Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of a de jure government under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.

An uneasy equilibrium exists with respect to how the United States exits international agreements. In general, exit is easy as a matter of legal doctrine but, for important agreements, difficult as a matter of political practice. While presidents can withdraw the United States from most major international agreements, they have done so only rarely—and never yet with deep costs to the stability of our world order.

Key studies have highlighted how Western law was central to the civilizing mission of colonialism, legitimizing conquest while presenting itself as a colonizer's gift for overcoming barbarism. But law was not just an imposition to dispossess resources and accumulate labor; it was also transformed by the contestations of First Nations and the new practices deployed in settler societies. In this context, the first international legal theories were aimed at subordinating third world societies and, at the same time, provided the foundations of Western legal apparatus, shaping racially the modern concepts of sovereignty, territory, and property.

In a global context where political campaigning, social movements, and public discourse increasingly take place online, questions regarding the regulation of speech by social media platforms become ever more relevant. Companies like Facebook moderate content posted by users on their platforms through a mixture of automated decision making and human moderators. In this content moderation process, human rights play an ambiguous role: those who struggle with marginalization may find a space for expression and empowerment, or face exacerbation of pre-existing bias. Focusing on the role of human rights in Meta's content management, this essay explores how the protection of speech on social media platforms disadvantages the cultural, social, and economic rights of marginalized communities. This is not to say that speech on social media platforms is devoid of emancipatory potential, but that this potential is not uniformly or equally accessible. We see the incorporation of human rights considerations into decision-making processes as an avenue for alleviating this challenge. This approach faces obstacles from the platforms’ business models, which decenters human rights concerns, and from the limitations of liberal accounts of human rights. From within and against these constraints, human rights can be mobilized as emancipatory power in an effort to decrease marginalization.

In July 1967, one month after Israel's occupation of the West Bank, Gaza Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the Israel Defense Forces (IDF)’s duties in the areas under its control. Col. Shamgar had led the MAG Corps in the preparations in the event that a future war would find the army occupying beyond Israel's borders. Col. Shamgar began his presentation by stating:

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.

Trade policy decisions have direct, and almost immediate, effects on American jobs and wages. As result, historically, commercial policy has been highly partisan and closely associated with constituent demands. From this perspective, the post-World War II years were anomalous: trade policy was bipartisan and de-politicized. Due to rapid growth in the U.S. economy, those hurt by imports were easily re-employed, dampening the growth of a pro-protection coalition in either party. This facilitated a U.S.-led expansion of trade under the umbrella of commonly accepted international rules. In the last decades of the twentieth century, however, this pro-trade consensus began to unravel. While U.S. exports continued to thrive, the growth of regional and global value chains and the emergence of East Asian manufacturing giants caused job dislocation and a bifurcation of the U.S. economy around a skill premium. The Trump administration's response was to externalize these problems onto U.S. trading partners. The Biden administration needs a different strategy. Even though the Democratic party has been critical of aspects of the multilateral regime, Biden must re-connect with the international community. The United States should strive to be a better partner in the World Trade Organization (WTO), resist the capricious use of trade law, and rebuild a competitive domestic economy.

On September 25, 2019, the Third Extraordinary Congress of the Universal Postal Union (UPU) adopted a proposal on terminal dues rates—a decision that led the United States to remain a member state. The United States had given its one-year notice of withdrawal from the UPU eleven months earlier, citing concerns that the existing system unfairly advantaged certain developing nations, including China. Following the UPU's decision, the United States rescinded its notice of withdrawal. Under the new system, the United States can begin self-posting terminal dues rates in July 2020.

What was the geopolitical scale of the Sykes-Picot agreement (May 1916)? What did the British and French mid-level officials who drew lines on its maps imagine as the territorial scope of their negotiations? This essay claims that the Sykes-Picot agreement cannot be understood strictly as the beginning of a story about territorial division in the Middle East, but also as an end of a story of perceived regional potency. Rather than a blueprint for what would later become the postwar division of the region into artificially created independent states, the Sykes-Picot agreement was still based on a powerful vision of a broad region that is open for a range of developmental possibilities. This forgotten regional aspect of the Middle East’s colonial history should be revisited today in view of the disintegration of its more obvious legacies. Perhaps the significance of the Sykes Picot agreement is not strictly the enduring impact of its “lines in the sand” but rather the light it sheds on the roots of a more regional oriented system.

By all rights, Prosper Weil's 1983 cri de coeur should be one of many best-forgotten law review articles. It targets, after all, concepts that few dispute today (namely jus cogens and erga omnes obligations, as well as shortcuts to finding universally applicable customary law based on “quasi-universal” treaties). Its other direct target—the distinction between international crimes and delicts—refers to once contentious debates over whether states can be charged with ordinary international delicts as well as international crimes. This has since been eclipsed by the International Law Commission's (ILC's) decision to include, in its Articles of State Responsibility, Article 41 (enumerating the consequences of “serious breaches” resulting from the violation of preemptory norms). And insofar as Weil's foil was the premise that international “delicts” can have a “variable geometry,” that too has been overtaken by events: neither the ILC's turn to “serious breaches” nor the far older proposition that individuals can be prosecuted for international crimes remains the subject of much controversy today.

International human rights law recognizes a general right to non-discrimination. This right has proved to have plenty of legal “bite.” It is regularly invoked at both international and national levels to challenge state action which discriminates against vulnerable groups on “suspect grounds,” such as race, gender, and disability. Such legal challenges periodically succeed in generating significant law reform and sometimes even social change. However, this (relative) success has not been replicated when it comes to migration control. Non-discrimination challenges to state immigration restrictions have rarely been successful, even though human rights experts, NGOs, and other critics repeatedly express concern about the discriminatory impact of such restrictions. Furthermore, the state of human rights law remains radically underdeveloped in this area: the normative content of international non-discrimination norms, as they apply to migration control, is still lacking substance. This essay seeks to analyze why the cutting edge of the right to non-discrimination becomes blunted at the border, and generally lacks impact when invoked to challenge state migration controls.

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 Cortec v. Kenya, an investor-state arbitral tribunal established under a bilateral investment treaty (BIT) held it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The award raises significant issues of public international law, including how questions of investor compliance are considered in investor-state dispute settlement and the legal implications of investor noncompliance. The issues resonate with wider debates about balancing investor rights and obligations in the international investment regime.

As he searches for differences in how democratic and authoritarian governments use international law, Tom Ginsburg highlights—perhaps inadvertently—the fact that both kinds of regime use law as a tool to advance their goals. Governments’ goals may differ, both within and across regime types, but the instrumental use of law in the service of political ends does not. Ginsburg's article permits three distinct readings: it is an effort to show a correlation between regime-type and uses of international law; it is also an argument that the historical-normative core of international law included the promotion of “liberal” goals such as human rights and democracy; and third, it is a defense of the meta-claim that law follows the political purposes of society's powerful actors. This third contribution is the quietest in the article but is arguably the most important. Because the methodological difficulties in correlating regime type with attitude toward international law are insuperable, Ginsburg's contribution is that he directs attention to the substantive goals that governments pursue through law and to the tradeoffs that follow as one goal wins over others. The normative valence of international law depends on how one feels about these practical tradeoffs; those whose interests are harmed by international law have good reason to feel disadvantaged.

This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms. This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL) more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.