This essay draws upon the perspectives, concepts, and tools developed in the literature on global constitutionalism as support for “normalizing” foreign relations law—that is, presumptively subjecting foreign relations actions to the constitutional and other legal standards that apply to domestic actions.

Zachary Mollengarden and Noam Zamir want to take back to basics the principle associated with the Monetary Gold Removed from Rome in 1943 (Monetary Gold) judgment of the International Court of Justice (ICJ). Their “categorical” and mostly doctrinal claim, underpinned by policy concern about “the tensions between the bilateral presuppositions of the Statute and the increasingly multilateral nature of international affairs and international disputes” is “that the Monetary Gold principle is irreconcilable with the ICJ Statute's jurisdictional architecture.” The tension between bilateralism and community interests often provides an attractive analytical perspective, and points raised by the authors might be relevant in calibrating certain aspects of the principle. But its wholesale critique, while skillfully put, is ultimately unpersuasive. Careful consideration of basic instruments and issues is commendable but an exclusive focus that does not engage with the broader international legal process will miss its unmistakable and widespread endorsement of the Monetary Gold principle. Even the concern about the multilateral context ultimately counts against rather than in favor of their argument. Multilateral sensitivities can already be articulated within the four corners of Monetary Gold, and Mauritius/Maldives, delivered just as the ink was drying on the first draft of this essay, is a perfectly timed example for that.

This essay addresses the challenges of the digital economy in the context of cybersecurity threats that have growing implications for national security. It analyzes cybersecurity-related exceptions to international trade rules to explore whether and how these exceptions protect the state's digital policy space. The essay argues that the pre-digital era exceptions to trade rules are too narrowly framed to address cybersecurity concerns. This is in contrast to trends in the new generation of international trade agreements that create expansive security exceptions that are designed to reset the balance between international trade and national security. These new approaches must, however, be carefully guarded against potential abuses.

The charges that air carriers pay for the use of airports and airways to provide international air service have become a source of recurrent and heated controversy between governments. This controversy largely stems from the rapid rise in user charges over the last decade, but it has been fed by the lack of uniformity practiced by some countries in levying these charges. Thus, the relatively specialized issue of user charges involves some important general concerns of international law, such as international economic cooperation (in the matter of arriving at general agreement on what constitutes reasonable charges), discrimination, and most-favorednation treatment.

Our contribution to this symposium speaks to the origins of international organization (IO) reputation. The one explored by Daugirdas is agency slack: when people delegated power and authority within an organization—in her example, UN peacekeepers and their surrounding bureaucracy—abuse their privilege and stain the institution's character. We explore another that can spark similar reactions and consequences, but which emanates from the behavior of the principals themselves (rather than their agents): the member states. The company an IO keeps—how members behave—can bolster or stain the organization's reputation. That in turn can have consequences, especially for organizations seeking to provide a venue for members to make credible commitments.

Brazil only recently joined the collection of states that have adopted international investment agreements (IIAs), but in doing so it developed a noteworthy approach in the form of the Cooperation and Facilitation Investment Agreement (CFIA). In this essay, we explore the characteristics and merits of this particular treaty model, making three points: First, the CFIA exhibits unique features that set it apart from traditional bilateral investment treaties (BITs), including the state-to-state management of investment relations and an emphasis on investment facilitation rather than investment protection. Second, the CFIA displays a degree of “interoperability” that has made it possible for Brazilian partners to sign these agreements while simultaneously holding BIT portfolios, despite significant differences between the two approaches. Finally, one of the CFIA's key features—that of investment facilitation—is a promising basis for reform in multilateral settings such as the World Trade Organization (WTO). In short, we believe that the CFIA offers an innovative and attractive option for states looking to supplement or revise traditional BITs, both bilaterally and multilaterally.

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.

In the past decades, Europe has been the site of multiple drug policy innovations and cannabis policy experimentation. Most of the policy reforms in this area are taking place at the national and subnational levels. They have not resulted from agreements or harmonization initiatives at the EU level, but rather from bottom-up adoption of cannabis policies and practices that deviate from punitive approaches. Cannabis regulation has been only marginally debated by European institutions and is not discussed in depth in any EU document. On the one hand, the diversity of European drug policies is a positive development: it serves as a policy laboratory and reflects adaptations to local contexts in light of drug market-related challenges. On the other hand, a greater EU consensus would be helpful for policy coordination and international engagement.

In a world in which war crimes, crimes against humanity, and genocide are not uncommon, the institution that was set up to have jurisdiction over them is in danger of being unable to discharge its mandate. Put starkly, the International Criminal Court (ICC) suffers too frequently from an inability to arrest or otherwise detain alleged perpetrators, whether the prosecutor is acting proprio motu or is following a reference to the court by a state party or the Security Council. The situation of Saif al-Islam Gaddafi is a case in point: notwithstanding the Security Council's referral of Libya to the ICC, at least as a member of the public it is difficult to detect any substantial international pressure that has been applied to have Gaddafi transferred to the Court; instead, he has been mooted as a candidate in future presidential elections. In total, the Court has issued thirty-two arrest warrants and nine summonses to appear, yet has held only nine individuals in custody, with fifteen still at large. The fugitives include citizens of the Democratic Republic of Congo, Uganda, Sudan, Kenya, Libya, and the Ivory Coast. Once the present trials before the court have concluded, there is only one case potentially waiting in the wings. A sole outstanding individual, Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud from Mali, has made an initial appearance, and later this year the pre-trial stage of his case should commence; otherwise, there are simply the three trials in progress. However, I urge careful reflection before the Court is blamed for periods in which its docket of cases is lean.

On June 26, 2018, the U.S. Supreme Court upheld President Trump's most recent iteration of restrictions on entry to the United States by nationals from certain foreign countries. Following several rewrites of this travel ban, ensuing legal challenges, and lower court injunctions, the Court, in a five-to-four decision authored by Chief Justice Roberts, reversed the latest ruling of a lower court that had granted a partial preliminary injunction against the ban. Although acknowledging that there was considerable evidence tying the travel ban to bias against Muslims, the Supreme Court found that the plaintiffs were nonetheless unlikely to succeed either in their statutory claim that Trump lacked the authority to impose this ban or in their constitutional claim that the ban violated the Establishment Clause of the First Amendment. The Court accordingly reversed the lower court's injunction and remanded the case for further proceedings. The ruling, based on the Trump administration's asserted national security interest, leaves in place travel restrictions imposed on nationals of seven countries—Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—only two of which are not Muslim-majority countries.