International law is a foundational pillar of the modern international order, and its applicability to both state and nonstate cyber activities is, by now, beyond question. However, owing to the unique and rapidly evolving nature of cyberspace, its ubiquitous interconnectivity, its lack of segregation between the private and public sectors, and its incompatibility with traditional concepts of geography, there are difficult and unresolved questions about exactly how international law applies to this domain. Chief among these is the question of the exact role that the principle of sovereignty plays in regulating states’ cyber activities.

Globalization has not conquered sovereignty. Instead, the notion of sovereignty occupies center stage in discussions concerning the normative architecture of cyberspace. On the diplomatic level, the term is generally employed in its broadest sense, one that signifies freedom from external control and influence. For instance, when Western states raise the issue of human rights in cyberspace, those on the opposite side of the negotiating table fall back on sovereignty-based arguments. Mention of sovereignty in consensus documents is consequently often the price that liberal democracies pay to advance their policy priorities, such as individual freedoms and the availability of self-help measures in response to hostile cyber operations.

One of the gentle surprises of the release of the Tallinn 2.0 Manual is that it has prompted a rich debate over the nature of sovereignty in international law. In hindsight, this should not be too surprising. The modern, Westphalian project of international law is built in large measure around the state and its borders. The emergence of a technology that so readily defies those borders was bound to kick up some interpretive dust. And it appears to have done even more than that. Depending on your perspective, the Tallinn translation of international law to the cyber domain has either forced a reconsideration or surfaced a latent dispute over whether sovereignty is a binding rule of international law at all.

Tallinn 2.0 grapples with the application of general international law principles through various hypothetical fact patterns addressed by its experts. In doing so, its commentary sections provide a nonbinding framework for thinking about sovereignty, raising important considerations for states as they begin to articulate norms to resolve the question of precisely what kinds of nonconsensual cyber activities violate well-established international laws—a question that will likely be the focus of international lawyers in this area for some time to come.

The rapid proliferation of international institutions has been a defining feature of the postwar international architecture. Since the end of the Second World War, the international system has seen the creation of thousands of international treaties and organizations that have established rules governing a multitude of issues that range from international security to human rights, and from international trade to the environment.

Over the past years, the Chinese government (along with other rising powers) has engaged in unprecedented international institution-building, leading to the establishment of, among others, the Asian Infrastructure Investment Bank (AIIB) and the BRICS-led New Development Bank (NDB). Providing services similar to existing institutions such as the World Bank, these new institutions profoundly alter the landscape of global governance. The existing literature has mostly debated whether such activism shows that China and others are embracing or confronting today's Western-led order. This discussion fails to capture a more complex reality, and the concept of international institutional bypasses (IIB) may help us gain a better understanding of China's complex institutional entrepreneurship. As will be explained, decisions by China and other countries to simultaneously support reform processes in existing institutions and also create new ones suggests that they seek alternative ways to overcome perceived dysfunctions in the dominant institutions by creating IIBs. Considering the initiatives in these terms allows for a more nuanced picture that transcends the simplistic dichotomy of integration versus rupture.

The situation calls for international cooperation, and all the parties at the Bretton Woods Conference understood this. A pool of international reserves that was readily accessible under mutually agreed upon rules by its members would be a “global public good,” providing considerable efficiency over having all countries solely hold their own stock of international reserves. Since balance of payments shocks are typically asynchronous across countries and over time, the principles of pooling and insurance would assure a net gain from the arrangement.

The idea of “West Africa” encompasses a medley of countries with diverse historical, political, and cultural features. However, their governance and development profiles are distinctly similar: the United Nations recognizes eleven of the fifteen members of the Economic Community of West African States (ECOWAS) as least developed countries. In this context, regional institutions are usually established to strengthen state capacity by providing resources to address national capacity deficits. Above all, they serve as systems of support that are supplementary to state institutions with distinct governance roles. However, regional institutions can—and should—play a second role: serving as alternatives to weak or fragile state institutions that are deficient in the supply of different public goods. By performing this second role, regional arrangements become international institutional bypasses.

De jure naturae et gentium, “The law of nature and of nations,” is the title of Samuel Pufendorf's eight-volume masterpiece of philosophical jurisprudence, first published in 1672. It provides the tag by which an entire discourse is known, one that dominated legal philosophy at European universities for over two hundred years. Pufendorf's Protestant articulation of its principles was pivotal both for transmitting it to the Eighteenth Century and for giving it a history, which in his eyes began with his fellow-Protestant Hugo Grotius. In fact, however, its roots stretch back to the early Sixteenth Century, to the lawyers whom Philip Melanchthon gathered around him at Wittenberg and (more importantly for the future structure of the discourse) to the Catholic scholastic theologians who were originally based at Salamanca in Spain but subsequently spread out over the whole of Counter-Reformation Europe. In the confessional conflict that would burn throughout the Sixteenth and Seventeenth centuries, theologians on all sides used law to define the space of the political, and used the idea of natural law to underpin that space, even while shaping it differently according to their divergent narratives of sin and redemption. While the ius naturae et gentium was an academic genre, therefore, its content was not. It was a theory and a legitimation of the state, and the arc of its reasoning from nature to the nations ran through the institution of political power. The state and its power are constructed not so much upon right (ius) per se but on the potential for the violation of right (iniuria), and the demand for such violation to be vindicated, by law or ultimately by war. At its very barest—although this is to traduce the richness and complexity of the discourse—the ius naturae et gentium is thus a theory of legitimate violence. When it comes to animals, what we find is that they are systematically excluded from the potential to suffer violation of right and therefore from political space and political justice. As we shall see, however, this did not always mean that they were totally excluded from any kind of right or that every act of violence against them was always legitimate.

We are used to the view that historically “what counted as fully human always depended … on a sharp contrast with ‘the animal’.” As a consequence, “[w]omen and slaves, in being denied full humanity, were therefore necessarily partaking in animal nature.” Questioning this view, this essay traces how some early modern thinkers defined the relationship of human beings to animals generally, and, more particularly, how they saw the relationship of women, slaves, and animals in the human household. The picture presented, while being far from complete, aims to show that Fifteenth- and Sixteenth-Century thinkers had nuanced arguments to offer when they discussed the relationship of human animals to nonhuman animals, and the relationship of nature and culture, neither of which were presented as clear cut opposites. At the same time, the equation of women with animals and slaves was not something that was commonly found in Sixteenth Century philosophical treatises, which might lead us to rethink our own ideas about equating one disenfranchised group with the other.

Greta Gaard writes that “[t]he pervasive availability of cows’ milk today—from grocery stores to gas stations—is a historically unprecedented product of industrialization, urbanization, culture, and economics.” To these factors, I would add colonialism and international law; the latter understood broadly to include the rules considered binding between states and nations, transnational law, legal transplants, international food aid, and international trade law. Until the end of the Nineteenth Century, the majority of the world population neither raised animals for their milk nor consumed animal milk. Humans are unique in the mammalian realm in that they drink the milk of other species, including beyond infancy. With the European conquest of the New World and other territories starting in the Sixteenth Century, dairying began to spread worldwide—settlers did not set out to colonize lands and people alone; they brought with them their flora, fauna, and other forms of life, including lactating animals such as cows and sheep.

In times of war, the first instinct is to relieve the suffering of human beings. Environmental and animal interests are always pushed into the background. However, warfare strongly affects natural resources, including animals, which makes animal issues a matter of great concern. Certain species have been vanishing at a rapid rate because of wars, often with disastrous effects on the food chain and on the ecological balance. Indeed, belligerents rarely take into account the adverse consequences of their military operations on animals. They even take advantage of the chaotic circumstances of war in order to poach protected species and to engage in the trafficking of expensive animal products. While generating billions of dollars each year, such poaching and trafficking allows armed groups to grow and to reinforce their authority over disputed territory. States have also trained, and continue to train, certain animals—principally marine mammals such as bottlenose dolphins and California sea lions—to perform military tasks, like ship and harbor protection, or mine detection and clearance. Millions of horses, mules, donkeys, camels, dogs, and birds are obliged to serve on various fronts (transport, logistics, or communications) and become particularly vulnerable targets.

The contemporary human-animal relationship is highly ambivalent. It is characterized by both the exacerbating exploitative use of animals and a progressing moral concern for the life, dignity, and welfare of animals. With regard to the agricultural use of animals (which is the quantitatively most significant area of animal use and accounts for more than sixty billion land animals slaughtered globally each year), these two poles stand in particular contrast. On the one hand, agriculture has been increasingly industrialized and intensified over the course of the Twentieth Century. The modern system of industrialized animal production (or the “animal-industrial complex”) is marked by a high degree of rationalization, automatization, efficiency, mass production, and profitability, and has turned animals into mere production units—biomachines that convert feed into meat, milk, and eggs. On the other hand, the transformation of agriculture to industrialized animal production has raised grave ethical concerns, and societal discomfort at the systemic disregard for the welfare of farmed animals has grown. Most people cringe at the sight of footage showing the horrifying conditions prevailing in factory farms and slaughterhouses, and the vast majority of society subscribes to the basic moral principle that inflicting unnecessary pain and suffering on animals is wrong (a dictum also underlying the nearly universal prohibition of animal cruelty and which is so ingrained it could be considered a “rule of civilization,” as noted by the dissent in a Canadian appeal decision regarding an elephant in a city-run zoo).

In Sovereignty in Cyberspace: Lex Lata Vel Non?, Michael Schmitt and Liis Vihul argue that territorial sovereignty is a primary rule of international law that limits cyber activities. They recognize, however, that not all cyber effects constitute violations of territorial sovereignty, and like Rule 4 in the Tallinn Manual 2.0 and its commentary, they acknowledge a distinct lack of consensus among the Tallinn participants on the critical question of applicable thresholds. Problematically, they do not identify the necessary state practice and opinio juris that would be required to establish either the primary rule that they proffer or the existence and contours of the exception they would recognize.

The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions about how we should assess military interventions taken for humanitarian ends but without Security Council authorization: First, is unilateral humanitarian intervention per se illegal under international and domestic law—what I call the “never/never rule”? Second, were the Trump Administration's April 6, 2017 strikes per se illegal under international and domestic law? And third, going forward, can we live with the status quo, where in state practice, unilateral humanitarian intervention seems to occur regularly, without being formally justified in law?

In his contribution to this Symposium, Harold Koh exhorts international lawyers to “seriously engage the debate” regarding the lawfulness (or at least the legal defensibility) of humanitarian intervention (“HI”). The aim of this essay is to take him up on that plea and sketch an alternative approach to the one that he advances. In so doing, I will focus on international law rather than U.S. domestic law.