Over the last fifteen years, the problem of human trafficking has become a focus of government and advocacy agendas worldwide. Increasingly referred to as “modern-day slavery,” the phenomenon has prompted rapid proliferation of international, regional, and national anti-trafficking laws, and inspired states to devote enormous financial and bureaucratic resources to its eradication. It has also spawned an industry of nonprofits that have elevated the “abolition” of trafficking into a pressing moral campaign, which anyone can join with the click of a mouse. Scholars have also jumped into the fray, calling on states to marshal human rights law, tax law, trade law, tort law, public health law, labor law, and even military might to combat this apparently growing international crime and human rights violation.

Are there forcible acts that, because of their small scale or confined purposes, are not covered by the prohibition of the use of force in Article 2(4) of the UN Charter? The argument that there exists a “gravity threshold,” below which the prohibition of the use of force is inapplicable, appears to be gaining ground in legal doctrine. In a similar vein, the Independent International Fact-Finding Mission on the Conflict in Georgia stated in its report that the “prohibition of the use of force covers all physical force which surpasses a minimum threshold of intensity” and that “[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.” Other types of acts that have sometimes been characterized as insufficiently “grave” include operations aimed at rescuing nationals abroad, “hot pursuit” operations, small-scale counterterrorist operations abroad, and localized hostile encounters between military units. This article investigates relevant practice and legal statements from many such situations, while adding a number of conceptual observations. It concludes that excluding small-scale or “targeted” forcible acts from the scope of Article 2(4) is conceptually confused, inconsistent with customary practice, and undesirable as a matter of policy.

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

The consensual structure of the international legal order, with its strong emphasis on the sovereign equality of states, has always been somewhat precarious. In different waves over the centuries, it has been attacked for its incongruence with the realities of inequality in international politics, for its tension with ideals of democracy and human rights, and for standing in the way of more effective problem solving in the international community. While surprisingly resilient in the face of such challenges, the consensual structure has seen renewed attacks in recent years. In the 1990s, those attacks were mainly “moral” in character. They were related to the liberal turn in international law, and some of them, under the banner of human rights, aimed at weakening principles of nonintervention and immunity. Others, starting from the idea of an emerging “international community,” questioned the prevailing contractual models of international law and emphasized the rise of norms and processes reflecting community values rather than individual state interests. Since the beginning of the new millennium, the focus has shifted, and attacks are more often framed in terms of effectiveness or global public goods. Classical international law is regarded as increasingly incapable of providing much-needed solutions for the challenges of a globalized world; as countries become ever more interdependent and vulnerable to global challenges, an order that safeguards states’ freedoms at the cost of common policies is often seen as anachronistic. According to this view, what is needed—and what we are likely to see—is a turn to nonconsensual lawmaking mechanisms, especially through powerful international institutions with majoritarian voting rules.

International law is a system; its environment is the field of international relations. Although the word system is often used generically, it has a formal meaning in “general systems theory,” an interdisciplinary methodology that grew out of cybernetics research in the 1970S. Since then, general systems theory has proved to be a significant heuristic in hundreds of disparate research areas. In describing international law from the viewpoint of an autopoietic system (to be defined shortly), this article intends not just to reexamine the foundations of international law but also to help litigators and negotiators make their international-law arguments sounder and more persuasive.

A myriad of specialized and fragmented global regulatory bodies wield ever-increasing power and influence. In making decisions, these mission-oriented authorities tend systematically, due to deep-seated structural factors, to give greater regard to the interests and concerns of some actors, especially powerful states and well-organized economic actors, and lesser regard to the often peripheral interests and concerns of more weakly organized and less powerful groups and of vulnerable individuals. The overall pattern of global regulation reflects a similar bias. The most powerful global regulatory regimes promote the objectives of dominant states and economic actors, whereas regimes to protect weaker groups and individuals are often less effective or virtually nonexistent and are thus unable to protect their interests and concerns. As a result of these two types of disregard, the dominant actors in global regulatory governance enjoy disproportionate benefits from international cooperation, while weaker groups and individuals suffer deprivation and often serious harm.

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7, and from July 8 to August 9, 2013, under the chairmanship of Bernd H. Niehaus (Costa Rica). The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction, subsequent agreements and subsequent practice in relation to the interpretation of treaties, and protection of persons in the event of disasters. Notably, the Commission provisionally adopted three draft articles and commentaries identifying three categories of senior governmental officials—heads of state, heads of government, and foreign ministers—as entitled to immunity ratione personae from foreign criminal jurisdiction for their public or private acts, an immunity that ceases once they leave office.

The idea that international law is in crisis—needing the inspired thinking and skilled practice of many kinds of international lawyers to save it—has a rich history in those countries where the enterprise of international law has been most deeply established and embraced. Unsurprisingly, saving international law remains a project shared by many twenty-first-century international lawyers. Such a commitment is certainly not confined to legal academics. Even some legal advisers, counsel, judges, and activists think of themselves as having a role to play in rescuing international law. Being a disengaged bystander while grave hazards supposedly threaten international law has not seemed to be a proper option for many of these professionals who share a calling for heroic self-sacrifice to salvage the ostensibly endangered entity of international law.

On September 18, 2013, several Greenpeace activists, bearing ropes and posters, attempted to board a Gazprom oil platform, the Prirazlomnaya, in the Exclusive Economic Zone (EEZ) of the Russian Federation. They did so in inflatable craft launched from a Greenpeace vessel, the Netherlands-flagged MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. The following day, armed agents of the Russian Federal Security Service boarded the Arctic Sunrise itself from a helicopter, arresting those on board. The Netherlands was apparently informed of Russia’s intention to board and arrest the vessel shortly after the original boarding of the platform. Over the next four days, the vessel was towed to Murmansk. Russian authorities charged the thirty detained persons (the so-called Arctic 30) with “piracy of an organized group.” Although President Vladimir Putin acknowledged that the protesters were “obviously... not pirates,” he also noted that “formally, they tried to seize our platform.” On October 4, the Netherlands announced that, under Annex VII of the UN Convention on the Law of the Sea (UNCLOS), it had commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and the legality of its seizure. On October 21, the Netherlands filed with the International Tribunal for the Law of the Sea (ITLOS) a request for the prescription of provisional measures pending the constitution of the Annex VII arbitration tribunal.

When the contracting parties to the Rome Statute establishing the International Criminal Court met in Kampala in 2010 to discuss possible amendments to the statute, the main focus was, and has thereafter remained, on the crime of aggression. In addition to amending the statute to include the crime of aggression, however, the contracting parties amended Article 8 of the statute to include a broader range of war crimes in noninternational armed conflicts over which the ICC can have jurisdiction—inter alia, by including the use of chemical weapons. Although the latter amendment received much less attention from both the Kampala drafters and outside observers than the former, it is the use of chemical weapons that has come most quickly into play in world events. In particular, the use of chemical weapons by Syrian government forces in 2013 (and perhaps subsequently) has acutely raised questions concerning the extent of the ICC’s treaty-based jurisdiction, both under the unamended text of the Rome Statute or in situations where the amendment to Article 8 applies. These events have also provoked consideration concerning the Security Council’s legal powers to extend the ICC’s jurisdiction to certain crimes involving chemical weapons that would otherwise be beyond its subject matter jurisdiction. These questions are considered in this Note.

Professor Anthony D’Amato’s “Groundwork for International Law” (Groundwork) is an extremely pedagogical project. Despite its apparent simplicity, each rereading reveals a new layer of complexity, reflecting the depth of his lifelong engagement in the scholarship of international law. Moreover, from a certain perspective, his reexamination of the foundations of international law expresses a radicalism that reaches beyond the analysis of legal forms to provoke reflection on the nature and purpose of the international legal system.

A regime’s pitiless slaughter of civilians, particularly in an urbanized middle-class country close to Europe, drives segments of the public on both sides of the left-right divide to demand that something be done to quell the killing. When, as in the case of Syria, the regime cannot be shamed, has financial and materiel reserves and backup funding and troops from powerful allies, and has no higher ideal than self-preservation—when, in other words, it is immune to diplomatic and economic pressure—demands for responsive action quickly translate into demands for the use of force, whether direct or by proxy. and because in these enlightened times the projection of force across national borders is widely felt to be legally problematic, determining an appropriate reaction to the slaughter becomes a task for lawyers, no less than strategists.

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of 1993, or Chemical Weapons Convention (CWC), represented a major (and at the time, not uncontroversial) innovation in global treaty making. Covering a whole class of weapons of mass destruction, it mandated an immediate and comprehensive ban on use and acquisition, coupled with phased destruction and buttressed by an extensive and intrusive verification system administered by a substantial and specialized international organization. The goal was the total elimination of this particular type of weapon.