperation and assistance, China, as the main proponent of the Initiative and the party to the bilateral agreements with greater resources and capacity to implement reforms, should ensure that BRI infrastructure projects do not undermine the host/borrowing State’s ability to comply with its other obligations under international environmental law and international human rights law. Lastly, to bring the BRI in closer alignment with international sustainable development law, I suggest that the principles of integration and public participation, which also include transparency, have to be applied both at the project-level and during the negotiation phase for the memoranda of understanding and related financing agreements. The multi-dimensionality of sustainable development and the global holistic ambition of the Initiative call for a participatory and inclusive approach to decisionmaking and to the implementation of norms.

The fragmentation of international law is both a renewed fear and a driving force in international legal thinking. The discourse of international law has thus always been careful to denounce anything that could undermine the universality and unity of international law, and in so doing, has developed new ideas and mechanisms that can help to curb any risk of fragmentation, supposed or real. In parallel with this movement, there are increasingly pressing calls, both from actors in international society and within international law, for greater consideration of multiculturalism and pluralism in society in the development and application of international legal rules. The present reflection focuses on the articulation of these two movements by asking whether regional approaches to international law (RAIL) pose a real threat to the coherence and integrity of international law. The article concludes that RAIL can be a source of enrichment and consolidation of international law if these approaches are conducted with a view to developing a truly universal international law and not to calling into question its foundations. To reach this conclusion, the paper invites international lawyers to revisit the dogmas of universality and unity in order to question the true meaning of these notions and to think about the future of their discipline.

Populism has fatally weakened the world’s ability to respond to COVID-19, by undermining the capacity of the structures and mechanisms of international law to address the pandemic. The pandemic has exposed as a fallacy a key tenet of populism – to protect the ‘people’ of a nation from external forces, including international law. In fact international law, through the principle of self-determination, enshrines the ability of peoples to determine their own political organization. But this does not preclude agreement at the international level on matters of common interest to humanity as a whole that require community action. The prevention of infectious disease is just such a case, which states have long agreed could not remain solely the preserve of national polities, but requires a common international response. This paper, placing the current crisis in light of the development of international health law, critically examines the response of key populist governments to COVID-19 in order to address the larger issue of the implications of populism for the fate of international law.

Current contestations of the liberal international order stand in notable contrast with the earlier rise of international law during the post-cold war period. As Krieger and Liese argue, this situation calls for assessment of the type of change that is currently observed, i.e. norm change (Wandel) or a more fundamental transformation of international law – a metamorphosis (Verwandlung)? To address this question, this paper details the bi-focal approach to norms in order to reflect and take account of the complex interrelation between fact-based and value-based conceptions of norms. The paper is organised in three sections. The first section presents three axioms underlying the conceptual framework to study norm(ative) change which are visualised by a triangular operation to analyse this change in relation with practices and norms. The second section recalls three key interests that have guided IR norms research after the return to norms in the late 1980s. They include, first, allocating change in and through practice, second, identifying behavioural change with reference to norm- following, and third, identifying norm(ative) change with reference to discursive practice. The third section presents the two analytical tools of the conceptual frame, namely, the norm-typology and the cycle-grid model. It also indicates how to apply these tools with reference to illustrative case scenarios. The conclusion recalls the key elements of the conceptual framework for research on norm(ative) change in international relations in light of the challenge of establishing sustainable normativity in the global order.

For the United States the ‘international law of global security’ is, in a unique sense, synonymous with the entire project of constructing global legal order. Uniquely preponderant power enjoyed since the end of the Second World War has allowed US preferences to manifest not merely in specific rules and regimes, but in purposive development of the entire structure of global legal order to favour American security interests. Perceptions of a recent decline in this order now find expression in advocacy for a ‘liberal’ or ‘rules-based’ international order, as the claimed foundation for global prosperity and security. This working paper seeks to map out the parameters of US contributions to the global security order by uncovering the strategic and political foundations of its engagement with the international law of global security. The paper begins by reflecting on competing US conceptions of the relationship between national security and global order as they evolved across the twentieth century. The focus then turns to three significant trends defining the contemporary field. First are US attitudes toward multilateral institutions and global security, and the ongoing contest between beliefs that they are mutually reinforcing versus beliefs that US security and global institutions sit in zero-sum opposition. Second is the impact of the generational ‘War on Terror’, which has yielded more permissive interpretation and development of laws governing the global use of violence. The final trend is that towards competitive geopolitical interests restructuring international law, which are evident across diverse areas ranging from global economics, to cybersecurity, to the fragmentation of global order into spheres of influence. Looking ahead, a confluence of rising geopolitical competitors with divergent legal conceptions, and conflicted domestic support for the legitimacy and desirability of US global leadership, emerge as leading forces already reshaping the global security order.