International tribunals confront a “Judicial Trilemma.” More specifically the states that design, and the judges that serve on, international courts face an interlocking series of tradeoffs among three core values: (1) judicial independence, the freedom of judges to decide cases on the facts and the law; (2) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (3) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this article unpacks the logic underlying the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization's Appellate Body. The Judicial Trilemma does not identify an “ideal” court design. Rather it provides a framework that enables international actors to understand the inevitable tradeoffs that international courts confront, and thereby helps to ensure that these tradeoffs are made deliberately and with a richer appreciation of their implications.

“Seldom has an apparent major change in international law been accomplished by peaceful means more rapidly and amidst more general acquiescence and approval,” Lauterpacht observed of continental shelf claims nearly seventy years ago. When considered today, this observation merits a caveat, as the question of how far the continental shelf extends into the sea is not yet fully settled. This article explores the customary international law applicable for determining continental shelf limits and also examines the legal procedures used by states to gain international acceptance of those limits.

This article offers the first detailed history of the norm of treaty publication as it has evolved over the last century. Drawing on both public debates and archives of foreign ministries, it traces how, and why, secret treaties have persisted, even in liberal democracies. It challenges assumptions of ever-greater transparency over time, and complicates the associations made—by interwar reformers and international lawyers today—between the norm of treaty publication and ideals of legality in the international order.

This article challenges the conventional wisdom that MFN clauses in investment treaties can always be used to “import” substantive standards of treatment (e.g. FET). It argues that most tribunals permitting this use of MFN clauses have relied on presumptions and have ignored meaningful variations among clauses. It also points out that states are increasingly questioning the conventional view, and that a recent arbitral award has firmly rejected an attempt to use an MFN clause to import substantive standards. It concludes by sketching the terms of the new MFN debate.

Since 1993, the United Nations has promoted national human rights institutions (NHRIs); these have spread to almost 120 countries. We assess what makes NHRIs effective, using quantitative and qualitative methods. We find that formal institutional safeguards contribute greatly to NHRI efficacy even in authoritarian and transition regimes. Complaint-handling mandates are particularly useful because they help NHRIs build broad bases of support. Our findings show how international organizations can wield great influence with soft tools such as recommendations and peer-review mechanisms.

Human rights in general and the international human rights system in particular have come under increasing attack in recent years. Quite apart from the domestic and global political events since 2016, including an apparent retreat from international institutions, the human rights system has in recent times come in for severe criticism from academic scholars. Amongst the various criticisms levelled have been: (1) the ineffectiveness and lack of impact of international human rights regimes, (2) the ambiguity and lack of specificity of human rights standards, (3) the weakness of international human rights enforcement mechanisms, and (4) the claim to universalism of human rights standards coupled with the hegemonic imposition of these standards on diverse parts of the world. This article responds to several of those criticisms by introducing the idea of experimentalist governance, interpreting key aspects of the functioning of certain international human rights treaties from the perspective of experimentalist governance theory, and surveying a body of recent scholarship on the effectiveness of such treaties. Contrary to the depiction of international human rights regimes as both ineffective and top-down, the article argues that they function at their best as dynamic, participatory, and iterative systems. Experimentalist governance offers a theory of the causal effectiveness of human rights treaties, brings to light a set of features and interactions that are routinely overlooked in many accounts, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in 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.

Most-favored-nation (MFN) clauses have been included in international commercial treaties for many centuries. They also figure prominently as standard provisions in almost any international investment agreement (IIA). Their longstanding and widespread use notwithstanding, investment law doctrine and arbitral practice continue to struggle with the clauses’ application and interpretation, in particular as regards their scope of application. What Stanley Hornbeck observed more than one hundred years ago in this Journal, that “there appear[s] constant disagreements and ever-recurring irritation over what is the meaning and what are the obligations attaching to this or that [MFN] clause,” still characterizes the practice of investment tribunals and the literature on MFN clauses in IIAs today.

The International Criminal Court (ICC) is controversial, acutely so in Africa. The first thirty-nine people it indicted were all African. It did not open any formal investigations outside Africa until the 2016 decision to investigate conduct related to the 2008 Georgia-Russia war. The first three notifications of withdrawal from the ICC Statute, each made in 2016, were by Burundi, South Africa, and Gambia. While South Africa and Zambia reversed their initial intentions, Burundi in fact became the first state party to withdraw from the ICC in October 2017. These maneuvers are closely connected to country-specific political and legal considerations, but they overlap with concerns expressed by governments in other countries including Kenya and Namibia. Among these concerns is that “the ICC has become the greatest threat to Africa's sovereignty, peace and stability,” and that “the ICC is a colonial institution under the guise of international justice.”

What unites states and other global actors around a shared governance project? How does the group—what I will call an “international community”—coalesce and stay engaged in the enterprise? A frequent assumption is that an international community is cemented by its members’ commonalities and depleted by their intractable disagreements. This article critiques that assumption and presents, as an alternative, a theory that accounts for the combined integration and discord that actually characterize most global governance associations. I argue that conflict, especially conflict that manifests in law, is not necessarily corrosive to an international community. To the contrary, it often is a unifying force that helps constitute and fortify the community and support the governance project. As such, international legal conflict can have systemic value for the global order, even when it lacks substantive resolution. The implications for the design and practice of international law are far-reaching.

One dusty day in 2002, at Takhta Baig Voluntary Repatriation Centre near Peshawar in northwestern Pakistan, an Afghan woman—let us call her Amena—entered a nondescript room and sat down in front of a camera. A brief conversation took place with a woman sitting nearby at a computer terminal. Amena placed her chin where she was directed to do so, swept back a few strands of hair creeping out of her veil, and stared straight ahead for a few seconds while a series of photographs of one of her eyes was taken. Almost immediately, a small alarm sounded on the computer terminal of the woman seated alongside her. Amena was gently ushered toward the other side of the room for discussions with other officials. Some short time later, she was advised that her request to the Office of the United Nations High Commissioner for Refugees (UNHCR) for a modest cash grant and some supplies to aid her and her family's repatriation to Afghanistan had been denied. This was because, according to output of the UNHCR’s iris verification program, she had already received assistance earlier the same year. When asked, Amena admitted that she had indeed sought UNHCR repatriation assistance multiple times, under pressure from family members. She walked away. Soon, she could soon no longer be seen amid the press of trucks, cars, bicycles, and people that stretched to the suburbs in the distance.

In August 2016, in Havana, Cuba, the Colombian Government signed a peace agreement with the Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo, FARC-EP, after four years of negotiations. The agreement provided a window of hope that Colombia's fifty-year armed struggle, the longest-running conflict in Latin America, would finally come to a close. One actor in these negotiations, whose considerable influence has been underappreciated, is the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). Colombia has been under preliminary examination by the OTP since 2004. In addition to discharging its investigatory function, the ICC prosecutor has actively influenced the negotiation of two peace processes: first, the 2005 peace process with the paramilitaries; and more recently, the tumultuous negotiations with the FARC. This Comment explores the specific pathways of the OTP's influence in the Colombian peace process, and the broader lessons this episode holds for the ICC's work and for the continuing negotiations in Colombia.

The West Bank and the Settlements, again? Readers may have had enough of this subject. But these are exceptional times. The adoption by the Security Council of Resolution 2334 on December 23, 2016, the unprecedented speech by Secretary Kerry delivered shortly thereafter, and the immediate rejection of both by Prime Minister Netanyahu, combined with the approach of the fiftieth anniversary of the Six-Day War in June 2017 and the continued march toward an inexorable demographic change in the West Bank, not to mention the nomination as U.S. Ambassador to Israel of a person reportedly supporting an active settlement policy and annexation: the confluence of these events demands our renewed attention. And while these developments undoubtedly have powerful political dimensions, they also call upon those of us who care about international law to speak up in support of its requirements and application.

For readers whose first introduction to Shakespeare was through the widely seen film Henry V by Laurence Olivier, it is not surprising that Shakespeare was regarded as a patriotic, nationalistic and militaristic, rather pro-war playwright. Olivier's Henry V, as Ton Hoenselaars points out in his “Out-Ranting the Enemy Leader”: Henry V and/as World War II Propaganda, was entrenched in the British propaganda effort even before the thought of the film version of the war epic had occurred. Indeed, the film resulted from an invitation to produce it for the Churchill government. According to William Shaw, Olivier's film produced uplifting, patriotic propaganda for a war-weary England. It was the first Shakespeare play produced in Technicolor.

As part of the “America First” agenda discussed in his inaugural address, President Donald J. Trump promised that “[e]very decision” on trade, among other areas, would be “made to benefit American workers and American families.” During its first months, the Trump Administration made a number of trade moves apparently in connection with this “America First” trade agenda, including initiating national security investigations into steel and aluminum imports under Section 232 of the Trade Expansion Act of 1962 and preparing an “omnibus” report on trade deficits. The Trump Administration also took steps to alter U.S. treaty relationships, by withdrawing from the Trans-Pacific Partnership Agreement, announcing the renegotiation of the North American Free Trade Agreement, and requesting a special session of a joint committee created under the United States-Korea Free Trade Agreement. In August 2017, President Trump continued this course—and indicated a willingness to take unilateral action against U.S. trading partners—by signing a presidential memorandum directing the United States Trade Representative to determine whether China's treatment of U.S. intellectual property warranted investigation under Section 301 et seq. of the Trade Act of 1974.

The concept of public goods is often operationalized in the literature as anything that demands some form of international cooperation. While this may be politically useful in generating international cooperation, it is analytically problematic for designing international law with the purpose of enhancing international cooperation. Many of the issues characterized as public goods are in fact common pool resources, which pose distinct issues for international cooperation and demand different legal architectures than public goods for effective international cooperation.

On February 2, 2017, the International Court of Justice (ICJ or Court) delivered a judgment rejecting preliminary objections to its jurisdiction in Maritime Delimitation in the Indian Ocean. The underlying contentious case between Somalia and Kenya concerns the establishment of a single maritime boundary between the two states. The decision on preliminary objections provides important insights on the Court's interpretation of optional clause declarations that include a reservation for alternative methods of dispute settlement.

On September 27, 2016, the Trial Chamber (Chamber) of the International Criminal Court (ICC or tribunal) rendered its judgment in Prosecutor v. Ahmad Al Faqi Al Mahdi, wherein the defendant was convicted of the war crime of intentionally directing attacks on protected cultural objects. It is the ICC's first such conviction and the first time that an accused has entered a guilty plea at the tribunal pursuant to Article 65 of the Rome Statute (Statute). Al Mahdi pled guilty to co-perpetrating attacks on protected objects pursuant to Article 8(2)(e)(iv) of the Statute for his role in the attack on, and destruction of, ten mosques and mausoleums in Timbuktu. The Trial Chamber sentenced him to nine years in prison.