International law is frequently represented as universal, neutral, and inclusive; however, from its inception, it has been influenced by, and primarily serves, a limited group of states historically categorised as “civilised.” This hierarchy is subtly embedded in foundational instruments such as Article 38(1) (c) of the International Court of Justice (ICJ) Statute, which prioritises norms established by this elite community and positions them as globally applicable. Consequently, the outcome is not an impartial legal framework, but rather a curated paradigm, one that delineates legitimacy, marginalises the peripheral, and consolidates authority through exclusion.

Nevertheless, legal considerations extend beyond the confines of this framework. Outside of it exists what may be termed the Outframe: a juridical realm occupied by states, peoples, and principles that are regarded as unworthy of full acknowledgement. The Outframe does not represent lawlessness or absence; instead, it serves as the disavowed reflection of the international legal order. Within this space, alternative values exist, and the notion of justice denied is reinterpreted. It encompasses the legal subjectivities of those excluded, states that face denial of recognition, and reforms resisted not due to a lack of merit, but because they pose a threat to the established centre.

This article employs the concepts of statehood and recognition to reveal how international law functions through aprofoundly political and hierarchical structure, wherein sovereignty is not merely acknowledged but actively constructed through power dynamics. Subsequently, the discussion shifts to the domain of international investment law, illustrating how the Outframe begins to assert itself, how marginalised legal voices and frameworks are starting to challenge and redefine the prevailing paradigm. The piece traces the juridical politics of visibility, recognition, and reform, not as isolated instances, but as manifestations of a fundamental imbalance within the global legal order.

Statehood and Recognition: The Politics Behind the Criteria

Article 1 of the Montevideo Convention delineates the classical criteria for statehood, which include a permanent population, defined territory, an established government, and the capacity to engage with other states. While these criteria are widely acknowledged, they are incomplete as they fail to account for critical factors such as democracy, independence, and self-determination.

The final criterion (Article 1(d), arguably the most pivotal, pertains to the ability to establish relations with other states. There exist two contrasting interpretations of this criterion. One perspective maintains that fulfilment of all four criteria is indispensable for the establishment of statehood. Conversely, the alternative viewpoint suggests that the capacity to engage in relations with other states emerges as a consequence of satisfactorily meeting the first three criteria, thereby raising the matter of state recognition.

Two principal theories concerning the recognition of states are prevalent: the “constitutive theory” and the “declaratory theory.” According to the declaratory theory, a state’s claim to sovereignty over its exclusively controlled territory directly influences its capacity for international engagement. Recognition of statehood should be granted automatically based on established criteria, as the status of statehood is fundamentally rooted in factual realities rather than the subjective discretion of individual states. Conversely, the constitutive theory asserts that recognition is not an automatic process; rather, it is contingent upon the discretion of other states. Consequently, a new state can only achieve legal existence through the recognition conferred by other states.

Recognition in the realm of international relations functions as a political gatekeeper, often disguised as a legal formality. Entities that satisfy the Montevideo criteria may exist in practice yet may be rendered illegitimate in the eyes of international law.

Take Taiwan, for example: it operates independently with comprehensive governmental control, yet it faces significant exclusion from the international community primarily because of China’s geopolitical influence. Similarly, Palestine and Western Sahara meet the criteria for statehood but remain marginalised on the global stage. In contrast, South Sudanattained recognition following its referendum in 2011, achieving admission to the United Nations with relatively minimal opposition. This recognition occurred despite ongoing internal conflicts and institutional weaknesses. The prompt acknowledgement of South Sudan was influenced not by a superior adherence to the Montevideo criteria, but rather by the fact that its secession had been diplomatically supported by key international actors who framed it as a resolution to the protracted civil war in Sudan. The recognition of South Sudan contributed to a stabilising narrative aligned with the geopolitical interests of dominant states.

The denial of recognition can significantly hinder a population’s right to self-determination. Nevertheless, it is clear that an entity fulfilling the essential criteria for statehood, namely, population, territory, governance, and independence, should be entitled to the fundamental rights of a state, which encompass the right to protection from external aggression and interference. While the rights associated with participation in treaty regimes may be withheld until such an entity can accede to relevant treaties, it will nonetheless retain certain legal entitlements.

Both the politics of state recognition and the structure of investor-State dispute settlement exemplify the operation of the Outframe within international law. While state recognition determines who is admitted, or denied, membership in the community of sovereign states, ISDS reveals how economic and legal mechanisms sustain hierarchies that privilege certain actors over others. In both realms, exclusion is not accidental but systemic: marginalised states and peoples are denied full legitimacy and effective participation, while dominant powers and transnational investors maintain disproportionate influence. This shared dynamic exposes how the international legal order functions less as a neutral framework and more as a curated centre that consolidates authority by relegating dissenting or vulnerable actors to the periphery. Recognising this common thread allows for a more comprehensive understanding of the Outframe as a pervasive structure shaping multiple facets of international law’s exclusionary logic.

The ISDS Regime: Exclusion Through Private Justice

The Outframe is not a static entity; it engages dynamically, asserting its presence through reform movements within international law. This tension is particularly evident in the realm of Investor-State Dispute Settlement (ISDS), a mechanism that facilitates the resolution of disputes between private investors and States.

Traditionally portrayed as apolitical and neutral, the ISDS system disproportionately advantages capital-exporting States and investors. This bias is not coincidental but rather a structural element inherent in the system. The treatment of public-interest disputes as matters of private justice raises critical questions regarding legal personality, State sovereignty, and the overarching role of international law.

A pertinent example can be drawn from South Africa’s attempts to implement Black Economic Empowerment policies, which encountered threats in the form of ISDS claims. Although these claims ultimately proved unsuccessful, they exemplify how arbitration can inhibit regulatory initiatives and restrict the policy space available to States. The current framework of ISDS, heavily influenced by neoliberal ideology, predominantly prioritises investor protections over public interest and exacerbates inequalities between developed and developing nations. Furthermore, consent to bilateral investment treaties (BITs) is frequently obtained under conditions of economic dependency, thereby undermining the principle of sovereign equality among States.

A significant challenge in investor-State arbitration arises when a singular crisis in a host State leads to the initiation of multiple claims from various investors. The proliferation of parallel proceedings increases the risk of tribunals rendering divergent decisions on similar or identical factual and legal issues. This phenomenon was notably exemplified during Argentina’s economic crisis from 1992 to 2002, which resulted in over 47 claims filed under the ICSID system, many of which contended whether the crisis constituted a state of necessity. Among these claims, two prominent cases, CMS Gas Transmission Company v. Argentina and LG&E Energy Corp. et al. v. Argentina, demonstrate the inconsistencies that can emerge in such circumstances. Despite nearly identical facts and legal arguments, the tribunals reached opposing conclusions: the CMS tribunal rejected the necessity defence, while the LG&E tribunal accepted it after less than a year. Such conflicting outcomes undermine the legitimacy and predictability of the arbitration system, particularly during crises where uniformity is crucial. The absence of a binding doctrine of stare decisis in investor-State arbitration allows tribunals to deviate from prior decisions, even regarding closely related issues. If this inconsistency continues, it threatens to erode confidence in the system and diminish its overall effectiveness as a credible mechanism for dispute resolution.

The adjudication process within ISDS mechanisms is frequently regarded as lacking in independence and impartiality, as arbitrators often appear to favour private investors over the public interest. A significant concern arises from the enduring connections many arbitrators maintain with multinational corporations that initiate claims against developing nations, which contributes to a systemic bias in the process. This bias is further intensified by the ability of corporations to present claims, thereby positioning themselves as substantial contributors to both the workload and remuneration of arbitrators.

Critics representing the Third World Approaches to International Law (TWAIL) perspective characterise the ISDS mechanism as a neocolonial construct that undermines the developmental autonomy of States in the Global South.

Towards Reframing: From Outframe to Centre

Reform initiatives are currently in progress. The UNCITRAL Working Group III is striving to enhance diversity in arbitral appointments, and the introduction of soft law codes of conduct indicates a shift towards change. However, mere superficial diversity is insufficient to address profound structural biases. It is essential not only to include diverse voices within the existing framework but also to reconfigure that framework completely. Scholars from the TWAIL and legal realism advocate for a comprehensive restructuring: emphasising the priorities of host States, ensuring equitable access to justice, and reclaiming essential policy space.

Within the TWAIL community and among legal realists, there is strong support for a thorough reevaluation of the current system. This transformation would prioritise the interests of host States, particularly those that are developing or economically disadvantaged, thereby addressing the systemic biases present in ISDS and the private adjudication of public policy. Such reforms have the potential to provide equal access to justice without disproportionately benefiting foreign investors.

Proponents of this paradigm shift propose moving away from international claims between investors and States towards alternative mechanisms, such as increased reliance on domestic courts and State-to-State arbitration. For example, South Africa contends that many of the discrepancies in investment tribunal decisions stem from legal or factual inaccuracies. Therefore, it is recommended that domestic courts play a substantially larger role within this framework. In the absence of a specific agreement to the contrary, it is generally anticipated that the courts of the host State will resolve disputes between a State and a foreign investor.

The initiatives for reform transcend mere technical adjustments; they represent a fundamental realignment of theoretical principles with practical realities, aiming to balance the claims of law with its actual implementation. These efforts reveal a profound truth: the principal distortion resides not in the external environment, but rather at the core of the legal system. The pressing concerns do not originate from the periphery; instead, they emanate from the centre itself. The Outframe has never constituted a genuine threat; rather, it embodies the law’s displaced conscience.

For international law to realise its aspirational principles, such as neutrality, consent, voluntarism, and sovereign equality, the Outframe must be reinstated as a foundational element rather than relegated to the margins. This undertaking requires more than superficial measures; it necessitates a comprehensive doctrinal reevaluation, a transformation of procedural norms, and a redistribution of legal authority.

To effectively reframe international law entails addressing the disparity between its normative aspirations and the prevailing reality. It involves allowing suppressed truths to emerge, elevating marginalised values, and facilitating the recognition of long-overlooked perspectives. The Outframe must be acknowledged not as a peripheral issue but as the essential lens through which the law must be analysed and understood.

Conclusion

The Outframe reveals the fundamental imbalance at the heart of international law: a system that presents itself as universal and impartial, yet consistently excludes and marginalises certain states, peoples, and legal claims. Whether through the selective recognition of statehood or the structural biases embedded in investor-State dispute settlement, international law functions as a curated order that consolidates power at its centre while relegating others to the margins.