For more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an “effect-of-judgment” approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader “nature-of-act” approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.

Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system's problems, identifies recent developments that have exacerbated these problems, and proposes a range of reforms in five areas—embeddedness, engagement, information, timing, and scope.

In The Case of the Monetary Gold Removed from Rome in 1943, the International Court of Justice concluded that it cannot decide a dispute in which a third party's legal interests “would form the very subject-matter of the decision.” This Article argues that what has become known as the Monetary Gold principle conflicts with the Court's obligation to decide cases submitted by consenting parties and should be abandoned.

This Current Development Essay discusses the international legal implications of constitutional amendments adopted in the Russian Federation by an “all-Russian vote,” a quasi-referendum from June 25 to July 1, 2020. The most important of these amendments gives the Russian Constitution priority over decisions made by international courts and treaty bodies. The amendments also address Russia's state succession to the Soviet Union. Another provision protects Russia's territorial integrity. The Essay discusses the background to these amendments, their content, and their significance for international law.

The World Trade Organization (WTO) Panel Report in Australia – Anti-Dumping Measures on A4 Copy Paper (Australia – A4 Copy Paper) marks a significant development of the multilateral rules on anti-dumping. Under certain circumstances, WTO agreements permit members to impose anti-dumping measures to counteract the injurious effect of dumping on domestic industries, typically through import duties. The Report is the first to examine in detail when an anti-dumping authority may determine that a “particular market situation” exists in the country of exportation under Article 2.2 of the WTO Anti-Dumping Agreement, potentially justifying the imposition of elevated remedial duties. The Report also develops the jurisprudence on how such remedies may be calculated, expounding the use of benchmark costs for the calculation of a constructed normal value (CNV) under Article 2.2.1.1. These doctrinal questions are central to the longstanding debate over how far the Anti-Dumping Agreement allows anti-dumping measures against state intervention and market distortions. On both fronts, the Australia – A4 Copy Paper panel created flexibilities for WTO members to respond to government-induced distortions. In doing so, the Report deviates considerably from the course set by the Appellate Body in the landmark EU – Biodiesel decision, which seemed to confine anti-dumping measures to responding to private action. At the same time, the panel left open several important issues relating to the adoption of CNVs and the use of benchmarks for their calculation, leaving wide latitude for investigating authorities to inflate dumping margins in practice.

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.

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

In September and October 2020, Kosovo, Serbia, the United Arab Emirates (UAE), Bahrain, and Sudan normalized relations with Israel in a flurry of agreements brokered by the United States. President Donald Trump suggested that, in addition to being valuable on their own terms, the agreements were part of a broader diplomatic effort to pressure the Palestinians into negotiating a peace deal with Israel. In December, the White House announced normalization of relations between Israel and Morocco in apparent exchange for U.S. recognition of Moroccan sovereignty over the disputed territory of Western Sahara.

On September 15, 2020, a World Trade Organization (WTO) panel ruled that certain tariffs the United States imposed on Chinese products violated Articles I (most-favored-nation) and II (tariff bindings) of the General Agreement on Tariffs and Trade (GATT). The panel rejected the U.S. attempt to invoke a “public morals” defense pursuant to GATT Article XX, holding that although countries receive substantial deference in defining “public morals,” the United States failed to prove that the tariffs were necessary to achieve its stated public morals objective.

The Trump administration is engaged in an ongoing legal battle against the makers of two Chinese smartphone applications, TikTok and WeChat, over their data-collection and content moderation practices. The administration has used both the International Emergency Economic Powers Act (IEEPA) and the Committee on Foreign Investment in the United States (CFIUS) in an attempt to force the companies to cease U.S. operations and, in TikTok's case, to change ownership. The administration's actions have spurred multiple legal challenges, several of which are ongoing, and for now, both TikTok and WeChat remain in operation in the United States.

In June 2019, protests erupted in Hong Kong after its government proposed an extradition agreement with mainland China. Alarmed by the protests, the Central Committee of the Chinese Communist Party announced that it would consider new national security measures for Hong Kong. On June 30, 2020, China's National People's Congress Standing Committee (NPCSC) passed the “Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.” While the law was under consideration, the United States responded by declaring that Hong Kong was no longer significantly autonomous from mainland China and beginning the process of ending Hong Kong's special status under U.S. law. The United States and its allies continue to criticize Hong Kong's deteriorating autonomy from China, pointing to the postponement of elections in Hong Kong as further evidence.

On September 2, 2020, the Trump administration announced that the United States had added the International Criminal Court (ICC) prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor's Jurisdiction, Complementarity, and Cooperation Division, Phakiso Mochochoko, to the Treasury Department's Office of Foreign Assets Control List of Specially Designated Nationals and Blocked Persons. The action followed Executive Order 13,928, signed in June, which authorized economic sanctions and visa restrictions on ICC employees who are investigating whether U.S. forces committed war crimes in Afghanistan. Governments and human rights groups decried the sanctions as an attack on international justice.

The United States withdrew from the Joint Comprehensive Plan of Action (JCPOA) on May 8, 2018, and subsequently reimposed a range of unilateral sanctions on Iran. Throughout mid-2020, the Trump administration sought multilateral support for renewed UN sanctions against Iran, but the Security Council rejected those efforts. In response, the administration moved to initiate snapback sanctions under the terms of the JCPOA and UN Security Council Resolution 2231. However, JCPOA participants and the Security Council largely rebuffed the administration's contention that it could activate the snapback mechanism, instead taking the position that U.S. withdrawal from the JCPOA means that it is no longer a “participant state” as required to invoke snapback sanctions.

Longstanding tensions between Congress and the executive over U.S. support to the Saudi-led coalition in Yemen have spurred conflict between the branches over arms sales. In May 2019, U.S. Secretary of State Michael Pompeo declared an emergency under the Arms Export Control Act (AECA) to bypass congressional “freezes” on arms sales and complete $8.1 billion in sales to members of the Saudi-led coalition. In response, Congress requested that the State Department inspector general (IG) investigate the matter. In a report released in August 2020, the IG determined that the emergency declaration comported with the AECA's procedural requirements but that the State Department's risk assessments and civilian casualty mitigation measures did not fully address legal concerns about the sales. The Trump administration has continued to move forward with arms sales, including by unilaterally reinterpreting a nonbinding multilateral export control regime to eliminate prohibitions on the export of certain unmanned aerial systems (UAS). A bipartisan group of legislators has introduced a bill to prevent such sales to all countries except select U.S. allies. In September, a UN report criticized U.S. and other countries’ arms sales to the Saudi-led coalition and recommended referral of the situation in Yemen to the International Criminal Court (ICC).

Rescuing Human Rights: A Radically Moderate Approach (Rescuing) was published shortly before the outbreak in 2020 of the novel coronavirus and its myriad human rights and class issues regarding equality, discrimination, health, and labor rights of people of color. This was also prior to the concurrent public murder of George Floyd as an unarmed Black man by the Minneapolis police in late May 2020, and the resulting continuing Black Lives Matter massive national and international movement against the deaths of Floyd and others and the history of systemic American racism, including police shooting deaths, discrimination, and brutality against African Americans, particularly unarmed Black men. Such comprehensive street protests have not been seen in America since 1968. They represent, inter alia, the cover of disguises of national racism being publicly stripped away, and the national confrontation with irrefutable evidence of a wide spectrum of systemic rights violations and the deficits of American law and government to ensure African Americans’ basic rights. Further, Rescuing was published before it became fully apparent that the federal government's responses to Black Lives Matter, particularly the executive branch, would fan the racial conflicts of national mourning and demands for new justice narratives, rather than healing and unifying for American citizens as a whole, even as these protests were the most diverse in recent memory.