Legal rules come and go. Methods of producing law may also flow and ebb. The authors of the call for papers in connection with this online Agora suggest that there is possible evidence that treaty as a method of producing international law is ebbing, and may be dying. I see no such evidence at present; rather, I argue here that the dying source of international law is not treaty but custom. In the more distant future, however, treaty, too, may become obsolete or at least less salient.

There are four categories of tools of international social cooperation: (i) international law produced through treaty (referred to herein simply as treaty); (ii) international law produced through custom, known as customary international law (CIL); (iii) international law produced through international organization decision-making (international legislation); and (iv) non-legal cooperative institutions (soft law). One of the signal characteristics of treaty is that no state is bound that has not explicitly and specifically consented. In order to sharpen the difference between treaty and international legislation, let us focus on international legislation produced by majority voting, which today is rare outside the European Union, but which may bind states without their specific consent.

The current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.

Daniel Bethlehem’s note on self-defense principles is intended to stimulate debate on one of the most contentious issues facing the international community today, namely, the legal response to imminent or actual terrorist attacks by nonstate actors. The note contains a set of principles that are sensitive to the practical realities of the circumstances that it addresses. But it is also intended to take up a legal policy matter—to create or amend principles of international law related to the use of armed force in dealing with threats from nonstate actors. To create or amend these principles, there must be clear evidence and sufficient state practice, or at least opinio juris, pointing toward the change of existing rules or the creation of new rules to “fill the gap.” The whole balance in international law among the various rights, obligations, and interests of international actors will be compromised if the notion of self-defense is to be expanded beyond its legitimate limitations. As illustrated below by some basic examples drawn from the existing law of self-defense, there is sufficient flexibility in the current legal order to allow for the lawful exercise of self-defense in response to most situations of armed terrorist attacks.

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

One of the many roles played by international law in the Colombian Peace Accord is that of guarantor—that is, creating assurances that the parties will comply with their commitments. To this end, negotiators declared that the Final Peace Accord would constitute a Special Agreement (SA) in “terms of Article 3 common to all Geneva Conventions of 1949,” which “will be introduced [in the Colombian legal system] as part of the constitutional block” and deposited “before the Swiss Federal Council.” Furthermore, they stated, “a presidential declaration will be made taking the form of a unilateral declaration of the Colombian State before the Secretary-General of the United Nations,” and its incorporation in a Resolution of the Security Council will be requested.

The international criminal court (ICC) will serve as a permanent institution dedicated to the enforcement of international humanitarian law sixty days after the sixtieth state has deposited its instrument of ratification, acceptance, approval, or accession to the Treaty of Rome with the Secretary-General of the United Nations.1 Pursuant to Article 11 of the ICC Statute, however, the ICC will have jurisdiction only with respect to crimes committed after the treaty comes into force.2 Consequently, when faced with allegations of violations of international humanitarian law in the period prior to the establishment of the ICC, the international community has five options if criminal prosecutions are desired.3 First, additional ad hoc international tribunals, similar to those established for the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia, ICTY) and Rwanda (International Criminal Tribunal for Rwanda, ICTR) could be established.4 Second, "mixed" international criminal tribunals, which would share certain attributes with the ad hoc Tribunals, could be created.5 Third, the international community could leave the prosecution of alleged offenders to national authorities, provided that the domestic courts are functioning and able to conduct such trials. Fourth, in those instances where the national infrastructure has collapsed, international resources could be made available to assist with the prosecution of the alleged offenders in domestic courts. Finally, the international community could simply do nothing in the face of alleged violations of international humanitarian law.

Blockchain technology has spurred the emergence of powerful narratives to promote new ways of governing outer space. The list of proposed uses for blockchain applications in outer space is endless—from property registries for asteroid mining, to supply chain management systems, or interplanetary cryptocurrencies for the space economy—along with Elon Musk claiming that “SpaceX is going to put a literal Dogecoin on the literal moon.” Yet, thus far, none of these projects have gone beyond simple declarations or white papers, mostly due to the inherent limitations on the effective enforcement of blockchain-based rules outside of their own technical framework. In this essay, we argue that blockchain technology is relevant for outer space because it fosters novel narratives advancing possible futures characterized by new modes of governance. The strongest and most prominent of these narratives is the crypto-libertarian one, which draws heavily on the absence of a state, the sanctity of property, and the primacy of private ordering through decentralized markets. But there are other narratives proposed by relevant actors in the blockchain space that are dedicated to other modes of governance. By focusing on alternative narratives for blockchain technology, we illustrate how the possible applications of blockchain technology in outer space may extend beyond the current libertarian dreams, to support a more commons-based approach to outer space governance.

On March 6, 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU or Court) rendered its judgment in Slowakische Republic (Slovak Republic) v. Achmea B.V. (Achmea decision) in response to the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling. Deciding for the first time on the compatibility of the arbitration provision in bilateral investment treaties (BITs) with European Union (EU) law, the Court concluded that the investor-state arbitration clause in the Dutch-Slovak BIT was incompatible with EU law because it violated the principle of autonomy. The Court will soon respond to Belgium's request for an Opinion on the Canada-EU free trade agreement (FTA), where it will rule on the compatibility of extra-EU investment agreements with EU law.

Once the domain of a few spacefaring nations, outer space has exploded with new actors, state and private, in recent years. New actors and activities bring new potential threats and concerns for new and existing actors alike. In this complex environment, where mistrust and misunderstanding often prevail, international law can play an important role in bridging gaps and creating predictability, clarity, and consistency. Although new treaty law is unlikely, the ordinary incremental international law processes of state practice, opinio juris, and international jurisprudence will help to resolve critical questions about the content and application of international law in outer space over time.

The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

The Judgment of the Court of Justice of the European Union (CJEU) in Slovenia v. Croatia marks the anticlimax of a long-running territorial dispute. It is also only the sixth time the CJEU has issued a judgment in a case instituted by one European Union member against another. Among these cases, it is the first to consider an arbitral award in a dispute between members, the first to consider a boundary dispute between members, and the first to be dismissed for lack of jurisdiction. The Court found that it cannot rule on alleged infringements of European Union law when these arise from the breach of a treaty falling outside of the Union's subject-matter competence. Most directly, the Judgment may pose significant consequences for European Union internal affairs in the near term, such as Croatia's ambitions to join the Schengen Area and the Eurozone. More broadly, several of the Court's findings will be relevant beyond the European legal order, particular those concerning the meaning and effect of “ancillary” legal questions, and the bilateral or multilateral character of a dispute involving admission to an international organization.

This Essay explores the sanction of “non-participation,” which has been used against Russia following the start of the war in Ukraine. After mapping out the multifaceted instances of Russia's exclusion from international organizations, the analysis considers the legality of measures adopted that do not have an explicit basis in institutional rules. The Essay concludes with broad reflections on the use of international organizations as platforms to stigmatize and isolate the violator and outlines some consequences and functions that the sanction of “non-participation” has today.

Pope Francis has more epistemological and moral authority than any scientist, philosopher, lawyer, or politician. He has the second most popular twitter feed, and his messages are more likely to be retweeted than anyone else’s. The Pope has the power to order some and to persuade others. Most of all he has the power to affect the global agenda. When the Pope speaks, people listen.

Pope Francis commands respect for many reasons. He sits atop a hierarchy with which 1.2 billion people are affiliated. Organized more like a multinational corporation than a nation-state, the Catholic Church and its members are spread across all the countries of the world. But it is not just Catholics who take his pronouncements seriously. As a man of the South, occupying an office in the North, with no national allegiance except to a country of 110 acres with a population of 842, he is uniquely situated to speak out on global issues. Laudato Si’ also commands respect because it is an astonishingly well-written argument for a powerful point of view, one that in various bits and pieces can be found in the small journals and ignored books of environmental philosophy and theology.

In the last few years, many proposals have been made requiring either changes in the administration and financing of the United Nations or a revision of the Charter of the United Nations. While some progress has been made in the first category of problems, to the extent that they require primarily changes in the working of the United Nations Secretariat, it became quite obvious that a revision of the Charter is not likely to be made in the near future. It may be possible, however, to achieve important changes in the functioning of the principal organs of the United Nations—the Security Council, the General Assembly and the International Court of Justice—without revision. Pending a change in the international situation, various steps can be taken in the interim that would considerably improve the functioning of these organs, and achieve some of the desirable goals by measures that, while not ideal, will provide practical solutions for a few important problems. Several such solutions are investigated in the three sections of this essay.