This blog is part of a series of reflections on ILW 2025 by our Student Ambassadors. Each Student Ambassador engaged with various panels and will share their experiences in the lead up to ILW-West 2026.

International Law Weekend 2025 (ILW 2025), held from October 23 to 25 in New York City, brought together some of the most prominent figures in international law, including diplomats, scholars, and practitioners, for a dynamic and inspiring three-day conference. The event serves as a leading forum for dialogue, scholarship, and collaboration on the future of international law.

This year’s theme, “Crisis as Catalyst in International Law,” examined how periods of upheaval can serve as moments of transformation, highlighting international law’s capacity to address urgent global challenges. The panel “Negotiating the Future Crimes Against Humanity Treaty: Paradigm Shift or Half-Measure?” exemplified this theme and contributed to the broader discussions shaping ILW 2025.

A bright light amid global uncertainty

Elinor Hammerskjöld, UN Under-Secretary-General for Legal Affairs, recently described the treaty negotiations on crimes against humanity as “a bright light” amid shrinking UN budgets and growing geopolitical strain. That sentiment captured the spirit of the standing-room-only panel, sponsored by the ABILA Study Group on Crimes Against Humanity and moderated by Professor Leila Nadya Sadat, Chair of ABILA, James Carr Professor of International Criminal Law at Washington University School of Law, and Director of the Crimes Against Humanity Initiative.

The panel examined the path forward for the Convention on the Prevention and Punishment of Crimes against Humanity, following General Assembly Resolution 79/122, adopted without a vote in December 2024, with 192 of 193 Member States in favor. The resolution established a four-year timeline culminating in Diplomatic Conferences in 2028 and 2029. The speakers described the treaty’s progress as a reaffirmation of states’ commitment to the rule of law and their shared responsibility to prevent and punish atrocity crimes. They emphasized the need to carry that commitment forward as negotiations begin. The Preparatory Committee will convene in January 2026.

Voices of momentum and insight

The room was filled with optimism and shared purpose as Professor Leila Sadat opened by walking the audience through how the proposed Convention reached its current stage. She reflected that the excitement surrounding the treaty signaled more than legal progress but also a renewed faith in the world’s capacity to act together for justice and accountability. She stressed that, even in difficult times, the global effort to finalize a crimes against humanity convention stands as proof that nations still believe in the rule of law, human dignity, and the possibility of collective progress.

The panelists shared perspectives spanning diplomacy, academia, and civil society Ana Paula Lavaelle Arroyo, Legal Adviser to the Permanent Mission of Mexico to the United Nations, provided an invaluable on-the-ground perspective from the Sixth Committee. She described the broad engagement of states leading up to the official opening of treaty negotiations and detailed the practical steps that lie ahead.

The negotiation process formally begins in January 2026, when the preparatory committee and working group lay the groundwork by refining draft text, reviewing and incorporating state proposals, and addressing key technical and legal questions. The committee will reconvene in 2027 to continue this work. States are scheduled to gather for a five-week diplomatic conference at UN Headquarters in 2028, followed by a three-week diplomatic conference in early 2029, with the aim of concluding and adopting the convention.

Professor Tom Dannenbaum of Stanford University underscored the need for the future convention to expressly include starvation, noting that the Rome Statute recognizes it as a distinct offense only as a war crime under Art. 8(2)(b)(xxv), and in the context of crimes against humanity, only through the residual category of “other inhumane acts.” The ICC Prosecutor’s application for arrest warrants against senior Israeli leaders includes allegations of starvation, grounded in a pattern of starvation-related conduct. This is significant because starvation has never been prosecuted at the international level. Expressly codifying starvation as a distinct offense in the new convention would be an important development, especially because crimes against humanity can be prosecuted without establishing the existence of an armed conflict. Professor Dannenbaum described starvation as a deliberate and devastating form of mass violence, noting its disproportionate impact on children and pregnant women. He explained that the new convention offers an opportunity to ensure that starvation is fully recognized as a crime against humanity.

(For additional discussion of starvation’s disproportionate impact on pregnant women and children, see UNFPA.)

Akila Radhakrishnan emphasized the importance of integrating gender justice across the convention’s framework. She explained that doing so would help build a gender-competent instrument capable of providing lasting protection for survivors of sexual and gender-based crimes. She called attention to proposals for express recognition of gender apartheid as a crime against humanity, reflecting broader efforts to ensure the convention meaningfully addresses gendered harm.

(See Akila Radhakrishnan & Alyssa Yamamoto on states’ growing support for recognizing gender apartheid in the draft treaty.)

Hugo Relva of Amnesty International highlighted the vital role of civil society organizations, whose expertise and continued engagement will reinforce the treaty’s legitimacy and long-term effectiveness. Sebastiaan Verelst, UN High Commissioner for Human Rights’ Transitional Justice Adviser, connected these discussions to broader questions of implementation, reflecting on how the convention could unify atrocity prevention, accountability, and transitional justice within national systems.

This discussion prompted thoughtful engagement from attendees, many of whom have closely followed the treaty’s development. Questions addressed state cooperation, the role of victims and survivors in shaping the treaty’s final text, and how the proposed convention may complement existing accountability mechanisms. The exchange highlighted both the complexity of the negotiations ahead and the strong international community interest in seeing a comprehensive, practically implemented framework emerge.

ABILA Study Group on Crimes Against Humanity

The panel also marked the launch of the ABILA Study Group on Crimes Against Humanity, a new initiative of the American Branch of the International Law Association that brings together leading scholars and practitioners under the leadership of Professor Leila Sadat.

The study group is reviewing the International Law Commission’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity and developing recommendations to strengthen the treaty’s language and scope. Its work aims to assist state delegations in preparing for formal negotiations.

Current topics under review include key provisions on persecution, the slave trade, starvation, and environmental destruction, as well as issues of prevention, jurisdiction, modes of liability, and dispute settlement. The Study Group is also examining interrelated themes like civil society participation, children, and gender.

The Study Group’s guiding purpose is to ensure that the final treaty builds on and reinforces the principles of international criminal law reflected in existing instruments and customary law, while advancing its progressive development. This includes drawing on foundational instruments such as the Rome Statute of the ICC, the Genocide Convention, and the jurisprudence of international tribunals such as the ICC, ICTY, and ICTR. The Study Group is also committed to engaging with evolving legal concerns and pressing challenges in international criminal law, including addressing critical gaps such as those already discussed in relation to gender justice, starvation, and other systematic forms of harm.

(Read more about the ABILA Study Group here.)

The road ahead

As the world looks toward the formal opening of the Preparatory Committee in January 2026, enthusiasm continues to build. The coming year is expected to see increased global activity, including at the United Nations, as states prepare their initial positions for the treaty’s formal drafting stage. The panelists noted that the lead-up to the 2026 Preparatory Committee meeting may prove decisive in shaping the scope and ambition of the future convention.

ILW 2025 demonstrated that, despite global uncertainty, the international community continues to engage meaningfully with one of international law’s most consequential projects. In a world where global division can feel especially present, the success of ILW 2025 and the overwhelmingly positive response to the crimes against humanity panel offered something powerful: renewed confidence that law, cooperation, and a shared commitment to justice can still guide us forward.

*Claire E. Barrington is a JD/LLM student at Washington University School of Law in St. Louis, Missouri, where she is pursuing a dual degree in Law and Negotiation & Dispute Resolution. Before law school, Claire had a nearly decade-long career as a professional ballet dancer, performing with international ballet companies across North America and Europe. Her experiences collaborating with artists from around the world sparked a deep interest in international law and cross-border cooperation. Claire holds dual Bachelor’s degrees in English and Criminal Justice from Miami University (Ohio). At WashU Law, she is a staff editor for the Global Studies Law Review, a research assistant to Professor Leila Sadat in international law, and an active member of the International Law Society.

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(link to Study Group Draft Articles, New Additions, and Thematic Topics)

On January 19, 2026, States will launch a four-year process of preparing and negotiating a new global treaty on the prevention and punishment of crimes against humanity. The task before them is immense and of historic importance: to craft an instrument that is well-grounded in treaty and customary international law principles that have been established and developed ever since the Nuremberg and Tokyo trials of 1945 and 1946, and at the same time elaborate a text that will stand the test of time and be both relevant and responsive thirty, fifty, or even one hundred years from now. The papers and proposals in this compilation are intended as a modest contribution to that effort, and have been prepared to assist States in this important and difficult work.

The treaty discussions that will begin in January with the convening of a Preparatory Committee and a Working Group will be based on two important United Nations documents. First, the International Law Commission’s 2019 Draft Articles, with Commentaries, on the Prevention and Punishment of Crimes against Humanity (ILC Draft Articles). Second, General Assembly Resolution 79/122, adopted on December 4, 2024, which took the decision to “convene the United Nations Conference of Plenipotentiaries on Prevention and Punishment of Crimes against Humanity.”

Resolution 79/122 is a complex text resulting from many compromises and six years of effort by treaty proponents in the Sixth (Legal) Committee of the General Assembly. The Resolution sets out a pathway for the negotiation of a global treaty on the prevention and punishment of crimes against humanity over a four-year period (with the possibility of an additional session, if necessary). In addition to setting out a timeline in operative paragraph 4, paragraph 5 of the Resolution specifies that the text that will “serve as the basis for negotiations” will be both the ILC Draft Articles and “a compilation of proposals for amendments to the draft articles submitted by Governments”.

Why a compiled text? The 6^th preambular paragraph of Resolution 79/122 notes that during the elaboration of the text by the Commission, as well as the many years of discussion in the Sixth Committee, the ILC Draft Articles had been the subject of extensive comments from Governments, many of which had advanced “a number of suggestions for changes to the draft articles”.

The proposals advanced by States (and civil society) over the past six years, as well as during the period from 2013 to 2019, when the ILC elaborated its draft, can be roughly grouped into three categories:

– additions to the Draft Articles that address aspects that the ILC had opted to omit (such as the establishment of a treaty monitoring mechanism or the inclusion of direct and public incitement as a mode of liability, for example);

– additions to the Draft Articles that were never addressed by the ILC (such as a non-discrimination provision, adding certain new offenses to the enumerated list of crimes against humanity, and the question of reservations and other final clauses); and finally

– modifications of the Draft Articles to ensure clarity and/or advance elements of importance (such as elaborating further upon the prevention requirements of Draft Articles 3 and 4, including a definition of “victims”, modifying the dispute settlement provision in Draft Article 15, or improving the preamble by adding a Martens Clause, for example).

These three categories overlap to some degree: the Commission adopted the Rome Statute’s definition of crimes against humanity (with three changes) to promote uniformity, implicitly suggesting a rejection of additional crimes. However, the Commission never considered on the merits Government or civil society proposals for the inclusion of additional crimes, or changes to the Rome Statute definition. The one exception was the deletion of the definition of gender (Rome Statute Article 7(3)), which the Commission proposed in response to comments received on the first reading of the Draft Articles in 2017.

Operative paragraph 9 of Resolution 79/122 “invites” Governments to submit “proposals for amendments to the draft articles for inclusion in the compiled text” no later than April 30, 2026. Of course, the text can be subject to amendments proposed by Governments at any time during the negotiations, but the April 30 deadline provides a helpful benchmark. Thus, as the negotiations advance, first through the Preparatory Committee and Working Group, then at the level of the Diplomatic Conference itself, it is clearly contemplated by Resolution 79/122 that the ILC Draft Articles are the starting point of the negotiations, not the endpoint.

For this reason, in Spring 2025, the International Law Association (American Branch) established a Study Group to (1) study the Draft Articles and proposals of States and civil society for amendments and modification of the Draft Articles; and (2) based upon that examination, prepare a series of short proposals, as well as papers addressing a handful of thematic concerns, that could be drafted and submitted to Governments for their consideration. The proposed Study Group’s mandate was accepted by the President of the Branch, Professor Michael P. Scharf, and by ABILA’s Co-Directors of Study, Professor Mortimer Sellers and Professor Milena Sterio. The Study Group held its first meeting on May 29, 2026, and adopted a tentative program of work and timeline. I am honored to serve as the Chair.

Comprised of thirty-eight members and two advisors, including experts from both the United States and abroad, the Study Group organized its work into sixteen separate proposals: (i) eleven proposals for specific amendments to the Draft Articles; (ii) two proposals for new additions to the Convention’s text; and (iii) three thematic papers. The Study Group was divided into subgroups for each topic, with each subgroup having a chair or co-chairs, and as papers were finalized, they were then discussed by a meeting of the entire Study Group (on zoom), with oral and written comments provided to the subgroup which then prepared a revised text for the entire Study Group, as well as for the Drafting Committee. The Drafting Committee, chaired by Professor Olympia Bekou, was responsible for editing, cite-checking, and formatting as well as overseeing the coherence and consistency of the papers. Each of the finalized papers has been posted on the ABILA website, and some were distributed to States as early as October 2025. We completed fourteen of the initially proposed papers during this phase of our work. The next phase contemplates the establishment of a Study Group or Committee at the ILA level, with broader international participation, and an expanded mandate.

As the Chair of this effort, I have been overwhelmed by the extraordinary work undertaken by the members of the Study Group, each one of whom has volunteered their time and expertise while participating in their personal capacities. In particular, the other members of the Drafting Committee – Professor Bekou, Sara Ciucci, and Christopher Lentz – have served with special distinction and commitment, and it has been an honor to serve alongside them.

The proposals offered by the Study Group track the discussions of the Draft Articles by States and have been purposefully kept short to enhance their practical usefulness. The explanatory notes following each proposal offer both legal and historical analysis that support the proposed text. The three thematic papers – on Civil Society Participation, Children, and Gender Competency, Inclusivity and Non-Discrimination – advance perspectives that are critically important to the elaboration of a crimes against humanity treaty that can meet 21^st century concerns. Likewise, the proposals proposing new enumerated crimes against humanity – environmental destruction, slave trade, and starvation, for example – address 21^st century atrocities of increasing gravity. The fourteen papers included in this compilation represent a concrete contribution of distinguished academics, civil society experts, and experienced practitioners, many of whom have spent long years, even decades, grappling with the application and interpretation of atrocity law and policy.

It is our sincere hope that these proposals will inform the work of States as they undertake the elaboration of a Convention on the Prevention and Punishment of Crimes against Humanity. This treaty is not meant to be just a piece of paper; it is a promise to humanity that the words “never again”, uttered in the wake of the devastation wrought by the Second World War, should and will have real meaning.

Respectfully submitted,

Leila Nadya Sadat

James Carr Professor of International Criminal Law

Washington University in St. Louis

Director, Crimes Against Humanity Initiative

St. Louis, Missouri         

January 12, 2026

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This blog is part of a series of reflections on ILW 2025 by our Student Ambassadors. Each Student Ambassador engaged with various panels and will share their experiences in the lead up to ILW-West 2026.

From the growing wave of states renegotiating bilateral investment treaties to critics decrying the expanding powers of arbitral tribunals, the international arbitration landscape is undergoing rapid transformation. Meanwhile, international bodies like the United Nations Commission on International Trade Law and the Organization for Economic Cooperation and Development push for multilateral treaty reforms, and a surge in renewable energy cases against European countries further fuels the debate. With these developments reshaping the conversation, four esteemed panelists gathered at International Law Weekend to tackle a critical question: Does investment arbitration, as it stands, hinder or help efforts to combat climate change?

David Attanasio, partner at Womble Bond Dickinson and Co-Chair of ABILA’s International Investment Law Committee, opened the discussion by providing context on recent criticisms of investment treaties and the European Union’s efforts to modernize the Energy Charter Treaty (ECT). Given the ECT’s role in providing “a multilateral framework for energy cooperation,” he underscored the importance of these reform efforts in combating climate change by reducing protections for hydrocarbon investments and expanding exceptions for regulatory measures aimed at environmental protection, which in turn helps counter regulatory chill. Additionally, the reforms aim to terminate the ECT’s protections for new fossil fuel investments while phasing out protections for existing investments. According to Mr. Attanasio, these substantive modifications were implemented with the understanding that investment arbitration poses a significant barrier to climate change mitigation. The rationale is clear: investors challenge climate change regulation through investment arbitration, thereby discouraging states from enacting legislation in this area.

Having set the stage for an engaging discussion, Sven Volkmer, a partner with White & Case’s international arbitration practice, provided an overview of the types of climate-related state actions that have given rise to investor-state dispute settlement (ISDS) cases. Mr. Volkmer’s discourse centered on three notable categories of disputes. The first category involves disputes arising from states’ efforts to phase out fossil fuels, as exemplified by Rockhopper v. Italy. Brought under the ECT, this case concerned a ban on oil production off the Italian coast and a subsequent denial of the British claimant’s oil concession, despite the claimant having completed exploration and steps to secure the concession. While the tribunal in this case ultimately sided with the claimant, it acknowledged the tension between the state’s right to regulate and its obligations under the ECT.

The second category addressed disputes arising from states’ decisions to scale back renewable energy incentives, such as in the recent cases against Spain. The third, albeit smaller, category concerns disputes triggered by inadequate state action to protect the environment and address climate change. An illustrative example is Allard v. Barbados, in which the claimants, who had invested in an ecotourism project, argued unsuccessfully that the state had failed to uphold its environmental protection commitments.

In light of the growing number of climate-related investment disputes, Jovana Crnčević, Special Counsel (International Arbitration and Public International Law) at Withers LLP,  weighed in on whether the ISDS mechanism is fit for purpose. She highlighted the paradox of expecting states to take decisive action on climate change while risking paying investors billions of dollars in damages. Moreover, with ICSID reporting record numbers of international arbitration disputes, an increasing share of which pertain to the oil and mining sectors, there is little doubt that investment tribunals will be continuously summoned to adjudicate these disputes. Ms. Crnčević then examined efforts to address the asymmetry between investors and states, particularly through host state counterclaims. She noted that the requirement of a manifest factual connection, as well as some treaty language supporting counterclaims, has produced mixed results in enabling states to bring counterclaims against investors.

She continued, citing several notable examples: the tribunal in Urbaser v. Argentina confirmed that states can bring counterclaims, while in Burlington v. Ecuador and Perenco v. Ecuador, the arbitral tribunals factored investors’ environmentally detrimental actions into their cost assessments. These cases, she concluded, suggest a likely increase in states’ use of counterclaims. Another effort by states involves embedding, in new bilateral investment treaties, explicit rights for states to regulate on environmental matters, reinforcing states’ continued cooperation on climate change mitigation. These actions also have the secondary effect of giving investment tribunals practical experience with climate-related and environmental issues. As a result, arbitral tribunals may increasingly be called upon to address unique and intricate factual situations, making investment arbitration better suited to adjudicating climate-related disputes.

Afterwards, Daniel Reich, partner at Paul Weiss’s international arbitration practice, opined on whether the wider community should be concerned about ISDS and how international arbitration can contribute to combating climate change. He noted that, despite its flaws, the ISDS system does more to support climate change action than to hamper it. In addition to its traditional goals of avoiding conflict and promoting economic development, and contrary to the regulatory chill criticism, he stressed that climate change can, in fact, encourage green investment. Tackling climate change requires investing in the green economy, and for states to attract the foreign capital necessary to meet their climate objectives, investors must be confident that their investments will be protected. Mr. Reich argued that ISDS remains the most effective mechanism for providing such protections and observed that it has not resulted in substantial regulatory chill. He emphasized that, although ISDS can lead to sizeable awards, this should be viewed in context: states prevail in the majority of disputes, and they typically adhere to their international legal obligations without triggering arbitration. Moreover, with no feasible alternatives currently available to address the urgent climate crisis, systemic reform is necessary.

In a bid to tie their contributions together, the panelists discussed the impact of the International Court of Justice’s recent advisory opinion, which reiterates states’ duty to undertake actions to curtail the harmful effects of climate change. They concluded that this opinion, although not binding, exacerbates tensions between states’ obligations under investment treaties and their international climate responsibilities. The panelists also explored how national law can impede state responses to climate change, citing Vattenfall v. Germany as an example. In this case, the German constitutional court held that the government’s rapid policy shifts in the area of nuclear energy policy violated the investor’s legitimate expectations, similarly to the protection guaranteed under investment treaties. The Vattenfall case, according to the panelists, emphasized the broader implications of state responses to climate change, illustrating that domestic legal systems can offer investor safeguards similar to those provided by investment treaties in the context of climate change.

Having covered several salient points on whether investment arbitration facilitates or hinders climate change efforts, the panelists opened the floor for questions that spanned the breadth of their contributions. Their responses resounded with a clear message: so long as investment plays a key role in addressing climate change, an efficient ISDS system is essential. In the words of Mr. Reich, “reform is important, and we need to get it right.”

*Chioma Menankiti is an LLM candidate at Harvard Law School. She previously earned a Master’s in Economic Law from Sciences Po Paris, specializing in Global Business Law and Governance, as well as a Bachelor’s degree in Politics and International Relations from the same university. Her professional experience at law firms and international institutions—including the OECD, UNCTAD, and ICSID—along with her participation in the Willem C. Vis International Commercial Arbitration Moot, has deepened her interest in international arbitration and investment law, particularly in investment treaty reform.

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ABILA Outstanding Achievement Award

The ABILA Outstanding Achievement Award was established to recognize outstanding contributions in the field of international law. Such contributions might include, but are not limited to service to an international organization, a State, or an international court or tribunal; or to teaching, research, or scholarship in the field of international law. While candidates are reviewed comprehensively, factors considered may include consideration of an individual’s specific extraordinary service initiatives and/or sustained superior contributions to the field of international law over a number of years, as well as visionary and innovative leadership.

2025 Recipient: Brenda Hollis

Brenda Hollis is currently serving as Principal Trial Lawyer (D-1 level), Office of the Prosecutor, International Criminal Court, in which capacity she leads the investigation into possible international crimes committed in Ukraine, reporting directly to the ICC Prosecutor. Prior to assuming her duties with the ICC OTP, Ms. Hollis served as the International Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia from July 2019 until July 2022, having been the Reserve International Co-Prosecutor from April 2015. Prior to her appointment as the ECCC’s International Co-Prosecutor, she was the Prosecutor of both the Residual Special Court for Sierra Leone and the Special Court for Sierra Leone (2010–2019). After serving as a legal consultant to the SCSL Prosecutor in 2002, 2003 and 2006, in February 2007 she became lead prosecutor in the case against former Liberian President, Charles Taylor and continued to lead the prosecution of that case until the appeal was concluded in 2013.

From 1994 to 2001, Ms. Hollis held various positions in the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, including that of Co-Counsel in the Duško Tadić case, the first litigated case in an international criminal tribunal since the Nuremberg trials, lead prosecutor in both the reopening of the Furundžija case, in which rape was charged as torture, and the preparatory stage of the case against former Serbian President Slobodan Milošević. Ms. Hollis has trained judges, prosecutors, and investigators in Cambodia, Indonesia, and Iraq. She also assisted victims of international crimes in Colombia and in the Democratic Republic of Congo to prepare submissions requesting investigations by the International Criminal Court. Before entering the international arena, Ms. Hollis was a US Peace Corps volunteer in West Africa, and served as an officer in the US Air Force, initially as an Air Intelligence Briefing Officer and then as a Judge Advocate, the latter primarily as a prosecutor at the trial and appellate level, retiring with the rank of Colonel.

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Source: Hosny Salah

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

Recalibrating the Proportionality Calculus to Include Mental Collateral Damage

by Natasha Arnpriester*

In a Gaza shelter, a displaced child tells a mental health worker: “I think I am dead, but if you can hear me, maybe I am alive.” This is dissociation, an acute psychological response from a young mind overwhelmed by war.

This single moment distills a wider catastrophe. In Gaza, nearly 84% of civilians meet the diagnostic criteria for post-traumatic stress disorder (PTSD), and almost 90% suffer significant psychological distress. The World Health Organization has called the mental toll “unspeakable,” as children endure nightmares, bedwetting, mutism, acute anxiety, and physical pain rooted not in physical injury, but mental trauma.

International Humanitarian Law (IHL) restrains harm in armed conflict by regulating how it is fought, balancing military necessity with the imperative to protect civilians from unnecessary suffering. At its core is the principle of proportionality, which prohibits attacks when the expected civilian harm, so-called “collateral damage,” would be excessive in relation to the anticipated military advantage.

IHL defines collateral damage as the “incidental loss of civilian life, injury to civilians, and damage to civilian objects.” But “injury” here is understood only in physical terms. Injuries that are psychological in nature do not count.

Operationally, the principle of proportionality functions like a scale: if anticipated civilian harm outweighs the military gain, the attack is unlawful; if not, it may proceed. But by excluding mental harm from this calculation, the law blinds itself to one of war’s most devastating and enduring consequences.

Psychological injury in armed conflict is not anecdotal, but an epidemiological reality. PTSD, for instance, whether triggered by direct threats or by witnessing harm to others, can hollow out a life from within. It drives people into isolation, robs them of their livelihoods, traps them in a state of unrelenting fear, fuels addiction, and pushes some to the brink of suicide.

The data is stark. In Afghanistan, decades of conflict have produced some of the highest global rates of trauma, anxiety, and depression, even among those never physically injured. In Ukraine, the share of civilians with PTSD symptoms surged from 27% before the full-scale invasion to 74%. In Yemen, one in four people lives with war-inflicted psychological trauma. Among Syrian refugees in Germany, around half live with PTSD, and 40% have contemplated or attempted suicide. After the Gulf War, more than 70% of Kuwaiti children developed PTSD; among a sample of war-affected Kurdish children, the figure reached a staggering 87%.

And mental harm often becomes physical. It raises the risk of heart disease, stroke, cancer, and other serious illnesses. In Beirut, civilians exposed to war trauma were two to three times more likely to die prematurely than those spared such exposure. Neuroscientific studies show that psychological trauma can alter brain chemistry and even its physical structure in ways that degrade physical health over time.

Psychological injury in war is not new. Accounts stretch from ancient Mesopotamia to “shell shock” in World War I. But modern military technology has diversified, and, in some cases, intensified that trauma.

Take combat drones. Praised for their precision and supposed ability to spare civilians, they are often portrayed as a cleaner form of warfare. Yet this claim rests on an incomplete calculus. Judged only by immediate physical harm, drones may seem benign; measured by their psychological toll, they can be devastating.

Mental health experts have described the U.S. drone program as causing suffering on an “unprecedented scale,” with civilians exhibiting high rates of depression, anxiety, hallucinations, psychosis, and schizophrenia.  A joint report by Stanford and New York University law schools documented communities under constant drone surveillance and strikes enduring severe emotional breakdowns, exaggerated startle responses, withdrawal, hallucinations, and suicidal ideation. In Yemen, a psychologist found 92% of residents in drone-affected areas met the criteria for PTSD. In Ukraine, “droneophobia” has entered the popular lexicon, as psychiatrists report a surge in “mental health injuries” tied directly to drone exposure. Experts liken these psychological scars to those of torture victims—people subjected to “inescapable and uncontrollable stressor events.”

Drone warfare lays bare the glaring gap in the current IHL proportionality analysis. Under prevailing interpretation, a strike expected to kill only a combatant and cause no physical civilian injury is deemed entirely lawful. Yet if mental harm were counted as collateral damage, some such operations would fail a proportionality test.

When no physical injury is anticipated, proportionality almost always tips toward military necessity, even if the psychological toll is widespread and severe. In this blind spot, even a trivial military gain outweighs what the law records as “zero” civilian harm. That legal green light can be given again and again: a strike in the morning, another at noon, another at night, day after day, each one deemed lawful, while civilians live in constant terror.

On paper, the harm does not exist. In reality, it is measurable, profound, and often as devastating as any physical wound. And as weapons and targeting systems grow ever more precise, the risk of overuse only grows precisely because physical damage appears reduced.

Closing this gap matters. Incorporating mental harm into the collateral damage calculus would compel more discriminating operational choices, forcing decision-makers to weigh military necessity against the full spectrum of civilian suffering; sparing countless civilians from an injury that may be invisible, yet no less real.

Critics may argue that psychological harm is too diffuse or unpredictable to factor into proportionality. Yet proportionality assessments already operate under uncertainty. Military decision-makers routinely forecast civilian harm and anticipated military advantage with incomplete data. The same is true in psychology, where researchers regularly model mental harm using established diagnostic criteria, population surveys, and predictive epidemiology. Difficulty in measurement does not erase the fact that psychological harm is real, foreseeable, and, like physical harm, susceptible to reasonable estimation.

There are workable ways to estimate, or at least meaningfully consider, potential psychological harm. One practical starting point could be to adapt the “zone of impact” approach long used in U.S. tort law and disaster compensation. Under the “zone of danger” rule, plaintiffs can recover damages for emotional distress without physical injury if they were in an area of immediate risk of physical harm. After the September 11 attacks, the federal Victim Compensation Fund operationalized this, recognizing PTSD, depression, and anxiety as compensable harms for those within a defined “exposure zone,” regardless of physical injury. Those who lost loved ones, witnessed the attacks, or endured the ongoing fear of another strike suffered in ways similar to civilians in war zones.

This framework could be adapted ex ante in armed conflict. First, define the anticipated exposure zone for an operation, whether the blast radius of a missile or the geographic reach of bombardment. Second, estimate the civilian population within that zone. Third, apply epidemiological data from comparable contexts to project the likely prevalence and severity of psychological harm. For example, if a planned drone surveillance operation is projected to cover a town of 5,000 people for several months, prior research from similar environments could indicate that up to 60%, or 3,000 civilians, might develop PTSD or related disorders, even absent physical injury. These projections could then be incorporated into the proportionality analysis alongside anticipated physical casualties and damage to civilian objects.

While the finer points of quantification require further scholarship, the imperative is clear: psychological injury is measurable enough to matter, predictable enough to plan for, and grave enough to demand inclusion in the law’s most consequential battlefield calculus. The growing body of international legal scholarship examining how and why mental harm should be incorporated into proportionality analysis (particularly here, here, and here) is adding important depth to what remains an underdeveloped but vital conversation.

The very purpose of IHL is to limit human suffering, whether inflicted on the body or inscribed on the mind. International law recognizes no distinction, enshrining in the jus cogens ban on torture the condemnation of the deliberate infliction of “severe pain or suffering, whether physical or mental” at the highest level of legal authority. And as “mental torture” is expressly prohibited in Article 17 of the Third Geneva Convention and deemed a grave breach under Article 130 (see also Additional Protocol I, Art. 85(5)), the mental devastation of war must weigh as heavily as physical harm in assessing proportionality, in both moral and legal terms.

The laws of war are meant to preserve a thread of humanity even in humanity’s darkest hour. Yet by defining collateral damage only in physical terms, the proportionality test ignores some of the most devastating consequences of modern conflict. A scale that weighs only deaths and physical injuries tilts IHL’s balance towards military necessity, thus eroding its commitment to humanity.

Recalibrating proportionality to account for psychological injury would not weaken military effectiveness; it would strengthen the law’s legitimacy, ensuring that the shield it promises to civilians is not pierced by wounds it refuses to see. Wars will always exact a cost. If we insist that cost is justified, then we must count every harm, including the ones the law, as presently applied, leaves uncounted.

*Natasha Arnpriester is Senior Legal Counsel at the Open Society Justice Initiative in New York, where she leads transnational litigation on human rights accountability, with a particular focus on communities affected by armed conflict, authoritarian regimes, and structural exclusion. Her litigation strategies center on developing niche and innovative arguments to address complex problems in both domestic and international legal forums, with impacted communities at the core.

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Ruined side-street in Shingal (Sinjar) following the war with the Islamic State; Levi Meir Clancy

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

Accountability Without Access: How Non-Military Actors Can Assess Conduct of Hostilities Violations

by Ilya Ivanov*

Disclaimer: The views expressed here are those of the author and do not necessarily reflect the views or positions of the United Nations, the International Committee of the Red Cross, or any other organization with which the author is or has been affiliated. This post reflects only the author’s personal analysis, based solely on publicly available sources. None of the hypothetical examples refer to any specific conflict or investigation, in line with professional confidentiality obligations and in recognition of the need to avoid perceived partiality.

International humanitarian law (IHL) currently faces a two-fold crisis in conduct of hostilities (CoH): a perceived increase in CoH violations and a persistent lack of accountability. To address this, non-military actors, including scholars, NGOs, civil society organizations, and UN-mandated investigative bodies, are increasingly identifying possible CoH violations, often without access to territory or alleged perpetrators. Their work is essential in this context.

Military and state lawyers often criticize such approaches as inherently flawed, for instance, due to the lack of access to information available to commanders at the time of the attack. In this polarizing dynamic, the gap between the military and non-military perspectives on alleged CoH violations widens, even if some may disagree.

Drawing on practical IHL experience, I explore some criticism of non-military actors involved in CoH assessment and outline practical, good faith approaches for improving the credibility and legal rigor of such assessments. I focus on two issues: citing the applicable law and its interpretation, and relying on patterns rather than inferring violations from single instances.

In my suggestions, I attempt to strike a balance between the need for accountability and the reality of IHL as applied on the battlefield. By adhering to higher standards, we can ensure a more constructive dialogue between military and non-military actors, ultimately strengthening accountability for IHL violations.

Legal baselines and interpretative exercises

Do we cite the correct law?

Applying the law in CoH analysis brings two challenges: citing the applicable law and binding rules, and using the appropriate interpretation. If a party to the conflict does not consider the law we cite applicable or binding, why would they take into account our assessment of possible violations?

Citing the applicable law is, admittedly, a minor issue. The usual challenge is referring to CoH rules, well-codified in the Additional Protocol (AP) I , in cases where AP I is not applicable. The typical approach is to note that even if AP I is not directly applicable, it reflects some customary IHL (here on p. 11 or here on p. 28, ft 156). Relatively rarely do authors omit such assertions.

The situation can be more problematic when citing the ICRC’s Customary IHL Study and Database. Identifying custom is a difficult, time- and energy-consuming task – relying on IHL experts who spent almost a decade on the issue seems more efficient. However, the Study remains a non-binding document, containing what the ICRC believes to be customary IHL; authoritative, but not conclusive. Despite the ICRC’s rigorous analysis of the law and practice, the Study has attracted criticism from states and academics. Citing the Study without clarifying that it is not a source of law may easily backfire – especially if the party to the conflict disagrees with the ICRC’s views.

Here, knowledge of interpretations is key. When it comes to AP I, we know that it does not reflect all customary IHL rules on conduct of hostilities – at least not for all states. Even if it reflects custom, as often mentioned by the ICRC, a party to the conflict may openly disagree with such an understanding. Tracking these positions may help draw the attention of people responsible for accountability within the military.

Some divergence in interpretations is even more fundamental. If we consider the principle of military necessity, a cornerstone of IHL, a humanitarian may disagree with a military expert. Should we take a law enforcement-style approach, akin to human rights law (to simplify, ‘using only that amount of force which is necessary’, as suggested by the ICRC on pp. 78-82) or a definition used by the military (to paraphrase a manual, ‘using whatever is necessary as long as it does not violate the law’, p. 52)? If we decide to explicitly promote a more ‘humanitarian’ reading of the rule, a party to the conflict may disregard this and other findings.

It may be tempting to think that an accountability-focused report is a good place to develop the law. In most cases, it is not. Applying an unsettled, progressive understanding of a CoH rule may even make fellow IHL scholars judge the interpretation as overreaching – e.g., when suggesting that AP I, Art. 58 imposes an obligation on defenders to issue warnings (here, para vii). Unsurprisingly, this can trigger a backlash where other alleged violations, even if plausible, are dismissed as part of the same package.

When analyzing CoH violations, we often need to persuade those who hold conservative legal views. This does not mean trying to regress on the law. Instead, a balanced approach that cites what is in fact applicable, uses non-binding documents cautiously, and is aware of divergent views and interpretations is crucial. When not all facts are available, focusing on what is – the law and the legal views – is a good starting point. The party may or may not engage (although sometimes you may be surprised), but keeping dialogue open is key: it can lead to changes in behavior on the battlefield.

Patterns speak volumes

Getting the law right is the easier part. How do we establish the facts?

The ICRC/Geneva Academy Guidelines on investigating IHL violations recommend paying close attention to patterns. Many UN investigative bodies and others often refer to patterns, rather than single instances of violations. This is understandable: unless you are in a room with a commander, or the party to the conflict has released enough information on the attack, it is challenging to gather enough data from a single instance for a potential IHL violation, let alone a war crime.

Even in seemingly straightforward cases of violations, such as the use of chemical weapons or perfidy, single instances may not be enough to convince others. Prioritizing patterns improves the overall credibility of analysis and solves two problems related to investigations and resources.

Repeating acts under similar yet slightly different circumstances helps establish relevant facts and filter out noise. A few instances of using unguided weapons in an area with civilian and military targets, not far from a frontline or a contact line, are not necessarily a violation. We simply do not have enough information to make a decision. However, when this happens over months and years, especially when streets are busy, with limited military advantage gained in each attack but random civilian casualties mounting, and attacks often retaliatory in nature, you may start seeing a pattern of trying to spread terror among the civilian population – which may be a war crime.

The repeated nature of the attacks shows when and how (i.e., means and methods), and most likely who (or what type of actor) carried out the attacks, improving the understanding of what was in the mind of the attacker without necessarily establishing the intent. It paints a clearer picture of what is happening. Patterns sometimes hint at rules of engagement, whether explicit or implicit, and other operational modalities that are usually kept confidential. This may not be sufficient for a criminal investigation, but it may be enough for fact-finding purposes.

Analyzing patterns is also resource efficient. Limited resources and strict reporting timelines often constrain fact-finding missions, commissions of inquiry, and others. Hence, the standards of proof they choose are lower than for a criminal investigation, using instead ‘balance of probabilities’ or ‘reasonable grounds to believe’. Focusing on patterns allows one to achieve the necessary standard of proof efficiently (p. 52), without using excessive resources.

The rise of OSINT (open-source intelligence) has also made investigations more resource-efficient. It has broadened the fact-finder’s toolkit, from frequently updated satellite imagery to near real-time photos of attack sites, often gathered and verified through crowdsourcing and geolocation techniques. At the same time, it has created new challenges: deepfakes, staged audiovisual materials, data preservation issues, or simply a lack of expertise in digital forensics. Existing protocols and guidelines help mitigate some of these problems, but non-military actors may be constrained in their capacity to conduct thorough investigations. While long-term OSINT investigations have occasionally supported international judicial proceedings, fact-finders may find greater value in using OSINT to corroborate patterns of violations with additional evidence, rather than relying on it as the sole basis for establishing a single CoH violation.

Patterns are not a perfect solution and are prone to various issues, from bias and false positives to over-generalization. Patterns, importantly, do not always indicate policy. Note how Goldstone himself virtually retracted his views on the link between pattern and policy in Goldstone’s Commission report. However, the pattern was largely proven to the Commission’s standard of proof, even if the policy was not, demonstrating the former’s importance in analyzing CoH violations.

Focusing on patterns helps establish the relevant facts for a violation. It is particularly useful when resources are constrained, which is usually the case for non-military actors. Beyond that, observing patterns of violations for long enough can help change opinions – including those of (former) officials.

Attention to applicable law, divergent views, and patterns is no perfect recipe, but it reflects what works in international fact-finding. Despite all this, you may still be unable to prove a CoH violation. As frustrating as it can be, sometimes simply documenting is enough. This can start a conversation on whether IHL is adequately adapted to contemporary realities or nudge a party to the conflict to reflect on its operations. It can also be important for those affected. As a person from a country in conflict told me, ‘No one will be able to solve [this crisis], but at least it will be documented’.

*Ilya Ivanov is a PhD Candidate at the University of Geneva, where he researches the legal value of non-binding norms in international humanitarian law and international human rights law. Recently, he served as a Legal Officer at the Office of the United Nations High Commissioner for Human Rights (OHCHR) and has held positions with the International Committee of the Red Cross, the World Food Programme, and the Human Rights House Foundation.

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In honor of ILW 2025’s theme of ‘Crisis as Catalyst,’ ABILA is hosting its next blogging symposium with the International Humanitarian Law Committee. Previous symposia have been sponsored by the International Environmental and Energy Law Committee (see here) and the International Investment Law Committee (see here). Editors for this Symposium are Professor Gabor Rona, Anne Harper, and Freya Doughty-Wagner.

Crisis as Catalyst in International Law:

“ILW 2025 will explore how crises can serve as transformative moments that challenge and reshape the framework of international law.  Whether political, environmental, economic, or humanitarian, crises compel local, regional, and global actors to confront the limitations of extant legal systems. By serving as catalysts for innovation, crises also provide opportunities to reevaluate and reconstruct international legal norms. This process highlights the dynamic nature of international law, which must balance its foundational principles with the need for flexibility in response to unprecedented events. ILW 2025 encourages participants to reimagine international law.”

Crisis as Catalyst in International Humanitarian Law lends itself to many blog themes. These may include, but are not limited to:

– Regulation of private military companies;

– The obligation to apply legal advice to targeting decisions, in light of the firing of TJAGs;

– Secretary Hegseth’s “War on Warriors” effect on IHL compliance;

– A review of status of Additional Protocols;

– International Criminal Court sanctions;

– Enforcement of Leahy Laws and the “ensure respect” obligation of the Geneva Conventions;

– The effect of US sanctions on engagement with armed groups;

– Artificial intelligence and accountability;

– Humanitarian action/obligations and principles;

– Occupation vs Annexation;

– Challenges to the implementation of principles of distinction and proportionality in modern warfare;

– Detention and trial by non-state armed groups;

– Accountability challenges relating to drones and other forms of remote targeting;

– Obligations in the development of new weapons technology;

– Enhancing accountability through the new Ljubljana/The Hague Convention on Mutual Legal Assistance.

To participate, kindly submit a 200-word abstract and a brief biography to Freya Doughty-Wagner at media@ila-americanbranch.org by June 27, 2025. Abstracts and biographies may be in Word or PDF format. Please include the phrase ‘blog symposium’ in the email’s subject line. Abstracts must address the ILW 2025 theme from an international humanitarian law perspective.

Five abstracts will be selected. Submissions may come from law students, academics, or practitioners. Undergraduates are not able to apply at this time. Blogs may not be cross-posted to other blogging platforms.

Successful applicants will be notified by July 10, 2025, and requested to prepare a 1,500-word first draft with hyperlinks as references and an attached open-access image by July 31, 2025. All blogs may undergo editing, subject to author approval, before publication. We anticipate posting the edited, complete blogs to our website and across our social media the week of August 25, 2025. The best blog will also be included in our biannual print newsletter.

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International Law Chats is a podcast from the American Branch of the International Law Association (ABILA), hosted by Professor Chiara Giorgetti, Alison Macdonald KC, and Professor Milena Sterio. Episodes air on the first Monday of every month and will feature prominent guests in the field of international law. Episodes will be available on Spotify, YouTube, and our website.

Chiara, Alison, and Milena sat down with Amb. Namira Negm and Tafadzwa Pasipanodya at the American Society of International Law’s Annual Meeting to discuss the importance of African practice in international law.

Amb. Negm is the first Director of the African Migration Observatory and Honorary President of the African Society for International Law. She is a Visiting Professor at the Geneva Summer School in International Law and International Humanitarian Law (Geneva University) and was the first female Legal Counsel of the African Union.

Tafadzwa Pasipanodya is a partner in Foley Hoag’s international litigation and arbitration department and chairs the firm’s Africa practice group. For almost two decades, she has represented sovereign States from all over the world in investor-state arbitrations concerning natural resources, mining, the environment, infrastructure, and health policy before arbitration tribunals.

Listen to the third episode below and subscribe to International Law Chats on Spotify and YouTube.

The post International Law Chats Ep. 3 – Africa Popularis with Amb. Namira Negm and Tafadzwa Pasipanodya appeared first on ABILA.

Source: World Economic Forum

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

Commodified Climate Solutions: The Ethical Dilemma of Adaptation and Resilience Investments

by Champion Olatunji*

Introduction

The world is experiencing increasing climate-related disasters, such as droughts, famines, and rising sea levels. To reverse this problem, the Intergovernmental Panel on Climate Change (IPCC) called for new pathways to reduce vulnerabilities to climate impacts and development through adaptation and resilience, which has become a critical subject in global climate action discussions.   

However, profit increasingly shapes efforts to adapt and build resilience rather than fairness. Companies and investors are turning adaptation and resilience into business opportunities, often at the expense of vulnerable communities and ethical outcomes. This blog investigates how these financial priorities conflict with the need for equitable climate solutions and argues for a shift to frameworks that put justice first.

The IPCC states that we should consider adaptation as a response strategy to anticipate and cope with impacts that cannot be avoided under different climate change scenarios. Similarly, resilience refers to the capacity to prepare for, respond to, and recover from the impacts of hazardous climatic events while incurring minimal damage to societal well-being, the economy, and the environment, including at the local, subnational, national, regional, and international levels. Together, these strategies form a necessary framework for safeguarding vulnerable communities against the worsening impacts of climate change. Implementing adaptation and resilience measures, however, requires substantial financial investment. This need appears in Article 2.1 (c) of the Paris Agreement, which calls for aligning financial flows with low-carbon and climate-resilient development.

In recent years, adaptation and resilience (A&R) investments have emerged as a frontier for institutional investors, mostly from wealthier nations, and blended finance platforms. Across sectors like insurance, agriculture, energy, and healthcare, these investments are increasingly seen not just as environmental necessities but as lucrative opportunities.

However, this commodification of climate solutions raises profound ethical questions: Are these profit-driven investments reinforcing global inequalities rather than addressing them? Are the most vulnerable communities being left behind in the race to monetize climate solutions? Can we rethink the role of international investment law to ensure that (A&R) investments uphold the principles of climate justice rather than perpetuate global inequalities?

The Commodification of Adaptation and Resilience as Climate Solutions

Unlike other investment models well understood by financial institutions, adaptation and resilience (A&R) measures face challenges that limit their uptake. The evidence from the 2023 publication from Race to Resilience revealed some key reasons for the low investment in adaptation.  These include perceptions of low profitability, limited information availability, and the long-term horizon of projects (often spanning 10-20 years).

Despite these barriers, the commodification of A&R solutions is on the rise. Commodification refers to how climate solutions, designed to address critical risks, are commercialized and marketed primarily for profit rather than public interest. These solutions include technologies and services to reduce greenhouse gas emissions, increase energy efficiency, or promote sustainable practices.

Some examples of commodified A&R solutions include:

– Climate-resilient real estate, which focuses on developments designed to withstand climate risks like flooding and hurricanes, commands premium market values;

– Flood insurance products that leverage advanced climate risk models to determine coverage and premiums;

– Disaster recovery technologies such as satellite imagery, geospatial mapping, and risk modeling tools that are commercialized to support governments and businesses in disaster preparedness; and

– Smart grids and energy upgrades that provide infrastructure improvements tailored to extreme weather conditions, ensuring energy continuity and efficiency.

One key factor driving this trend is the potential financial returns in developing markets. A 2022 report by the World Economic Forum (WEF) highlighted that the market for adaptation solutions in developing countries could reach $2 trillion annually by 2026. The report framed adaptation as an “enormous opportunity,” encouraging private sector actors to “place their bets” on A&R solutions, particularly in regions most vulnerable to climate impacts. By tying climate responsibilities to financial returns, businesses increasingly view climate change as an opportunity for wealth creation, often at the expense of broader equity and justice concerns.

While the intent to scale up adaptation is well-meaning, the growing focus on profitability risks sidelining the equitable and inclusive dimensions essential to climate justice. The inherent ethical concern in this commodified approach is evident as financial actors tie climate adaptation into a business-first endeavor. This approach may detract from the systemic changes required to address climate justice, equity, and resilience for the most vulnerable communities.

While these solutions address critical risks, their development and deployment are shaped by market incentives rather than equitable frameworks. Without deliberate efforts to integrate justice and equity, commodification may exacerbate inequalities in climate vulnerability.

Investment Drivers Responsible for Commodifying A&R Climate Solutions

Institutional investors and blended finance platforms increasingly recognize the financial opportunities within climate adaptation. Reports from major players such as BlackRock suggest that A&R investments are gaining traction because of the following:

– Hedging Against Climate Risks: Adaptation investments mitigate climate-related vulnerabilities, providing stability in diversified portfolios.

– Increasing Demand: Rising climate impacts drive the need for resilience solutions across agriculture, energy, and infrastructure sectors.

– Enhanced Project Returns: Incorporating climate risk assumptions (e.g., wildfire risk in energy infrastructure) can increase profitability.

Blended finance models, such as those employed by Climate Fund Managers Investor Two, are packaging A&R solutions as bankable projects to attract private capital. These approaches de-risk investments and promote private sector participation, further normalizing the commodification of resilience.

Recent studies, such as one from Harvard Business School, reflect a broader shift in corporate strategy. U.S. public companies are not only responding to climate risks but also actively framing them as business opportunities. This transformation signals the growing alignment between climate solutions and financial objectives, albeit with risks of prioritizing short-term returns over long-term equity.

Ethical Dilemmas of Commodifying A&R Climate Solutions

In a bid to raise the inherent issues in this new strategy among financial actors or private investors, the commodification of climate solutions could be problematic. For instance, in emerging markets, investments are sometimes directed into projects like large-scale solar or wind farms that benefit from tax incentives or land concessions but do not necessarily support local adaptation strategies or respect indigenous land rights. Conversely, in developed economies, investments might not align with national decarbonization targets, focusing instead on short-term profitability.

Some of the ethical dilemmas that arise from the commodification of climate solutions include:

– Misalignment with climate goals – If investments focus more on financial returns than on actual climate resilience or emission reduction, they could undermine global climate goals and the Nationally Determined Contributions (NDCs) under Article 4 of the Paris Agreement which embodies efforts by each country to reduce national emissions and adapt to the impacts of climate change.

– Equity Gaps – Here, the differential vulnerability and exposure of vulnerable groups, communities, and ecosystems to climate hazards is already recognized under the UNFCCC. As such, guidance on A&R action requires actual solutions for such groups and ecosystems. Still, when the motive for prioritizing these communities is profit-driven, resources may be shifted to wealthier regions and consumers, leaving these communities to bear the burden of the climate crisis.

– Climate Injustice – The commodification of A&R might exacerbate global inequities. Wealthier countries or communities could afford to invest in and benefit from these solutions. At the same time, developing nations or marginalized groups might be left with insufficient resources to adapt, thus widening the gap in climate resilience.

– Accountability and Responsibility – Commodification raises the question of who should be held accountable for ensuring that A&R investments are ethical and equitable. Should it be investors, governments, or international bodies? And how can we ensure that these entities act in the interest of climate justice?

– Risk of Greenwashing – With the rush to capitalize on climate solutions, there is a risk of greenwashing. Companies might overstate or misrepresent their contributions to A&R, leading to a false sense of progress in climate action.

– Future Generations – Today’s decisions regarding A&R investments will have long-term implications. We have an ethical responsibility to ensure these investments do not just serve current financial interests but also safeguard the environmental conditions for future generations.

This blog recognizes that markets are effective mechanisms for distributing many goods and services and rewarding returns on investment, but also acknowledges that market operations are not inherently devoid of moral considerations. Creating new forms of commodification creates new social and environmental problems. As a market investment strategy over actual environmental solutions, this approach tends to internalize the economic imperatives of market activities, which is a strategy that is becoming obvious in the way these solutions are generally promoted as one of the effective means for private investors and blended finance platforms to contribute to decarbonization.

Reforming Investments in Climate Solutions

Reforming investments in climate solutions through investment law internationally is a complex challenge. Some parts of these reforms are now front-burner issues among investment law scholars, such as the dispute settlement process and protection of foreign investors’ expectations. Yet, there is also a need to start carving out a new framework for investments in climate solutions that would not be treated as marketable assets.

For example, preferential treatment for foreign investment tends to arise from differences in overall approaches for balancing public and private interests, applicable substantive rules, and legal remedies, including damages awarded. To this end, South Africa’s constitution, for example, requires payment of ‘just and equitable compensation’, which must involve ‘an equitable balance between the public interest and the interests of those affected. This has prompted treaty drafting shifts, including more qualified language on indirect expropriation and environmental exceptions. For instance, the same approach can be adopted by adding new standards, especially in international treaties, to prevent the commodification of climate solutions.

As practitioners address specific climate finance issues through international law, especially in developing countries, they must also consider the evolving strategies employed by financial players who view the climate crisis as an economic opportunity. This is evident in how they frame adaptation and resilience (A&R) solutions and structure investments. Therefore, the United Nations Framework Convention on Climate Change (UNFCCC), investment law practitioners, and institutions should incorporate this emerging issue into their review of international investment treaties and laws in the context of climate change.

The already apparent inequities in these new commodified solutions raise concerns about the role of international investment law.  Carving out appropriate new standards in investment treaties would require considering equitable access, prioritization of vulnerable communities, and integration of justice considerations into the market mechanisms. This means incorporating clauses into investment treaties that ensure investments contribute to adaptation and resilience objectives.  Moreover, such clauses should mandate community engagement wherein financial gains from these investments are distributed equitably in the community.  They should also provide ethical investment incentives whereby climate solutions that prioritize the fundamental goal of sustainability over pure profit would receive tax benefits or recognition in global sustainability efforts.

Conclusion

The current investment law framework needs to be rethought to ensure that investments are aligned with decarbonization goals and the NDC priorities of host countries. As discussed throughout this blog, commodifying climate solutions within existing investment structures undermines justice-oriented approaches and exacerbates climate vulnerabilities. In response to this critical issue, this paper has proposed that carving out new frameworks in the current investment law model and binding them would prevent investments in climate solutions from being treated solely as marketable assets.

As detailed above, this framework reimagines A&R by centering on equity, ethical responsibility, and systemic transformation. This would help transform climate investments from mere economic opportunities, susceptible to the pitfalls of commodification analyzed earlier, into actual solutions for climate change governance. These reforms, alongside the current efforts of international law practitioners, would directly address the concerns raised regarding unchecked capital accumulation, commodification, pollution, and deepening socioeconomic inequality.

*Champion Olatunji has extensive experience working with both for-profit and non-profit organizations in the United States, serving in various capacities as a researcher and consultant on sustainable cross-border investment, climate change, and business law. His work has been published in peer-reviewed journals. He holds an LLM degree from Duke University School of Law and is a Clean Energy Leadership Institute (CELI) Fellow in Washington, DC.

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This blog is part of a series of reflections on ILW 2024 by our Student Ambassadors. Each Student Ambassador engaged with various panels and will share their experiences over the spring and in the lead up to ILW 2025.

In 1967, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – more commonly referred to as The Outer Space Treaty – was signed and entered into force. While both were monumental for their time and a feat for the three original signing parties (the US, the UK, and the Soviet Union), the Outer Space Treaty (“OST”) has remained untouched for the last 60 years. One hundred fifteen states are now party to the treaty, but the original 8-page, 17-article treaty has not been amended despite the dramatic evolution of outer space technology and activities. Against this backdrop, a few questions come to mind: For a treaty so short and covering such complicated technology, is everything concretely defined and explained? If provisions are unclear, which actors will decide what they mean?

On October 25, 2024, Jack Beard, Professor and Director of the Space, Cyber & National Security Law Program at the University of Nebraska College of Law, and member of Committee on the Use of Force for the American Branch of the International Law Association (“ABILA”), moderated a discussion on “Empowering International Law to Address Rising Tensions in Outer Space: The Woomera Manual on the International Law of Military Space Activities and Operations.” The speakers discussed the questions posed above and some more specific questions regarding space law and other fields, such as legal and scientific. The speakers also discussed how several of these ongoing questions may be answered by The Woomera Manual on the International Law of Military Space Activities and Operations, a book co-authored or contributed to by several panelists.

The panel included: Laura Grego, Senior Scientist and Research Director for the Global Security Program of the Union of Concerned Scientists; Heather Harrison Dinniss, Senior Lecturer for the Department of International and Operational Law at the Swedish Defence University; David A. Koplow, Scott K. Ginsburg Professor of Law for the Georgetown University Law Center; and Dale Stephens, Professor and Director of the Research Unit on Military Law and Ethics at the University of Adelaide, Australia.

The discussion opened by contextualizing the audience with the central dilemma posed by the OST: how to interpret the treaty. The speakers indicated that the answer has taken a few forms. Some specialists argue that the OST is the law precisely as the states have interpreted it. Others suggest that the OST’s broadness allows contemporary lawyers to decide what the law should be. For example, regarding Article VI on responsibility for outer space activities, space lawyers believe the text means only what it says, per Article 31(1) of the Vienna Convention on the Law of Treaties. In contrast, military lawyers suggest a more varied and malleable approach; “[l]awyering in the space arena therefore requires not only the application of existing space law and other applicable international and domestic law, but also, where relevant, the nuanced incorporation of lessons from the practice of law in all other domains.”

Next, the panel discussed what is not included in the OST and the interpretive issues such exclusions pose for the treaty’s interpretation. Notably, the OST contains no definition section or other elaboration on the articles’ meaning. This lack of explanation has sparked dispute regarding what several articles are supposed to mean or cover, especially Article IV.

“States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

Broadly, Article IV prohibits weapons or military base-building in outer space. More specifically, it mandates that weapons cannot be placed in orbit, installed on celestial bodies, stationed in outer space, or tested in outer space. Left unanswered by the text of the treaty, however, is what exactly counts as an ‘instillation,’ what a ‘station’ is, what will count as a ‘weapon,’ or what will be considered ‘orbit.’

What a ‘stationed’ weapon would be is quite unclear, given that nothing in space is truly stationary. The speakers noted that ‘weapon’ is generally interpreted with hostility, but that may not be the case if an in-space emergency requires ‘weapons’ of one state to help people of another state. Finally, the definition of ‘orbit’ has been particularly troubling as scientists and defense agencies’ opinions diverged. Scientists generally hold the “functionalist view” that an object in space is in orbit even if it does not go all the way around Earth one complete time.  On the other hand, the US Department of Defense has rejected that view in favor of a definition of ‘orbit’ that necessitates an object undergo “one complete [rotation] around the Earth.” The speakers noted that these questions will remain ripe for discussion as long as they stay open – or as long as the treaty remains unamended – and an excellent opportunity for industries to work together to pursue the answers. Indeed, the goal of The Woomera Manual was to bring together perspectives and instruction from various sectors to help guide the OST’s application moving forward. While compiling various industries’ perspectives to help answer what the OST does not, the speakers remarked that a more fundamental issue arose: some industries and fields of view clashed.

Accordingly, the speakers concluded with a big-picture discussion of how they see the intersecting of science and legal interpretations of space. Additionally, how the industries’ collision may affect states’ legal order moving forward. For example, it is still unclear what ‘space’ is. Where the very understanding of what ‘space’ is, literally or functionally, remains unanswered, applying law with any consistency will be equally challenging. Further, concerning military operations, law and policy often disagree on what constitutes ‘military’ action and what is ‘civilian.’ But the reality of space is that it is dual use. Projects like Starlink, perhaps initially intended as scientific development for civilian use, are becoming increasingly militaristic and, thus, more targetable. On the other hand, there are developments like the Global Positioning System (“GPS”), initially designed for the military but now so commonly used it is deemed “civilianized’ and no longer targetable by military operations.

The speakers concluded that the risk of leaving these questions unanswered is that States cannot clearly understand their duties per the OST. Without understanding expectations, they are less likely to fulfil their responsibilities or hold other States responsible. While drafting broadly has advantages in certain areas of the law, outer space is not one of them; the dangers for humanity and the environment will likely outweigh the benefits. In sum, there is space for greater legal clarity and available foundations that must be built when it comes to the law in outer space.

*Madison Graham is a third-year law student at the University of Georgia Law School, where she has been focusing mainly on public international law and national security law. She says: “While I came to law school knowing I would be interested in studying international law, it has been amazing over the past two years to have my perspective broadened on how widely the subject of ‘international law’ spans. Groups like ABILA have been an integral part of my academic growth, and I am thrilled to have had the opportunity to contribute as a student ambassador.”

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