Publications

Gregor Novak, Global Lawmaking and Social Change (forthcoming in 2024 with Hart Publishing/Bloomsbury).

Customary international law is a widely-recognized modality of international lawmaking. It underpins all norms of international law and shapes all aspects of global society. Yet familiar approaches to customary international law struggle to answer basic questions about its role, operation, and prospects. 

Pursuing an interdisciplinary approach, this book offers an alternative perspective on customary international law as a dynamic and multifaceted social phenomenon and idea. It explores customary international lawmaking in different social contexts, including the regulation of armed conflict, the treatment of the 'other', and the management of global environmental risks. Focusing on the 'varieties' of customary international law, it identifies four types of customary international law norms and explores their roles and implications. 

Critically revisiting a classic topic of international law, the book provides a tool for understanding and shaping global lawmaking and social change in a rapidly changing international legal order.

Gregor Novak, "Unilateral Sanctions and International Lawmaking", 50 Yale Journal of International Law (forthcoming in 2024).

Gregor Novak, "Reading the Waves: Continuity and Change in Ocean Lawmaking", 47(2) Columbia Journal of Environmental Law 359–456 (2022).

This Article samples from the modern history of humanity’s relationship with the ocean to gain insights into continuities, changes, and dynamic elements in contemporary ocean lawmaking. The Article argues that keeping in mind, supporting, and leveraging certain dynamic elements revealed in this lawmaking arena can help democratize ocean lawmaking and accelerate sorely needed reforms in ocean law. Such reforms are needed because contemporary ocean lawmaking has produced ocean law whose main defect is not merely that it is patchy, uncoordinated, and often ineffective but that it is heavily skewed towards powerful actors with vested interests in the status quo. As a result, it has sidelined those who must bear the downstream costs of its lawmaking outcomes and placed at risk the very survival of the ocean ecosystem and those who rely on it. In turn, any reform of ocean lawmaking should give more power and voice to vulnerable coastal communities, victims of human trafficking, refugees, maritime workers, people deriving their livelihood from the marine economy, consumers, the scientific community, indigenous peoples, future generations, and the maritime ecosystem itself.

Gregor Novak & Helmut Philipp Aust, "The Law of Treaties in Wartime: The Case of the Black Sea Grain Initiative", Just Security (10 November 2022).

In this article, we examine the humanitarian, political, and legal context of the Black Sea Grain Initiative and some of the implications of its legally binding nature, including for treaty withdrawal and suspension. We show how the law of treaties has played a constructive background role in stabilizing global crises in the face of the most difficult of circumstances: an armed conflict raging between two of the treaty’s parties.

Gregor Novak, "The Black Sea Grain Initiative and the Law of Treaties: A Response", Lawfare (9 May 2023).

A discussion of the Black Sea Grain Initiative's legal nature may appear like a tangential question in the face of Russia’s ongoing war of aggression against Ukraine, whose effects on global food security form the backdrop to the UN Secretary-General’s efforts at supporting the continuation of Initiative—be it a “deal” or a treaty. At the same time, the legal dimensions of the Initiative offer valuable insights into the actual and potential roles of international law at times of crisis. In this response piece to a recent article on Lawfare, I offered some context and clarifications to an earlier article by Helmut Aust and myself.

Gregor Novak, "Wounded, Sick, and Shipwrecked", in Max Planck Encyclopedia of Public International Law (Anne Peters ed., 2022).

The rules governing the wounded and sick appeared early in the development of the law of armed conflict. The scope ratione personae and ratione materiae of the treaty law aiming to protect inter alia the wounded, sick, and shipwrecked in armed conflict has significantly expanded since the adoption of the 1864 Geneva Convention, particularly through the Geneva Conventions I–IV (1949) and the Additional Protocols of 1977, whose provisions largely reflect customary international law but are at the same time complemented by other customary international rules. However, the universal application and enforcement of the applicable rules, especially in new types of armed conflicts and with respect to all participants, remain issues of acute concern. A marked discrepancy between the postulates of international humanitarian law and reality exists and affects in particular the wounded, sick, and shipwrecked in armed conflict, whose ability to vindicate any rights under international humanitarian law as well as international human rights law remains limited. 

Gerhard Hafner & Gregor Novak, "State Succession in Respect of Treaty Relationships", in Oxford Guide to Treaties 383–413 (Duncan B. Hollis ed., 2nd ed. OUP 2020).

This chapter asks how treaties apply in cases of disruption to the international legal order — State succession — a topic addressed by the 1978 Vienna Convention on Succession of States in respect of Treaties (VCSST). The present state of affairs relating to treaty succession suggests that only some of the VCSST’s provisions can serve as a reliable guide to the current State of customary international law (e.g. Article 11’s continuation of all boundary regimes, Article 15’s ‘moving treaty boundaries’ rule). Others constitute progressive development of international law (e.g. Article 31 in cases of incorporation; Article 34 in cases of separation). In any case, modern treaty succession distinguishes not only among the different cases of State succession, such as merger or dismemberment, but also among specific categories of treaties that are subject to different rules or principles. It is therefore difficult to identify a generally applicable legal regime of treaty succession.

Gregor Novak, "Aliens (Non-Citizens)", in MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE CONSTITUTIONAL LAW (Rainer Grote et al. eds 2020).

The ‘alien’ refers to a particular category of the ‘other’, one often defined in opposition to its correlative of the ‘citizen’ or ‘national’.  As a concept and condition, the alien complicates key questions of constitutional law and theory.  Alienage is a relative, polyvalent, and dynamic category: the concept and definition of the alien are contingent, and the status and rights of aliens in various constitutional systems differ widely, due to both myriad types of alienage (eg refugees, stateless persons, or immigrants) and distinct regional and national trajectories. Some of the most vulnerable populations worldwide are aliens, whose status as non-members can further be shaped by their particular legal status, disability, gender, origin, ethnicity, race, age, socioeconomic status, or sexuality. Building on these preliminaries, this encyclopedia entry addresses definitional and conceptual problems posed by the alien (or non-citizen). It also briefly points to the role of the alien in constitutional and political theory, international law, and neighboring fields. It further offers a comparative constitutional description and analysis of the status and treatment of aliens along thematic and regional or national dimensions. In a concluding section, the entry provides a general comparative assessment.

August Reinisch & Gregor Novak, "International Organizations", in International Law in Domestic Courts: A Casebook 170–96 (André Nollkaemper and August Reinisch eds., OUP 2018).

This chapter examines how domestic courts have addressed issues relating to the legal personality, privileges and immunities as well as responsibility of international organizations. Various issues concerning international organizations, including their treaty-making powers, are intrinsically related to the international nature of their legal personality. However, there is a growing number of situations in which international organizations need to act as subjects of domestic law. The chapter first provides an overview of the domestic legal personality of international organizations before discussing the sources and scope of their immunities, the tension between immunities and the right of access to justice, and the question of attribution of internationally wrongful conduct to and the responsibility of international organizations. A number of domestic court cases involving international organizations are reviewed to highlight the diversity of the sources of the institutional law of international organizations, as well as the various traditions of incorporating international law into the domestic legal order.

Gregor Novak & August Reinisch, "Desirable Standards for the Design of Administrative Tribunals from the Perspective of Domestic Courts", in Development and Effectiveness of International Administrative Law 271–302 (Olufemi Elias ed., Brill 2012).

This article draws on the jurisprudence of domestic courts to identify the minimum criteria for the design of administrative tribunals of international organizations deemed desirable or necessary and asks whether these criteria may be deemed universal, i.e.  whether domestic courts apply a common standard. The article first gives an overview of the human rights law informing the decisions of domestic courts in the context of labor relations of international organizations and their staff. It then analyzes what standards domestic courts have actually applied to administrative tribunals of international organizations, while pointing to various other factors influencing the design of administrative tribunals. Finally, the article ventures some recommendations for the design of administrative tribunals.

Gregor Novak & August Reinisch, "Austria", in The Privileges and Immunities of International Organizations in Domestic Courts 271–302 (August Reinisch ed., OUP 2013).

This chapter describes the relevant aspects of the Austrian judicial system. It then discusses cases that illustrate the types of legal problems related to the domestic legal personality and the privileges and immunities of international organizations that have come before Austrian courts. It also considers the elements of transnational judicial dialogue.

Gregor Novak, "Consumer Protection", in MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE CONSTITUTIONAL LAW (Rainer Grote et al. eds, 2023).

Consumer protection intersects with constitutional law in multiple ways. On the one hand, consumer protection is expressly incorporated into many constitutions. At the same time, constitutional provisions that are not focused on the ‘consumer’ also affect or shape consumer protection. Thus, constitutional law has served to enable and support consumer protection and consumer movements, both directly (for example, by mandating the creation of consumer protection agencies and legislation) and indirectly (by guaranteeing various fundamental rights of relevance to consumers). On the other hand, constitutional law has also shaped and constrained consumer protection regimes, for example by enforcing opposing constitutional rights of economic operators, qualifying the freedom of expression (for example, by regulating consumer boycotts), or shaping the meaning of consumer protection in ways that emphasize collective interests and access over individual ‘choice’. Moreover, consumer protection has indirectly affected popular and expert understandings of fundamental rights and public participation because individuals’ identities as consumers have tended to color expectations about other law-governed relationships. Indeed, across the world, consumer movements have been associated with a wide variety of socio-political movements and played an important role in motivating socio-political engagement and constitutional change.