The deterritorialization of the Internet and international communications technology has given rise to acute jurisdictional questions regarding who may regulate online activities. In the absence of a global regulator, states act unilaterally, applying their own laws to transborder activities. The EU's “extraterritorial” application of its data protection legislation—initially the Data Protection Directive (DPD) and, since 2018, the General Data Protection Regulation (GDPR)—is a case in point. The GDPR applies to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services . . . to such data subjects in the Union; or (b) the monitoring of their behaviour . . . within the Union.” It also conditions data transfers outside the EU on third states having adequate (meaning essentially equivalent) data protection standards. This essay outlines forms of extraterritoriality evident in EU data protection law, which could be legitimized by certain fundamental rights obligations. It then looks at how the EU balances data protection with third states’ countervailing interests. This approach can involve burdens not only for third states or corporations, but also for the EU political branches themselves. EU law viewed through the lens of public international law shows how local regulation is going global, despite its goal of protecting only EU data subjects.

The European Union's (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member's restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights (EU Charter) and the recently adopted General Data Protection Regulation (GDPR).

The entry into application of the EU General Data Protection Regulation (GDPR) on May 25, 2018 has raised questions about its impact on data processing by intergovernmental organizations that operate under public international law (referred to here as international organizations or IOs). EU data protection law can have impact beyond EU borders, and the global reach of EU law is a well-recognized phenomenon. The GDPR contains numerous references to IOs but does not state whether it applies to them, and this uncertainty has led to tensions between IOs and the European Commission. The issues surrounding IOs’ processing of personal data show how the GDPR can give rise to unexpected questions under public international law, and illustrate the need for greater engagement between EU law and international law.

The consensus view is that European-style data protection (including the General Data Protection Regulation (2016/679) (GDPR)) is becoming the global standard. But this view is not shared by all, with scholars pointing to divergence between European and American approaches to privacy. Determining the relative influence of each model is important. Regulation of the private sector use of personal data can shape economic and social conditions, from the cost of running a business to the relationships between consumers, companies, and their governments. This essay argues that it is too soon to conclude that the European Union has won the competition to influence global data protection and privacy laws, especially as the United States finds itself in the midst of shaping and defining its own privacy regime. I will explore the GDPR's viability as a global regulatory model, raising reasons to doubt that it will ultimately dominate the privacy regulation market. First, the mere fact that the United States is likely to develop a federal privacy regime that will depart from the European model will be influential in its own right. Second, there are compelling economic reasons for private and public entities to lobby against European-style regulation.

The European Union's General Data Protection Regulation (GDPR) is widely viewed as setting a new global standard for the protection of data privacy that is worthy of emulation, even though the relationship between the GDPR and existing international legal protections for the right to privacy remain unexplored. Correspondingly, this essay examines the relationship between these two bodies of law, and finds that the GDPR's provisions are neither necessary nor sufficient to protect the right to privacy as enshrined in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). It argues that there are other equally valid and effective approaches that states can pursue to protect the right to privacy in an increasingly digital world, including the much-maligned American approach of regulating data privacy on a sectoral basis.

The General Data Protection Regulation (GDPR) imposes important transparency and accountability requirements on different actors who process personal data. This is great news for the protection of individual data privacy. However, given that “personal information and human stories are the raw material of journalism,” what does the GDPR mean for freedom of expression and especially for journalistic activity? This essay argues that, although EU states seem to have taken their data protection obligations under the GDPR seriously, efforts to balance this against the right to freedom of expression have been more uneven. The essay concludes that it is of key importance to ensure that the GDPR's safeguards for data privacy do not compromise a free press.

After twenty-five years of climate litigation dominated by cases in the United States, Australia, and other jurisdictions in the Global North, a second wave of lawsuits arose in the mid-2010s that prominently feature cases filed in countries of the Global South. I argue that the use of human rights norms and strategies characterizes the “Global South route” to climate litigation, one that is firmly rooted in the trajectory of human rights adjudication and litigation in key Southern countries over the last three decades. I posit that, in order to understand the present and the future of this route, it is essential to (1) track its origins and features to the trajectory of “Global South constitutionalism” over the last three decades, especially litigation around socioeconomic rights, and (2) unpack the category of “Global South” countries, in order to avoid overgeneralizations and to identify the types of countries that are likely to see most climate litigation and court decisions. I close by suggesting that, in light of the planetary and urgent nature of the climate challenge, future research and advocacy should explore transnational forms of litigation that cut across the North-South divide and pay systematic attention to the impact of climate litigation.

Jacqueline Peel and Jolene Lin's informative assessment of climate litigation in the Global South is a vital and timely contribution to the growing literature on the issue. It relies on a definition of climate litigation that allows the authors to draw on a much larger set of cases from the Global South by including cases in which climate concerns are “at the periphery.” This essay examines climate litigation in India. Although the term “global warming” started appearing in Indian environmental judgments in the 1990s, climate litigation in India is of relatively recent provenance, and with a few exceptions, climate concerns are peripheral to other, more mainstream environmental issues. Peel and Lin analyze five Indian cases as part of their Global South docket; I expand this set by including fourteen more cases that I believe fit their article's chosen definitional ambit. I classify these cases into four categories based on the use of climate language—reference to climate change, greenhouse gas (GHG) emissions, or the international negotiations—in the courts’ judgment. Drawing from case law analysis and Indian environmental litigation, I make observations about what we can interpret from the current set of climate cases, and I predict that while conditions are favorable for climate litigation in India to grow, in the near future climate claims are likely to remain peripheral issues.

Jacqueline Peel and Jolene Lin note that a “transnational understanding of the nature, significance and effects of climate litigation is incomplete if it fails to encompass the Global South experience.” This is especially important because the broader aim of climate litigation—namely, to provide redress to victims for climate harms—requires a collective global effort. Peel and Lin thus call for a broadening of our understanding of climate change litigation to include the experiences of the Global South. The term “Global South” has been used to refer to the collection of mostly developing countries with similar agendas that have often collaborated in environmental negotiations. These countries form a significant bloc in climate change negotiations. However, the experiences and views of many of the countries of the Global South differ in the way climate change matters are conceived and tackled. This essay demonstrates as much by examining climate change litigation in Ghana.

New scholarship has identified trends, constraints, and opportunities for climate litigation in the Global South. While countries in the Global South tend to experience a lack of capacity within government agencies, civil society, and the judiciary, the Global South is not a homogenous group. Where climate litigation has been identified, the judiciary is often implementing government policy prescriptions in the absence of detailed climate legislation or filling enforcement gaps. But there are also a number of countries where climate litigation is not taking place or where gaps exist between ongoing litigation and traditional definitions of climate litigation. The scholarship is yet to further explore the relationship between climate legislation and litigation in the Global South, in particular in circumstances where ripe policy and legislative conditions for climate litigation exist. Taking into account different regional and national experiences, this essay explores that relationship.

Jacqueline Peel and Jolene Lin make an important contribution to the climate change litigation literature through their analysis of emerging climate change litigation in the Global South. Their article provides insights into patterns in that litigation and implications for how the cases may fit into transnational climate change governance. As Peel and Lin discuss, context matters greatly in establishing pathways for climate change litigation and determining regulatory impact. They acknowledge that the countries that they study as a group have significant differences among them and that these differences influence how this litigation is emerging. However, their article largely focuses on differences in legal systems and available legal mechanisms. This essay builds upon their article by considering how the geography of climate change interacts with this emerging litigation.

Prosper Weil's article in the American Journal of International Law first appeared in 1982 in French in the Revue Générale de Droit International Public. In France, it has probably generated less debate than in the United States. Indeed, the positions taken by this stimulating, agile, and well-written article generally accord with the doctrinal tradition that largely predominates in the land of Jean Bodin, René Descartes, and Auguste Comte, namely, legal positivism. According to this tradition, legal scholars must first focus on the technical analysis of legal norms as they are set out and, above all, practiced by the various actors in legal relations, which on the international level are states and the international judge or arbitrator. After setting out the contexts of Weil's article, I shall state two reservations to its content and then turn to its contemporary relevance.

By all rights, Prosper Weil's 1983 cri de coeur should be one of many best-forgotten law review articles. It targets, after all, concepts that few dispute today (namely jus cogens and erga omnes obligations, as well as shortcuts to finding universally applicable customary law based on “quasi-universal” treaties). Its other direct target—the distinction between international crimes and delicts—refers to once contentious debates over whether states can be charged with ordinary international delicts as well as international crimes. This has since been eclipsed by the International Law Commission's (ILC's) decision to include, in its Articles of State Responsibility, Article 41 (enumerating the consequences of “serious breaches” resulting from the violation of preemptory norms). And insofar as Weil's foil was the premise that international “delicts” can have a “variable geometry,” that too has been overtaken by events: neither the ILC's turn to “serious breaches” nor the far older proposition that individuals can be prosecuted for international crimes remains the subject of much controversy today.

Nowadays, Prosper Weil's concerns about the emergence of international rules protecting so-called community values, and thus being endowed with special normative force in comparison to “ordinary” international rules, cannot but appear excessive. The existence of such rules as jus cogens or as rules establishing erga omnes obligations is undisputed. And yet Prosper Weil's prediction of their negative impact on the essential functions of international law has not materialized. Weil's concerns acquire instead significance in the field of international criminal law, whose development in the last decades is premised on the need to protect values fundamental to the international community as a whole through the threat of a criminal sanction against individual transgressors.

This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory since, and how that trajectory reflects changes that have occurred in global society in the intervening years. The world to which Weil spoke is neither in scientific nor in political and cultural terms the same as ours. Key positivist notions, such as neutrality or Weil's critique of the ideal of the unity of the international community and of the invocation of higher moral values, appear to chain sound normative principles while letting loose real power. At any rate, Weil's ideas have not survived globalization or the critical and historical turn taken in the discipline of international law. And yet “Towards Relative Normativity?” arguably owes its lasting significance to its grasp of the weight of the authority of law in international society.

Prosper Weil's scintillating intervention of 1983 warned against pathological doctrinal tendencies that threatened to “disable international law from fulfilling what have always been its proper functions.” Weil concluded his sweeping critique of these supposed pathologies with an urgent call for remedial action: “[A]ll is not yet lost . . . . There is still time for jurists to react.” But, as José Alvarez points out in his contribution to this symposium, the manifestations of “relative normativity” that Weil decried—such as the doctrine of jus cogens and the transmutation of customary law into universal law—have only entrenched themselves more firmly in the decades since his famous article was published. So, what is the point of engaging with “Towards Relative Normativity in International Law?” today beyond its historical significance as a celebrated, but ultimately failed, rallying cry against the doctrinal revolution that has swept over international law in the period since decolonization?

Prosper Weil misfired his volleys by targeting his protestations at relative normativity in international law. In itself, relative normativity is unavoidable and beneficial. The enduring value of his celebrated 1983 article “Towards Relative Normativity in International Law?” lies in identifying the various problems that he associated with relative normativity. These problems deserve serious attention and conscientious responses in order to assure the health of the international legal system as well as the international community. The idea of an international law of co-progressiveness that I have developed, though not intended as a direct response to these problems, does come with a toolkit full of responses that would go a long way to solving those problems or at least reducing them to a minimum.