International tribunals confront a “Judicial Trilemma.” More specifically the states that design, and the judges that serve on, international courts face an interlocking series of tradeoffs among three core values: (1) judicial independence, the freedom of judges to decide cases on the facts and the law; (2) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (3) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this article unpacks the logic underlying the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization's Appellate Body. The Judicial Trilemma does not identify an “ideal” court design. Rather it provides a framework that enables international actors to understand the inevitable tradeoffs that international courts confront, and thereby helps to ensure that these tradeoffs are made deliberately and with a richer appreciation of their implications.

Human rights in general and the international human rights system in particular have come under increasing attack in recent years. Quite apart from the domestic and global political events since 2016, including an apparent retreat from international institutions, the human rights system has in recent times come in for severe criticism from academic scholars. Amongst the various criticisms levelled have been: (1) the ineffectiveness and lack of impact of international human rights regimes, (2) the ambiguity and lack of specificity of human rights standards, (3) the weakness of international human rights enforcement mechanisms, and (4) the claim to universalism of human rights standards coupled with the hegemonic imposition of these standards on diverse parts of the world. This article responds to several of those criticisms by introducing the idea of experimentalist governance, interpreting key aspects of the functioning of certain international human rights treaties from the perspective of experimentalist governance theory, and surveying a body of recent scholarship on the effectiveness of such treaties. Contrary to the depiction of international human rights regimes as both ineffective and top-down, the article argues that they function at their best as dynamic, participatory, and iterative systems. Experimentalist governance offers a theory of the causal effectiveness of human rights treaties, brings to light a set of features and interactions that are routinely overlooked in many accounts, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in practice.

What unites states and other global actors around a shared governance project? How does the group—what I will call an “international community”—coalesce and stay engaged in the enterprise? A frequent assumption is that an international community is cemented by its members’ commonalities and depleted by their intractable disagreements. This article critiques that assumption and presents, as an alternative, a theory that accounts for the combined integration and discord that actually characterize most global governance associations. I argue that conflict, especially conflict that manifests in law, is not necessarily corrosive to an international community. To the contrary, it often is a unifying force that helps constitute and fortify the community and support the governance project. As such, international legal conflict can have systemic value for the global order, even when it lacks substantive resolution. The implications for the design and practice of international law are far-reaching.

The West Bank and the Settlements, again? Readers may have had enough of this subject. But these are exceptional times. The adoption by the Security Council of Resolution 2334 on December 23, 2016, the unprecedented speech by Secretary Kerry delivered shortly thereafter, and the immediate rejection of both by Prime Minister Netanyahu, combined with the approach of the fiftieth anniversary of the Six-Day War in June 2017 and the continued march toward an inexorable demographic change in the West Bank, not to mention the nomination as U.S. Ambassador to Israel of a person reportedly supporting an active settlement policy and annexation: the confluence of these events demands our renewed attention. And while these developments undoubtedly have powerful political dimensions, they also call upon those of us who care about international law to speak up in support of its requirements and application.

The concept of public goods is often operationalized in the literature as anything that demands some form of international cooperation. While this may be politically useful in generating international cooperation, it is analytically problematic for designing international law with the purpose of enhancing international cooperation. Many of the issues characterized as public goods are in fact common pool resources, which pose distinct issues for international cooperation and demand different legal architectures than public goods for effective international cooperation.

In November 2016, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) produced an extensive report documenting the status of ten “preliminary examinations” it is conducting. These examinations cover situations in which crimes under the jurisdiction of the Court may have been committed but the prosecutor has not yet decided to open a full investigation. The OTP's reporting practice has shed additional light on a process that has been opaque for much of the Court's existence and that has attracted relatively limited scholarly and specialist attention.

In this trio of decisions, the International Court of Justice (ICJ or Court) rejected applications in which a small island state claimed that three larger states known to possess nuclear weapons had breached their international obligations to undertake and conclude negotiations leading to nuclear disarmament. The Republic of the Marshall Islands, the Court acknowledged, had been the location of repeated nuclear weapons testing from 1946 to 1958, when the United States administered the archipelagic nation under the trusteeship system of the United Nations. The Court further recognized that the applicant, “by virtue of the suffering which its people endured as a result of it being used as a site for extensive nuclear testing programs, has special reasons for concern about nuclear disarmament” (para. 44). Nevertheless, it ruled that the cases could not go forward because the requisite legal dispute was absent at the time that the Marshall Islands filed its applications against India, Pakistan, and the United Kingdom.

On August 18, 2016, the Constitutional Court of the Republic of Colombia (Constitutional Court or Court) rendered a significant decision in the Garcia de Borissow and Others case on issues of immunity from execution, diplomatic protection, and objections to customary international law in its review of two combined cases brought by former local employees against the embassies of the Lebanese Republic and the United States of America in Bogotá. While upholding the diplomatic missions’ immunity from execution of lower court judgments awarding monetary sums, the Constitutional Court instructed the Colombian Ministry of Foreign Affairs (Foreign Ministry) to pursue recovery of such amounts either by diplomatic means or through enforcement of those judgments in Lebanese and American courts. The decision is both unique and problematic as a matter of international and domestic law.

The law in France regarding waivers of foreign state (or sovereign) immunity from execution of judicial judgments (based largely on consideration of international law principles) has recently undergone significant developments. Previously, French case law had required a foreign state's waiver of immunity from execution to be both express and specific to consider valid the attachment of foreign state property allocated to public services (including bank accounts used for the functioning of both diplomatic missions and delegations to international organizations). In 2015, the French Court of Cassation relaxed the criteria it had previously required for giving effect to waivers of sovereign immunity in such situations, thus facilitating the ability of judgment creditors to attach foreign state property in France. Its decision in the Commisimpex v. Republic of Congo case appeared to put an end to that requirement by abandoning the criterion of a “specific” waiver on the ground that “customary international law does not require a waiver of immunity from execution other than express.” In December 2016, however, the French government enacted new legislation reinstating the need for a specific waiver of immunity for the attachment of the property as well as bank accounts of foreign embassies and diplomatic missions and additionally requiring a court order authorizing the attachment or seizure. As a result, France has now embraced a distinctly more protective approach to the immunity of foreign state assets from attachment and execution of judicial judgments.

On April 19, 2016, in The Case Concerning the Resolution of the Question of the Possibility to Execute in Accordance with the Constitution of the Russian Federation the Judgment of the European Court of Human Rights of 4 July 2013 in the Case of Anchugov and Gladkov v. Russia in Connection with the Request of the Ministry of Justice of the Russian Federation (Anchugov & Gladkov (Russ.)), the Constitutional Court of the Russian Federation (Constitutional Court) held that decisions of the European Court of Human Rights (ECtHR) are binding on Russian courts, in accordance with Article 15(4) of the 1993 Constitution of the Russian Federation. At the same time, the Constitutional Court stressed the necessity of ensuring a reasonable balance between the obligation to implement ECtHR judgments and respect for the fundamental principles of the Russian Federation's constitutional system. The Constitutional Court found that because the ECtHR judgment in question implicitly conflicted with provisions of the Russian Constitution, Russian courts are not obliged to comply with the judgment regarding issues that remain in conflict; however, other means are available to the Russian legislature to give effect to the judgment. While the decision marks an important development in Russia's relationship with the European system of human rights, it is not inconsistent with the approach taken by a substantial number of European domestic courts in holding that treaty obligations to enforce decisions of international courts cannot justify violating domestic constitutional norms.

In a case of first impression, the Constitutional Court of Hungary (CCH or Court) ruled on November 30, 2016 that, in exceptional cases, it is competent to consider whether Hungary's obligations to the European Union (EU) violate fundamental individual rights (including human dignity) or Hungarian sovereignty as protected by the Hungarian Constitution. The decision places Hungary squarely within the growing group of EU member states whose constitutional courts have decided that, despite the decisions of the European Court of Justice regarding the primacy of EU law, EU member states are not compelled to violate their domestic constitutional obligations in carrying out their shared EU commitments.

On December 23, 2016, the United States abstained from voting on a United Nations Security Council resolution that condemned Israeli settlement construction, thereby allowing the resolution to be adopted by a vote of 14–0. Israel's response was swift and disapproving.

On October 7, 2016, following months of tense interactions between the United States and Russia regarding hacks of high-profile U.S. political organizations, the Department of Homeland Security and Office of the Director of National Intelligence (DNI) issued a joint statement formally accusing Russia of using cyberattacks to influence the U.S. election process. Reports suggest that Russia intended to use the hacks and subsequent information dump to help then-candidate Donald Trump win the presidential election. In response to the cyberattacks, the United States took steps against several Russian individuals and entities. The Obama administration also initiated an extensive review of Russian involvement in the election, which eventually reaffirmed key intelligence conclusions regarding the scope of Russian interference. Several congressional committees have also initiated investigations, all of which are still ongoing as of the date of publication.

In its August 2016 decision in Waldman v. Palestine Liberation Organization, the U.S. Court of Appeals for the Second Circuit reversed a $655 million jury verdict against the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for lack of personal jurisdiction. The plaintiffs were individuals whose family members had been killed in terrorist attacks that took place in Jerusalem; defendants were alleged to have coordinated and carried out these attacks. While the United States government took no position on the merits of the dispute, it filed a Statement of Interest in the district court “[o]n the limited issue of setting a bond amount in [the] case.”

On December 16, 2016, President Obama signed into law the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA). This act amends the Foreign Sovereign Immunity Act (FSIA) in order to confirm the jurisdictional immunity of foreign states in connection with lending artwork to the United States for temporary exhibit. The FCEJICA contains two exceptions, described below, that introduce some uncertainty about the extent of protection the statute provides to foreign states.

On December 15, 2016, China seized an American unmanned underwater vehicle (UUV) in the South China Sea. The drone had been launched by an American naval vessel, the USNS Bowditch. According to press reports, “[t]he American crew was in the process of retrieving the device when a small boat dispatched from the Chinese vessel took it as the American sailors looked on.” China has made extensive—and contested—maritime and territorial claims in the South China Sea, including within an area delimited by the “nine-dash line.” The incident occurred outside of this area, and none of the Chinese government's statements related to the seizure suggest any assertion of Chinese jurisdiction over the waters where the drone was seized. After an exchange of diplomatic statements, China returned the drone to the U.S. Navy.

On November 14, 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its annual Report on Preliminary Examination Activities (the Report). The Report contained the OTP's updates on preliminary examinations of several situations, including in Afghanistan. Of particular note, the OTP announced that it had identified a reasonable basis to seek Pre-Trial Chamber authorization for an investigation into allegations of war crimes committed by the United States—primarily from 2003 to 2004, but in some cases as recently as December 2014.

Since March 2015, the United States has supported a Saudi-led military coalition fighting a Houthi insurgency that seized control of Yemen's capital and governmental institutions in 2014. At the request of ousted Yemeni President Abdo Rabbo Mansour Hadi, the Saudi-led coalition launched an air campaign in Yemen to “defend Saudi Arabia's border and to protect Yemen's legitimate government.” To support these efforts, President Obama authorized the “provision of logistical and intelligence support to [coalition] military operations” and the establishment of a “Joint Planning Cell with Saudi Arabia to coordinate U.S. military and intelligence support.” The United States has disclaimed any direct offensive role in the conflict while acknowledging that it has provided support by refueling coalition warplanes, supplying targeting intelligence, and sending U.S. military personnel to assist the planners of the coalition's air campaign.