This article argues that a form of legal regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions sometimes inflect or go beyond what the jus ad bellum permits through its general standards—that is, under the prohibition of cross-border force and small handful of exceptions. Recognizing that this form of regulation is both part of the law and different in kind from regulation through the general standards should change how we think about the jus ad bellum.

Although the United States has relied on the ICJ's doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has never been systematically developed by the ICJ or by legal scholars. This article fills that lacuna by addressing two questions: (1) what makes a state “specially affected”?; and (2) what is the importance of a state qualifying as “specially affected” for the formation of custom? It concludes that a theoretically coherent understanding of the doctrine would give states in the Global South significant power over custom formation.

The orthodox view of the Specially-Affected States Doctrine (SASD), grounded in the International Court of Justice's (ICJ) 1969 judgment in the North Sea Continental Shelf cases, is that practice leading to the emergence of a customary rule must include that of states “whose interests were specially affected.” The framing of this passage of the North Sea Continental Shelf judgment seems to imply both a positive and a negative importance for the practice of specially-affected states. Such practice is a requirement for the emergence of a new rule of customary international law. Acceptance by specially-affected states is, in other words, necessary but not sufficient for a rule of custom to emerge. Whether practice of specially-affected states can be sufficient to form a general custom is not resolved by this formulation, although it seems reasonable to infer that the ICJ had in mind that the combined involvement of specially-affected and other states was needed for the formation of such a rule of customary international law concerning basic principles of continental shelf delimitation. Conversely, the absence of rule-supporting practice by specially-affected states would have a negating effect on the emergence of a rule of customary international law, despite rule-affirming practice of states not specially affected. On this view, practice of only such states could not crystalize into a custom. One commentator has suggested that the negative construction does not mean that a single specially-affected state necessarily holds veto power over the formation of a new rule of customary international law, but asserted that “[i]f several ‘states whose interests are specially affected’ object to the formation of a custom, no custom can emerge.” Unsurprisingly, given this level of abstraction, such formulations do not themselves provide specificity as to how many (or which) specially-affected states would be sufficient to prevent the formation of a custom in a particular situation.

In 2017 the International Court of Justice (ICJ or Court) made only procedural decisions, one on preliminary objections, one on counterclaims, and two on provisional measures. Three other new applications were made to the Court, all linked to earlier cases: Malaysia applied for the revision, and interpretation, of the judgment in the Pedra Branca/Pulau Batu Puteh case; and Costa Rica brought a case against Nicaragua concerning their land boundary in the area of Los Portillos, the latest in a long line of cases between the two states. Judges Ronny Abraham (France), Dalveer Bhandari (India), Antonio Cançado Trindade (Brazil), and Abdulqawi Yusuf (Somalia) were reelected to the Court, and one new judge, Nawaf Salam (Lebanon) was elected. The UK failed to secure the reelection of its judge, Christopher Greenwood. For the first time since the establishment of the ICJ, the UK will have no judge on the Court. This failure may be taken as an indication of its declining influence in international relations, arguably attributable in part to Brexit, and it marks the end of the convention that each permanent member of the Security Council will have a judge of its nationality on the Court. Nor was the UK able to prevent a request by the UN General Assembly (passed by ninety-four in favor to fifteen against, with sixty-five abstentions) for an Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965—a sensitive issue for the UK, and one that has already been the subject of much litigation.

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

While many women have profited from the relatively recent rights-revolution in Latin America, their pregnant sisters have apparently had to sit in the back of the bus or stay off altogether. Even modest progress on abortion entitlements has come at a high price and slow pace, perhaps due to the opposition of an alliance of long-established and up-and-coming religious groups. On a positive note, however, the struggle for emancipation on this front seems to be moving forward. In Chile, the Constitutional Court's (or Tribunal's) opinion of August 28, 2017, STC 3729/2017, which generally upholds a legislative bill allowing a woman to abort in the face of risk to life, lethal prenatal pathology, or rape, provides a case in point. Significantly, it also expands the statutory category of conscientious objectors to include non-professional staff and institutions.

Should trees have standing? The decision of the International Court of Justice (ICJ or Court) in its Question of Compensation (Costa Rica v. Nicaragua) case of February 2, 2018 provides a pioneering example of damage to the environment being litigated before an international tribunal. The judgment is the first time that the ICJ has adjudicated compensation for environmental damage, and it is only the third time the ICJ has awarded compensation at all. Nevertheless, the ICJ boldly asserted in this case that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law” (para. 42). That said, the reasoning employed by the Court leaves much to be desired. Given the increasing number of cases involving the environment, it is unfortunate that international courts and tribunals will garner only limited guidance from the methodology adopted by the ICJ in valuing environmental damage.

Despite the passage of several statutory deadlines, by February 2018 the Trump administration had imposed no Russia-related sanctions pursuant to certain provisions of the Countering America's Adversaries Through Sanctions Act (CAATSA), suggesting at one point that the threat of sanctions alone would be sufficient to deter further malfeasance. Then, on March 15, 2018, more than five months after the passage of an initial statutory deadline, the Trump administration announced that it would impose sanctions on five entities and nineteen individuals for their involvement in “malign” cyber activities on behalf of the Russian government.

President Trump signed the FISA Amendments Reauthorization Act on January 19, 2018, reauthorizing the mass surveillance provisions of the Foreign Intelligence Surveillance Act (FISA) through December 31, 2023. The Act renewed Title VII of FISA and most notably its Section 702, which provides for the surveillance of foreign targets located outside the United States. The six-year reauthorization faced opposition from lawmakers and advocates concerned for Americans’ privacy interests, although Trump “would have preferred a permanent reauthorization of Title VII to protect the safety and security of the Nation.”

On December 6, 2017, President Trump officially recognized Jerusalem as Israel's capital city. This decision reflects Trump's “new approach to conflict between Israel and the Palestinians.”

On December 2, 2017, the Trump administration announced the end of its participation in the Global Compact on Migration, a proposed United Nations commitment that would address global flows of migrants. Citing American sovereign interests as the reason for withdrawal, U.S. officials stated that the Global Compact on Migration would undermine current U.S. immigration policy focused on border security.

On November 30, 2017, the United States concluded negotiations on an agreement to limit fishing in the Arctic, titled the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Delegations from the European Union and nine countries—Canada, China, Denmark with regard to Greenland and the Faroe Islands, Iceland, Japan, Norway, Russia, South Korea, and the United States—participated in the negotiations, which began in December of 2015. According to a statement made by the U.S. State Department:

On March 8, 2018, President Trump signed Proclamation 9704 and Proclamation 9705 imposing tariffs on imported aluminum and steel articles, respectively. According to Trump, the tariffs are “necessary and appropriate to address the threat that imports” of steel and aluminum articles “pose to the national security.” The imposition of tariffs in the name of national defense is the latest and most high-profile move by the Trump administration to orient the United States toward an “America First” trade policy.

On November 22, 2017, Secretary of State Rex Tillerson released a statement addressing attacks on the Rohingya population in Burma:

On January 30, 2018, President Trump signed Executive Order 13,823, directing officials to keep the Guantánamo Bay detention camp open and permitting additional detainees to be transported to the facility. In announcing his decision during the State of the Union address to Congress, Trump stated, “I am asking Congress to ensure that, in the fight against ISIS and Al Qaida, we continue to have all necessary power to detain terrorists … . And in many cases, for them, it will now be Guantánamo Bay.” Section 2 of the order provides:

1. (a) Section 3 of Executive Order 13492 of January 22, 2009 …, ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.

2. (b) Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005.

3. (c) In addition, the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.