The recession of 2008 precipitated a political crisis that motivated an unprecedented international project to curb corporate tax dodging. This Article argues, contrary to dominant scholarly views, that this effort transformed international tax—changing its participants, agenda, institutions, norms, and even its legal forms. Perhaps most important, efforts to close corporate tax loopholes widened a rift over revenues that threatens a hundred-year-old tax treaty framework. This Article identifies and critically evaluates these changes.

In transborder environmental protection, territorial disputes, internet governance, anticorruption, international human rights, and humanitarian law, private businesses are increasingly supporting the implementation and enforcement of international law. This Article analyzes the various ways that corporate decision making contributes to this phenomenon, and assesses its prospects for enhancing international law's existing enforcement paradigms. In doing so, the Article opens new ground for scholarly and policy consideration of the proper role of corporations in the global legal order.

Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four mechanisms through which reporting can contribute to human rights improvements: elite socialization, learning and capacity building, domestic mobilization, and law development. These mechanisms have implications for the future of human rights treaty monitoring.

This introduction provides an overview of thirteen essays selected in response to a worldwide call for papers for an Agora on “The International Legal Order and the Global Pandemic.” The essays in the Agora consider some of the most pressing challenges, as well as potential opportunities, that COVID-19 is creating for the international legal order. The specific topics addressed include the role of international organizations such as the World Health Organization, state responsibility, human rights, financial regulation, and international trade. Contributors were invited to address the theme from a historical, institutional, doctrinal, normative, critical, or geopolitical perspective, or a mix of perspectives.

This Article analyzes the rise of international transformative constitutionalism in Latin America and responds to some of the challenges to its legitimacy and effectiveness. It focuses on the practice of the Inter-American Court of Human Rights (IACtHR), the decisions and procedures of which constitute a small, but vibrant and essential, part of a wider Latin American community of human rights—a diverse group of actors who confront violence, social exclusion, and weak institutions through legal means.

The responses of states and the WHO to the COVID-19 pandemic reveal the considerable weaknesses of international organizations. Although the Trump administration has misdiagnosed the WHO's ills, the WHO has indeed failed to meet the public health threat posed by the coronavirus. The WHO's responses to the current crisis demonstrate that it shares five disorders common to other UN system expert-driven organizations: overdependence on states; singular reliance on “managerial” approaches to enforcement; inflexible emergency declarations; absence of regularized systems for inter-regime collaboration; and common bureaucratic pathologies.

International law, though formally neutral among regime types, has mainly been a product of liberal democracies since World War II. In light of recent challenges to the liberal international order, this Article asks, what would international law look like in an increasingly authoritarian world? As compared with democratic countries, authoritarians emphasize looser cooperation, negotiated settlements, and rules that reinforce regime survival. This raises the possibility of authoritarian international law, designed to extend authoritarian rule across time and space.

In November 2000, the United Nations General Assembly adopted the United Nations Convention Against Transnational Organized Crime (UNTOC or Convention) and its three protocols on human trafficking, migrant smuggling, and firearms. These instruments are the product of three years of diplomatic negotiations, and they represent a substantial contribution to international lawmaking in the area of transnational criminal law. UNTOC has attracted almost universal participation, with 190 states parties at present. Nearly two decades after the adoption of these instruments, however, remarkably little is known about whether states parties have implemented UNTOC and its protocols in their national legislation, whether they enforce such legislation, and whether they make use of UNTOC's provisions concerning international cooperation (e.g., extradition and mutual legal assistance). In other words, the influence of these instruments in practice remains largely unknown.

The withdrawal of the United Kingdom from the European Union has prompted a global recalibration of treaty relations. Due to the Withdrawal Agreement and its transition period, the UK is expanding its international treaty-making powers as it is gradually released from the constraints of EU law. Practice to date shows the creation of many new international legal instruments through which governments have sought to address the novel questions that Brexit raises for the international law of treaties.

In Google LLC v. Commission nationale de l'informatique et des libertés (CNIL), the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” de-referencing requests to be carried out by a search engine operator on search engine versions accessible in EU member states, as opposed to all versions of its search engine worldwide. While the ruling has been perceived as a “win” for Google and other interveners, such as Microsoft and the Wikimedia Foundation, who argued against worldwide de-referencing, the Court also made clear that that while the EU law does not currently require worldwide de-referencing, “it also does not prohibit such a practice” (para. 72). As a result, the CJEU found that an order by a national supervisory or judicial authority of an EU member state requiring worldwide de-referencing in accordance with its own national data protection laws would not be inconsistent with EU law where the data subject's right to privacy is adequately balanced against the right to freedom of information. By leaving the door to extraterritorial de-referencing wide open, the CJEU continues to pursue its post-Snowden hard-line stance on data privacy in a manner that is likely to transform the data privacy landscape.

In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

By a September 17, 2019 Order (Order), the German Federal Constitutional Court (FCC or Court) rejected challenges to Germany's military involvement in anti-Islamic State of Iraq and Syria (ISIS) operations in Syria. This outcome was expected and was as such insignificant. What is significant is the FCC's reasoning. The Court used the Order to clarify the constitutional roles of parliament and the executive in German foreign affairs. And it included an intriguing pronouncement on the scope of Article 51 of the UN Charter, which adds a fresh perspective to the polarized debates about self-defense against nonstate actors.

This Essay examines a series of paradoxes that have rendered the international legal order's mechanisms for collective action powerless precisely when they are needed most to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding noncitizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

On April 11, 1994, approximately two thousand men, women, and children were brutally murdered by armed Hutu extremists after a group of Belgian UN peacekeepers abandoned the school facility where they had sought refuge upon the outbreak of the Rwandan genocide. Almost a quarter of a century later, the Brussels Court of Appeal (Court) on June 8, 2018 concluded the civil proceedings lodged by a number of Rwandan survivors and relatives against the Belgian commanding officers and the Belgian state. Overturning an earlier judgment of the Brussels Court of First Instance, the Court held that the decision to retreat from the facility was imputable only to the United Nations, to the exclusion of the Belgian authorities. Accordingly, the claims against the Belgian state were unfounded. The events—which inspired the movie Shooting Dogs (2005)—bear obvious similarities to the role of the United Nations Protection Force's (UNPROFOR) Dutch battalion (Dutchbat) in the evacuation of the Potoçari camp and the ensuing genocide of seven thousand Bosnian men and boys by Bosnian Serb forces in Srebrenica in 1995. Like the Dutch judgments in the (more well-known) Mothers of Srebrenica proceedings, the Mukeshimana appellate judgment provides a rare national court precedent that considers the imputability of the conduct of peacekeepers to troop-contributing countries. The Mukeshimana judgment, however, raises a high bar for finding such imputability.

This dispute, brought by Ukraine against Russia, provides the first discussion in a World Trade Organization (WTO) Panel or Appellate Body Report of the security exception in Article XXI of the General Agreement on Tariffs and Trade 1994 (GATT). Unusually for a WTO dispute, the Panel (chaired by former WTO Appellate Body Member Georges Abi-Saab) found that Russia had not acted inconsistently with any of the claimed obligations under the GATT or Russia's Accession Protocol. Central to that conclusion was the Panel's understanding of the GATT security exception and the circumstances surrounding the imposition of the challenged measures, which related to trade in transit by road and rail through Russian territory. The Panel found that, since 2014, an emergency in international relations existed between Russia and Ukraine within the meaning of GATT Article XXI(b)(iii) and that the challenged measures fell within this exception. If the exception had not applied, according to the Panel, Ukraine would have established a prima facie case of violation of the provisions on freedom of transit in GATT Article V:2 and equivalent provisions in Russia's Accession Protocol. The decision, which neither party chose to appeal, has significant implications for other disputes in which the security exception has been invoked.

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.