On December 15, 2016, China seized an American unmanned underwater vehicle (UUV) in the South China Sea. The drone had been launched by an American naval vessel, the USNS Bowditch. According to press reports, “[t]he American crew was in the process of retrieving the device when a small boat dispatched from the Chinese vessel took it as the American sailors looked on.” China has made extensive—and contested—maritime and territorial claims in the South China Sea, including within an area delimited by the “nine-dash line.” The incident occurred outside of this area, and none of the Chinese government's statements related to the seizure suggest any assertion of Chinese jurisdiction over the waters where the drone was seized. After an exchange of diplomatic statements, China returned the drone to the U.S. Navy.

Customarily one begins a discussion about the effectiveness of international law by quoting Louis Henkin’s famous remark that “almost all nations obey almost all principles of international law and almost all of their obligations almost all of the time.” For some, this empirical claim supports the notion that international law is a vital tool for furthering international cooperation across a broad range of issue areas. For others, the implicit suggestion that international law’s mere existence might be driving states’ behavior is a calamity of causal inference. Even if Henkin’s claim is empirically correct, effectiveness does not follow from compliance. For a third group, Henkin’s claim may not even be empirically correct. In at least some areas of international law, noncompliance may be relatively high. Deploying the same suspect causal reasoning that the second group worries about, international law skeptics have sometimes suggested that we might infer ineffectiveness on the basis of such noncompliance.

This terrible thing we’re witnessing now is
Not unique; you know it happened before
Or something like it.
We’re not at a loss how to think about it
We’re not without guidance…
Anne Carson, Antigonick (2012).

We in the postcolony currently inhabit times constituted by the aftermaths of the catastrophic failures and tragic reversals of countless projects of global redemption and by the bereavement of their promised futures. As Simon Critchley observes, the experience of disorientation produced by such tragedies acutely raises the problem of action: “[E]xpressed in one bewildered and repeated question . . . what shall I do?” This essay takes this problem as its central concern by asking specifically how international lawyers should act in these “tragic times.”

It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

The concept of public goods is often operationalized in the literature as anything that demands some form of international cooperation. While this may be politically useful in generating international cooperation, it is analytically problematic for designing international law with the purpose of enhancing international cooperation. Many of the issues characterized as public goods are in fact common pool resources, which pose distinct issues for international cooperation and demand different legal architectures than public goods for effective international cooperation.

On March 29, 2017, the U.K. Government triggered Article 50 of the Treaty on European Union (TEU) on withdrawal from the European Union following a referendum on June 23, 2016 in which 51.89 percent voted for the United Kingdom to leave the European Union. As a hybrid provision, the much-discussed withdrawal provision in Article 50 TEU is part of EU law yet also anchored in public international law. Although the European Union is a unique, supranational organization that creates rights for individuals that are directly effective in national law, its member states created the European Union based on traditional treaties under international law.

The European Union's (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member's restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights (EU Charter) and the recently adopted General Data Protection Regulation (GDPR).

President Trump first announced his plans for increasing U.S. military capabilities in space in 2018. In August 2019, his administration created the United States Space Command. With the passage in December 2019 of the 2020 National Defense Authorization Act, the United States established the United States Space Force as a new branch of the armed forces. These developments do not directly implicate international law, but they reflect a growing divergence between the U.S. approach to space and that taken by the UN General Assembly.

The questions surrounding the legality of states’ withdrawal from international treaties have traditionally received far less attention than those concerning states’ joining of treaties, from both the domestic and international legal perspectives. This neglect is now changing rapidly. In this contribution I focus on South Africa's stalled exit from the International Criminal Court (ICC) and the fundamental questions of constitutional and international law that arise from the episode.

Since the 2007 global financial crisis, many have questioned the predominant form of neoliberal capitalism that has underpinned a U.S.-led global economic order since the 1980s. Meanwhile, China's state capitalism, led by the Chinese Communist Party, has been ascendant. Some have even posited a “Beijing Consensus” as an alternative to the “Washington Consensus.” This essay advances the concept of State Capitalism 4.0, which is premised on the Chinese party-state's control over state-owned enterprises (SOEs) and private firms, mediated through regulatory and institutional arrangements and the strategic exploitation of technology. I apply this concept to analyse China's approach to transnational labor issues as Chinese enterprises expand their activities abroad and mobilize a growing number of Chinese workers transnationally, especially under the Belt and Road Initiative (BRI). Reflecting on the implications of State Capitalism 4.0 for transnational labor law, I argue that the strategic exercise of state regulatory powers can strengthen labor standards through domestic laws and institutions but is antithetical to a core international labor right: freedom of association.

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunalto interpret the provision of the 1982 United Nations Convention on theLaw of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute settlement. Its availability has beencritical in enabling certain states to ratify the Convention and would be an indispensable condition of eventual U.S. ratification. For these reasons, the Award’s treatment of the military activities exception transcends the South China Sea dispute.