In her interesting study on “Achieving Sex Representative International Court Benches,” Nienke Grossman observes that international judgeships are often based on personal networks and social currency, or used to reward political loyalty or to advance political agendas, rather than to select the most qualified candidates. She illustrates how nomination procedures for international benches generally lack transparency, and horse-trading infects elections to the international courts. To ensure gender equity, Grossman advocates that states should take remedial steps to make nomination and selection procedures more open, transparent, and merit-based, at both the national and the international level.

Although their motivations varied, many senior British officials who were expert in imperial and Middle-Eastern matters condemned the Sykes-Picot treaty as a mistake almost as soon as it was signed. T.E. Lawrence wanted the British government to repudiate it and was assured by Gilbert Clayton, the head of the Arab Bureau in Cairo, in a letter he wrote to Lawrence in 1917, that “‘It is in fact dead and, if we wait quietly, this fact will soon be realized’.” Lord Curzon denounced the treaty as “not only obsolete ‘but absolutely impracticable,’” and further declared that only “gross ignorance” could account for the boundary lines in the treaty. Sir Mark Sykes was said to be ashamed of his involvement in the Treaty that was to bear his name. Despite these efforts, so soon after its birth, to announce the demise and irrelevance of Sykes-Picot, its complex, variegated, and evolving legacy has survived and is still very much with us.

The Sykes-Picot agreement is the foremost example of Western double-dealing in the Middle East since the discovery of oil. The agreement, formalized in an exchange of notes between the British Foreign Secretary and the French Ambassador to the United Kingdom in London, is named after its principal negotiators Sir Mark Sykes (1879-1919) and Georges-Picot (1870-1951). As one of several overlapping arrangements affecting the postwar settlement in West Asia secretly negotiated during the First World War, the agreement provided for the division of the region into spheres of influence comprised of nominally independent Arab states under the “tutelage” of British and French advisers.

A century after they met to conclude a secret agreement dividing Ottoman territories into British and French zones of influence, Mark Sykes and François Georges-Picot have been back in the news. Images of an ISIS (the Islamic State of Iraq and Syria) bulldozer rolling over a small section of the frontier between Syria and Iraq in order to destroy the “Sykes-Picot” border shone a spotlight on the agreement. Western commentators reflecting on the centenary of the agreement have tended to share the view that colonial borders bear a share of responsibility for the ills of the region. The underlying argument is that the “artificial” boundaries drawn by European colonial powers produced faultlines that have driven subsequent conflicts.

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.

The Sykes–Picot agreement embodies a certain style of diplomacy: an assumption of European predominance, given expression through cartographic line-drawing, terms of art (“protection,” “independence,” “interests”), and a structural secrecy which kept agreements from rival European powers, on the one hand, and from the peoples most affected, on the other. It is this element of secrecy that constitutes the focus of the present contribution. I situate the Sykes–Picot agreement in a prewar pattern of secrecy as diplomatic technique, explore its role in spurring a new regime of publicity for treaties, and take it as a touchstone for exploring whether this new regime could achieve a fundamental transformation of prevailing modes of diplomacy.

Even before its hundredth year anniversary on 16 May 2016, the Sykes-Picot agreement had become a widely cited historical analogy both in the region itself and in Europe and the United States. In the Middle East, it is frequently deployed as an infamous example of European imperial betrayal and Western attempts more generally to keep the region divided, in conflict, and easy to dominate. In Europe and the United States, however, its role as a historical analogy is more complex—a shorthand for understanding the Middle East as irrevocably divided into mutually hostile sects and clans, destined to be mired in conflict until another external intervention imposes a new, more authentic, set of political units on the region to replace the postcolonial states left in the wake of WWI. What is notable about both these uses of the Sykes-Picot agreement is that they fundamentally misread, and thus overstate, its historical significance. The agreement reached by the British diplomat Mark Sykes and his French counterpart, François Georges-Picot, in May 1916, quickly became irrelevant as the realities on the ground in the Middle East, U.S. intervention into the war, a resurgent Turkey and the comparative weakness of the French and British states transformed international relations at the end of the First World War. Against this historical background, explaining the contemporary power of the narrative surrounding the use of the Sykes-Picot agreement becomes more intellectually interesting than its minor role in the history of European imperial interventions in the Middle East.

The American Law Institute (ALI) has recently embarked on the project of elaborating a new Restatement of Conflict of Laws. Its first two Restatements on this subject have been enormously influential. The Ali began its work on the First Restatement in 1923, naming Joseph Beale of the Harvard Law School as its Reporter. Adopted in 1934, the First Restatement reflected the highly territorialist approach to the conflict of laws that had long prevailed in this country. Even before the First Restatement’s adoption, the First Restatement’s territorialist approach, and the “vested rights” theory on which it was based, was subjected to intense scholarly criticism. Nevertheless, the First Restatement’s approach continued to prevail in the United States until the New York Court of Appeals initiated a “choice-of-law revolution” in the early 1960’s with its decision in Babcock v. Jackson. Although most states have departed from the First Restatement’s approach, the First Restatement retains its adherents. Ten states continue to follow the First Restatement for tort cases and twelve states for contract cases.

More than forty years after the Second Restatement of Conflict of Laws, the American Law Institute (ALI) has begun work on a Third. Forty years is a long time, and the magnitude of the gap since the Second Restatement is itself a reason to think a Third is appropriate. But there are other reasons that it is time for a Third. In this essay, we want to explain why we think American choice of law has progressed to the point that a new Restatement is appropriate, and also, and relatedly, what we hope the Third Restatement can achieve.

These are our views, not those of the Ali, the Advisers to the Third Restatement, or even the other Reporters. It is simply our understanding of the significance of where we are in American conflicts scholarship and practice and where we might hope to go.

I’m a recent convert to the Restatement (Second) of Conflicts. In my thirty years of teaching the course, it’s been all too easy to parrot the conventional wisdom—that the Second Restatement is conceptually muddled, self-contradictory, and bordering on vacuous. I am now convinced, however, that there are both intellectual consistency and practical wisdom in its approach. (What better time to make this discovery than just as the American Law Institute decides to replace it?) I summarize below my reasons for believing that substantial parts of the Second Restatement’s basic structure should be left as is.

International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.

Some sixteen years ago, on the occasion one of many symposia on the possibility of a new Restatement on Conflict of Laws to replace the much-derided Second Restatement, Mathias Reimann suggested that a new Restatement should focus on the requirements of what he called “the international age.” Conflict of laws is increasingly international, he pointed out. This remains true today—just recall that three of the four recent U.S. Supreme Court decisions on personal jurisdiction concerned international conflicts. A new Restatement must take that into account. Reimann formulated three very sensible wishes for drafters of a new Restatement: they should consider every rule and principle they formulate with international disputes in mind; they should work comparatively; and they should include foreign advisers.

In September and October of 2016, Colombians witnessed a series of political events that defied their belief. First, the Colombian Government and the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (FARC—EP), signed to great fanfare a historic peace agreement finalizing Colombia’s armed conflict. The Un Secretary-General, the U.S. Secretary of State, and dozens other top diplomats and heads of states gathered in Cartagena for an emotional signing ceremony, symbolically ending a fifty-year armed confrontation that, according to the Colombian Center for Historic Memory, killed more than two hundred thousand people, 80 percent of which were noncombatants.

In this short piece, I open a conversation over how the Colombian Final Peace Accord provides evidence of, and a contribution to, a more general lex pacificatoria or “law of the peacemakers” (lex pax for short). In light of the Accord’s recent ballot defeat, I integrate into this assessment the merits of using a referendum to approve (in Colombia’s case “affirm or deny”) the Agreement as a whole. Throughout, I draw on a peace agreement database which has coded over one thousand four hundred peace agreements since 1990 for comparative insight.

It is very unlikely—if not impossible—that a guerrilla movement would voluntarily agree to demobilize if the cost is that a majority of its members will receive long prison sentences. For this reason, any peace accord between the Colombian government and the Farc (Revolutionary Armed Forces of Colombia) Marxist guerilla will not be able to adapt to a strict interpretation of the duty to investigate, judge, and penalize. The challenge in this context is to incentivize demobilization while fulfilling the accountability standards of criminal law.

The results of the plebiscite suggest that Colombia’s international obligations regarding the right to justice will be a key issue in the new postplebiscite phase of the peace negotiation. Perhaps, then, the best starting point for an analysis of these obligations is the rejected Peace Accord. If it complies with international obligations, then it seems likely that any new agreement will also be in compliance: opponents focused much of their arguments on the high level of impunity supposedly embedded in the original deal.

Gender may have been one of the main reasons behind the rejection of the Peace Agreement in Colombia. A few hours after the narrow victory of those who opposed the deal, Senator and ex-president Álvaro Uribe Vélez gave a speech calling for the strengthening of religious family values. His words echoed an argument that gained traction in recent months in Colombia, particularly in the Evangelical Christian community: that the content of the Peace Accord dismantled traditional mores, such as the biological difference between man and woman, the importance of the heterosexual family, and the place of religion in public life.

One of the many roles played by international law in the Colombian Peace Accord is that of guarantor—that is, creating assurances that the parties will comply with their commitments. To this end, negotiators declared that the Final Peace Accord would constitute a Special Agreement (SA) in “terms of Article 3 common to all Geneva Conventions of 1949,” which “will be introduced [in the Colombian legal system] as part of the constitutional block” and deposited “before the Swiss Federal Council.” Furthermore, they stated, “a presidential declaration will be made taking the form of a unilateral declaration of the Colombian State before the Secretary-General of the United Nations,” and its incorporation in a Resolution of the Security Council will be requested.

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 stunning vote against the Colombian Peace Agreement opens an opportunity to include in the negotiations issues that were not included in the first deal—despite the fact that their omission had the potential to undermine the goal of a sustainable peace. One such issue is foreign investment law. Since the beginning of the talks, the Colombian government was keen on emphasizing that the country’s “economic model” was not subject to negotiation. The shadow of Venezuela loomed large in that position. Whatever came out of the talks was to be integrated in a framework of a free market economy, where private property and, above all, foreign investments would be respected.