Analysis

Discrepancies between the aspiration to apply ICL indiscriminately and the reality of its application described above drive perceptions of double standards. In this blog post, I will sketch the origins and context that led to double standards in ICL and consider how to differentiate double standards from selectivity and whataboutism. I will argue that recent developments illustrate double standards within the ICL framework. Given that the legitimacy of international criminal justice crucially depends on its impartial application, it remains paramount to work towards unmasking and remedying such double standards in ICL.

This blog post describes anecdotal and individual experiences. In future research I shall try to situate the experiences described below in the raging debate on whether or not academic institutions need to express solidarity - and act on it through boycotts, sanctions, etc. - in response to atrocities being committed anywhere in the world, a debate which is taking place on university campuses all over the world. This phenomenon deserves wider study, not only by international lawyers but also from various (multi)disciplinary perspectives. This blog post relates to ways in which academic institutions talk about and respond to alleged breaches of international law rather than double standards in international law as such.

This post examines this challenge for political organs and for international law through both a practical and theoretical lens. The practical side entails a recounting of the brief life of the UN’s International Commission of Human Rights Experts on Ethiopia (ICHREE), a commission of inquiry of the Human Rights Council on which I served in 2022 and 2023. The theoretical side builds on this case study to ask what is realistic and still principled to expect of political bodies in enforcing international law in a way that reduces the prospects of double standards. Drawing on the concept of impartiality and the unavoidability of selectivity, I argue that HRC inquiries should proceed on the basis of the gravity of violations to avoid double standards (which are distinct from selectivity).

International criminal justice is, by common consent, to at least some degree, victors’ justice. Some have argued, however, that victors’ justice might be giving way, over time, to a more universal justice also capable of holding victors accountable. This hopeful notion is often held up by others as a specifically liberal delusion. In my current project, however, I hope to use the examples of leftist “civil society tribunals” from the late Cold War to show that this idea - delusional or not - was once actually more popular amongst radical critics of the liberal international legal mainstream. Liberals, in this period, could thus be the “realists.” I conclude that geo-political realities do not only produce victors’ justice, they explain ideological responses towards it. They have changed how double standards are perceived.

While each post focuses on distinct contexts and frameworks, several overarching themes emerge. First, the posts reveal divergent conceptualizations and applications of the concepts of double standards in international legal practice, which in turn raises further questions about how best to examine the role of double standards in fields as disparate as international economic and criminal law. Second, the posts underscore the tension between the ideals of universality and the realities of power in international law: whether in the Human Rights Council, international criminal tribunals, or through state practice, double standards reveal the gap between abstract normative aspirations and political constraints that undermine consistent and principled action in specific cases. Third, the posts begin to identify the rhetorical and practical tools used to navigate or exploit this tension. From Esponda’s exploration of argumentative strategies to Schüller’s critique of procedural openings, the posts show how states and institutions justify selective actions while striving to maintain legitimacy. Fourth, some posts broach the question to what extent double standards are a remediable aspect of practice or, alternatively, an unavoidable feature of the international legal system.

In this essay, I argue that while the Zero Draft and Elements Paper recognize the role of trade as a driver of economic growth and development, particularly through regional integration and increased trade finance, these documents fall short of addressing the structural barriers that prevent marginalized trade actors—such as informal cross-border traders (ICBTs), women, and SMEs—from fully participating in and benefiting from trade-driven development. To ensure that trade genuinely fosters inclusive development, the financing for development agenda must move beyond broad commitments and explicitly integrate policies that support marginalized trade actors, particularly within frameworks like the African Continental Free Trade Area (AfCFTA). The following sections critically assess the strengths and gaps in the Zero Draft and Elements Paper and propose targeted policy interventions to enhance inclusivity in trade finance and development.

Some of the core objectives of FfD4 are enabling a renewed global financing framework that is underpinned by a commitment to multilateralism and collective action and aligned with national priorities. The African context is especially disadvantaged regarding barriers to meeting these objectives because the political elite, who set the said national priorities and spearhead ‘collective action’, is at the forefront of perpetuating illicit financial flows. The Pandora papers and similar exposés have revealed that African leaders are often at the forefront of illicitly hiding money abroad and moving it around illegally. This creates a paradox, as the very individuals responsible for driving meaningful progress in addressing illicit financial flows are frequently the biggest impediments to such efforts. Peter Ekeh’s concept of the ‘two publics’ provides a compelling theoretical framework for understanding this dynamic.

Accordingly, this article aims to situate the regulatory challenges that emanate from this divide within the international human rights standards that inform the use and development of emerging digital technologies. Given the necessity for brevity, particular focus will be afforded to two proposals set out in the United Nations Department of Economic and Social Affairs Elements Paper for the outcome document of the Fourth International Conference on Financing for Development (FfD4). Namely, (1) technology transfer and (2) the promotion of equitable access to artificial intelligence (AI), including the development of a regulatory ecosystem that promotes safe, secure, and trustworthy AI systems. The analysis will also briefly address the Zero Draft Outcome Document for the Fourth International Conference on Financing for Development (Zero Draft FfD4) because it acknowledges the transformative potential of technology in achieving the Sustainable Development Goals (SDGs).