On March 12, 1986, Ambassador Vernon A. Walters, the United States representative at the United Nations, said:

With the proclamation on October 1, 1949, of the establishment of the Central People’s Government of the People’s Republic of China, Chinese Communism formally passed into its constitutional phase. Prior to that date, the Chinese Communist Party had been the only political organization exercising authority throughout all of the territories held by Communist armed forces; thereafter, to all external appearances, it became but one of several political parties and groups participating in the coalition government of the “people’s democratic dictatorship.” Nevertheless, the new constitutional fagade does not alter the political realities in Communist China.

The rules concerning the relation of international law to internal law in Austria have undergone less change than those of many other European countries since the end of World War I. The relevant provisions of the Austrian Federal Constitution of October 1, 1920, were not affected by the subsequent constitutional reforms. These rules had been the subject of much theoretical discussion before a sizable body of constitutional usage and relevant jurisprudence had developed. The present article aims at examining and supplementing these theories in the light of current practice.

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.

With only three remaining members of what is supposed to be a seven-member body, the World Trade Organization's (WTO) Appellate Body may soon cease to function. Since 2016, the United States has blocked the reappointment of Appellate Body members and rejected over a dozen proposals to launch selection processes that could fill the remaining vacancies. As a lead reason for these blocks, the United States has cited concerns about the practice whereby members whose terms have expired continue to serve on appeals to which they were previously appointed. On December 10, 2019, the terms of two Appellate Body members will expire, leaving only one member remaining. Because the WTO's dispute settlement process requires three Appellate Body members for each appeal, WTO members will be unable to make any new appeals by this year's end unless a solution emerges to the current impasse.

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.

It is the core and intended function of borders to discriminate. Descriptively, their purpose is to differentiate or distinguish among different categories of persons, sorting those who may enter and belong from those who may not. But it is also a core function of modern borders to discriminate in the normatively prejudicial sense—they allocate fundamental human rights differentially on the basis of race, gender, class, national origin, sexual orientation, and disability status, among others. In this essay, I briefly sketch what I have described elsewhere as the contemporary system of racial borders: border regimes that variously allocate and curtail mobility and migration on a racial basis, largely relying upon facially race neutral mechanisms. Second, I reflect on the increasing prevalence of digital technologies in border regimes and their enforcement, with an emphasis on their racial implications, drawing from my recent report to the UN General Assembly on racial discrimination in digital border enforcement. The contribution of this essay is thus to reflect on the co-constituting and mutually reinforcing effects of racial borders and digital borders, which require specific attention together as digital racial borders.

The Paris 2024 Summer Olympics will be the first Olympic Games for which human rights provisions were added to the Host City Contract (HCC). The Milano/Cortina 2026 Winter Olympics will be the first edition of the Games that were awarded with human rights requirements forming part of the candidature process. The inclusion of human rights provisions into hosting and bidding regulations can be seen as a reaction of the International Olympic Committee (IOC) to the increasing pressure from civil society to address adverse human rights impacts of these events. This essay provides an analysis of the benefits and shortcomings of this development and reveals that from a rights-holder perspective, the benefits are meaningless. More specifically, it argues that potential benefits are cancelled out by the shortcomings and most importantly that there is a mismatch between intended and actual beneficiaries of these provisions.

The Convention on the Continental Shelf of April 29, 1958—one of the works of the first United Nations Conference on the Law of the Sea— declares in Article 2(1) that the “coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The fourth paragraph of the same article defines these resources as

Contrary to most international organizations, the Inter-American System lacked, up to now, a treaty basis. It was based merely on resolutions. Among them the famous Resolution of April 14, 1890, which created the “International Union of the American Republics,” has a particular character and importance. This resolution needed ratification which was given, but by the American governments only. By this ratification the American Republics bound themselves legally and consented to be bound for ten years—and still longer if nothing to the contrary was done—and consented to the making of modifications and amendments, concerning the organization, by majority vote. Generally resolutions of the International Conferences of American States and other such meetings constitute only recommendations and are not legally binding but resolutions concerning organization are legally binding at once on the basis of point 16 of the ratified Resolution of April 14, 1890; the latter is, up to now, in a strictly legal sense, the Constitution, the fundamental norm, of the Inter-American System.

In the October,1924, number of this Journal the writer examined the changes in the conception of war since the middle ages with the conclusion that under present international law “acts of war” are illegal unless committed in time of war or other extraordinary necessity but the transition from a state of peace to a “state of war” is neither legal nor illegal. A state of war is regarded as an event, the origin of which is outside of international law although that law prescribes rules for its conduct differing from those which prevail in time of peace. The reason for this conception, different from that of antiquity and the middle ages was found in the complexity of the causes of war in the present state of international relations, in the difficulty of locating responsibility in the present regime of constitutional government, and in the prevalence of the scientific habit of attributing occurrences to natural causes rather than to design. It was recalled, however, that the problem of eliminating war has gained in importance while the possibility of solving it through the application of law has improved with the development of jural science. Thus efforts have been made to eliminate war(1) by defining responsibility for bringing on a state of war,(2) by defining justifiable self-defense, and(3) by providing sanctions for enforcement.

In November 2016, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) produced an extensive report documenting the status of ten “preliminary examinations” it is conducting. These examinations cover situations in which crimes under the jurisdiction of the Court may have been committed but the prosecutor has not yet decided to open a full investigation. The OTP's reporting practice has shed additional light on a process that has been opaque for much of the Court's existence and that has attracted relatively limited scholarly and specialist attention.

The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the “obsession with territory” has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines—across mountains, deserts, rivers, and human settlements—where mere politicians had never succeeded. The doctrines on territorial sovereignty emanating from these decisions suggested a bright future for law. Yet a more pessimistic appraisal would see a darker image, one characterized by war—interstate, colonial, and civil—and territorial settlement whose lines have reflected power and politics, but surely not norms. Adjudications could be viewed as a sideshow for addressing small-scale conflicts, the results dictated more by a desire to appease both parties than by reasoning toward some principled solution.

The International Law Commission, established by resolution 174 (II) of the General Assembly (November 21, 1947), has prepared a draft Declaration on Rights and Duties of States, in conformity with resolution 178 (II) of the General Assembly (November 21, 1947). The first question which arises concerns the legal nature of this Declaration. The draft Declaration was drawn up by the Commission as the text of a resolution to be adopted by the General Assembly.

The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties.

Our intramural, often scholarly, but not always polite, debates about the legitimacy of invasions directed against more-or-less brutal authoritarian governments demonstrate how one’s preferred conception of the nature of law can affect one’s conclusions about its contents.

The celebrants of what I will call the classical view display the following characteristics: while recognizing that states can establish and alter norms through both explicit agreements normally expressed in written texts and implicit agreements manifested in practice, they tend in their epistemology toward a rather strict separation of these two processes; when attempting to identify norms arising from explicit agreements, they presume that the parties had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired according to its terms or been replaced by mutual consent; when attempting to identify norms arising from implicit agreement, they rely primarily on relatively formal manifestations of consent, deemphasize the relative power of states, and imply a high threshold below which alleged norms are entirely without legal character.

Judged by its inability to agree upon a convention on territorial waters, as the substance of things hoped for, the Conference for the Codification of International Law was a failure. Good may come of the Conference. It may have been a necessary preliminary stage in a very long and difficult process. Nevertheless, the fact remains that its purpose was to agree upon a convention upon territorial waters and it failed of its purpose. Usually the cause of the ill-success of a conference is lack of preparation. This failure cannot be ascribed to lack of preparation. It is unnecessary to rehearse the antecedent steps. Several years had been devoted to preparation. Governments had agreed that the subject of territorial waters was suitable and ripe for codification. In addition to the work done by the Committee of Experts and by the Preparatory Committee, the governments had answered voluminous questionnaires and had made observations upon detailed schedules of points from which had been prepared the bases of discussion. All of this work had been completed and in print months before the Conference met. Apparently nothing was left undone by the agencies of the League of Nations in order that the various governments might have ample opportunity for examination and study of the questions involved. And, it may be added, the observations of the governments were for the most part responsive and illuminating.