Critical International Law Speaker Series

Abstract

For critical legals scholars, contemporary invocations of the ‘international community’ are looked upon with suspicion. Yet, in 2024, two very different international courts – the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR) – delivered orders and judgments in cases that called for them to consider the existence of obligations owed by states to the international community as a whole. For the ICJ, this concerned allegations of a breach of obligations erga omnes in South Africa v Israel. Whilst the ECtHR, in Duarte Agostinho, was challenged to consider the potentially “…unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world.”^[1] In this talk, I will begin by presenting these two cases as contemporary examples of how procedural limits can stifle juridical struggles for ‘international community’, before exploring a radical counterfactual approach to strategic litigation inspired by al Attar’s call for a “decoloniality approach to counterfactuals and to critical international legal theory [that] would highlight the embedded nature of the Western imaginary and the importance of challenging those very elements that make the most sense.”

[1] ECtHR, Duarte Agostinho and Others v. Portugal and 32 Others 39371/20, decision of 9 April 2024, para 208.