The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completedonsecond reading a full set of eighteen draft articles with commentaries on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.

Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentaries, for two topics: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. As such, both topics might be completed by the Commission on second reading in 2018.

Progress was also made in developing draft articles on crimes against humanity; draft guidelines on protection of the atmosphere; draft conclusions on jus cogens; and draft principles on protection of the environment in relation to armed conflicts. The Commission commenced a debate on a proposed draft article on “limitations and exceptions” to the immunity of state officials from foreign criminal jurisdiction, but, due to insufficient time, the debate will continue in 2017. Furthermore, an additional proposed guideline on the provisional application of treaties was sent to the drafting committee. The Commission decided to add two new topics to its long-term work program: the settlement of international disputes to which international organizations are parties; and succession of states in respect of state responsibility.

In transborder environmental protection, territorial disputes, internet governance, anticorruption, international human rights, and humanitarian law, private businesses are increasingly supporting the implementation and enforcement of international law. This Article analyzes the various ways that corporate decision making contributes to this phenomenon, and assesses its prospects for enhancing international law's existing enforcement paradigms. In doing so, the Article opens new ground for scholarly and policy consideration of the proper role of corporations in the global legal order.

Attribution of state-sponsored cyberattacks can be difficult, but the significant uptick in attributions in recent years shows that attribution is far from impossible. After several years of only sporadic attributions, Western governments in 2017 began attributing cyberattacks to other governments more frequently and in a more coordinated fashion. But nongovernment actors have more consistently attributed harmful cyber activity to state actors. Although not without risks, these nongovernmental attributions play an important role in the cybersecurity ecosystem. They are often faster and more detailed than governmental attributions, and they fill gaps where governments choose not to attribute. Companies and think tanks have recently proposed centralizing attribution of state-sponsored cyberattacks in a new international entity. Such an institution would require significant start-up time and resources to establish efficacy and credibility. In the meantime, the current system of public-private attributions, decentralized and messy though it is, has some underappreciated virtues—ones that counsel in favor of preserving some multiplicity of attributors even alongside any future attribution entity.

For much of the last century, global actors have sparred over the international legal rules governing the compensation a state should pay a foreign investor when it expropriates the latter's property. The competing claims have had many dimensions, including the content of customary international law and the line between bona fide regulations and expropriations. In the modern age of international investment agreements (IIAs), a debate continues over another key issue: When a state expropriates a foreign investment in violation of an IIA, where should a tribunal look for the standard of compensation—to the amount the treaty requires the state to pay when it expropriates, or to an external standard for violations of international law generally? Each is alluring to a tribunal for its legal visibility—one spelled out in the very text under examination, and one stemming from a venerable international court case. But they may point to significantly different results for the investor and the host state. And investor-state tribunals remain wildly inconsistent, even incoherent, in their choice and use of those standards. It remains a significant source of disagreement in contemporary investor-state arbitration.

The European Union (EU) has been a frontrunner in curbing greenhouse gas emissions, having established in 2005 the Emission Trading System (ETS) and having adopted in July 2021 a proposal for a Carbon Border Adjustment Mechanism (CBAM). This essay explains how the design of the EU CBAM proposal complies with World Trade Organization (WTO) rules, in particular with the principle of non-discrimination. It then discusses how the EU can cooperate with other countries that share similar climate ambitions to decarbonize industrial sectors and achieve the aims of the Paris Agreement. The essay argues that autonomous measures and international cooperation initiatives can work as complementary tools to attain climate neutrality.

President Wilson asserted in 1917 that “neutrality is no longer feasible or desirable where the peace of the world is involved and the freedom of its people.” In March, 1920, at its second session, the League of Nations Council affirmed that “the conception of neutrality of the members of the League is incompatible with the principle that all members will be obliged to cooperate in enforcing respect for their engagements.” In 1929 the British Foreign Office officially declared that “as between members of the League there can be no neutral rights because there can be no neutrals.” And in 1932 Secretary of State Stimson declared in reference to the Pact of Paris that “hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers—violators of the general treaty. We no longer draw a circle about them and treat them with the punctilios of a duelist’s code. Instead we denounce them as law-breakers.”

At the beginning of this war, September 3, 1939, the usual legal concept of the term “enemy alien,” as it was known in the war of 1914–1918, appeared again in Great Britain, France, and Germany. Great Britain, in the Enemy Act of 1939, defines an enemy subject as “an individual who not being either a British subject or a British protected person, possesses the nationality of a state at war with His Majesty the King”; France defines the term as “les ressortissants ennemis”; the Reich, as aliens belonging to an enemy state, and includes those persons without nationality who before the loss of their nationality were citizens of an enemy Power.

Concomitant with the stationing of United States armed forces in friendly foreign countries is an increasing concern over, and appreciation of, the legal issues arising from their presence. The most controversial question concerns exercise by the host state of criminal jurisdiction over personnel of the visiting United States force. The House Foreign Affairs Committee after extensive hearings refused to accede to critics’ demands that this exercise of criminal jurisdiction by foreign countries be officially denounced, and by a vote of 19–10 tabled the condemnatory resolutions.1 Congressional concern remains strong, however, and the issue is not dormant.

It has often been said that international law is a living institution in a living society.

On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS or Tribunal) rendered an advisory opinion on the rights and obligations of flag states and coastal states regarding illegal, unreported, and unregulated (IUU) fishing within the exclusive economic zone (EEZ). ITLOS confirmed that the full Tribunal—not just its Seabed Disputes Chamber—has jurisdiction to render advisory opinions, a matter of controversy that had previously been untested. The Tribunal also held that under the 1982 United Nations Convention on the Law of the Sea (UNCLOS or Convention), flag states have a “due diligence” obligation to ensure that vessels flying their flag do not engage in IUU fishing activities, and that the flag state may be held liable if that obligation of due diligence is breached. In addition, the Tribunal clarified that where fisheries competence has been transferred from a state to an international organization, it is the organization, not the flag state, that may face liability for a failure to have taken adequate measures to prevent IUU fishing. Finally, the Tribunal confirmed that coastal states have a duty to consult and cooperate with each other in the sustainable management of shared stocks and highly migratory species.

The contemporary world is witnessing an interesting and seemingly contradictory phenomenon. At the same time that globalization continues to develop, the World Trade Organization (WTO), itself a direct result of globalization, can make no progress in the negotiations on its Doha Development Agenda—a perceived further step of globalization. Since deeper integration cannot be achieved at the multilateral level, regional and especially bilateral arrangements for liberalizing trade and investment, most of which are in the form of bilateral free trade agreements (FTAs), have become increasingly common. Notwithstanding their bilateral nature, FTAs are often referred to as regional arrangements (RTAs) since WTO members have an obligation to report such agreements to that multilateral system, where they are reviewed by the Committee on Regional Trade Agreements.