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HHS ILSA LAW JOURNAL 2026 ISSUE I

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TABLE OF CONTENTS

EDITOR-IN-CHIEF’S NOTE .................................................................................. 2 THE GUEST EDITORS .......................................................................................... 3 ACKNOWLEDGEMENTS...................................................................................... 5 Universality in Fragmentation: Trade Law and Human Rights Law as Competing Universal Projects By Daria Hasan ........................................................................................................ 6 Analysis of Regulation 2024/1183 By Vin Stosio ......................................................................................................... 32 Evicted by click: marketplace Bans and EU platform due process - a Netherlands lens By Sandrin Petrova ................................................................................................. 47 Building Sovereignty at Sea: China’s Artificial Islands in the Disputed Areas of the South China Sea and the Environmental Limits of Maritime Development under UNCLOS By Federika Fedifeodorova ...................................................................................... 62

EDITOR-IN-CHIEF’S NOTE Dear readers, On behalf of the Editorial Board, it is my distinct pleasure to officially present you the first issue of the HHS ILSA Law Journal for 2026. First launched in 2016 under the auspices of the Hague Chapter of the International Law Students Association (HHS ILSA), the HHS ILSA Law Journal invites student and alumni of the International and European Law Programme at The Hague University of Applied Sciences to respond to our biannual Call for Submissions. We aim to promote scholarly reflection on current and emerging topics of International and European law. By encouraging the critical study of contemporary developments, the Journal strives to give voice to an array of perspectives in identifying impending challenges, as well as offering possible solutions to them. This issue of the Journal focuses on the topic of Emerging Legal Frontiers: Development & Innovation in Law. As the international legal order continues to change, this edition aimed to foster discussion on contemporary challenges arising, and how the law has adapted to these. Analyses provided by the authors in this edition assess how technology, changing alliances, and varying areas of law can shape international law as we know it today. We are pleased to present you with a great selection of contributions that illustrates the diversity and pertinence of the issues explored in this publication. We hope that you enjoy this issue, and find its contents curious, stimulating, and thought-provoking. On behalf of the editorial team, I wish you a pleasant read! Ms. Aurelie Levesque 2025-2026 Editor-in-Chief of the HHS ILSA Law Journal

THE GUEST EDITORS Mr. Bartosz Krysiak Bartosz [Krysiak, LL.M.] is a lecturer at the International and European Law Program and a researcher at the Centre of Expertise Cybersecurity, Legal Aspects of Cybersecurity research group. He is trained in commercial law and currently works mainly with technology law, including the Law, AI, and New Technologies minor. He is particularly interested in the intersection of privacy and AI regulation. Mr. Christos Stavrides Christos Stavrides is a Practice & Skills Instructor at The Hague University of Applied Sciences. Before joining academia, he completed his legal traineeship at a civil and commercial litigation law firm and was called to the Bar in Cyprus. Beyond practice, he is interested in the intersection of law and technology. He has previously worked with an NGOs advocating for responsible AI, designed and delivered workshops for tech startups in Germany, and consulted in the privacy sector in the Netherlands. He holds an LLB from the University of Manchester and an LLM from Tilburg University in Law & Technology. Ms. Michaela Stavridou Michaela Stavridou is a lecturer at The Hague University of Applied Sciences, focusing on the intersection of technology and law. She is also the Head of AI Governance & Data Trust at E. Pekris & Co LLC, where she leads the firm's digital transformation initiatives and advises on responsible AI adoption, data protection, and compliance with key EU legislation. Michaela graduated with honors in International and European Law (LLB) from the University of Groningen, including an Erasmus semester at the University of Edinburgh, and subsequently obtained a postgraduate degree in International Commercial Law (LLM) from the University of Groningen. She is currently an external PhD candidate at Tilburg University, researching AI governance. She began her legal career at E. Pekris & Co LLC following the Cyprus Bar Exam, in which she ranked 3rd nationally. Beyond her professional practice, Michaela writes on the evolving relationship between law, technology, and the human dimension of legal practice. Her article 'The AI Lawyer: An Evolutionary Force in the Legal Domain', published on Mondaq, received a Cyprus Data

Protection Award in 2023. More recently, she published 'Interpersonal Skills in the Age of Innovation' on the E. Pekris & Co LLC website, arguing that true legal innovation requires not only technological tools but also consideration of interpersonal skills. Outside of law, Michaela is a passionate musician who plays the cello and piano and is a trained singer. She is also a committed advocate for animal welfare and contributes actively to initiatives in this space. Michaela also provides pro bono legal assistance to victims of domestic abuse, supporting women and children who have experienced violence. This commitment to access to justice for the most vulnerable reflects her values and conviction that the most effective legal minds are those who bring both analytical rigor and human sensitivity to the challenges of our time. Ms. Tanvir Singh Tanvir Rai Singh is a Lecturer in Practice and Skills within the International and European Law programme at The Hague University of Applied Sciences. She holds an LLB in International and European Law and an LLM in International Business Law, which she completed Cum Laude at Queen Mary University of London. Before entering academia, she worked as an international trade consultant, advising clients on matters relating to customs, regulatory compliance and cross-border trade. Her academic and professional interests include European Union law, international trade and customs law, and the practical application of legal skills. She has also contributed to publications in the fields of trade and investment law. As a Guest Editor, she contributed to the publication by reviewing submissions and providing substantive and editorial feedback to support the clarity, structure and legal analysis of the articles.

ACKNOWLEDGEMENTS The ILSA Law Journal would first like to thank the authors who shared their outstanding contributions in this issue. We are incredibly grateful for the unwavering trust, patience, and enthusiasm they showed towards the realization of this publication. We would also like to take this opportunity to express our sincere appreciation to the Guest Editors: Mr. Bartosz Krysiak, Ms. Michaela Stavridou, Ms. Tanvir Singh, and Mr. Christos Stavrides. We are deeply thankful for the continuous support and guidance they have provided us in conducting the selection and editorial process. The Journal would also like to thank the 2025-2026 ILSA Management Board for its unparalleled support and encouragement. We would like to extend our gratitude to President and Treasurer Konstantinos Karlos, Vice-President and Head of Social Events Ms. Kiahara Fleming, Head of Main Events Ms. Amal Mohamed, Head of Marketing Ms. Melisa Yusufova, and Editor in Chief of the ILSA Journal Ms. Aurelie Levesque. Finally, we would like to thank the editorial team for their diligence and determination. The Journal would like to express its sincere appreciation for the participation of its members, including Secretary Daria Hassan, Managing Editor Samuel Kiss-Roth, and Editors Leon Paladinić, Maria Enea, Vin Stosio, Lilu Chkhartishvili, Alexandru Moise, Sabina Tilici, Dea Merkaj, Illya Gats, Sarah Martins, Wiktoria Stumpf, Natalia Malecka, Melani van Oesen, and Kyrre Nilsen. The selection process was solely conducted by the Guest Editors so as to avoid any bias and to ensure that the selection was based on merit.

Universality in Fragmentation: Trade Law and Human Rights Law as Competing Universal Projects By Daria Hasan* Abstract The concept of universality remains one of the most persistent yet contested foundations of international law. Although the discipline frequently presents itself as a universal legal order, the meaning and practical operation of universality differ significantly across specialised regimes. This article examines how universality is conceptualised and operationalised within international trade law and international human rights law, using these two regimes as contrasting models of legal universalism. It argues that trade law embodies a form of formal and institutional universality grounded in procedural equality, non-discrimination, and reciprocal market access. In contrast, human rights law advances a moral and substantive universality centred on human dignity and the protection of the individual. Through a comparative doctrinal and conceptual analysis, the article demonstrates that the divergence between these regimes does not undermine the coherence of international law but instead reveals its structural pluralism. Universality is therefore best understood not as a singular doctrine or achieved condition, but as a layered and regime-dependent regulative ideal. The emerging frontier of international law lies in navigating the coexistence of multiple universalities within an increasingly fragmented yet interconnected legal order.

L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

I. Introduction Contemporary developments in international law increasingly reflect fragmentation, specialisation, and the proliferation of autonomous normative regimes. 1 Fragmentation refers broadly to the emergence of specialised legal regimes operating according to distinct normative logics, while specialisation has produced increasingly autonomous institutions and bodies of law within the international legal order. In an era marked by geopolitical instability, institutional contestation, and diverging state interests, the classical aspiration of international law to universality appears both indispensable and deeply contested. 2 The claim that international law produces norms of universal relevance continues to occupy a central place in legal doctrine.3 Yet, the practical meaning of universality has become progressively less coherent as different legal sectors develop their own methods of norm creation, interpretation, and enforcement. This tension is particularly visible when comparing international trade law and international human rights law. Both regimes operate within the broader architecture of public international law, and both frequently invoke universalist claims. 4 However, the basis for such claims differs fundamentally. International trade law, particularly within the World Trade Organisation framework, universalises market access through principles such as nondiscrimination, Most-Favoured-Nation treatment, national treatment, and reciprocity. 5 Its universalism is procedural, institutional, and economically functional. International human rights law, by contrast, universalises the inherent dignity and equal worth of the individual, grounding its authority in substantive moral commitments rather than in reciprocal state obligations.6 Different legal logics coexist across international trade law and international human rights law, exposing a deeper conceptual problem within international law. Scholars frequently invoke universality as though it were singular, when in reality it operates through multiple normative forms.7 The doctrinal tendency to speak of universality in the abstract obscures the 1

International Law Commission, Fragmentation of International Law (UN Doc A/CN.4/L.682, 2006). ‘Dispute Settlement System’ (World Trade Organization) <https://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm> accessed 28 February 2026 3 Carl Emilio Lewis, Public International Law and the Pursuit of Universality (Brill Nijhoff 2020) i–ii. 4 ibid. 5 Deborah Z Cass, The Constitutionalization of the World Trade Organization (OUP 2005) 13–18. 6 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 1; Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell UP 2013). 7 Lewis (n 3) ch 2. 2

fact that different regimes universalise different subjects, values, and objectives. 8 As a result, the question is no longer whether international law is universal in any absolute sense. Instead, attention should be directed towards how different branches of international law construct and operationalise competing forms of universality. 9 The comparative focus on trade law and human rights law is methodologically deliberate. These two regimes represent some of the most developed and globally influential sectors of international law, while simultaneously embodying radically different normative priorities. Their comparison provides a particularly useful lens through which to assess whether universality should continue to be treated as a singular aspiration or more accurately understood as a layered and differentiated legal phenomenon. 10 The analysis is conducted through a doctrinal examination of the foundational principles, institutional structures, and interpretative practices of each regime. Primary legal materials, including treaty texts and relevant institutional instruments, are analysed alongside leading scholarly accounts of universality, fragmentation, and regime interaction. By comparing how each regime articulates, justifies, and operationalises universal claims, the article identifies the distinct forms of universality embedded within their respective normative frameworks. Rather than proposing an entirely new theory of universality, this article refines existing fragmentation scholarship by arguing that universality operates through distinct regimespecific forms. Through a comparative analysis of international trade law and international human rights law, the article demonstrates that international law does not contain a singular universal logic, but rather a plurality of competing yet coexisting universalities. In doing so, the article contributes to contemporary debates concerning fragmentation, systemic integration, and the evolving structure of international legal authority. The article proceeds in five parts. Section II establishes the conceptual framework by distinguishing between formal, substantive, moral, institutional, and aspirational forms of universality. Section III analyses the structural universality of international trade law through the WTO system and its development critique. Section IV examines the moral and institutional universality of human rights law, focusing on its normative foundations and limitations on enforcement. Section V compares the competing universalities embodied in both regimes and

ibid. 49-55. International Law Commission (n 1). 10 Lewis (n 3) ch 5. 9

argues that universality in international law is fundamentally plural. Section VI concludes by arguing that the future of international law lies not in pursuing a singular universal order, but in navigating the coexistence of multiple universalities within a fragmented yet interconnected system. While both regimes claim universality, trade law operationalises formal and reciprocal universality, whereas human rights law advances normative and moral universality. Their interaction reveals structural fragmentation within international law. 11 II. Conceptualising Universality in International Law Universality is not singular. 12 Contemporary scholarship increasingly recognises that universality functions through multiple conceptual forms rather than a single coherent doctrine.13 For the purposes of this article, these forms operate primarily as analytical categories rather than mutually exclusive legal phenomena. Formal universality concerns the general applicability of legal rules, while substantive universality concerns shared normative content. Moral universality refers to ethical claims grounded in human dignity. Institutional universality relates to structures of participation and enforcement. Aspirational universality reflects the role of universality as a regulative ideal guiding legal development. 14This distinction is necessary because international legal scholarship frequently invokes universality as though it were singular, despite the fact that different legal regimes universalise different subjects, values, and objectives. 15 In general, international law strives to be both recognised and put into practice as universal, meaning applicable to all without prejudice. Yet in practice, this aspiration often proves unattainable, leading some to characterise universality as a form of legal ‘utopia’. However, rather than dismissing universality altogether, it may be more accurately understood as a regulative ideal. 16 This aspirational standard guides the development of international law, even if it is never fully realised in practice. When addressing human rights, for example, we become puzzled by the differences between Western and Eastern approaches.17 This divergence reflects broader tensions between universalist claims and culturally dependent interpretations of rights. Subsequently, it raises fundamental questions on 11

International Law Commission (n 1). Lewis (n 3) i–ii. 13 ibid 49-65. 14 ibid 145-169. 15 International Law Commission, Fragmentation of International Law (UN Doc A/CN.4/L.682, 2006). 16 ibid 160-169. 17 Donnelly (n 6). 12

whether universality can fully transcend political, social, and historical contexts. Critics have long argued that claims of universality may mask particular value systems, thereby reinforcing concerns that universal norms risk reflecting dominant geo-political perspectives rather than truly global consensus. 18 This is a natural consequence of the cultural, social, and political background. Consequently, when looking through the perspective of more pragmatic and logical international law areas, such as trade law, we encounter a fundamentally different understanding of the scope of universality. 19 Lewis addresses this exact difficulty by demonstrating that the concept of universality cannot be meaningfully applied without first distinguishing between its different forms. Rather than identifying a single universal doctrine, his analysis reveals that universality operates across multiple conceptual layers, each carrying distinct implications for how international law claims authority and legitimacy. 20 Article 1 of the Universal Declaration of Human Rights demonstrates the level to which its drafters aimed, yet it is still a non-binding document.21 The non-binding nature of the declaration inevitably leads to pondering the actual strength of what we want to recognise as universal. In its strict sense, formal universality does not require that a norm be universally accepted or practised; rather, it requires that the norm be capable of general application without contradiction.22 This reflects a Kantian understanding of universalizability, whereby a rule is considered universal if it can logically apply to all subjects under similar conditions. 23 In formal universality, a ‘pure’ form of the philosophical concept, we have to take a rather Kantian approach and categorise practice as being either all-throughout applicable or not. However, the issue arises when trying to box-check each case or legal document as either universal or nonuniversal in nature.24 The notion of formal universality is applicable equally and equitably to all individuals. In reality, this is rarely applied in practice or to any norms. Nevertheless, as Lewis emphasises, formal universality should not be consolidated with uniformity. 25 A norm may claim universal validity even where its application remains inconsistent or contested

Tanel Kerikmäe and Katrin Nyman-Metcalf, ‘Less is More or More is More?’ (2012) 13 Baltic Journal of European Studies 35. 19 Cass (n 4). 20 Lewis (n 3) 49-65. 21 UDHR (n 6) art 1. 22 Lewis (n 3) 49–65. 23 Immanuel Kant, Groundwork of the Metaphysics of Morals (1785). 24 Lewis (n 3). 25 ibid.

across different jurisdictions. This distinction highlights a key limitation of formal universality within international law, where political realities often prevent consistent implementation. 26 Many have considered, therefore, the idea of substantive universality - meaning the shared values that go behind adopting a doctrine or a legal document. Substantive universality focuses not on the form of norms, but on their content, specifically, the extent to which they reflect shared values recognised by the international community. 27 This approach is often associated with norms such as the prohibition of genocide, torture, and slavery, which are widely regarded as possessing universal moral significance. 28 Problems arise when deliberately codifying such norms into law, as drafting actual norms may prove tricky in terms of wording. Differences in language, legal traditions, and political priorities complicate the articulation of norms that can genuinely claim universal acceptance without ambiguity. 29 Problems arise when deliberately codifying such norms into law, as drafting actual norms may prove tricky in terms of wording. Differences in language norms, social contexts, and political priorities make it difficult to formulate legal principles that can command genuinely universal acceptance. Moreover, any attempt to articulate a norm intended to apply universally risks contestation, reinterpretation, or resistance as social and political circumstances evolve. 30 Substantive universality thus plays an important role in addressing another model, the moral one. Moral universality, being much more similar, encounters the same issues. 31 Who is entitled to decide moral norms on behalf of all human beings? This raises a fundamental legitimacy problem: the authority to define universal moral standards is contested in itself. As Lewis suggests, claims of universal validity may encounter resistance when perceived as externally imposed or insufficiently inclusive of diverse perspectives. 32 Who can have the ultimate normative authority to decide binding moral norms for everyone? Law does not entail only a moral obligation; it defines terms, helps society conform to a behavioural standard, and

Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553. 27 Lewis (n 3) 145–155. 28 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 32 [33]–[34]; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277. 29 Kerikmäe and Nyman-Metcalf (n 18) 49-50; Lewis (n 3) 160–169. 30 Kerikmäe and Nyman-Metcalf (n 18) 49–50. 31 ibid. 32 Lewis (n 3).

creates remedies as much as it imposes punitive measures.33 It would be virtually impossible to agree on a set list of moral terms to which all Human Rights Law should succumb. Consequently, moral universality remains one of the most ambitious yet controversial dimensions of international law, as it seeks to establish normative standards that transcend both state sovereignty and cultural plurality. 34 Institutional models, such as the United Nations or the World Trade Organisation, demonstrate that, for decades, experts, diplomats and officials have tried to empirically build an institutional support system to underpin the creation of universal norms. Institutional universality operates through structures of participation, whereby organisations such as these seek to create frameworks capable of applying rules across a broad membership base. However, such universality is inherently limited by the voluntary nature of state participation and the political dynamics that shape institutional decision-making.35 Ultimately, universality in international law is best understood in aspirational terms.36 Rather than describing an existing state of affairs, it represents a goal towards which the international legal order continually strives. In this sense, universality functions as a regulative ideal, guiding the interpretation, development, and evaluation of legal norms. The pursuit of universality remains essential, not because it can be fully achieved, but because it provides a normative standard against which the legitimacy and consistency of international law can be assessed. Consequently, universality should not be viewed as a singular or fixed concept, but as a layered and evolving framework that operates differently across legal regimes and doctrines. 37 III. Universality in International Trade Law A. Structural universality: WTO system The contemporary international trade regime, primarily embodied in the World Trade Organisation, presents one of the most structured and operationalised forms of universality within international law. 38 Unlike the aspirational and often contested universality found in human rights law, trade law constructs universality through a system of rules designed to ensure

ibid. 145-155. Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI. 35 Koskenniemi and Leino (n 26) 553–555. 36 Lewis (n 3) ch 5. 37 ibid. 38 Cass (n 4) 21–26. 34

equal participation in global markets.39 This form of universality is not grounded in shared moral values, but rather in procedural equality and reciprocal obligations among states that share a common scope in the economic sector. At the core of this structure lies the principle of non-discrimination, which is operationalised through two foundational rules: Most-Favoured-Nation treatment and national treatment.40 The MFN principle requires that any advantage granted by one WTO member to another must be extended to all other members, thereby creating a baseline of equal treatment across the system.41 Similarly, the principle of national treatment mandates that imported goods, once within a domestic market, must be treated no less favourably than domestic products.42 Together, these principles form the backbone of what may be described as formal universality in trade law: rules that are designed to apply equally to all participants, regardless of their economic or political status. 43 The logic of reciprocity reinforces this formal universality. WTO obligations are not imposed unilaterally but are the product of negotiated exchanges between states, in which commitments are balanced and mutually reinforcing.44 Reciprocity ensures that states remain engaged in the system, as the benefits they receive are directly linked to the obligations they accept. In this sense, universality in trade law can be portrayed as conditional rather than absolute, as it applies to all members but only within the framework of reciprocal commitments inherently agreed to upon becoming a member state. 45 However, this model of universality differs fundamentally from the substantive or moral universality highlighted previously. Trade law does not seek to universalise values such as dignity or justice; rather, it promotes universal access to markets and the conditions under which trade itself occurs.46 The focus is therefore on creating a predictable and stable environment for economic relations, rather than on achieving normative consensus. As such, 39

Marrakesh Agreement Establishing the World Trade Organization (signed 15 April 1994, entered into force 1 January 1995) 1867 UNTS 154. 40 Cass (n 4) 13–15. 41 General Agreement on Tariffs and Trade 1994, annex 1A of the Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 187, art I. 42 ibid art III. 43 ‘Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)’ (World Trade Organization) <https://www.wto.org/english/tratope/dispue/dsue.htm>⁠ accessed 3 March 2026. 44 Understanding on Rules and Procedures Governing the Settlement of Disputes (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 401 art 3.2. 45 ibid art 3.3 46 ‘Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)’ (World Trade Organization) <https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm>⁠ accessed 3 March 2026.

trade law exemplifies a form of institutional and formal universality, in which equality is defined in procedural terms rather than in substantive outcomes for individuals. 47 The strength of this model is further enhanced by the WTO’s dispute settlement mechanism, which has often been described as one of the most effective enforcement systems in international law. Unlike many other regimes, WTO rules are backed by binding adjudication, with decisions that carry legal consequences for non-compliance. This contributes to the perception that trade law is more universal in practice, as rules are not merely aspirational but actively enforced. 48 The dispute settlement system thus plays a crucial role in transforming formal universality into operational reality, ensuring that states are held accountable to the same standards. 49 Some scholars have called the WTO's strong institutional structure a process of ‘constitutionalisation’.50 From this point of view, the WTO has grown from a simple treaty framework into a system with quasi-constitutional features, such as a hierarchical structure of norms, a centralised dispute settlement mechanism, and greater independence from individual states. This development reinforces the view that trade law functions as a cohesive and autonomous system capable of formulating and enforcing universal regulations within its jurisdiction.51 Nevertheless, the universality achieved through the WTO remains fundamentally limited in scope. It is only universal to the extent of its members who have explicitly consented to be bound by the set norms and obligations. States that are not members are excluded from both its benefits and obligations, and even within the system, various exceptions and special provisions qualify the application of its rules. Moreover, the focus on market access means the system prioritises economic efficiency over broader social or ethical considerations. As a result, while trade law achieves a high degree of formal and institutional universality, it does so by narrowing the scope of what is considered relevant to the legal order as a whole.

Cass (n 4) 13–18; Lewis (n 3) 145–169. Cass (n 4) 31–45; Understanding on Rules and Procedures Governing the Settlement of Disputes, annex 2 of the Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 401 arts 3.2–3.3. 49 ibid. 50 Cass (n 4) 31–45. 51 Ernst-Ulrich Petersmann, ‘Constitutionalism and International Organizations’ (1997) 17 Northwestern Journal of International Law & Business 398, 402. 48

In this sense, the universality of international trade law is best understood as structural rather than substantive. It is embedded in the system's architecture, reflected in its rules and procedures, and sustained by its enforcement mechanisms. Yet, it remains detached from the broader normative ambitions that characterise other areas of international law, particularly human rights.52 B. Development critique While the WTO framework presents an appealing model of formal universality, its underlying assumptions and practical consequences have been subject to significant critique, particularly from a development perspective. Advocates of trade liberalisation contend that diminishing trade barriers promotes economic growth, enhances efficiency, and advances global welfare.53 From this perspective, the principles that underpin the WTO system are not only applicable to all member states but are also advantageous, providing a means of development for them. Multilateral trade liberalisation can lead to higher economic growth, more efficient resource allocation, and faster technological diffusion across nations. 54 However, this optimistic account of trade liberalisation has been widely contested, as it has not translated into practice in the same manner. This optimistic narrative has been challenged by scholars who question whether the benefits of trade liberalisation are distributed evenly across the international system. Critics argue that the assumption of universal benefit overlooks significant imbalances in economic capacity, institutional strength, and historical development across states. 55 In practice, countries' ability to take advantage of open markets is highly uneven, with developing countries often facing structural disadvantages that limit their capacity to compete effectively. 56 Historical analyses of trade liberalisation further complicate the claim of universality. The integration of developing countries into the global economy has often occurred under conditions that reinforce existing inequalities, rather than weakening them. 57 For example, the application of comparative advantage has frequently imposed significant difficulties for 52

Cass (n 4) 31–45. Sèna Kimm Gnangnon, ‘Multilateral Trade Liberalization and Economic Growth’ (2018) 33 Journal of Economic Integration 1261, 1263–64. 54 ibid. 55 Kalim Siddiqui, ‘International Trade, WTO and Economic Development’ (2016) 7 World Review of Political Economy 424. 56 ibid. 57 Siddiqui (n 55). 53

developing countries as exporters of primary commodities, while limiting their ability to grow and adapt to newer, higher-value-added industries.58 This has led to concerns that the global trade system may perpetuate dependency on already powerful actors rather than promote genuine development and growth for smaller or weaker states, both institutionally and financially.59 Moreover, the push for liberalisation has sometimes made it harder for developing countries to formulate their own policies, further hindering their ability to protect their industries or pursue industrial strategies.60 International financial institutions and trade agreements have frequently promoted or mandated open-market policies in developing nations, even when these policies may not align with their developmental needs. 61 Consequently, the universality of trade rules may be viewed not as a neutral framework, but as a mechanism that mirrors and perpetuates existing power imbalances within the international system. 62 These critiques highlight a fundamental tension within the concept of universality in trade law.63 On the one hand, the system aspires to apply rules equally to all states, creating a level playing field for economic exchange. 64 On the other hand, the starting conditions of states are far from equal, raising questions about whether formal equality can produce substantively fair outcomes.65 The principle of non-discrimination, while central to the WTO framework, does not account for differences in capacity, development, or vulnerability. 66 As such, equal treatment may, in some cases, lead to unequal results, a classic example of lack of equity overshadowed by seemingly inclusive frameworks.67 This exposes a deeper limitation within formal universality itself. Where participation in formally universal legal frameworks depends upon materially unequal economic conditions, formally equal rules may reproduce structural asymmetries rather than neutral universality. The challenge, therefore, extends beyond

David Ricardo, On the Principles of Political Economy and Taxation (John Murray 1817) 131. Siddiqui (n 55) 431. 60 Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective (Anthem Press 2002). 61 Dani Rodrik, The Globalization Paradox (OUP 2011) 200–220. 62 Siddiqui (n 55). 63 Cass (n.4) 67-74. 64 General Agreement on Tariffs and Trade 1994 (n 41) arts I and III. 65 Koffi Yao Gnangnon (n 40) 12–15. 66 ‘Principles of the Trading System’ (World Trade Organization) <https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm>⁠ accessed 3 March 2026. 67 Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, GATT Decision of 28 November 1979 (1979) BISD 26S/203 (‘Enabling Clause’). 59

distributive fairness and calls into question whether procedural equality alone is sufficient to sustain universalist claims within international trade law. In response to these concerns, the WTO framework includes mechanisms to address development differences, such as special and differential treatment for developing countries. 68 These provisions allow for greater flexibility in implementing obligations, recognising that the uniform application of rules may not be possible in every jurisdiction or within the same time frame.69 However, the effectiveness of these measures remains a topic of debate, with critics arguing that they are insufficient to address the structural inequalities embedded in the global trade system, which has been disproportionate for centuries, not merely decades.70 Ultimately, the universality of international trade law can be characterised as instrumental and economic. The distinction between this model and the universal one, often well-regarded in areas such as human rights law, is crucial for understanding the broader fragmentation of international law. While trade law achieves a high degree of operational universality within its domain, it does so by limiting its normative scope. The universality it embodies is therefore both powerful and limited. It is strong and impactful in its ability to structure global economic relations yet constrained in its capacity to address broader questions of justice, equity, and human welfare. 71 IV. Universality in Human Rights Law A. Moral universality In contrast to the structurally grounded universality of international trade law, human rights law represents the most explicit and ambitious claim to universality within the international legal order. 72 From its creation, the human rights regime has been built on the idea that certain rights are inherent to all human beings by virtue of their humanity, regardless of nationality, culture, or political system. This claim is most clearly articulated in the Universal 68

‘Special and Differential Treatment Provisions’ (World Trade Organization) <https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm> accessed 3 March 2026. 69 Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, GATT Decision of 28 November 1979 (1979) BISD 26S/203 (‘Enabling Clause’). 70 ‘Historic development of the WTO dispute settlement system’ (World Trade Organisation) <https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s1p1_e.htm> accessed 3 March 2026; Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ [2002] European Journal of International Law 13, 753. 71 Office of the United Nations High Commissioner for Human Rights, Human Rights and World Trade Agreements: Using General Exception Clauses to Protect Human Rights (United Nations 2005). 72 UDHR (n 6) preamble.

Declaration of Human Rights (UDHR), which proclaims that “all human beings are born free and equal in dignity and rights”. 73 This formulation reflects a conception of universality grounded in morality and is normative rather than procedural or institutional. The “how” is not merely as important as the ‘why’ when analysing the underlying of the entire doctrine of human rights law, and thus it is expected that the actual mechanisms of enforcement and the scope differ significantly from the private sectors of international law. Moral universality in human rights law is grounded in the centrality of the individual. Unlike trade law, which primarily regulates relations between states, human rights law places the human person at its centre. Rights are not derived from state consent in the same way as trade obligations but are instead presented as pre-existing entitlements that states are obligated to respect, protect, and fulfil. 74This shift in focus fundamentally alters the meaning of universality: it is no longer about equal treatment between states, but about equal recognition of human dignity across all individuals. However, this moral claim to universality is not without controversy. From the outset, debates have emerged over whether human rights can genuinely be considered universal or reflect particular cultural and historical contexts. One of the central criticisms is that the modern human rights framework is rooted in Western philosophical traditions, particularly those emphasising individual autonomy and liberal values.75 This does not necessarily indicate an ill-rooted focus, but, as a result, some scholars and states have questioned whether the universalisation of these norms risks imposing a specific worldview on societies with different cultural, religious, or social foundations.76 The issue arises from the deep history Western nations have with colonialism, specifically, and doubts and criticism are bound to be raised, especially given the lack of authoritative power post-colonial nations often feel in decisionmaking or framework implementation.77 This tension is often framed as a conflict between universalism and cultural relativism.78 On the one hand, universalists argue that human rights must apply equally to all 73

UDHR (n 6) art 1. International Covenant on Civil and Political Rights 1966, preamble. International Covenant on Economic, Social and Cultural Rights 1966, preamble. 75 Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell UP 2013). 76 Makau Mutua, ‘Savages, Victims and Saviours’ [2001] Harvard International Law Journal 42, 201. 77 Tanel Kerikmäe and Katrin Nyman-Metcalf, ‘Less is More or More is More? Revisiting Universality and the Inflation of Human Rights’ [2012] Baltic Journal of European Studies 13, 35. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005). 78 Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell UP 2013) 107–134. 74

individuals, regardless of cultural context, to maintain their moral authority. 79 On the other hand, relativists contend that rights cannot be divorced from the cultural and social environments in which they operate, and that imposing uniform standards may undermine local traditions and values.80 This debate illustrates the difficulty of sustaining moral universality in a pluralistic international society, where consensus on fundamental values is far from complete due to the lack of a fixed moral system. 81 Morality, like development, culture, and language, is neither sufficiently linear nor objective enough for all nations to simultaneously adapt to and successfully implement a fixed set of rights and freedoms. In addition to cultural critiques, there are also concerns regarding the ‘inflation’ of human rights.82 As the catalogue of recognised rights has expanded over time, questions have arisen about whether this expansion dilutes the core meaning of universality. 83 If an increasing number of claims are framed as human rights, the concept itself risks becoming overly broad and losing its normative force. Some scholars have therefore argued that maintaining a smaller set of clearly defined, fundamental rights may be necessary to preserve the integrity of universal human rights. 84 Though this approach is rightly argued against, the concept of broadening the list alone raises questions: Is there a set number of rights, or should there be? How are we expected to continue to use the law as a growing organism that modernises itself at the same pace as society if we impose such obstacles from the beginning? 85 Despite these challenges, moral universality remains a defining feature of the human rights regime. Even where states disagree on the interpretation or application of specific rights, the underlying principle that all individuals possess inherent dignity remains a powerful normative anchor. In this sense, human rights law embodies what may be described as substantive and moral universality: it seeks to establish common standards of behaviour based on shared ethical commitments, rather than merely coordinating interactions between states. 86 B. Institutional weakness

ibid. 98-104. ibid. 107–134. 81 Lewis (n 3) ch 2. 82 Kerikmäe and Nyman-Metcalf (n 18). 83 ibid. 84 ibid. 85 Lewis (n 3) ch 5. 86 UDHR art 1; International Covenant on Civil and Political Rights 1966, preamble. 80

While the moral foundation of human rights law aspires to universality, its institutional realisation reveals significant limitations. 87 Unlike the WTO system, which benefits from a relatively strong and centralised enforcement mechanism, the human rights regime is characterised by a fragmented and often weak institutional structure. This discrepancy highlights a key tension between normative ambition and practical implementation within international law.88 At the institutional level, human rights are primarily implemented through a network of international and regional bodies, including the United Nations Human Rights Council, treaty-monitoring bodies, and regional courts such as the European Court of Human Rights.89 These institutions play an important role in promoting and interpreting human rights norms, but political considerations and the principle of state sovereignty often limit their authority. 90 Many human rights mechanisms rely on reporting procedures, recommendations, and dialogue rather than binding enforcement, which can reduce their effectiveness in ensuring compliance.91 Moreover, participation in human rights regimes is not always uniform. 92 While many states have ratified important human rights treaties, reservations, interpretative declarations, selective compliance practices undermine the universality of these commitments. 93 States may formally accept human rights obligations while simultaneously limiting their domestic applicability, thereby creating a gap between legal recognition and practical implementation. 94 This phenomenon illustrates that institutional universality, based on widespread participation, does not necessarily translate into substantive universality in practice. 95 Political dynamics, reflected in the inconsistent and sometimes selective responses of international human rights institutions to violations, further complicate the institutionalisation

UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251. Isabelle Buergi Bonanomi and Irene Musselli, ‘Human Rights Impact Assessments of Trade Agreements: Conceptual and Methodological Challenges’ (2020) unpublished manuscript on file with author. 89 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 19. 90 Donnelly (n 6) 112-114. 91 ibid. 92 Office of the United Nations High Commissioner for Human Rights, ‘Status of Ratification Interactive Dashboard’ https://indicators.ohchr.org/ accessed 7 March 2026. 93 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, arts 19–23. 94 Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935. 95 Lewis (n 3) ch 5. 88

of human rights.96 International human rights bodies are often criticised for their inconsistency and selectivity in responding to violations. 97 There are a myriad of reasons why different political, judicial and institutional differences exist in the first place. It would be truly bold to assume that a branch so new in international law can immediately become institutionally strong. This is particularly so given the complexity of the issues it seeks to address and its continuing development as a field of international law.98 The composition of institutions such as the Human Rights Council, which includes states with varying human rights records, raises questions about legitimacy and effectiveness.99 Another limitation lies in the absence of a unified enforcement system, comparable to that of the WTO. While some regional human rights courts, such as the European Court of Human Rights, possess binding jurisdiction, their reach is geographically limited, and not all states are subject to their authority. 100At the global level, there is no equivalent mechanism capable of consistently and uniformly compelling compliance. 101 As a result, the enforcement of human rights norms often depends on a combination of diplomatic pressure, civil society advocacy, and domestic implementation. For example, recommendations issued through the Universal Periodic Review process rely primarily on political and reputational pressure rather than binding legal enforcement. 102 These institutional constraints highlight a fundamental distinction between human rights law and trade law. 103 Whereas trade law achieves a high degree of operational universality through enforceable rules and dispute-resolution mechanisms, human rights law relies more on normative persuasion and political commitment.104 The universality it claims is therefore less about consistent application and more about recognising shared principles. 105 Nevertheless, the institutional framework of human rights law should not be dismissed as ineffective. Despite its limitations, it has contributed to the gradual development of a global discourse on rights and has influenced domestic legal systems in significant ways. International 96

UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251. Philip Alston and Ryan Goodman, International Human Rights (OUP 2013) 923–940. 98 Donnelly (n 6). 99 UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251. 100 European Convention on Human Rights (n 89) arts 19–51. 101 Alston and Goodman (n 97) 923–940. 102 ibid. 103 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN.4/L.682, 2006). 104 Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ [2002] 13 European Journal of International Law 753, 760–765. 105 Donnelly (n 6) 10–13. 97

human rights norms have been incorporated into national constitutions, judicial decisions, and legislative frameworks, demonstrating that universality can operate through diffusion and internalisation rather than direct enforcement. Ultimately, the universality of human rights law is best understood as aspirational and normative.106 It reflects a commitment to certain fundamental values that transcend state boundaries, even if their realisation remains incomplete. The gap between aspiration and implementation does not negate universality; rather, it underscores the challenges inherent in translating moral claims into legal practice within a diverse, politically fragmented international system.107 V. Trade Law vs Human Rights Law: Competing Universalities A. Different legal subjects The preceding sections demonstrate that international trade law and international human rights law embody distinct models of universality operating at different normative levels.108 A comparative synthesis of these regimes reveals that fragmentation in international law is not merely institutional, but conceptual: different branches of international law universalise different subjects, values, and forms of authority. 109 These differences are not simply technical, but reflect deeper differences in the purposes, structures, and normative foundations of each regime. 110 Consequently, the universality embodied within each field cannot be understood as uniform or interchangeable, but rather as competing yet coexisting legal projects within the broader framework of international law. 111 At the most basic level, the two regimes differ in their primary subjects. International trade law is mainly state-centric, regulating the economic relations between sovereign states and structuring their interactions in the global market. 112 Its rules are designed to ensure that states treat one another equally in trade, thus facilitating predictability and stability in

106

Lewis (n 3) ch 5. International Law Commission, Fragmentation of International Law (UN Doc A/CN.4/L.682, 2006). 108 Lewis (n 3) ch 2. 109 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN.4/L.682, 2006). 110 Cass (n 4) 31–45; Marceau (n 70) 753–775. 111 Marceau (n 70) 753–775. 112 Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 154. 107

international economic relations. 113 Human rights law is fundamentally individual-centric.114 It seeks to regulate the relationship between the state and the individual, placing obligations on states to respect and protect the rights of persons within their jurisdiction. 115 This shift in subject, from states to individuals, has profound implications for how universality is conceptualised. Rather than focusing on equal treatment between states, human rights law is concerned with the equal dignity and protection of individuals. Universality therefore derives from the recognition of rights held by all persons, irrespective of nationality or political affiliation. In trade law, universality is achieved through formal equality between states. The principles of non-discrimination, reciprocity, and equal market access establish a framework in which all states are subject to the same rules, at least in theory. 116 This reflects a conception of universality grounded in procedural fairness: each participant in the system is treated according to the same standards, regardless of their economic or political power. 117 In human rights law, however, universality is grounded in the inherent dignity of the individual. 118 It is not the equality of states that is at stake, but the equal worth of all human beings.119 This gives rise to a notion of universality that is moral and substantive, rather than purely procedural. These differing foundations also shape the purposes of each system. Trade law primarily concerns facilitating economic exchange and promoting efficiency in the global market.120 Its universality is instrumental: it serves to achieve economic integration and growth.121 Human rights law, on the other hand, is concerned with protecting individuals from harm and ensuring conditions of dignity and freedom.122 Its universality is intrinsic: it is justified not by its outcomes, but by the moral claims it embodies. 123 This distinction between instrumental and intrinsic universality lies at the core of the divergence between the two regimes.124

113

Cass (n 4) 67–74. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 1. 115 Donnelly (n 6) 10–14. 116 General Agreement on Tariffs and Trade 1994 arts I, III. 117 Cass (n 4) 67–74. 118 UDHR art 1; Donnelly (n 6) 10–14. 119 UDHR art 1; International Covenant on Civil and Political Rights 1966, preamble. 120 Cass (n 4) 67–74. 121 Siddiqui (n 55). 122 Donnelly (n 6) 10–14. 123 ibid. 124 ibid. 114

B. Different normative foundations The differences between trade law and human rights law are further reflected in their respective enforcement mechanisms and institutional structures. As discussed in the previous sections, the WTO system is characterised by a relatively strong and centralised dispute settlement mechanism, which enables the consistent application and enforcement of its rules 125. This contributes to a high degree of operational universality, as states can be held accountable for violations through binding adjudication. 126 Human rights law, by contrast, lacks a comparable enforcement structure at the global level.127 While regional systems may provide binding judicial remedies, the international human rights framework as a whole relies heavily on monitoring, reporting, and political pressure.128 For example, recommendations made through the Universal Periodic Review process are not legally binding and depend largely on states’ willingness to implement them. 129 This results in a more fragmented and less predictable system of enforcement, where compliance often depends on states' willingness rather than on the authority of a centralised institution.130 This divergence highlights an important paradox within international law: the regime with the weaker moral claim and a narrower scope of application, trade law, possesses stronger enforcement mechanisms, while the regime with the stronger moral claim, human rights law, relies on comparatively weaker institutional support.131 This inversion challenges the assumption that universality is necessarily linked to normative strength. Instead, it suggests that universality in practice is shaped as much by institutional design as by moral justification.132 The concept of institutional universality, therefore, takes on different meanings in each regime. In trade law, it refers to the consistent application of rules within a structured and enforceable system. In human rights law, it refers to the widespread recognition of norms, even

125

Cass (n 4) 31–45; Understanding on Rules and Procedures Governing the Settlement of Disputes, arts 3, 21– 22. 126 Cass (n 4) 67–74. 127 Donnelly (n 6) 112–114; Alston and Goodman (n 97) 923–940. 128 ibid. 129 United Nations General Assembly, Human Rights Council (15 March 2006) UN Doc A/RES/60/251, para 5(e). 130 Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference’ (2002) 111 Yale Law Journal 1935. 131 Cass (n 4); Donnelly (n 6). 132 Lewis (n 3) 121-125.

in the absence of consistent enforcement. 133 The former prioritises compliance, while the latter emphasises legitimacy and moral authority. 134 These differing priorities further reinforce the distinction between formal and moral universality. This idea is not to be understood as a ranking of the two very different branches, but rather as an objective analysis of how the two systems are so distinct from one another in the first place. 135 C. Different enforcement architectures The coexistence of these two forms of universality inevitably creates points of tension. Nowhere is this more evident than in situations where trade obligations and human rights considerations intersect. While trade law seeks to promote the free movement of goods and services, human rights law may impose constraints on such activities to protect individuals or communities. This can create conflicts between economic objectives and normative commitments, raising questions about how to reconcile these competing universals. One area where this tension becomes particularly visible is in the context of regulatory measures.136 States may adopt policies aimed at protecting public health, labour standards, or environmental conditions - objectives that are often linked to human rights concerns. However, such measures may be challenged under trade law if they are perceived as violating principles of non-discrimination or restricting market access.137 For example, disputes concerning environmental or public health regulations have occasionally raised questions about whether measures adopted to protect social interests constitute unjustified barriers to trade. 138 This dynamic illustrates how the formal universality of trade law can come into conflict with the substantive universality of human rights law. 139 This tension becomes particularly visible where states adopt measures pursuing objectives associated with human rights protection, such as labour safeguards, environmental regulation, or public-health protections, which may simultaneously restrict trade flows or affect market access. 140 In such situations, adjudicatory 133

Cass (n 4) 31–45; Understanding on Rules and Procedures Governing the Settlement of Disputes, arts 3, 21– 22. 134 Donnelly (n 6) 112–114; Lewis (n 3) 121–130. 135 Lewis (n 3). 136 Marceau (n 70) 753–775. 137 ibid. 138 United States – Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, WT/DS58/AB/R (12 October 1998). 139 Office of the United Nations High Commissioner for Human Rights, Human Rights and World Trade Agreements (OHCHR 2024) https://www.ohchr.org/Documents/Publications/WTOen.pdf accessed 7 March 2026. 140 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN.4/L.682, 2006) paras 423–436.

bodies are required to navigate competing normative frameworks without the benefit of a clear hierarchy between regimes. The resulting legal analysis increasingly relies upon interpretive coordination rather than strict separation between legal systems. Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which permits consideration of relevant rules of international law applicable between the parties, therefore becomes particularly significant in facilitating systemic integration across fragmented regimes.141 Rather than existing in complete isolation, trade law and human rights law increasingly interact through processes of balancing, accommodation, and interpretive reconciliation. Is there a need for prioritisation of any of them? In theory, that would not be necessary, but when a trade law norm has been breached, a human rights dilemma looms, and no regulatory body oversees an end to such a complex situation, how is the international community going to respond? The tension lies in the question of prioritisation. In the absence of a clear hierarchy between trade law and human rights law, it is often unclear which set of norms should prevail in cases of conflict. 142 This lack of hierarchy reflects the broader fragmentation of international law, where multiple regimes operate simultaneously without a single overarching authority. As a result, the interaction between trade law and human rights law is often characterised by negotiation and balancing, rather than by clear legal resolution. Efforts have been made to bridge this gap, most notably through the development of human rights impact assessments (HRIAs) in the context of trade agreements. These assessments seek to evaluate the potential effects of trade policies on human rights and to ensure greater coherence between the two regimes. While such initiatives represent important steps towards integration, they remain limited in scope and are not uniformly applied across all trade frameworks.143 For example, human rights impact assessments have been conducted in relation to trade agreements involving the European Union to evaluate their potential effects on labour rights, access to healthcare, and other socio-economic rights.144

141

Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31(3)(c). 142 International Law Commission, Fragmentation of International Law (UN Doc A/CN.4/L.682, 2006). 143 James Harrison, Human Rights Impact Assessments of Trade Agreements (Edward Elgar 2013) 1–15, 198– 210. 144 ibid 123-145.

Despite these tensions, it is important to recognise that the relationship between the two regimes is not necessarily antagonistic. Both trade law and human rights law incorporate principles of non-discrimination and fairness, but just in different forms. There is growing recognition that economic development and human rights protection are interconnected, rather than mutually exclusive. 145 Trade can contribute to the realisation of human rights by promoting economic growth, while human rights considerations can enhance the legitimacy and sustainability of trade policies. Consequently, this proves the true scope of all legal doctrines, no matter the system or narrow scope, the well-being of societies and individuals. In this sense, the relationship between trade law and human rights law can be understood not simply as a conflict between the public and private sector, or a hierarchical competition between regimes, but as a reflection of the broader complexity of international law itself. The challenge is not to eliminate this complexity, but to navigate it in a way that preserves both the stability of the legal system and the values it seeks to uphold. Universality, therefore, should not be viewed as a fixed endpoint, but as an evolving and contested process, shaped by the ongoing interaction of different legal regimes. 146 VI. Fragmentation or Transformation? The preceding analysis demonstrates that universality in international law does not operate as a singular, coherent doctrine, but rather as a fragmented and multi-layered phenomenon. The coexistence of different forms of universality, formal, moral, institutional, and aspirational, raises an important question: does this diversity represent a failure of international law to achieve true universality, or does it instead reflect an evolution in how universality is understood and applied?147 Traditionally, fragmentation within international law has been viewed with concern. 148 The proliferation of specialised regimes, each with its own rules, institutions, and normative priorities, has often been interpreted as a threat to the unity and coherence of the international legal order.149 From this perspective, the divergence between trade law and human rights law

145

Declaration on the Right to Development, UNGA Res 41/128 (1986). Carl Emilio Lewis, Public International Law and the Pursuit of Universality (Brill Nijhoff 2020) ch 5. 147 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN.4/L.682, 2006). 148 Koskenniemi (n 26). 149 International Law Commission (n 1). 146

may appear as evidence of inconsistency, where competing norms and principles undermine the possibility of a truly universal legal system. 150 However, such an interpretation may overlook the functional differentiation that characterises contemporary international law. 151 Rather than representing a breakdown of universality, fragmentation can be understood as a reflection of the increasing complexity of global governance.152 Different legal regimes have emerged to address distinct aspects of international relations, each requiring its own set of rules and normative frameworks. Trade law, for example, is designed to facilitate economic exchange and ensure stability within global markets. In contrast, human rights law seeks to protect individuals and promote standards of dignity and justice. The universality embodied within each regime is therefore shaped by its specific function and objectives. In this context, the divergence between trade law and human rights law does not necessarily indicate incompatibility. Rather, it illustrates the coexistence of multiple universalities within the international legal system. 153 Trade law universalises market access and procedural equality, creating a framework in which states interact on formally equal terms. Human rights law, by contrast, universalises the moral worth of individuals, establishing normative standards that transcend state boundaries. These forms of universality are not mutually exclusive, but they operate at different normative levels and serve different purposes. This pluralisation of universality suggests that the traditional aspiration towards a single, unified conception of universal law may no longer be appropriate. Instead, universality should be understood as a dynamic, context-dependent concept that can take different forms depending on the legal regime in which it operates. Such an understanding allows for a more nuanced appreciation of how international law functions in practice, recognising that coherence does not necessarily require uniformity. 154 At the same time, the coexistence of multiple universalities raises important challenges. The absence of a clear hierarchy among regimes makes it difficult to resolve conflicts between different forms of universality. 155 As seen in the interaction between trade law and human rights 150

ibid. Koskenniemi (n 26). 152 International Law Commission (n 1). 153 Lewis (n 3) ch 5. 154 ibid. 155 International Law Commission (n 1). 151

law, situations may arise in which the procedural equality of states comes into tension with the substantive protection of individuals. Without a central authority capable of reconciling these competing claims, international law relies on processes of negotiation, interpretation, and balancing to manage such conflicts.156 The coexistence of multiple universalities raises significant implications for the future development of international law. As interactions between economic governance, environmental regulation, digital governance, and human rights protection become increasingly complex, international legal actors will face growing pressure to coordinate overlapping normative regimes without relying on a single hierarchical framework. 157 The challenge is therefore not to eliminate fragmentation altogether, but to develop interpretive and institutional mechanisms capable of managing competing universal claims coherently and legitimately. In this respect, fragmentation may be understood less as a failure of international law than as a structural consequence of an increasingly specialised global legal order. 158 In this sense, the emerging frontier of international law is not the realisation of a single universal system, but the development of a pluralistic framework capable of accommodating multiple forms of universality. This requires a re-conceptualisation of universality itself, not as a fixed endpoint, but as an ongoing process shaped by the interaction of diverse legal regimes. Such a perspective aligns with the idea of universality as a regulative ideal, guiding the evolution of international law without dictating a single, definitive form. 159 Ultimately, the relationship between trade law and human rights law highlights both the possibilities and the limitations of universality within the international legal order. While each regime successfully operationalises its own version of universality, neither can encompass the full range of values and functions required at the global level. The challenge, therefore, is not to reconcile these regimes into a single framework but to ensure that their coexistence contributes to a more balanced and responsive legal system.160 VII. Conclusion

156

Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31(3)(c). 157 Koskenniemi (n 26) paras 483–487. 158 International Law Commission (n 1). 159 Lewis (n 3) ch 5. 160 International Law Commission (n 1).

To conclude, universality cannot be equated with uniformity. The comparative analysis of trade law and human rights law demonstrates that international law operationalises universality through distinct normative frameworks rather than through a single coherent model. Trade law universalises procedural equality and market access through reciprocal and enforceable obligations, whereas human rights law universalises the moral worth of individuals through substantive normative commitments. These forms of universality are neither interchangeable nor inherently incompatible but instead reflect the structural pluralism of contemporary international law. Rather than striving towards a monolithic standard, it is necessary to recognise that universality operates differently across legal regimes. Trade law, through its emphasis on nondiscrimination, reciprocity, and enforceability, universalises access to markets and procedural equality.161 Human rights law, by contrast, universalises the moral worth of individuals, grounding its authority in principles of dignity and substantive justice. 162 These forms of universality are not interchangeable, but neither are they inherently incompatible. Oftentimes, it is easier to point out inconsistencies and gaps in regulation and enforcement without a clear path to a solution. It is also easier to assume that because one system succeeds at resolving issues that others do not yet, it automatically becomes a standard. This mistake is occasionally made in public discourse on international law when creating a distinction between public and private law. True universality is exactly understanding that they create an essential balance, no matter the radically diverse framework, enforcement mechanisms, or institutional power. As previously conceptualised, universality functions less as a descriptive reality than as a regulative ideal.163 This aspirational standard guides the evolution of international law without requiring full realisation in practice. In this light, the coexistence of multiple universalities does not signify failure, but rather reflects the structural pluralism inherent in the international legal system.164 Trade law and human rights law therefore represent competing yet coexisting universal projects within the international legal order. Their divergence does not signify the collapse of universality, but rather demonstrates that universality itself has become fragmented, layered, and regime dependent. The future of international law lies not in constructing a singular

161

Cass (n 4) 67–74. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 1. 163 Lewis (n 3) ch 5. 164 International Law Commission (n 1). 162

universal framework, but in developing mechanisms capable of navigating and coordinating multiple forms of universality within an increasingly interconnected legal system. International law’s emerging frontier is therefore not the elimination of fragmentation, but the management of coexistence between competing universal claims. 165

165

Koskenniemi (n 26).

Analysis of Regulation 2024/1183 By Vin Stosio* Abstract Regulation 2024/1183 (hereinafter ‘eIDAS 2.0’) emerged following the European Commission’s examination of Regulation 910/2014 (‘eIDAS’), which revealed numerous shortcomings that limited its practical implementation and effectiveness across Member States. In response to these issues, the Commission introduced eIDAS 2.0 as a proposal in 2021 and, following revisions, it was adopted as the regulation in force today. This paper examines why eIDAS 2.0 is significant for the future of digital identity within the European Union and evaluates whether the improvements introduced are sufficient to address the weaknesses of the original framework. eIDAS 2.0 introduces the concept of the European Digital Identity Wallet, a universal digital tool designed to store users’ personal information and enable EU citizens to verify their identity across all Member States. The regulation also improves interoperability and standardization by establishing a shared EU framework with common technical specifications, harmonized security requirements, and standardized protocols and formats. In addition, it recognizes and incorporates emerging technologies, such as blockchain, into the digital identity framework. Despite these improvements, eIDAS 2.0 continues to raise significant concerns regarding privacy and data protection, particularly in relation to data minimization and the extent of personal information stored within a single system. Additional issues include cybersecurity risks and safeguards against hacking, the growing dependence on a single digital application, accessibility challenges for older people and persons with disabilities, and the potential impact of developing technologies such as quantum computing on the security and long-term reliability of the framework.

L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction

As humanity moves past the quarter-century, the legal world has seen a substantial shift in the sphere of identity verification. The efforts to implement more tools and ensue certainty of the identity of the persons behind the screen are evident in international, national and private regulations which seem to be emerging with overwhelming frequency. 1 Despite the failed endeavour of the United Kingdom (UK) government to implement mandatory digital ID for a swifter working rights verification procedure, the desire for a digital wallet seems to remain; evident by the ministers reporting existing checks of the right to work within the UK will fully move online by 2029.2 An online communication platform Discord plans to implement mandatory ID verification via ID scanning, in order to enable users the access to content classified as “mature” by the platform. 3 Regulation 2024/1183 (‘eIDAS 2.0’) stands out from similar reports and regulatory developments due to the broad legal, societal, and technological impact it is expected to have following its implementation. In addition to introducing new responsibilities for policymakers and institutions, it reflects the European Union’s response to the growing importance of digital identity and electronic verification within contemporary society, making it the central focus of this paper. This note provides a detailed analysis of Regulation 2024//1183, highlighting its key provisions related to the new digital wallet guidelines and data protection clauses. It explores how the evolution of digital verification tools led to its creation and discusses potential issues and challenges, including overidentification, heightened cyberattack risks, inadequate safeguards against surveillance, and the exclusion of vulnerable groups. II.

Background A.

Regulation 910/2014

In order to fully understand eIDAS 2.0 (Regulation 2024/1183), we must take a look at its predecessor and source; the eIDAS regulation (Regulation 910/2014).4 eIDAS was 1

Regula, ‘Digital ID by Country: A 2026 Guide to Live National Systems’ (Regula Forensics, 10 April 2026) <https://regulaforensics.com/blog/worldwide-digital-id-overview/> accessed 11 May 2026. 2 Kate Whannel, ‘Government drops plans for mandatory digital ID to work in the UK’ (BBC, 14 January 2026) <https://www.bbc.com/news/articles/c3385zrrx73o> accessed 3 March 2026) 3 Liv McMahon, ‘Discord to start requiring face scan or ID to access adult content’ (BBC, 9 February 2026) <https://www.bbc.com/news/articles/c1d67vdlk1ko > accessed 3 March 2026. 4 Regulation (EU) 2024/1183 of the European Parliament and of the Council of 11 April 2024 amending Regulation (EU) No 910/2014 as regards establishing the European Digital Identity Framework [2024] OJ L, 2024/1183.

introduced as part of the European Union’s broader objective of strengthening the internal market by facilitating secure and seamless cross-border electronic transactions. 5 The EU recognised deficiencies and a lack of sufficient trust in the framework established by Directive 1999/93/EC on electronic signatures, as well as in the fragmented electronic identification and authentication mechanisms operating across Member States at the time.6 Furthermore, despite the establishment of the Services Directive

(Directive

2006/123/EC), which allowed citizens to complete certain administrative tasks via electronic means across the EU, 7 problems with cross-border recognition of national e-signature systems hindered the development of a seamless and functional online internal market. 8 All of these problems were identified by the European Commission in 2010, in its communication titled ‘A Digital Agenda for Europe’,9 resulting in direct cooperation with the Council. 10 Around 2011, this cooperation began to yield results through early EU initiatives concerning cross-border electronic identification, electronic signatures, trust services, and interoperable digital identity systems, which later evolved into the concept of a European Digital Identity Wallet. 11 It also identified the issue of lack of trust as a significant hindrance to the development of the internal market. Given this reluctance, corrections had to be made. Thus, eIDAS came into fruition. A regulation meant for trust enhancement, harmonisation across the EU, removing obstacles and creating concrete rules for trust services that were meant to increase legal certainty among citizens of the EU. B.

Shortcomings of Regulation 910/2014

European Commission, Report on the Evaluation of Regulation (EU) No 910/2014 on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market (eIDAS) COM (2021) 290 final. 6 European Commission, Evaluation Study of Regulation (EU) No 910/2014 (eIDAS Regulation) (DirectorateGeneral for Communications Networks, Content and Technology, 2021) <https://digitalstrategy.ec.europa.eu/en/library/evaluation-study-regulation-no9102014-eidas-regulation> accessed 11 May 2026. 7 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L376/36. 8 Adobe, Adobe Acrobat Sign and eIDAS Compliance (DLA Piper, July 2024) <https://www.adobe.com/ccshared/assets/pdf/trust/acrobat-sign-eidas-wp.pdf> accessed 11 May 2026. 9 European Parliament, Fact Sheets on the European Union: The Digital Agenda for Europe (2024) <https://www.europarl.europa.eu/ftu/pdf/en/FTU_2.3.3.pdf> accessed 11 May 2026. 10 House of Commons European Scrutiny Committee, Digital Agenda for Europe (Thirty-second Report of Session 2010–11, HC 428-xxix, 2011) <https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428/428i30.htm> accessed 11 May 2026. 11 Proposal for a Regulation of the European Parliament and of the Council on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market COM (2012) 238 final.

However, technological advancements and the practical implementation of eIDAS gradually revealed shortcomings within the framework, particularly regarding interoperability, usability, and the evolving demands of digital identity systems. 12 Harmonisation attempts proved to be troublesome. The strategy mostly relied on the participation of Member States and harmonisation of national eID schemes. 13 A member state would submit its eID system to the European Commission, which would subsequently be peer reviewed by other member states, to determine if it meets sufficient security guidelines. 14 After a successful evaluation, the eID service would be published in the Official EU Journal, which would create an obligation on the other member states to officially recognise it. 15 Theoretically, if a Polish eID system met the standard and got implemented into official use at an EU level, a Polish citizen could purchase alcohol in a German supermarket after showing their electronic ID, saved in the approved eID mobile app. Whilsts this could have been an effective measure in theory, State participation was lacking severely, and the regulation itself lacked in concrete harmonisation schemes. 16 The eIDAS Regulation also appears outdated. 17 A decade prior, the only trusted services covered by the regulation were electronic signatures, electronic seals and time stamps. 18 Throughout the past decade, new tools emerged, but due to the rigidity of eIDAS framework, they were not officially covered by the regulation. 19 The original framework also struggled to keep pace with technological developments, particularly the growing use of mobile identity solutions, biometric authentication, online platform-based identity systems, and emerging decentralised

Nacereddine Sitouah, Marco Esposito and Francesco Bruschi, ‘Self-Sovereign Identity and eIDAS 2.0: An Analysis of Control, Privacy, and Legal Implications’ (2026) arXiv <https://arxiv.org/abs/2601.19837> accessed 11 May 2026. 13 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC [2014] OJ L257/73. 14 ibid 15 ibid 16 Commission Staff Working Document, Impact Assessment Report Accompanying the Proposal for a Regulation of the European Parliament and of the Council Amending Regulation (EU) No 910/2014 as Regards Establishing a Framework for a European Digital Identity SWD (2021) 130 final. 17 Adobe, Adobe Acrobat Sign and eIDAS Compliance (DLA Piper, July 2024) <https://www.adobe.com/ccshared/assets/pdf/trust/acrobat-sign-eidas-wp.pdf> accessed 11 May 2026. 18 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC [2014] OJ L257/73. 19 European Commission, Evaluation Study of Regulation (EU) No 910/2014 (eIDAS Regulation) (Publications Office of the European Union, 2021) <https://op.europa.eu/en/publication-detail/-/publication/4931113a-03bc11ec-8f47-01aa75ed71a1> accessed 11 May 2026.

digital identity models.20 The regulation was designed with public services in mind. 21 Its structure meant to improve access to government websites, such as tax portals and public administration; with interacting with public authorities. 22 Private-sector services that had become integrated into everyday life, such as banking institutions, e-commerce platforms, telecom providers, and online platforms, were not sufficiently incorporated into the original eIDAS framework, whose primary focus remained on Member State-notified eID schemes and access to public services.23 People rarely used eIDAS in everyday situations. 24 Expanding on the lack of sufficient framework regarding the private sector, there was simply no need to adopt it outside of public services. The regulation itself did not impose an obligation of adoption on private sectors, and many platforms simply chose not to and instead, opted for their own login systems.25 Implementation of eIDAS was also difficult, costly and legally unclear, making private establishments see more risks and losses than benefits. All of this contributed to a cycle of redundancy. 26 After revisions of Regulation 910/2014, the Commission recognized and acknowledged a need for a European Digital Identity. 27 This is commonly considered the starting point of eIDAS 2.0, which later resulted in the first formal Commission proposal in 2021. 28 III. Breakdown of the Regulation 2024/1183

European Commission, Evaluation Study of Regulation (EU) No 910/2014 (eIDAS Regulation) (DirectorateGeneral for Communications Networks, Content and Technology, 2021) <https://digitalstrategy.ec.europa.eu/en/library/evaluation-study-regulation-no9102014-eidas-regulation> accessed 11 May 2026. 21 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC [2014] OJ L257/73. 22 ibid 23 Entrust, ‘What Is eIDAS 2?’ (Entrust, 2024) <https://www.entrust.com/resources/learn/eidas-2> accessed 11 May 2026. 24 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC [2014] OJ L257/73. 25 European Commission, Evaluation Study of Regulation (EU) No 910/2014 (eIDAS Regulation) (Publications Office of the European Union 2021) <https://digital-strategy.ec.europa.eu/en/library/evaluation-study-regulationno9102014-eidas-regulation> accessed 15 June 2026. 26 ibid 27 ibid 28 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 910/2014 as regards establishing a framework for a European Digital Identity COM (2021) 281 final.

The biggest change coming with the arrival of eIDAS 2.0 is the EU Digital Identity Wallet.29 Its aim is solving the issue of EU wide integration and the lack of compatibility of the initial regulation with the Private Sector. 30 Instead of only creating new obligations, the EU opted for an additional course of action: creating a new, universal tool. The EU Digital Identity Wallet builds on national systems, that already operated in Member States, so it takes the most user-friendly and easily available form of a smartphone app.31 It is a secure digital app that allows users to identify themselves online, and store or share official documents across the territories of the European Union. 32 Unlike national measures mentioned in the first regulation, the Digital Identity Wallet will have guaranteed cross-border recognition.33 Ratification of the digital identity service is no longer a process that falls entirely on the Member States, thus ensuring a smooth implementation. 34 Acceptance of the Wallet by Very Large Online Platforms (VLOPs) defined under the Digital Services Act as an online platform thathas an average number of monthly active recipents in the EU equal to or greater than 45 million, as well as by regulated sectors such as banking, telecommunications, and healthcare providers, is now mandatory under eIDAS 2.0. This marks a significant contrast to the previous framework, whose shortcomings largely stemmed from the limited integration and acceptance of digital identity systems within the private sector. 35 Another important upgrade the Wallet provides, is an alleged improvement of the security of the data stored within the app. 36 Users will be allowed to personally choose which aspects of their identity and what data is shared with any third parties. 37 In addition, the Wallet will be open-source licensed, ensuring transparency and security in case users experience doubts related to those aspects. 38 Tracking transparency to stay updated on who exactly is using the provided data will also be an option open to users.39 The open source nature of the Wallet may facilitate independent scrutiny of its data-processing functions, increasing transparency

and supporting the implementation of GDPR principles such as data protection by design, accountability and indirectly, data minimisation by enabling verification that not necessary personal data is not collected or processed.40 Data protection by design requires privacy safeguards to be incorporated into the technical architecture of a system from its creation, while accountability obliges data controllers to demonstrate compliance with data protection obligations and data minimalisation seeks to ensure that only personal data strictly necessary for a particular purpose is collected and processed.41 The EU further seeks to ensure the implementation of systems designed to minimise misuse, profiling, and unlawful handling of personal data through mechanisms such as selective disclosure, data minimisation, and restrictions on unnecessary data collection under eIDAS 2.0.42 These mechanisms illustrate the broader objective of eIDAS 2.0: increasing public trust and encouraging widespread adoption of digital identity systems. By limiting unnecessary data collection, reducing opportunities for profiling, and giving users greater control over the disclosure of their personal information, the privacy and confidence issues that hindered the practical effectiveness are particularly significant in light of the Regulation's ambition to extend the use of digital identity beyond public administration and into everyday interactions with private-sector service providers.43 The public will not be the only demographic benefiting from the convenience supposedly brought with the Wallet. Providers of digital services may encounter reduced risks of liabilities for traditional verification methods, due to the Wallet being a tool with guaranteed security.44 Service providers will also be able to avoid relying on identity services with unclear use of obtained data and with no guaranteed safeguards about security breaches. 45

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2016] OJ L119/1, art 25 41 ibid. 42 European Commission, ‘Security and Privacy’ (EU Digital Identity Wallet, European Commission) <https://ec.europa.eu/digital-buildingblocks/sites/spaces/EUDIGITALIDENTITYWALLET/pages/712508927/Security%2Band%2BPrivacy> accessed 11 May 2026. 43 Regulation (EU) 2024/1183 of the European Parliament and of the Council of 11 April 2024 amending Regulation (EU) No 910/2014 as regards establishing the European Digital Identity Framework [2024] OJ L, 2024/1183. 44 Brite Payments, ‘eIDAS Explained: What Businesses Need to Know About Europe’s Digital Identity Framework’ (Brite Payments, 2024) <https://britepayments.com/resources/article/eidas-explained/> accessed 11 May 2026. 45 walt.id, ‘The eIDAS 2.0 White Paper’ (walt.id, 2024) <https://walt.id/white-paper/eidas2> accessed 11 May 2026.

Governments are another beneficiary.46 The Wallet not only streamlines the process of online verification and makes it easier, but it also drastically reduces the risks of identity theft and related fraud as regards to government services. 47 Aside from creating the Wallet, eIDAS 2.0 improves interoperability and standardisation of technical systems across all Member States. 48 It introduces a shared, concrete EU framework, setting common technical specifications, standardised protocols and formats as well as harmonised requirements for security. 49 These include common certification standards for Wallet providers, strong user authentication, secure storage of credentials, cryptographic protection of personal data, selective dislosure of identity attributes and common cybersecurity and risk management measures designed to ensure the integrity, confidentiality and authenticity of electronic identification and trust services across the EU. 50 This erases the issue of the lack of compatibility between national systems. Instead of being changed later, they are built to work together from the very beginning. The Digital Identity Toolbox is another fragment of the new regulation that reduces fragmentation by setting shared technical standards, reference architectures and common guidelines. 51 Of course, the new regulation accommodates the new technologies that emerged in the last decade. eIDAS 2.0 explicitly accommodates the blockchain and digital credentials ecosystems, which supports future technological advancements and ensures the regulation stays relevant for a long time, unlike its predecessor. 52 IV.

Issues and challenges of Regulation 2024/1183

Despite its positive features, improvements, and a seemingly ‘user first’ approach, the response to the new regulation was contrary to these. With the end goal of the Wallet becoming a widely used tool across the EU, the public voiced its concern, asking questions regarding

Idura, ‘eIDAS 2.0: The Future of Digital Identity in Europe’ (Idura, 2024) <https://idura.eu/blog/eidas-2-0> accessed 11 May 2026. 47 ibid. 48 ibid 49 ibid. 50 ibid 51 ibid. 52 ibid

privacy, security, accessibility and other challenges, reaching as far as to speculate about the possible death of online anonymity.53 A.

Security of user data

Despite the assurances of the European Parliament regarding the implementation of privacy safeguards, one of the most frequently raised concerns surrounding the Wallet relates to the protection and handling of user data. 54 From a data protection perspective, concerns arise from the concentration of multiple categories of personal information within a single application operating under one framework.55 The Wallet may contain personal identification documents, driving licences, private records, and special categories of personal data protected under Article 9 GDPR, 56 such as medical information.57 While this centralisation improves convenience and interoperability, it also increases concerns regarding the extent of personal data processing, the possibility of excessive data collection, and the risk of function creep beyond the original purposes for which the data was provided. The risk of function creep stems from the Wallet’s intended interoperability across multiple sectors, as personal data initially disclosed for a speecific purpose may gradually become available or be requested for an increasing range of unrelated services over time. 58 In addition, the storage of large amounts of GDPR-protected data within a mobile application raises further legal concerns relating to lawful processing, proportionality, and user

European Digital Rights (EDRi), ‘Rushed EU eID Wallet Risks Privacy and Security: Calls for Safeguards Are Getting Ignored in Hasty eIDAS Implementation’ (EDRi) <https://edri.org/our-work/rushed-eu-eid-wallet-risksprivacy-and-security-calls-for-safeguards-are-getting-ignored-in-hasty-eidas-implementation/> accessed 16 June 2026. 54 CADE, ‘Concerns Raised Over EU Digital ID Wallets’ Impact on Privacy and Discrimination’ (CADE Project, 2024) <https://cadeproject.org/updates/concerns-raised-over-eu-digital-id-wallets-impact-on-privacy-anddiscrimination/> accessed 11 May 2026. 55 Comments on the Proposal for a Regulation Amending Regulation (EU) No 910/2014 as Regards Establishing a Framework for a European Digital Identity (European Data Protection Supervisor, 28 September 2021) <https://www.edps.europa.eu/system/files/2021-09/21-09-28_edps-comments-european-digital-identity_en.pdf> accessed 11 May 2026. 56 Regulation (EU) 2024/1183 of the European Parliament and of the Council of 11 April 2024 amending Regulation (EU) No 910/2014 as regards establishing the European Digital Identity Framework [2024] OJ L, 2024/1183. 57 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2016] OJ L119/1, art 9. 58 European Data Protection Supervisor, TechDispatch 3/2025: Digital Identity Wallets (European Data Protection Supervisor 2025) <https://www.edps.europa.eu/data-protection/our-work/publications/techdispatch/2025-12-15techdispatch-32025-digital-identity-wallets_en> accessed 16 June 2026.

control over personal information. 59 Lawful processing requires that each use of personal data have a valid legal basis under the GDPR, while the principle of proportionality demands that the scope of data collection and processing remain limited to what is necessary for a specific objective. User control over personal information further requires thath individuals retain a meaningful influence over how, when and to whom their data is disclosed, particularly where multiple public and private service providers rely on the same digital identity infrastructure.60 Even where consent is required froom users, questions remain regarding whether consent can truly be considered freely given and sufficiently informed when access to essential public or private services may increasingly depend on use of the Wallet. 61 The aggregation of different categories of personal and sensitive data within a single application also creates concerns regarding profiling, secondary use of data, and the potential expansion of access by both public authorities and private service providers beyond what is strictly necessary for a specific purpose.62 Furthermore, the long-term retention and interoperability of such data across multiple sectors may make effective compliance with the GDPR principles of data minimisation and purpose limitation more difficult in practice. 63 Another downside of the Wallet's structure: a simple matter of the risk of technical problems.64 If a single eID system hosting our digital medical history or other personal information temporarily fails, that is just a single system and a slight inconvenience. A universal application with all of the most integral documents having difficulties and going out of commission, even briefly, is a more concerning scenario. Combined with the possibility of physical forms of identification fading into obscurity and a future where an individual can rely only on the Digital Identification during travelling for their own convenience, the negative consequences increase even further. 65

Joint Opinion 02/2022 on the Proposal for a Regulation of the European Parliament and of the Council Amending Regulation (EU) No 910/2014 as Regards Establishing a Framework for a European Digital Identity (European Data Protection Board and European Data Protection Supervisor, 28 April 2022) <https://www.edpb.europa.eu/-system/files/2022-04/edpb-edps_joint-opinion_22022_eidas_en.pdf> accessed 11 May 2026. 60 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2016] OJ L119/1. 61 ibid. 62 ibid. 63 ibid. 64 ‘EU Digital Identity Reform: The Good, the Bad and the Ugly in the eIDAS Regulation’ (Epicenter Works, 2023) <https://epicenter.works/en/content/eu-digital-identity-reform-the-good-bad-ugly-in-the-eidasregulation/> accessed 11 May 2026. 65 ibid.

This brings the following question; is the convenience of the wallet ultimately result in reduced security? As outlined previously, online anonymity is a pressing matter. Up until very recently, social media platforms allowed users to completely conceal themselves with a new persona by using pseudonyms and profile pictures of all kind. 66 While the Digital Identity Wallet and eIDAS 2.0 itself does not outright entail the mandatory verification of every social media user, it comes at a time when age verification is being more widely implemented into various platforms.67 Certain options and content are hidden behind such mechanisms, in order to protect younger users from being subjected to harm. 68 While prevention from viewing mature content is not comparable to exclusion from civil practices, it still puts the user in a position of choosing between having full access to all options offered by the platform (which used to be the default) and giving up a portion of their anonymity. 69 Furthermore, with digital ID becoming more widely used and reliable, the scenario of anonymous and pseudonymous systems gradually fading into obscurity is not as abstract and impossible as it used to be. 70 This seemingly restrictive approach towards anonymity gives rise to another concern: the question of how personal data collected through the Wallet may ultimately be used. Although users are intended to retain control over which data they choose to share, the Wallet still operates within a government-recognised framework involving public authorities and regulated service providers. 71 This has raised concerns regarding the extent of institutional access to personal information and the possibility of excessive monitoring or secondary uses of data beyond the original purpose for which it was provided. 72

Danah Boyd, ‘The Politics of “Real Names”’: Power, Context, and Control in Networked Publics’ (2012) 55 Communications of the ACM 29. 67 ‘EU Age Verification’ (European Commission) <https://digital-strategy.ec.europa.eu/en/policies/eu-ageverification> accessed 11 May 2026. 68 ibid 69 Judith S Donath, ‘Identity and Deception in the Virtual Community’ (1999) 6 Communities in Cyberspace <https://firstmonday.org/ojs/index.php/fm/article/view/5615/4346> accessed 11 May 2026. 70 Nacereddine Sitouah, Marco Esposito and Francesco Bruschi, ‘Self-Sovereign Identity and eIDAS 2.0: An Analysis of Control, Privacy, and Legal Implications’ (2026) arXiv <https://arxiv.org/abs/2601.19837> accessed 11 May 2026. 71 Regulation (EU) 2024/1183 of the European Parliament and of the Council of 11 April 2024 amending Regulation (EU) No 910/2014 as regards establishing the European Digital Identity Framework [2024] OJ L, 2024/1183, art 5a(14). 72 ‘Digital Identity Wallet’ (European Data Protection Supervisor) <https://www.edps.europa.eu/dataprotection/technology-monitoring/techsonar/digital-identity-wallet> accessed 11 May 2026.

At the same time, eIDAS 2.0 incorporates several safeguards derived from the GDPR. 73 The framework emphasises principles such as data minimisation, purpose limitation, user consent, and privacy by design, while also restricting unnecessary collection and sharing of personal information.74 In addition, eIDAS 2.0 provides users with greater transparency regarding which entities access their data and for what purpose. 75 Nevertheless, critics argue that the concentration of multiple categories of personal and sensitive information within a single interoperable identity infrastructure may still create risks relating to profiling, traceability, and expansion of access beyond what is strictly necessary in practice. 76 The German Federation for Consumer Organisations reports on the lack of visibility for consumers into how exactly the governments, companies and other stakeholders use their data and digital identity.77 In addition, the Federation reported a lack of safeguards preventing the governments from checking how and for what purposes the Wallets are being used. 78 The approach of storing all sensitive information in one single app makes state surveillance easier than ever before.79 Looking at Scandinavia, we can see a potential problem regarding the interpretation of the new eIDAS regulation. 80 Scandinavian countries are generally a great example of how an EU wide digital wallet might function, due to the degree of their implementation into the daily lives of the public in Norway, Sweden and Denmark.81 It is also a great insight into the issue of rigidly interpreting the principle of ‘sole control’ present in the new regulation. Norway assumes a very strict approach towards ‘sole control’, meaning the assumption and standard that the owner of the data is the only person managing it in daily life and that the user always

Regulation (EU) 2024/1183 of the European Parliament and of the Council of 11 April 2024 amending Regulation (EU) No 910/2014 as regards establishing the European Digital Identity Framework [2024] OJ L, 2024/1183. 74 ibid 75 ibid 76 Nacereddine Sitouah, Marco Esposito and Francesco Bruschi, ‘Self-Sovereign Identity and eIDAS 2.0: An Analysis of Control, Privacy, and Legal Implications’ (2026) arXiv <https://arxiv.org/abs/2601.19837> accessed 11 May 2026. 77 Micaela Mantegna, ‘The Cost of Convenience: What the EU Digital ID Wallet Might Miss’ (Medium, 2024) <https://medium.com/thecapital/the-cost-of-convenience-what-the-eu-digital-id-wallet-might-missa49f1d2e8b52> accessed 11 May 2026. 78 ibid 79 ibid 80 Marte Eidsand Kjørven, Kristian Gjøsteen and Tone Linn Wærstad, ‘Safe and Inclusive or Unsafe and Discriminatory? European Digital Identity Wallets and the Challenges of “Sole Control”’ (2026) 60 Computer Law & Security Review 106235 <https://www.sciencedirect.com/science/article/pii/S2212473X25001075> accessed 11 May 2026. 81 ibid

has full and independent control over their digital identity. 82 In daily life, this is unrealistic and has resulted in various problems for disadvantaged individuals and how they navigate digital services.83 Older members of society, those with lower technical literacy and people with physical or developmental disabilities often use the help of caregivers or family members. 84 This results in less protections and remedies against fraud, because the strict interpretation does not take into account those instances, which allocates responsibility unfairly. Due to the popularity of digital wallets in Norway, it also lead to exclusion from essential services. 85 The goal of eIDAS 2.0 was making adjustments to developing technologies and futureproofing the Wallet. This raises the question of wether the objective of future-proofing the European Digital Identity framework can be fully achieved, given that the current Wallet architecture does not yet incorporate post-quantum cryptographic protections and may therefore require substantial future adaptation to address emerging quantum computing threats.86 Quantum computing refers to a form of computing that applies principles of quantum mechanics, such as superposition and entanglement, to process information in ways that differ fundamentally from traditional computing systems.87 Unlike conventional computers, which process information through binary bits represented as either 0 or 1, quantum computers use quantum bits (‘qubits’), which can represent multiple states simultaneously. 88 This significantly increases computational capacity and allows certain calculations to be performed at speeds unattainable for classical computers. Within the context of digital identity and eIDAS 2.0, one of the main concerns surrounding quantum computing relates to its potential ability to compromise existing

ibid ibid 84 ibid 85 ibid 86 Kai Michaelis and others, ‘Post-Quantum Cryptography for the European Digital Identity Wallet’ (2024) Computer Fraud & Security <https://www.sciencedirect.com/science/article/abs/pii/S0267364924000888> accessed 16 June 2026. 87 IBM, ‘What Is Quantum Computing?’ (IBM) <https://www.ibm.com/think/topics/quantum-computing> accessed 11 May 2026. 88 ‘Superposition’ (Microsoft Quantum) <https://quantum.microsoft.com/enus/insights/education/concepts/superposition> accessed 11 May 2026. 83

cryptographic and encryption systems currently used to secure digital identities, electronic signatures, and authentication mechanisms. 89 At present, the eIDAS 2.0 framework does not mandate the implementation of postquantum or quantum-safe cryptography within the European Digital Identity Wallet ecosystem, despite growing recognition that existing cryptographic systems may become vulnerable to future quantum attacks.90 Although EU institutions and agencies such as ENISA have already begun preliminary work on post-quantum cryptography and future cryptographic transition strategies, the current framework remains in relatively early stages of preparation. 91 While future updates to EU-wide technical guidelines and standards may eventually address these concerns, this highlights a broader issue regarding the adaptability of the Wallet infrastructure and the extent to which continuous regulatory and technical adjustments may be required to keep pace with rapidly developing technologies. IV. Conclusion Regulation 2024/1183 (‘eIDAS 2.0’) represents one of the European Union’s most ambitious attempts at adapting legal frameworks to rapidly developing digital technologies and the increasing importance of online identity verification within modern society. By introducing the European Digital Identity Wallet, strengthening interoperability between Member States, and expanding the role of digital identification within the private sector, the Regulation attempts to address many of the shortcomings that limited the effectiveness and practical adoption of Regulation 910/2014. At the same time, the Regulation demonstrates that technological advancement and legal development rarely progress at the same pace. Although eIDAS 2.0 introduces stronger harmonisation measures, GDPR-inspired safeguards, and broader accessibility of digital identity systems, it continues to raise significant legal, technical, and ethical concerns. Questions surrounding privacy, proportionality, profiling, institutional access to personal

Lizzy Pollman, ‘Post-Quantum Cryptography and Trust Services’ (PKI Consortium Conference, Amsterdam, 2023) <https://pkic.org/events/2023/pqc-conference-amsterdam-nl/pkic-pqcc_lizzy-pollman_rdi_post-quantumcryptography-and-trust-services.pdf> accessed 11 May 2026. 90 Kai Michaelis and others, ‘Post-Quantum Cryptography for the European Digital Identity Wallet’ (2024) Computer Fraud & Security <https://www.sciencedirect.com/science/article/abs/pii/S0267364924000888> accessed 11 May 2026. 91 ‘Cryptography’ (European Union Agency for Cybersecurity (ENISA)) <https://www.enisa.europa.eu/topics/digital-identity-and-data-protection/cryptography> accessed 11 May 2026.

information, cybersecurity, fragmentation between national implementations, accessibility for vulnerable groups, and the long-term impact of emerging technologies such as quantum computing remain unresolved to a considerable extent. The Regulation also reflects a broader societal shift towards increasingly centralised and interoperable systems of digital identification. While this may improve convenience, efficiency, and cross-border integration within the European Union, it simultaneously raises concerns regarding anonymity, user autonomy, dependence on digital infrastructure, and the extent to which personal identity may gradually become inseparable from participation in online and public life. Ultimately, eIDAS 2.0 should not be viewed as a finalised solution, but rather as an evolving legal and technological framework that will likely require continuous revision, technical adaptation, and judicial interpretation in the years to come. The rapid pace of technological development means that the long-term success of the Regulation will depend not only on its practical implementation, but also on the European Union’s ability to continuously balance innovation, security, interoperability, and the protection of fundamental rights.

Evicted by click: marketplace Bans and EU platform due process - a Netherlands lens By Sandrin Petrova* Abstract When a platform closes a seller account, the consequences extend beyond an ordinary contractual dispute. For some, it might be the end of a month’s revenue. EU regulations now require reasons and complaint procedures, sellers frequently receive only a brief automated message, followed by a protracted waiting period. This article examines whether the Platformto-Business Regulation and the Digital Services Act afford e-commerce users a mechanism capable of operating in real time. Viewed through the Dutch context and litigation involving bol.com, this issue illustrates why sellers continue to face difficulties when challenging account bans. The reasons are frequently too vague to contest, their system retain the underlying evidence, their appeals take longer than the business can survive, and enforcement can escalate suspension.

L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction

A marketplace seller or business user may spend years building a business on an online platform, developing a customer base and accumulating reviews and ratings, only to lose access to that market in a single moment. For marketplace sellers, suspensions can instantly remove listings, freeze payouts, and cut off communications with customers. For business users who depend on platform monetization, similar restrictions mean immediate demonetization or outright termination. The effects are devastating; a platform ban operates exactly like an eviction from the market. This is where the existing legal framework struggles to keep pace. Platforms are private firms, and their terms of service are private contracts.1 Yet many business users are structurally dependent on platform infrastructure, payment gateways, ranking systems, reputational sources, and established audiences.2 Consequently, users routinely accept these non-negotiable terms of service because access to the platform is often commercially necessary. 3 Recital 2 of the P2B Regulation explicitly recognizes this dependency, noting that business users increasingly rely on online intermediation services to reach consumers, creating a severe imbalance in bargaining power. 4 Due to these standard terms grant platforms sweeping authority to restrict, suspend or terminate accounts, this power asymmetry manifests in highly disruptive enforcement actions.5 However, enforcement can sometimes be rapid and unclear, occasionally employing automated generic explanations and protracted review processes. 6 Where a business depends on platform access, these systemic deficiencies raise a fundamental question of procedural fairness. This raises the issue of what minimum platform due process the law should require before platforms impose restrictions capable of threatening a user’s livelihood. The key shift is not that EU law turns platforms into public authorities. Rather, it introduces procedural expectations into private platform relationships, especially duties of transparency, reason-giving, and contestability.7 These expectations are visible in the P2B 1

Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services [2019] L186/57, recitals 2, 19, 24 and 25. 2 ibid 3 ibid recital 2, art. 3. 4 ibid Recital 2. 5 ibid. 6 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) [2022] L277/1, arts 17 and 20. 7 Regulation (EU) 2019/1150 arts 3, 4 and 11; Regulation (EU) 2022/2065 arts 17 and 20.

Regulation’s rules on terms and conditions, restriction and termination, and complaint handling, as well as in the DSA’s statement-of-reasons and internal complaint-handling obligations.8 This governance gap is increasingly recognized in EU law. By demanding more precise language and procedural safeguards on limitations and termination, the Platform-toBusiness Regulation seeks to advance equity and transparency for commercial users of online intermediation services. 9 The Digital Services Act (DSA) encourages transparency tools, such as the DSA Transparency Database, and adds due diligence requirements, including a statement of reasons when certain limits are enforced. 10 Additionally, the Authority for Consumers and Markets, the Netherlands’ independent authority responsible for competition and consumer protection, has released guidelines for the practical implementation of these obligations for companies operating in the Netherlands.11 This piece examines how the P2B Regulation and DSA seek to safeguard marketplace sellers’ livelihoods through procedural protections. However, it highlights that vague or slow protections can undermine these efforts, emphasizing the need for clearer, faster remedies. II.

What ‘deplatforming’ means in the marketplace seller context The article uses ‘deplatforming’ to describe platform measures that substantially reduce

or remove a seller’s ability to trade on an online marketplace. 12 In the marketplace context, this often includes account suspension and termination, delisting or disabling of offers, restrictions on selling privileges, and freezing payouts.13 Allegations of policy breaches such as unsafe products, consumer complaints, or suspicious transaction patterns frequently trigger these measures. When a breach is highly disputed or ambiguous, platform enforcement functions as a pre-emptive sanction with rapid economic consequences, creating difficulties for sellers. Marketplace sellers fall squarely within the P2B Regulation concept of a ‘business user’. These are defined as any natural or legal person acting for purposes relating to their trade, business, craft, or profession who offer goods or services to consumers through online

ibid. Regulation (EU) 2019 OJ L 186/57. 10 Regulation (EU) 2022/2065 OJ L 277/1. 11 Authority for Consumers and Markets (ACM), ‘Guidelines Platform to Business Regulation’ (April 2023) <https://www.acm.nl/system/files/documents/guidelines-platform-to-business-regulation.pdf> accessed 3 March 2026. 12 Ganesh Sitaraman, ‘Deplatforming’ (2023) 133 Yale Law Journal 497. 13 Regulation (EU) 2019/1150 arts 4(1) and 4(2); Regulation (EU) 2022/2065 art 17(1). 9

intermediation services. 14 Marketplaces are a central example of “online intermediation services” because they facilitate direct transactions between business users and consumers. 15 This classification shows that marketplace sellers fall within the P2B Regulation’s defined category of ‘business users’, which allows the later analysis to examine whether the Regulation’s procedural safeguards respond adequately to marketplace deplatforming. Three features distinguish deplatforming in the marketplace from ordinary contract termination. First, the harm is immediate. Account suspension abruptly halts sales operations and routinely freeze financial payouts.16 Even short periods of suspension may have severe commercial consequences for microbusinesses that depend on platform access for customer reach and revenue generation. 17 Second, a significant information asymmetry exists. 18 Platforms frequently contain evidence required to contest an accusation, including enforcement records, transaction details, internal risk warnings, and complaint history. 19 For example, sellers may receive a general label that is difficult to contest as it is too vague. 20 The focus of EU law on declarations of reasons acknowledges that limits should be discretionary in addition to being understandable and contestable. 21 Sellers may have built reputational assets as ratings, reviews and ‘trusted seller’ badges that cannot be transferred to another marketplace. 22 The General Data Protection Regulation 2016/679, provides a right to data portability for certain personal data.23 This allows a data subject to receive personal data that he or she has provided to a controller in a structured, commonly used, and machine-readable format.24 However, this right does not necessarily cover platform-generated ranking signals, seller reputation metrics, or marketplace visibility indicators, because these are not simply data provided by the seller. 25 This weakens exit as a remedy and strengthens the case for meaningful procedural safeguards. 26

Regulation (EU) 2019/1150 (n 1) art 2(1). ibid art 2(2). 16 ibid art 17(1)(b), (c) and (d). 17 ibid; Regulation (EU) 2019/1150 recital 3. 18 ibid art 4(3); Regulation (EU) 2022/2065 art 17(3)(b). 19 ibid. 20 Regulation (EU) 2019/1150 recital 22; Regulation (EU) 2022/2065 arts 17(1) and 17(3). 21 Regulation (EU) 2022/2065 (n 2) art 17. 22 Regulation (EU) 2019/1150 recital 24. 23 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L119/1, art 20(1). 24 ibid. 25 Regulation (EU) 2016/679 art 20(1); Regulation (EU) 2019/1150 recital 24. 26 Regulation (EU) 2019/1150 arts 4 and 11; Regulation (EU) 2022/2065 arts 17 and 20. 15

III.

Contractual

Form

and

Technological

Control

Marketplace

Deplatforming Some may view deplatforming as a matter of contract, where the platform supplies a service, the seller agrees to the terms, and the platform can terminate for breach. 27 However, marketplace governance is increasingly technology-enabled and operates at a scale. 28 The problem, therefore, concerns the exercise of contractual powers through technical enforcement systems, control over evidence, and control over market access.29 Marketplaces use automated or semi-automated technologies to identify fraud, dangerous products, policy infractions, and pre-empt market manipulation, creating two major issues. The first issue concerns speed. Automated or semi-automated enforcement systems may restrict a seller’s account before meaningful human review has taken place. The DSA recognizes this risk by requiring statements of reasons to indicate, where applicable, whether automated means were used in taking the decision. 30 Speed is vital because an automated or semi-automated trigger may lead to an immediate restriction before human review has taken place, which is important, 31 as automated enforcement involves a trade-off between two types of error.32 False positives occur when a compliant seller is wrongly treated as risky and restricted,33 whereas a false negative occurs when a genuinely harmful seller is not detected. 34 The risk is not created by automation alone, but by how the system is calibrated. If a platform sets a strict detection threshold to reduce false negatives, for example, to avoid missing fraud, unsafe products, or manipulation, it may also increase false positives by capturing more compliant sellers. 35 The important question at hand is how the system is automated as well as the types of errors the platform chooses to minimize. Although rapid enforcement may

Regulation (EU) 2019/1150 arts 3 and 4. Regulation (EU) 2022/2065 art 17(3)(c). 29 Regulation (EU) 2019/1150 arts 4 and 5; Regulation (EU) 2022/2065 arts 17 and 20. 30 Regulation (EU) 2022/2065 art 17(3)(c). 31 ibid. 32 ibid; Robert Gorwa, Reuben Binns and Christian Katzenbach, ‘Algorithmic Content Moderation: Technical and Political Challenges in the Automation of Platform Governance’ (2020) 7 Big Data & Society 1. 33 ‘Classification: Accuracy, Recall, Precision, and Related Metrics’ (Google for Developers, Machine Learning Crash Course) <https://developers.google.com/machine-learning/crash-course/classification/accuracy-precisionrecall> accessed 3 May 2026. 34 ibid. 35 ibid; Robert Gorwa, Reuben Binns and Christian Katzenbach, ‘Algorithmic Content Moderation: Technical and Political Challenges in the Automation of Platform Governance’ (2020) 7 Big Data & Society 1. 28

therefore be justified for consumer protection and fraud prevention, even a later correction may be too late for a small seller if the appeal process takes days or weeks. The second major issue at hand is transparency. Platforms may give only limited explanations to prevent sellers from manipulating the rules or learning how the detection system works. 36 However, if the justifications are too general, the seller is unable to provide a meaningful response, and procedural safeguards become a formality rather than a practical measure. 37 EU legislation can be interpreted as a reaction to this problem, specifically it can impose baseline standards of transparency and contestability on platform governance whilst allowing platforms to enforce rules.38 The following section describes the procedural safeguards under the P2B Regulation and the DSA and assesses their effectiveness in relation to marketplace restrictions that seriously affect a seller’s livelihood. IV.

The Netherlands lens and the EU framework A.

P2B Regulation: the main procedural safeguard for marketplace sellers

The P2B Regulation aims to promote fairness and transparency in platform-business relationships, based on structural imbalance and dependence. 39 Business users often rely on platforms to reach consumers, while platforms draft unilateral terms and retain discretionary enforcement power.40 Three factors are central to deplatforming disputes. 1.

Transparent conditions and restriction grounds

Platforms must draft terms and conditions in plain, intelligible language that is easily accessible to business users.41 They must also describe the grounds for decisions to terminate, suspend, or impose any other restrictions.42 This requirement aligns with the P2B Regulation’s concern for predictability, because Article 3 requires platform terms and conditions to be

ibid. Regulation (EU) 2019/1150 art 4(3); Regulation (EU) 2022/2065 art 17(3)(b). 38 Regulation (EU) 2019/1150 arts 4 and 11; Regulation (EU) 2022/2065 arts 17 and 20. 39 Regulation (EU) 2019/1150 (n 1) recitals 1–4. 40 ibid. 41 ibid art 3(1). 42 ibid art 3(1)(c)–(d). 37

drafted in plain and intelligible language, to be easily available to business users, and to set out the grounds for restriction, suspension or termination.43 2.

Reasoning and notice for termination or restriction

When a platform suspends or terminates a business user, it must provide a reason. 44 The rule normally mandates advance notice of termination, typically a 30-day minimum, except for limited exceptions (for example, legal duties or repeated major breaches). 45Termination is not a strictly discretionary decision, rather, it requires rationale and often adjustment periods. 46 3.

Mediation and Internal Complaints Procedure

Platforms must offer business users an internal complaint-handling method and identify mediators with whom they are willing to work. 47 In principle, these procedures make enforcement contestable without forcing every dispute to court. 48 However, the main challenge is whether complaint mechanisms can respond quickly enough when the seller's money flow is frozen.49 B.

DSA: Reasoning statement and transparency infrastructure

Regulation (EU) 2022/2065, the Digital Services Act (DSA), is a horizontal EU regulation that lays down harmonized rules for intermediary services, including due diligence obligations adapted to different categories of providers.50 Although it is not limited to platformbusiness relationships, it improves procedural fairness in restrictions by requiring providers to present a statement of reasons when imposing certain restrictions on service recipients, such as suspension or termination in appropriate circumstances. 51 The statement must contain sufficiently clear information to enable the affected party to understand the basis for the decision and, where relevant, contest it through available complaint or dispute mechanisms. 52

Regulation (EU) 2019/1150 recital 4 and art 3(1). ibid art 4(1). 45 ibid art 4(2)–(4). 46 ibid art 4(4). 47 ibid arts 11–12. 48 Regulation (EU) 2019/1150 arts 11 and 12. 49 ibid art 11; Regulation (EU) 2022/2065 art 17(1)(b). 50 Regulation (EU) 2022/2065 art 1(1) and 1(2)(b). 51 ibid art 17. 52 ibid art 17(3). 44

The DSA also creates a transparency infrastructure, as providers must publish transparency reports under Article 15. 53 These reports must include information on content moderation, including the use of automated tools, the types of restrictions imposed, and whether measures affected the availability, visibility or accessibility of information provided by users.54 Separately, providers of online platforms must submit the decisions and statements of reasons referred to in Article 17(1) to the Commission for inclusion in the DSA Transparency Database under Article 24(5) DSA.55 This operates as an accountability mechanism for platform enforcement at scale, and underscores the central contradiction in platform due process.56 Platforms rely on standardized, largely automated enforcement to respond rapidly, yet business users want concrete reasons and prompt review when limits have a livelihood impact.57 For sellers, the practical utility of these reports is therefore limited but still relevant, as they may reveal patterns in platform enforcement. 58 Nevertheless, they do not replace an individualized statement of reasons or urgent review in a specific suspension case. 59 The DSA’s transparency architecture thus views reason-giving not only as an interpersonal obligation but also as a system-level accountability instrument. 60 The DSA does not replace the P2B framework, rather it enhances it. 61P2B focuses on fairness and transparency in platform-business relationships, including reasons, notice, complaint handling, and mediation. 62 In contrast, the DSA reinforces the broader principle that restrictions should be reasoned and transparent, backed up by reporting requirements and database infrastructure. 63 C.

The Netherlands lens: authority for consumers and markets guidance and practical enforceability

Although EU platform regulations are directly applicable across Member States, their practical effect is shaped by national enforcement priorities, regulatory guidance and domestic

ibid art 15. ibid. 55 ibid art 17 and 25. 56 ibid art 24(5). 57 ibid arts 15(1)(e), 17(3)(b)–(c) and 20(4). 58 ibid art 15(1)(c)–(e). 59 ibid arts 17(1), 17(3) and 20(1). 60 ibid art 24(5). 61 ibid art 2(4)(b) 62 Regulation (EU) 2019/1150 arts 3, 4, 11 and 12. 63 Regulation (EU) 2022/2065 art 17. 54

dispute resolution practices. In the Dutch context, the ACM has issued guidance on Platformto-Business Regulation, translating general obligations into practical expectations for platforms and business users operating in or targeting the Netherlands. 64 This guidance helps in evaluating what ‘meaningful’ compliance should look like in actual seller conflicts. 65 The legal issue in marketplace deplatforming is not only whether a platform provides a reason and a complaint channel, but also whether the cause is sufficiently explicit to warrant a response, and whether the evaluation occurs quickly enough to avoid permanent harm.66 In practice, a seller’s vulnerability in these disputes is frequently caused by information asymmetry, platforms control the enforcement data, and sellers must challenge decisions explained using generic reasons. 67 The following section evaluates these procedural gaps in relation to reasons, access to evidence, review, and proportionality enforcement. V.

Practical Limits of Platform Due Process in Marketplace Restrictions A.

Where the safeguards break down in practice

The first practical weakness concerns the quality of reasons given to sellers as both instruments rely heavily on reason-giving. Under the P2B, platforms must provide a statement of reasons when restricting, suspending, or terminating a business user. 68 The DSA also requires a statement of reasons for certain restrictions imposed on service recipients. 69 These duties are central, but formal compliance does not necessarily ensure that sellers receive reasons detailed enough to understand the allegation and provide an effective response. 70 Instead, sellers often receive a category label rather than an explanation, such as ‘policy violation’, ‘suspicious activity’, or ‘inauthentic product’. Such explanations do not provide sellers accurate reasons behind their removal on the platform. Without such details, the seller cannot respond in a detailed and well-reasoned way. Dutch litigation concerning Booking.com

‘Guidelines Platform to Business Regulation’ (Authority for Consumers and Markets (ACM), April 2023) <https://www.acm.nl/system/files/documents/guidelines-platform-to-business-regulation.pdf> accessed 3 March 2026. 65 Regulation (EU) 2019/1150 arts 4 and 11; Regulation (EU) 2022/2065 arts 17 and 20. 66 Regulation (EU) 2019/1150 art 4(3); Regulation (EU) 2022/2065 arts 17(3)(b) and 20(4). 67 Regulation (EU) 2019/1150 art 4(3); Regulation (EU) 2022/2065 art 17(3)(b). 68 Regulation (EU) 2019/1150 art 4(1). 69 Regulation (EU) 2022/2065 art 17. 70 Regulation (EU) 2019/1150 art 4; Regulation (EU) 2022/2065 art 17; European Commission, ‘Report on the first preliminary review on the implementation of Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services’ COM (2023) 525 final.

provides a platform-business analogy.71 Although SHA was an accommodation provider rather than a conventional marketplace seller of goods, its position was functionally similar for present purposes; it relied on Booking.com’s platform to reach consumers, manage reservations, and access the commercial infrastructure through which its services were offered.72 In SHA v Booking, Booking terminated the cooperation with immediate effect after alleging fraud, cancelling reservations, and blocking SHA’s access to the Extranet. 73 When SHA sought clarification, Booking’s further explanation remained general, stating only that SHA had repeatedly breached the accommodation agreement and that termination was necessary to protect the integrity of the platform and guest safety. 74 The court found that the verifiable indications relied on by Booking did not provide sufficiently solid grounds for assuming fraud or SHA’s involvement, and ordered Booking to restore access to the platform and Extranet.75 The case, therefore, illustrates the practical role of reason-giving in platform due process.76 Where the platform controls the relevant enforcement information, a broad allegation is insufficient if the affected business user cannot identify the factual basis of the restriction and contest it effectively. 77 This case provides a concrete example of the practical difficulties created by insufficiently specific reasoning.78 It is also consistent with the Commission’s broader review of the P2B regulation. 79 The review indicates that improvements remain necessary.80 Formal transparency and complaint-handling obligations do not always ensure that business users receive sufficiently detailed reasons. 81Without such detail business users may struggle to understand the allegation, identify the affected conduct, and prepare an effective challenge. 82 The desired impact of such improvements is therefore practical rather than merely formal: sellers should be able to understand the decision, submit relevant evidence, and obtain redress before the economic harm of a suspension becomes irreversible. 83 The tool

Swiss Hotel Apartments SA v Booking.com BV, Vzr Rb Amsterdam 18 April 2025, ECLI:NL:RBAMS:2025:3035. 72 ibid. 73 ibid. 74 ibid. 75 ibid. 76 ibid. 77 ibid. 78 ibid. 79 European Commission, ‘Report on the first preliminary review on the implementation of Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services’ COM (2023) 525 final. 80 ibid section 4. 81 ibid. 82 ibid. 83 ibid.

exists, but the central question remains on whether it works during time-sensitive periods for sellers. Timing further affects the practical value of those safeguards.84 Where restrictions take immediate effect, review mechanisms can provide relief only after the business user has already suffered significant commercial loss. 85The same Booking.com litigation portrays this timing issue, since the termination, reservation cancellations, and blocking of Extranet access occurred before the court evaluated whether the alleged fraud provided sufficient grounds for the restriction. Additionally, the case shows the remedial limits of urgent relief, although the court ordered Booking to restore platform and Extranet access within three working days and reverse the reservation where possible, the judgment did not award damages for reputational harm. 86 Meaning that some commercial consequences of the restriction may remain challenging to repair after the event. 87 The P2B seeks to reduce unexpected termination shocks by requiring notice in certain termination situations.88 However, serious commercial disruption may also come from measures other than final termination, including immediate suspension, restriction of access to platform tools, cancellation of transactions, or restrictions on payments. 89Internal complaint-handling and mediation exist under P2B, but the existence of a channel does not guarantee a decision fast enough to prevent serious loss.90 The Digital Services Act strengthens explanation duties, yet it does not itself guarantee urgent review for cases where income is halted.91 Next, the issue of access to evidence is analysed. 92 Marketplace enforcement is built on information that the platform controls including complaint histories, transaction trails, internal risk flags, and enforcement logs.93 The affected sellers and business users typically see the conclusion rather than the material on which that outcome was based. 94. Even when a platform

Regulation (EU) 2019/1150 arts 4 and 11; Regulation (EU) 2022/2065 arts 17 and 20. Regulation (EU) 2019/1150 art 4(1); Regulation (EU) 2022/2065 art 17(1). 86 Swiss Hotel Apartments SA v Booking.com BV, Vzr Rb Amsterdam ECLI:NL:RBAMS:2025:3035, paras 2.3–2.5, 4.12 and 5.1–5.6. 87 ibid. 88 Regulation (EU) 2019/1150 (n 19) art 4(2)–(4). 89 Regulation (EU) 2022/2065 art 17(1)(b)–(d); SHA v Booking.com paras 2.3–2.5. 90 ibid arts 11–12. 91 ibid art 17(1), (3). 92 Regulation (EU) 2019/1150 art 4(3); Regulation (EU) 2022/2065 art 17(3)(b). 93 SHA v Booking.com BV, paras 4.7–4.8. 94 ibid paras 2.4, 3.2 and 4.7–4.8. 85

April

2025,

provides a reason, it may offer too little detail to allow for a targeted rebuttal. 95 EU law does not require platforms to disclose fraud-detection models or internal risk systems, and such disclosure can legitimately be limited to prevent circumvention. 96 However, contestability needs a minimum amount of content, because sellers and business users must be able to understand what conduct is under scrutiny and what kind of proof would answer it.97 A further practical weakness concerns proportionality in the selection of enforcement measures. 98 Platforms have a variety of responses on demand, such as warnings, delisting a single listing, restricting a category, requiring verification, limiting selling privileges, or suspending the entire account.99 Sellers often experience a steep escalation of full suspension even when even when the infringement is minor such as a single product, documentation gaps, or a small complaints spike.100 In such circumstances, the most intrusive measure may exceed what is necessary to address the identified risk 101. This is where the P2B’s regulations fairness logic matters because it is designed to reduce the unfairness that can arise from unilateral enforcement in a dependent relationship.102 The Digital Services Act’s due diligence model also supports the idea that restrictions should be reasoned and accountable rather than arbitrary. 103 A proportional approach does not mean tolerating fraud or consumer harm.104 Platforms may have legitimate reasoning to act quickly, including consumer complaints, unsafe products, fraud ore regulatory exposure.105 However, such interests should be balanced against the seller’s dependence on the account.106 The trade-off is therefore that platforms need enough room to act quickly against real risks, but sellers should not lose their entire market access where a narrower measure would address the problem. 107 This links proportionality back to public law safeguards discussed earlier, as platform restrictions should be explained and justified by the level of risk and limited

Regulation (EU) 2019/1150 recital 22 and art 4; Regulation (EU) 2022/2065 art 17(3)(b) and 17(4); European Commission, ‘Report on the first preliminary review on the implementation of Regulation (EU) 2019/1150’ COM (2023) 525 final, 13. 96 Regulation (EU) 2022/2065 arts 15(1)(e), 17(3)(b)–(c) and 17(4). 97 Regulation (EU) 2019/1150 recital 22 and art 4(3); Regulation (EU) 2022/2065 art 17(3)(b) and 17(4). 98 Regulation (EU) 2022/2065 art 14(4). 99 ibid art 17(1)(a)–(d). 100 European Commission, ‘Report on the first preliminary review on the implementation of Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services’ COM (2023) 525 final, 13. 101 Regulation (EU) 2022/2065 art 14(4). 102 Regulation (EU) 2019/1150 (n 19) recitals 1–4. 103 Regulation (EU) 2022/2065 arts 14(4), 17(3)(b), 17(4) and 20(4). 104 Regulation (EU) 2019/1150 art 4(4)(a)–(c); Regulation (EU) 2022/2065 art 23(1). 105 Regulation (EU) 2019/1150 art 4(4)(a)–(c); Regulation (EU) 2022/2065 arts 16, 17(1) and 23(1). 106 Regulation (EU) 2019/1150 recitals 2–3; Regulation (EU) 2022/2065 art 14(4). 107 Regulation (EU) 2022/2065 arts 14(4) and 17(1)(a)–(d).

to what is necessary in the circumstances. 108 Proportionality requires that the chosen measure should mirror the seriousness of the alleged violation, with account-wide suspension and termination reserved for repeated, serious deceptive conduct. 109 B.

Justified Account Closure in Dutch Platform Litigation

The bol.com litigation is useful as a contrast to the Booking.com example discussed above.110 Whereas SHA v Booking concerned a general explanation and an insufficient evidential basis, the bol.com case concerns seller conduct that the court accepted as a repeated violation of platform rules. 111 In the bol.com seller-account litigation, the District Court of Midden-Nederland refused to order the reopening of the seller accounts after accepting that bol.com had acted on the basis of identified rule violations, prior warnings, and an internal points-based enforcement system. 112 Unlike the Booking.com case, where the court found an evidential basis for the fraud allegation insufficient.113 The bol.com litigation concerned a seller's conduct linked to repeated and identifiable rule breaches, including misuse of brand names, infringement related conduct, false orders and self-generated positive reviews114 The case therefore does not support the proposition that account closure is inherently unlawful or that courts should routinely compensate sellers. 115 Rather it shows that severe platform enforcement is more likely to be accepted where the platform can demonstrate a clear contractual basis, repeated breaches and documented escalation. 116 Platform due process does not require platforms to accept manipulation, fraud, intellectual property infringements or other serious breaches. 117 It requires that serious restrictions on market access be supported by identifiable reasons, proportionate escalation and evidence. 118The bol.com litigation therefore provides a benchmark for defensible enforcement; where a platform can show repeated breaches, prior warnings, and a structured process, account closure is easier to justify. 119 By contrast, the Booking.com case illustrates the procedural concern more directly, because the 108

ibid arts 14(4), 17(3)(b) and 17(4). Regulation (EU) 2019/1150 art 4(4)(c); Regulation (EU) 2022/2065 arts 14(4) and 23(1); Vzr Rb MiddenNederland 13 August 2024, ECLI:NL:RBMNE:2024:4823. 110 SHA v Booking.com; Vzr Rb Midden-Nederland. 111 SHA v Booking.com, paras 2.4, 4.9–4.12; Vzr Rb Midden-Nederland. 112 Vzr Rb Midden-Nederland. 113 SHA v Booking.com paras 2.4, 4.9–4.12; Vzr Rb Midden-Nederland. 114 ibid. 115 Vzr Rb Midden-Nederland; Regulation (EU) 2022/2065 art 14(4). 116 Vzr Rb Midden-Nederland; Regulation (EU) 2019/1150 art 4. 117 Regulation (EU) 2019/1150 art 4(4)(a)–(c); Regulation (EU) 2022/2065 art 23(1). 118 Regulation (EU) 2019/1150 art 4; Regulation (EU) 2022/2065 arts 14(4), 17(3)(b), 17(4) and 20(4). 119 Vzr Rb Midden-Nederland. 109

business user received only a general explanation and the court found the evidential basis for the alleged fraud insufficient. 120 Those two cases together portray that the legal issue is not account closure, but whether the platform can justify that closure through concrete reasons, evidence and a proportionate enforcement process. 121 VI.

Conclusion

This article has revealed that EU law seeks to discipline marketplace enforcement through procedural tools: transparency, reason-giving, and routes to challenge restrictions. However, practical gaps remain visible in cases such as SHA v Booking.com, where the business user received only a general explanation, lost access to the platform and Extranet, and had reservations cancelled before the court assessed whether the alleged fraud provided a sufficient basis for the restriction. 122 By contrast, the bol.com litigation shows what courts may find persuasive where the platform can point to clear terms, prior warnings, repeated rule breaches and a documented enforcement process.123 Accordingly, where platforms do not provide comparable openness or escalation, sellers/business users may be left contesting restrictions with insufficient information and limited time to prevent commercial harm. 124 A modest approach falls within the framework of existing EU legislation. Three minimum expectations would make protections more practical for livelihood-impact cases. First, reasons that identify the relevant rule category and the affected listings or conduct, rather than a generic label. 125 Second, an expedited review track for account-wide suspensions and payout holds, in which the seller can demonstrate urgent economic dependence. 126 Third, proportional enforcement that uses narrower measures where possible before completely closing the account. These expectations should not prevent platforms from acting against fraud, unsafe products, or serious consumer harm. Rather, they would require platforms to connect the restriction more clearly to the risk being addressed and to use account-wide suspension only where a narrower response won't be efficient. 127 These are not substantively new rights,

120

SHA v Booking.com, paras 2.4, 4.9–4.12. ibid; Vzr Rb Midden-Nederland; Regulation (EU) 2022/2065 arts 14(4), 17(3)(b) and 17(4). 122 SHA v Booking.com BV, paras 2.3–2.5, 4.9–4.12 and 5.1–5.4. 123 Vzr Rb Midden-Nederland. 124 Regulation (EU) 2019/1150 art 4(3); Regulation (EU) 2022/2065 arts 17(3)(b), 17(4) and 20(4); SHA v Booking.com BV, paras 2.4 and 4.9–4.12. 125 Regulation (EU) 2019/1150 art 4; Regulation (EU) 2022/2065 art 17. 126 Regulation (EU) 2019/1150 arts 11–12. 127 ibid recitals 1–4; Regulation (EU) 2022/2065 art 17. 121

but rather practical prerequisites for reason-giving and contestability to work when they are most needed.

Building Sovereignty at Sea: China’s Artificial Islands in the Disputed Areas of the South China Sea and the Environmental Limits of Maritime Development under UNCLOS By Federika Fedifeodorova* Abstract This note examines the legal status and implications of artificial island construction in the South China Sea under the United Nations Convention on the Law of the Sea (UNCLOS). In recent years, large-scale land reclamation activities, particularly by China across the Spratly Islands, have transformed coral reefs and low-tide elevations into artificial islands, creating new legal and environmental challenges for the law of the sea. UNCLOS provides the legal framework governing maritime zones and the construction of artificial islands and makes clear that such structures do not possess the status of natural islands and therefore do not generate territorial seas, exclusive economic zones (EEZ), or continental shelves. However, the convention leaves significant ambiguity regarding the legality of constructing artificial islands in disputed maritime areas and the broader consequences such construction may have for regional stability and international law. This note further evaluates the environmental consequences of large-scale reclamation activities under UNCLOS, particularly their impact on fragile marine ecosystems such as coral reefs and regional fisheries. These environmental consequences are examined as one of the key legal implications arising from artificial island construction in the South China Sea. Although UNCLOS imposes obligations on states to protect and preserve the marine environment, existing enforcement mechanisms remain limited, exposing important gaps in the current law of the sea.

L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction

The South China Sea is one of the most contested maritime regions in the world. 1 At the centre of the dispute are the Spratly Islands, a scattered group of reefs, rocks, shoals, and low-tide elevations. China and Taiwan each claim the Spratly Islands in their entirety, whereas Vietnam, the Philippines, Malaysia, and Brunei assert competing claims to specific islands, reefs, and maritime areas within the island group. 2 .In recent years, the legal significance of these maritime features has intensified because several of them have been transformed through large-scale land reclamation into artificial islands capable of supporting ports, airstrips, and other permanent facilities.3 These developments have sharpened disputes over maritime entitlement, regional security, and environmental protection. 4 Although the United Nations Convention on the Law of the Sea establishes a framework governing maritime entitlements based on the classification of natural sea formations, it does not define artificial islands or provide a specific legal regime governing their construction.5 The absence of jurisprudence highlights an insufficiency in the UNCLOS framework, leading to uncertainty in its interpretation and application in State practice. 6 This Note examines China’s artificial island construction in the Spratly Islands as both a test of the existing UNCLOS framework and an illustration of the need for clearer legal limits on maritime development in contested waters. It first examines the legal status of maritime features and artificial islands under UNCLOS, together with the limitations of the Convention in defining artificial islands. It then considers the legal consequences of artificial island construction in the South China Sea, with reference to the exclusive economic zone and the South China Sea Arbitration. Finally, it evaluates the environmental consequences resulting from large-scale land reclamation activities and the extent to which UNCLOS protects and preserves the marine environment.

Bill Hayton, The South China Sea: The Struggle for Power in Asia (Yale University Press 2014) 3– Yi-Hsuan Chen, ‘South China Sea Tension on Fire: China’s Recent Moves on Building Artificial Islands in Troubled Waters and Their Implications on Maritime Law’ (2015) 1 Maritime Safety and Security Law Journal 1. 3 Adam W Kohl, ‘China’s Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea’ (2018) 122 Dickinson Law Review 917. 4 ibid. 5 Yi-Hsuan Chen, ‘South China Sea Tension on Fire: China’s Recent Moves on Building Artificial Islands in Troubled Waters and Their Implications on Maritime Law’ (2015) 1 Maritime Safety and Security Law Journal 1, 5. 6 ibid. 2

II.

Maritime Features and Artificial Island Construction in the Spratly Islands A.

The legal status of sea formations in the Spratly Islands

The UNCLOS refers to artificial islands in several provisions but does not define their legal meaning or status. 7 This section examines the relevant provisions concerning artificial islands under the convention. The first step in the legal analysis begins with assessing the status of the underlying maritime formations. The UNCLOS gives different legal rights to different types of maritime features depending on their legal categorization as islands, rocks, or low-tide elevations.8 Under Article 121(1), an island is a “naturally formed area of land, surrounded by water, that is above water at high tide”. 9 Additionally, Article 121(2) provides that a qualifying island may have maritime zones attached to it, including a territorial sea, an EEZ, and a continental shelf.10 This means that the island can serve as the legal basis from which these maritime zones are measured. However, this framework is limited by article 121(3), which does not allow rocks that cannot sustain human habitation or economic life on their own to establish an EEZ or a continental shelf. 11 Low-tide elevations occupy an even narrower position.12 Under Article 13 of UNCLOS, a low-tide elevation is a naturally formed area of land that is exposed above the water at low tide but becomes submerged when the tide rises. 13 Unlike islands and rocks, low-tide elevations do not generate a territorial sea, EEZ, or continental shelf of their own.14 These classifications are particularly important in the context of the Spratly Islands because they determine the maritime entitlements that disputed islands, rocks, and low-tide elevations may generate under UNCLOS. Artificial islands are not recognized as islands under UNCLOS and therefore fall outside this framework. 15 Article 60(8) makes it clear that artificial islands do not possess the status of islands, have no territorial sea of their own and do not affect the delimitation of the territorial sea, EEZ, or continental shelf. 16

Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (2019) 52 Vanderbilt Journal of Transnational Law 643, 648–50; United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 arts 60 and 80. 8 Imogen Sauders, 'Artificial Islands and Territory in International Law' (2021) 52 Vanderbilt Law Review 643. 9 UNCLOS art 121(1). 10 ibid art 121(2). 11 ibid art 121(3). 12 ibid art 13. 13 ibid art 13. 14 The South China Sea Arbitration (Philippines v China) (Award) PCA Case No 2013-19, 12 July 2016, paras 309–310. 15 Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (ANU College of Law Legal Studies Research Paper Series No 18.19) 4. 16 UNCLOS art 60(8).

Maritime rights derive from the natural condition of the formation, not from later construction, reclamation, or enlargement. 17 Although they may resemble islands in physical appearance, UNCLOS does not treat them as naturally formed land territory. This distinction is vital in the South China Sea, where the legal status of islands created through dredging and land reclamation depend not on the size of the artificial structure created, but on the original legal status of the formation beneath it. China’s reclamation campaign has been described by scholars as a ‘great wall of sand’, a phrase that captures the scale of the dredging and land reclamation undertaken in the Spratly Islands. 18 The Spratly Islands clearly illustrate this analysis, as these formations do not all occupy the same legal position under the UNCLOS.19 Mischief Reef and Subi Reef are coral reef formations located within the Spratly Islands that have become central to disputes in the South China Sea due to extensive land reclamation and artificial island construction carried out by China.20 In their natural condition, both features were classified as low-tide elevations, with the result that they cannot generate a territorial sea, an EEZ, or a continental shelf of their own.21 The large-scale reclamation activities undertaken on these reefs have also raised significant environmental concerns under the UNCLOS, particularly in relation to damage to coral reef ecosystems and regional fisheries. 22 Conversely, the classification of Fiery Cross Reef as either a rock above water at high tide or a low‑tide elevation has been the subject of greater dispute.23 Even if classified as a rock, however, the meaning of ‘rock’ under Article 121(3) remains unclear, particularly because the Convention does not provide precise criteria for determining when a feature can sustain human habitation or economic life of its own.24 As a result, Article 121(3) would still deny it an EEZ and continental shelf. 25 These differences are important because they explain why each reef must be assessed individually rather than as part of a single group. In conclusion, the legal classification of each feature determines what

Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (ANU College of Law Legal Studies Research Paper Series No 18.19) 5. 18 Michael Paul, ‘A Great Wall of Sand in the South China Sea? Political, Legal and Military Aspects of the Island Dispute’ (SWP Research Paper 8, Stiftung Wissenschaft und Politik 2016). 19 UNCLOS art 121(3). 20 The South China Sea Arbitration (Philippines v China) (Award) PCA Case No 2013-19, 12 July 2016, paras 373–381. 21 ibid paras 373, 382, 646. 22 ibid paras 957–991. 23 ibid. 24 UNCLOS art 121(1). 25 ibid.

maritime rights exist in the first place and therefore defines the legal framework within which any later land reclamation or artificial island construction must be assessed. Consequently, artificial island construction may alter the physical appearance of a feature, but it does not change the maritime entitlements that the feature can generate. 26 B.

Limits of UNCLOS and General International Law in defining Artificial Islands

The UNCLOS does not define ‘artificial islands’ and does not set out a test for distinguishing artificial islands from other human made maritime structures. 27 The Convention regulates the legal consequences of artificial islands but does not specify when a structure qualifies as one. The UNCLOS preamble refers unresolved matters to general international law, shifting the analysis beyond the treaty. 28 However, this does not resolve the broader issue of how artificial islands should be classified under international law. UNCLOS makes clear that artificial islands do not have the same legal status as natural islands and cannot generate maritime zones of their own.29 It does not, however, explain whether artificial islands should otherwise be understood as territory, installations, or a separate category of human-made maritime structure. General international law also does not provide a clear or settled concept of territory applicable to human made maritime formations.30 Territory is generally understood as a space over which a state exercises authority rather than a category defined by physical origin or method of construction. 31 It therefore explains territorial authority but not the classification of artificial maritime structures. This question is relevant because the legal characterization of artificial islands influences whether they can be regarded as possessing any territorial status beyond the limited rights expressly recognised under the UNCLOS. Territorial doctrine remains grounded in naturally formed land, and neither case law nor scholarship provides a consistent rule recognizing

Philippines v paras 373, 382, 646; UNCLOS arts 13, 60(8), 121. Yi-Hsuan Chen, ‘South China Sea Tension on Fire: China’s Recent Moves on Building Artificial Islands in Troubled Waters and Their Implications on Maritime Law’ (2015) 1 Maritime Safety and Security Law Journal 1, 10. 28 UNCLOS preamble. 29 ibid art 60(8). 30 Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (ANU College of Law Legal Studies Research Paper Series No 18.19) 8. 31 ibid. 27

artificial islands as a distinct territorial category.32 As a result, the uncertainty surrounding the legal classification of artificial islands remains. In practice, classifications depend on how physical alterations to maritime features are assessed, particularly where reefs or low tide elevations are physically modified through large scale construction works that add sand, rock, and sediment to create permanent land surfaces above sea level capable of supporting infrastructure.33 As a result, similar construction activities may be treated differently depending on interpretive framing rather than a clear doctrinal standard, especially in disputed maritime areas where classification affects entitlements and state conduct. 34 This ambiguity is particularly evident in the South China Sea, where such physical transformations have been carried out on reefs and low tide elevations. Yet, the legal assessment continues to depend on the original status of the maritime feature under the UNCLOS, which remains undecisive despite subsequent physical change. 35 C.

The construction of artificial islands

The legal analysis of artificial islands in the South China Sea requires an understanding of how reef and low-tide elevation features are physically transformed into permanent landforms. As the previous section explained, classification under the UNCLOS turns on the original status of the maritime feature rather than its later physical alteration. It is therefore necessary to examine the construction process itself in order to understand how these legal issues arise in practice. Artificial islands in the Spratly Islands were created through land reclamation, a method of creating new land by depositing soil, sand, rock, or other material onto areas that were previously submerged under water. 36 The main technique used was shallow-water dredging.37 In practical terms, specialized dredging vessels operated within nearby coral reef systems, particularly around lagoons and reef flats, to remove sediment from the seabed. 38 A lagoon is a body of water surrounded or partly enclosed by a coral reef, while a reef flat refers to the 32

ibid. ibid. 34 ibid. 35 ibid. 36 Juliastuti J, Setyandito O, Cahyono C, Suhendra A and Anda M, ‘A Review of Embankment Design on Artificial Islands by Dredge Material to Mitigate Flooding’ (2025) 15 Engineering, Technology & Applied Science Research 20805. 37 ibid. 38 ibid. 33

relatively flat part of a reef located close to the sea surface. 39 The excavated material was then transported and deposited onto reefs and low-tide elevations that were being built up. 40 The purpose was to raise those formations until they remained above sea level even at high tide. 41 Because the fill was taken from the surrounding reef system itself, the process did not depend on importing construction material from elsewhere. New land was therefore created by cutting into one part of the marine environment and using the excavated sediment to enlarge another. III. Consequences of Artificial Island Construction in the South China Sea To assess the legal consequences of artificial island construction in the South China Sea, it is necessary to consider how maritime entitlements are determined under the UNCLOS. Artificial islands do not generate their own maritime zones, but their construction takes place within areas where the existence and extent of the exclusive economic zone is central to determining coastal State rights. This is because the EEZ grants coastal States sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, as well as jurisdiction with regard to artificial islands, marine scientific research, and the protection and preservation of the marine environment. 42 The following section therefore examines the development and legal structure of the exclusive economic zone as the framework within which questions of jurisdiction and rights arise. A.

The Development and Status of the Exclusive Economic Zone

The Exclusive Economic Zone (EEZ) developed out of coastal States’ increasing efforts to secure the natural resources located just beyond their territorial sea. 43 Over time, however, many States argued that this division did not adequately protect their economic interests, especially in relation to fisheries, offshore oil and gas, and other marine resources located close to their coasts. 44 The UNCLOS responded to that concern by establishing the exclusive economic zone as a separate maritime zone. 45 The Exclusive Economic Zone (EEZ) of a State represents the area beyond and adjacent to the territorial sea that is governed by its own legal 39

ibid. Matthew Southerland, China’s Island Building in the South China Sea: Damage to the Marine Environment, Implications, and International Law (US-China Economic and Security Review Commission 2016) 3–5. 41 ibid. 42 UNCLOS art 56(1). 43 Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (ANU College of Law Legal Studies Research Paper Series No 18.19) 11. 44 ibid. 45 UNCLOS arts 55–57. 40

regime.46 Under Article 57, it may extend up to 200 nautical miles from the baselines from which the width of the territorial sea is measured. 47 The importance of the EEZ lies in the rights it gives to the coastal State. Article 56 provides that a coastal State has sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources found in the waters, the seabed, and the subsoil of the zone.48 In practical terms, this means that the coastal State, namely the State with which the coast generates the relevant maritime zone, has the primary right to benefit from fish stocks, offshore oil and gas, and other economic resources located within 200 nautical miles of its coast.49 This distance reflects the maximum extent of the exclusive economic zone permitted under Article 57 of UNCLOS.50 Within this zone, the coastal State enjoys sovereign rights over the exploration, exploitation, conservation, and management of natural resources, although it does not possess full sovereignty over the waters in the same way as it does within its territorial sea. Article 56 also gives the coastal State jurisdiction with regard to artificial islands, marine scientific research, and the protection and preservation of the marine environment. 51 At the same time, the EEZ is not a zone of full sovereignty.52 The UNCLOS intentionally limits its authority to specific economic and functional rights, rather than giving complete territorial control.53 Article 58 preserves for all States certain important freedoms within the EEZ, including navigation, overflight, and the laying of submarine cables and pipelines. 54 The EEZ should therefore be understood as a compromise. It gives the coastal State priority in matters relating to natural resources and certain functional activities, but it also preserves the wider international interest in keeping the sea open for movement and communication.55 This balance is particularly relevant in the South China Sea, where disputes over artificial island construction often arise within overlapping EEZ claims and therefore raise questions concerning which State is entitled to exercise the rights and jurisdiction provided under UNCLOS.56

ibid art 55. ibid art 57. 48 ibid art 56 49 ibid art 55-57. 50 ibid at 57. 51 ibid. 52 Oude Elferink AG, ‘Artificial Islands, Installations, and Structures’ in Max Planck Encyclopedia of Public International Law (OUP 2024) 11. 53 ibid. 54 UNCLOS art 58. 55 Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (ANU College of Law Legal Studies Research Paper Series No 18.19) 11. 56 Philippines v China paras 153–157, 225–226, 406–407. 47

The South China Sea Arbitration

The South China Sea Arbitration is of particular importance because it highlights a central problem in the law of the sea. Whist the UNCLOS provides a clear legal framework to determine maritime rights, it has limited capacity to ensure compliance when a State rejects the authority of the tribunal. The dispute between the Philippines and China therefore serves as an important test of the effectiveness of the UNCLOS in practice in contested maritime spaces.57 The South China Sea Arbitration a dispute settlement proceeding brought by the Philippines against China concerning maritime entitlements and activities in the South China Sea, was initiated in 2013 under Annex VII of the UNCLOS and was administered in The Hague by the Permanent Court of Arbitration. 58 The case arose from a broader dispute between the Philippines and China over maritime rights in the South China Sea, especially in areas linked to the Spratly Islands, Scarborough Shoal, Mischief Reef, and Second Thomas Shoal. 59 The tribunal was careful to define the dispute in legal terms.60 The PCA did not aim to decide which State had sovereignty over the islands or reefs, and it did not draw a maritime boundary between the parties. Instead, it addressed a narrower but highly important question, namely what rights China and the Philippines could lawfully claim under UNCLOS and whether China’s conduct in the disputed waters was consistent with the Convention. 61 A central issue in the case was China’s so-called nine-dash line.62 This is the line shown on Chinese maps as a series of broken dashes enclosing most of the South China Sea. 63 The nine-dash line was the line China used on maps to mark the sea area in which it claimed special rights, while the claim to ‘historic rights’ was the legal argument used to justify rights and resources within that area. 64 The challenge was that the line did not function as an ordinary maritime boundary, did not provide clear coordinates, and did not specify with precision the 57

Nong Hong, ‘The South China Sea Arbitration: A Test for the Efficacy of International Law’ (2018) Asian Politics & Policy. 58 Permanent Court of Arbitration, Press Release: The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) (The Hague, 12 July 2016). 59 Philippines v China; Permanent Court of Arbitration, ‘Press Release: The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China)’ (The Hague, 12 July 2016). 60 Natalie Klein, ‘The Limitations of UNCLOS Part XV Dispute Settlement in Resolving South China Sea Disputes’ in The South China Sea – An International Law Perspective Conference (Macquarie University) 21. 61 The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) (Award on the Merits, PCA Case No 2013-19, 12 July 2016). 62 Zhiguo Gao and Bing Bing Jia, ‘The Nine-Dash Line in the South China Sea: History, Status, and Implications’ (2013) 107(1) American Journal of International Law 98. 63 Natalie Klein, ‘The Limitations of UNCLOS Part XV Dispute Settlement in Resolving South China Sea Disputes’ in The South China Sea – An International Law Perspective Conference (Macquarie University) 6. 64 ibid

exact legal rights claimed within it. 65 In practice, however, China had relied on it to support broad claims to rights and resources across a vast sea area. The tribunal held that the UNCLOS does not recognize maritime rights claimed in that form.66 Under the Convention, rights at sea must derive from recognized maritime zones, including the territorial sea, the Exclusive Economic Zone, and the continental shelf. 67 The tribunal therefore concluded that, as between the Philippines and China, there was no legal basis for China to claim resource rights within the waters falling inside the nine-dash line beyond those permitted by the UNCLOS.68 A second issue before the tribunal concerned the legal status of maritime features in the South China Sea. The tribunal therefore also examined the legal status of several maritime formations, because maritime entitlement depend on the nature of the feature from which they are claimed.69 Applying Articles 13 and 121 of the Convention, it distinguished between features submerged at high tide, features above water at high tide, and high-tide features that nonetheless could not generate an exclusive economic zone or continental shelf. 70It stressed that the relevant formations had to be assessed in their natural condition, not as altered by later reclamation and construction. 71 On that basis, the tribunal found that Subi Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in their natural condition, while Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef were high-tide features.72 These features were among the principal maritime formations examined by the tribunal because their classification determined the maritime entitlements that could be claimed in the surrounding waters. 73 It then held that none of the high-tide features in the Spratly Islands qualified as full islands capable of generating an Exclusive Economic Zone or continental shelf. Instead, they were legally rocks and were limited to a 12-nautical-mile territorial sea.74 These conclusions shaped the tribunal’s assessment of China’s conduct, under UNCLOS, because the rights and obligations applicable to China's activities depended on the 65

ibid. The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) PCA Press Release (The Hague, 12 July 2016). 67 ibid. 68 ibid. 69 ibid. 70 UNCLOS arts 13 and 121. 71 ibid. 72 Philippines v China, paras 309–310, 473–476, 542–553. 73 ibid. 74 ibid. 66

maritime entitlements that the relevant features were capable of generating. 75 Once it concluded that certain sea areas formed part of the Philippines’ Exclusive Economic Zone and continental shelf, it could determine whether China had interfered with rights reserved to the Philippines under the UNCLOS.76 The tribunal found that China had interfered with Philippine petroleum exploration at Reed Bank, restricted Philippine fishing activities, failed to prevent Chinese fishermen from operating in waters reserved to the Philippines, and constructed artificial islands and installations at Mischief Reef without Philippine authorization. 77 It also held that China had violated the traditional fishing rights of Philippine fishermen at Scarborough Shoal.78 In addition, the tribunal concluded that China’s large-scale land reclamation and island-building had caused severe damage to the coral reef environment and had breached its obligations under Articles 192 and 194 of the UNCLOS.79 The award did not resolve every aspect of the dispute. 80 It did not determine sovereignty over the islands, and it did not draw a maritime boundary between the parties. 81 Even so, it remains one of the most important legal decisions on the South China Sea. 82 The Tribunal rejected China’s claims to historic rights within the nine-dash line, clarified the legal status of the disputed maritime features, and found that China had violated the Philippines’ sovereign rights and obligations relating to the marine environment.83 The award is final and binding under Article 296 of the Convention and article 11 of Annex VII. 84 China, however, rejected the ruling and has continued its activities in the South China Sea.85 This continued noncompliance raises broader concerns under the convention regarding maritime safety and legal certainty, particularly in relation to uncertainty over the consistent application of rules on innocent passage under Article 19 and the obligation of due regard under Article 58 in contested maritime spaces. 86 The arbitration therefore illustrates a significant limitation of UNCLOS in practice. Although the convention can authoritatively determine the legality of state conduct, 75

ibid paras 804–816, 1043–1048. ibid 28. 77 ibid 78 The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) PCA Press Release (The Hague, 12 July 2016) 6. 79 UNCLOS arts 12 and 194. 80 Philippines v China, paras 153–155. 81 ibid. 82 ibid. 83 ibid. 84 UNCLOS art 296 and Annex VII, art 11. 85 Stefan Talmon, ‘The South China Sea Arbitration: Observations on the Award of 12 July 2016’ (Institute for Public International Law Bonn Research Papers on Public International Law No 14/2018, 17 May 2018) 99. 86 UNCLOS arts 19 and 58. 76

it provides no effective means of compelling compliance once a state refuses to accept the tribunal’s decision.87 C.

Environmental Harm Resulting from Artificial Island Construction

The environmental consequences of artificial island construction are central to the legal issues raised by China’s activities in the South China Sea. 88 In the Spratly Islands, extensive dredging and island-building turned coral reefs and low-tide elevations into artificial islands, causing serious damage to fragile marine ecosystems. 89 These environmental impacts are directly relevant to the present analysis because they raise questions about the extent to which artificial island construction complies with States' obligations under UNCLOS to protect and preserve the marine environment. 90 These consequences fall directly within the environmental obligations of UNCLOS. Article 192 imposes a general obligation on States to protect and preserve the marine environment.91 Artificial island construction in the Spratly Islands causes environmental damage not only where new land is built, but throughout the surrounding reef system.92 The process destroys reef flats and lagoons where dredged material is taken from the seabed, and it destroys coral again where that same material is deposited over living reefs to create artificial land. 93 The damage then spreads outward. Sand and silt released by dredging remain suspended in the water and later settle on nearby coral, where they block sunlight, injure coral tissue, and make growth and recovery far more difficult. 94 What is lost, therefore, is not simply a small area of reef beneath the construction site, but part of a wider marine system. 95 Because the reefs of the Spratly Islands help support fish stocks in the South China Sea, damages may also weaken regional fisheries and affect the coastal

ibid. The South China Sea Arbitration (The Republic of the Philippines v The People's Republic of China) (Award on the Merits, PCA Case No 2013-19, 12 July 2016) paras 940–993. 89 ibid. 90 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, arts 192 and 194. 91 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art 192. 92 Matthew Southerland, China’s Island Building in the South China Sea: Damage to the Marine Environment, Implications, and International Law (U.S.-China Economic and Security Review Commission, 12 April 2016) 4. 93 Oude Elferink AG, ‘Artificial Islands, Installations, and Structures’ in Max Planck Encyclopedia of Public International Law (OUP 2024) 11. 94 ibid. 95 Matthew Southerland, China’s Island Building in the South China Sea: Damage to the Marine Environment, Implications, and International Law (U.S.-China Economic and Security Review Commission, 12 April 2016) 5. 88

communities that depend on those fisheries for food and income. This duty requires States to take active measures to avoid environmental harm and to ensure that activities under their control do not lead to serious degradation of marine ecosystems. 96 Article 194 further requires States to take all measures necessary to prevent, reduce, and control pollution of the marine environment.97 Under the UNCLOS, pollution includes not only chemical contamination but also physical disturbance of the marine environment, such as sediment plumes generated by dredging that reduce water quality and harm marine organisms. Article 194 also requires special protection for rare and fragile ecosystems, a category that includes coral reefs because of their ecological sensitivity, slow growth, and limited ability to recover once damaged. 98 In the South China Sea Arbitration, the tribunal applied these provisions and found that extensive island-building through land creation and dredging activities had caused serious harm to coral reef ecosystems.99 It concluded that such activities breached the obligations under Articles 192 and 194 where they result in significant environmental degradation and insufficient protection of fragile marine habitats.100 Applied to the Spratly Islands, these findings demonstrate that artificial island construction is not merely a question of maritime entitlement or territorial control under UNCLOS. It also raises issues of environmental compliance, as States undertaking large-scale land reclamation must ensure that such activities do not cause significant damage to fragile marine ecosystems. The tribunal's findings, therefore, support the conclusion that China's island-building activities in the Spratly Islands were inconsistent with its environmental obligations under Articles 192 and 194 of UNCLOS.101 IV.

Recommendations

A number of legal and policy responses may help address the legal implications of artificial island construction in the South China Sea, including issues relating to maritime entitlements, environmental protection, and the uncertainties that remain within the UNCLOS framework.

ibid. UNCLOS art 194. 98 ibid. 99 The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) PCA Press Release (The Hague, 12 July 2016) 10. 100 ibid. 101 The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China) (Award on the Merits, PCA Case No 2013-19, 12 July 2016) paras 983–993 and 1043–1048. 97

First, the UNCLOS could be clarified or amended to provide a more precise definition of ‘artificial islands’ and to distinguish them from other forms of human-made maritime structures. This would reduce uncertainty in the interpretation and application of Articles 60, 192, and 194, particularly in cases involving extensive dredging activities and the transformation of coral reef systems. A clearer definition would strengthen legal certainty and facilitate more consistent protection of fragile marine ecosystems affected by such developments.102 Although a formal amendment to UNCLOS may be difficult to achieve, clarification could also occur through interpretative agreements, subsequent State practice, or international guidelines. Such measures would not guarantee compliance by all States, including China. However, they would provide a clearer legal basis for assessing the legality of artificial island construction and reduce opportunities for States to rely on ambiguous interpretations of the Convention. 103 Second, greater reliance could be placed on existing obligations under the UNCLOS through stricter enforcement of Article 206, which requires States to conduct environmental impact assessments before undertaking activities that may cause significant harm to the marine environment.104 In particular, Article 206 requires States to assess the potential environmental impact of planned activities where there are reasonable grounds for believing that such activities may cause significant harm. 105 Applied more rigorously, this obligation would require prior environmental impact assessments for dredging and reclamation projects affecting coral reefs and associated fisheries.106 This approach would reinforce the preventive function of Articles 192 and 194 by focusing regulatory attention on the avoidance of environmental harm before it occurs.107 Finally, where formal amendment of the UNCLOS is politically difficult, a regional code of conduct for the South China Sea may provide a more practical alternative. 108 Such a 102

Yi-Hsuan Chen, ‘South China Sea Tension on Fire: China’s Recent Moves on Building Artificial Islands in Troubled Waters and Their Implications on Maritime Law’ (2015) 1 Maritime Safety and Security Law Journal 1, 13. 103 Imogen Saunders, ‘Artificial Islands and Territory in International Law’ (2019) 52(3) Vanderbilt Journal of Transnational Law 643, 648–650. 104 UNCLOS art 206; James Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017) 89–91. 105 ibid art 206. 106 Yi-Hsuan Chen, ‘South China Sea Tension on Fire: China’s Recent Moves on Building Artificial Islands in Troubled Waters and Their Implications on Maritime Law’ (2015) 1 Maritime Safety and Security Law Journal 1, 13. 107 ibid. 108 ibid.

framework could establish common standards on artificial island construction, including limits on environmentally harmful dredging and reef system alteration, as well as minimum requirements for the protection of coral reef ecosystems. 109 Although not legally binding, a code of conduct could still promote cooperation, improve transparency, and reduce environmental degradation in disputed maritime areas.110 V.

Conclusion

Artificial island construction in the Spratly Islands demonstrates that maritime disputes in the South China Sea cannot be understood solely in terms of territory or strategy. There are also disputes about the legal limits of human intervention in the sea. The UNCLOS draws a clear distinction between naturally formed maritime features and structures created through reclamation, and that distinction remains essential to the integrity of the Convention’s system of maritime zones. The South China Sea Arbitration confirmed that maritime claims unsupported by UNCLOS cannot prevail over the Convention’s allocation of rights, that maritime features must be assessed in their natural condition, and that large-scale reclamation may breach obligations to protect and preserve the marine environment. At the same time, the continued refusal to comply with that award shows the limits of legal judgment when enforcement remains weak. The significance of artificial island construction in the South China Sea therefore lies not only in the structures that have been built, but in what they reveal about the pressure placed on the contemporary law of the sea when strategic interests, maritime claims, and environmental destruction intersect in the same contested waters.

109 110

ibid. ibid.