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.

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.

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.

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 recent debates about the interplay between international humanitarian law (IHL) and human rights law (IHRL), two broad camps have emerged. On the one hand, defenders of what may be called the convergence thesis have emphasized the inclusion of basic rights protections in the so-called “Geneva instruments” of IHL, as well as the role of human rights bodies in interpreting and amplifying rights protections in IHL through juridical or quasi-juridical interpretation and pronouncements. In armed conflicts, it is said, human rights apply concurrently and in ways that strengthen the protective constraints of IHL. Critics of the convergence thesis, on the other hand, have protested that pressing human rights obligations on state forces misunderstands the nature of both IHL and IHRL, and generates misplaced and impossibly onerous demands on belligerents—ultimately and perversely, the effect of emphasizing convergence may be less, not more, human rights protection.

The Board of Editors is pleased to announce that the Francis Deák Prize for 2012 was awarded to Robert D. Sloane for his article entitled On the Use and Abuse of Necessity in the Law of State Responsibility, which appeared in the July 2012 issue.

The prize was established by Philip Cohen in memory of Dr. Francis Deák, an international legal scholar and lifelong member of the American Society of International Law, to honor a younger author who has published a meritorious contribution to international legal scholarship in the American Journal of International Law.