In March 1982, the United Nations Commission on Human Rights initiated the appointment of a Special Rapporteur on Summary or Arbitrary Executions. The Special Rapporteur on Summary or Arbitrary Executions has done far more than merely study that grave human rights problem; he has received complaints about impending and past executions, issued appeals to governments about threatened executions and the need to investigate past killings, and reported publicly on much of his activity. The Commission on Human Rights not only has renewed the Special Rapporteur on Summary or Arbitrary Executions in its subsequent annual sessions, but has followed this precedent by appointing in 1985 a similar Special Rapporteur on Torture and in 1986 a Special Rapporteur on Intolerance and Discrimination Based on Religion or Belief.

The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act and the Alien Tort Statute (ATS), and, in RJR Nabisco v. European Community, has placed another statute—The Racketeer Influenced and Corrupt Organizations Act (RICO)—on the chopping block. The major surgery performed was amputating RICO’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S. territory.

In the global development of new international commercial dispute resolution centers, the China International Commercial Court (CICC) represents a genuine innovation in China's legal history. The CICC aims to become a dispute resolution “one stop shop” (combining litigation, arbitration, and mediation) for Belt and Road Initiative (BRI) related disputes. Despite its name and ambition, however, the CICC operates more like a domestic court. The CICC's stringent jurisdictional requirements and conservative institutional design show that the CICC cannot serve its stated objective of attracting new investment opportunities or foreign parties to the Chinese forum. These defects are not fatal but will have to be addressed for the CICC to reach its full potential of hybridization of litigation and arbitration both in and beyond China.

Third-party funding, also known as “dispute finance,” is a controversial, dynamic, and evolving arrangement whereby an outside entity (“the funder”) finances the legal representation of a party involved in litigation or arbitration, whether domestically or internationally, on a non-recourse basis, meaning that the funder is not entitled to receive any money from the funded party if the case is unsuccessful. It has been documented in more than sixty countries on six continents worldwide—including in many of the jurisdictions highlighted in this symposium that are experimenting with other aspects of international commercial dispute resolution. Indeed, funding greases the wheels of this experimentation. The true prevalence of third-party funding is likely far greater than we know since disclosure is not presently mandated everywhere. This essay argues that the three biggest global regulatory issues with respect to dispute finance are disclosure, definition, and delegation of oversight and that the global laboratories of dispute finance remain firmly within the control of the private sector with the public regulators continuously struggling to understand and address new developments in the industry. An apt analogy would be that the dispute financiers are driving cars and building spaceships with respect to their innovative financing arrangements, while many of the regulators are aiming their sights at the classic “horse-and-buggy” third-party funding arrangements that are rapidly falling out of use.

In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)? The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.” Vladimir Putin's gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it mark a definitive change in international law? This short essay will argue that, bloody as the Ukraine conflict has been, the immediate response has been to reinforce rather than reject traditional norms about sovereignty and territorial integrity. At the same time, the invasion and other states’ reaction to it illustrate both the character of, and limits to, authoritarian use of international law.

In its August 2018 report on violence against Rohingya and other minorities in Myanmar, the Fact Finding Mission of the Office of the High Commissioner for Human Rights noted that “the role of social media [was] significant” in fueling the atrocities. Over the course of more than four hundred pages, the report documented how Facebook was used to spread misinformation, hate speech, and incitement to violence in the lead-up to and during the violence in Myanmar. Concluding that there were reasonable grounds to believe that genocide was perpetrated against the Rohingya, the report indicated that “the Mission has no doubt that the prevalence of hate speech,” both offline and online, “contributed to increased tension and a climate in which individuals and groups may become more receptive to incitement.” The experience in Myanmar demonstrates the increasing role that social media plays in the commission of atrocities, prompting suggestions that social media companies should operate according to a human rights framework.

On January 3, 2020, the U.S. military conducted a drone strike near Baghdad International Airport that killed Qasem Soleimani, the leader within the Iranian military of the Quds Force of the Islamic Revolutionary Guard Corps (IRGC). The Trump administration initially appeared to justify the strike as an effort to deter imminent attacks on U.S. embassies and personnel, but later insisted that Iran's actions in the months leading up to the strike triggered the U.S. right to self-defense. Domestically, the Trump administration claimed the authority to carry out the strike based on both the president's inherent constitutional powers and the Authorization for Use of Military Force Against Iraq passed by Congress in 2002. In the aftermath of the strike, Iraq voted to expel U.S. troops from its territory, and Iran conducted a missile strike on American bases in Iraq. Iran also announced that it would cease to observe limits on its production of nuclear fuel—a core tenet of the Joint Comprehensive Plan of Action (JCPOA), from which the United States withdrew in 2018.

The “temporary golden age” of international courts is likely over. States seeking to provide oversight mechanisms and individual remedies at the international level are likely to opt for less intrusive and more flexible alternatives to adjudication. This Article analyzes the phenomenon of international complaint mechanisms through a detailed case study of the Ombudsperson to the ISIL and Al-Qaida sanctions regime. The analysis reveals an in-built tension between principle and pragmatism: the Ombudsperson's institutional design falls short of the requirements that are essential for adjudication, but it nevertheless proves to be a surprisingly effective remedy for persons wrongfully listed. The Article makes the case for the establishment of such bodies, despite some of their inherent shortcomings.

The nomenclature of human shields did not exist in 19th century colonialism, but one can find its proxies in the debates regarding the principles of distinction and proportionality when defining legitimate targets. Its specters appeared in the discussions weighing human life and moderating warfare, revealing how the imperatives of colonial conquest inflected “humanitarian reason” and its epistemic and political investments. The colonized territory rendered all civilians as potential human shields merely by existing there. The colonizer/colonized distinction trumped the civilian/combatant distinction and exposed the radical instability of the principles defining the notion of human shields; the colonizer seldom thought he had reached the threshold of disproportionality in violence against the colonized. Instead, the “civilizing mission” rendered the colonized body perennially vulnerable.

Alongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.

In Al-Skeini v. United Kingdom, decided on July 7, 2011, the Grand Chamber of the European Court of Human Rights in Strasbourg (the Court) found that the human rights obligations of the United Kingdom applied to its actions in Iraq and that the United Kingdom had violated Article 2 (right to life) of the European Convention on the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR) by failing to investigate the circumstances of the deaths of the relatives of five of the six applicants. The case deals with the extraterritorial application in Iraq of the Convention, which is part of UK domestic law by virtue of the Human Rights Act, 1998, and involves the concepts of jurisdiction, effective control, and the scope of the right to life.

Article 2(4) of the UN Charter contains a general prohibition of the use of force. Articles 42 and 51 authorize departures from this prohibition in two circumstances: Security Council authorization and self-defense. These two circumstances are conceptualized as justifications. They provide for legally-warranted departures from the general rule. As a result, a justified use of force is not wrongful. Justifications are different from excuses where the action remains wrongful, but the wrongdoer may be released from responsibility for the wrongdoing.

In “the constitutional case of the century,” the U.K. Supreme Court concluded that the Government did not possess the prerogative power to withdraw from the European Union. However, while it may be clear from the decision that legislation was required to empower the Government to notify the European Union of its intention to leave, the scope of the Court's reasoning in Miller is otherwise uncertain. At its broadest, the decision would apply to the withdrawal from any treaty that had created rights for individuals, regardless of whether such a treaty had been implemented into domestic law or not. At its narrowest, it only applies to the EU Treaties, which created a set of arrangements in international law that are so esoteric, they are unique to the European Union. To demonstrate how one judgment can generate such a range of interpretations, this essay unravels the different strands of argument running through the decision and considers the criticisms leveled by scholars. It will argue that whether U.K. law requires legislation to withdraw from a treaty depends upon the extent to which that treaty creates rights in domestic law, the constitutional importance of the legislation incorporating the treaty into U.K. law, and the circumstances in which a legal challenge to the use of the prerogative arises. Miller provides no general answer, merely a series of questions.