Advisory jurisdiction is a ubiquitous feature of international human rights adjudication. Yet the attention of legal scholars is almost entirely devoted to contentious jurisdiction. This Article aims to fill that gap in the literature. By introducing two models of advisory jurisdiction, and analyzing the example of the Inter-American Court of Human Rights—the world's most active international advice-giver—the Article shows how international human rights courts may utilize advisory proceedings to influence state conduct, in a mechanism the Article calls “ruling through advice.” The Article also shows how human rights courts may attempt to guide states and national courts by means of an “anticipatory adjudication” mechanism. Using the Inter-American Court's groundbreaking advisory opinion on same-sex marriage as a case study, the Article argues that, despite the domestic implementation of its opinion, the Court misused its advisory powers, putting the regional human rights system at risk. The insights that both the conceptual model and the case study offer contribute to a broader conversation about international courts’ advisory role.

Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state's treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state's territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.

Privatization of functions that were traditionally considered sovereign has reached new heights. International lawyers have responded mostly by seeking to limit some of the consequences of that phenomenon, by, for example, ensuring accountability of states for outsourcing. International law has sometimes appeared agnostic, however, about the very legality of privatization. This Article explores a more radical take, namely the possibility that certain state functions could be seen as “inherently sovereign” under international law. International law can be understood this way, the Article argues, despite its general deferral to sovereignty (including the sovereignty to outsource), the fact that historically all kinds of functions that we have come to associate with the state have been exercised privately, and international law's own role in legitimizing privatization in our era.

Economic sanctions, unilateral and multilateral, have a long pedigree in international relations. From South Africa and Israel, to Iraq, Iran, and North Korea, such measures have, with varying results, been used in diverse contexts to influence the behavior of states. Some would celebrate the use of economic sanctions as a means of punishing “rogue states” for human rights violations or threats to the peace, while others would condemn it as “imperialism” by powerful states against the weak. Leaving aside Chapter VII enforcement action by the UN Security Council, the imposition of unilateral sanctions raises far-reaching questions in respect of the rights and duties of states under international law. A novel issue that has emerged recently is whether, in certain circumstances, such measures could even qualify as crimes against humanity.

On May 21, 2020, a Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award regarding the 2012 Enrica Lexie incident, which involved the death of two Indian fishermen at the hands of Italian Marines. The Award is lengthy and wide-ranging, finding that: (1) Italy and India had concurrent jurisdiction over the incident; (2) the Tribunal had incidental jurisdiction to determine the immunity of the Italian Marines; (3) the Marines enjoyed immunity as state officials; but nevertheless that (4) India was entitled to compensation for the loss of life, physical harm, damage to property, and moral harm. The Award has been received more positively by Italy than India, but neither party has indicated that they intend to do anything other than comply with it.

On January 28, 2021, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) dismissed all of the respondent's preliminary objections in Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). The proceeding arose out of Mauritius's long-running effort to regain sovereignty over the Chagos Archipelago, which was originally “detached” from Mauritius in 1965 by the United Kingdom (UK). Although the Judgment will allow the case to proceed to the merits, it is significant in its own right for its engagement with several earlier legal decisions, including the arbitral award in Chagos Marine Protected Area Arbitration and the International Court of Justice's (ICJ) Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, as well as UN General Assembly Resolution 73/295 affirming the Advisory Opinion. The Special Chamber stitched together a series of legal documents that, considered individually, were either non-binding or limited in scope to achieve a determination greater than the sum of its parts—one that effectively resolved the disputed sovereignty over the Chagos Archipelago.

In late 2016, officials at U.S. and Canadian diplomatic posts in Havana, Cuba, began reporting a cluster of symptoms, including nausea, severe headaches, and dizziness, that came to be known as “Havana Syndrome.” The illnesses prompted the departure of U.S. personnel from Havana in 2017, and subsequent cases have been reported among personnel assigned to the U.S. consulate in Guangzhou, China and elsewhere. In recent months, three reports related to the illnesses and the government's response have become public. A Center for Disease Control (CDC) report examined medical records and produced a case definition. A National Academies for Sciences, Engineering, and Medicine (NASEM) standing committee considered possible causes, including “directed, pulsed radio frequency (RF) energy, . . . chemical exposures, infectious diseases and psychological issues,” and concluded that the symptoms were consistent with RF effects. Additionally, a recently declassified Accountability Review Board (ARB) report criticized the Trump administration's response to the illnesses in Havana. Amid reports of increasing cases, including some occurring in the United States, the Biden administration is attempting to determine the cause of the illness and has committed to support affected personnel.

The Biden administration's foreign policy emphasizes repairing U.S. alliances and returning the United States to a “position of trusted leadership” to counter increasing challenges from Russia and especially China. The U.S. Interim National Security Strategic Guidance (INSSG), released in March 2021, notes that the United States must “contend with the reality that the distribution of power across the world is changing.” It highlights that China, which has “rapidly become more assertive,” is the only country “potentially capable of combining its economic, diplomatic, military, and technological power to mount a sustained challenge to a stable and open international system,” while “Russia remains determined to enhance its global influence and play a disruptive role on the world stage.” To reaffirm established international norms, the Biden administration has acted both unilaterally and in coordination with long-standing allies to impose sanctions in response to human rights abuses, malicious cyber activity, and election influence. The administration has also taken steps to cement alliances in the Indo-Pacific and with the West.

The Biden administration has undertaken to reset U.S. relations with Saudi Arabia, making early moves to break with the Trump administration's policy toward the country on several key fronts. White House officials have shifted the locus of diplomatic contact between the two countries from Saudi Crown Prince Mohammed bin Salman, who enjoyed a close relationship with the Trump administration, to his father, King Salman. U.S. officials publicly released an intelligence report accusing Prince Mohammed of ordering the 2018 killing of Saudi dissident and Washington Post columnist Jamal Khashoggi and levied travel sanctions against seventy-six Saudi nationals in the crown prince's orbit. President Biden has also taken steps to end U.S. support for the Saudi-led coalition fighting in Yemen's civil war, revoking the terrorist designation assigned to the Houthi rebels in the final days of the Trump administration and initiating a review of U.S. arms sales.

In Federal Republic of Germany v. Philipp, the U.S. Supreme Court unanimously held that a country's taking of property from its own nationals does not fall within the Foreign Sovereign Immunities Act (FSIA) exception for “rights in property taken in violation of international law.” The case involved a claim that Nazi officials coerced a consortium of three art firms owned by Jewish residents of Germany to sell a collection of “medieval relics and devotional objects known as the Welfenschatz” to Prussia for “approximately one-third of their value.” The plaintiffs—descendants of the members of the consortium—argued that the coerced sale constituted genocide, thus bringing their claim within the FSIA exception. The Supreme Court disagreed, holding that “the expropriation exception is best read as referencing the international law of expropriation rather than of human rights” and that international law does not bar a state's taking of the property of its own nationals. The Court declined to reach Germany's alternative argument that international comity required dismissal of the case, and it vacated and remanded a companion case, Republic of Hungary v. Simon, that also posed the comity question.

On February 1, 2021, the military in Burma overthrew the democratically elected government, declared a one-year state of emergency, and installed Senior General Min Aung Hlaing as the head of government. Since the coup, the military has cracked down on protestors, killing over 800 people and detaining many more. Numerous countries and international organizations, including the United States and the United Nations, have condemned the coup and ensuing violence and called for the restoration of a democratic government. The United States and other countries have also imposed rigorous sanctions on the Burmese military, its officials and affiliated corporations, and social media companies have imposed content restrictions to prevent the spread of pro-military propaganda.

On February 25, 2021, the United States conducted a strike targeting Iranian-backed militia group facilities in Syria. The strike, which came in response to a February 15, 2021 attack on U.S. interests in Iraq, marked the Biden administration's first known exercise of executive war powers. As domestic authority for the strike, President Joseph Biden, Jr. cited his authority under Article II of the U.S. Constitution and did not rely on the 2001 or 2002 Authorizations for the Use of Military Force (AUMFs). For international legal authority, Biden relied on individual self-defense under Article 51 of the UN Charter, stating that Syria was “unwilling or unable” to prevent further attacks on the United States by these non-state actors within its territory. The strikes garnered mixed reactions from Congress, where efforts are underway to repeal or reform extant AUMFs as well as the War Powers Resolution (WPR). The Biden administration is also undertaking a review of current U.S. military policy on the use of force, and during this process, it has prohibited drone strikes outside of conventional battlefields, absent presidential approval.