The July 2019 decision of the Supreme Court of the Netherlands constitutes the final act of a long litigation arising from the July 1995 genocide in Srebrenica. After Bosnian Serb militias attacked the safe area of Srebrenica, members of the Dutch battalion (Dutchbat), which was responsible for safeguarding the enclave under a UN mandate, permitted between 8,000 and 10,000 men and boys to be taken away by Bosnian Serb forces. Those men and boys were eventually killed by forces commanded by General Ratko Mladić and Radovan Karadžić, president of the autonomous Republika Srpska. This Supreme Court decision and related rulings involve issues of international responsibility for the conduct of peacekeepers—in particular, attribution of conduct to the United Nations and its member states and immunity of international organizations.

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.

In 2009, the International Criminal Court (ICC) stepped into uncharted waters as it issued its first arrest warrant for a sitting head of state, then President of Sudan Omar Al-Bashir. Following the UN Security Council's referral of the situation in the Darfur region of Sudan to the ICC, Al-Bashir was charged by the Court with war crimes and crimes against humanity, and in 2010, he was also charged with genocide. As a consequence, all of the states parties to the Rome Statute had a duty to arrest Al-Bashir. Several states have nonetheless failed to arrest him during country visits, allowing Al-Bashir to evade the ICC. This has given rise to a number of cases before the ICC Chambers, including this Appeals Chamber judgment regarding the Hashemite Kingdom of Jordan.

Jadhav Case (India v. Pakistan) concerned Pakistan's arrest, detention, conviction, and death sentence of Kulbhushan Sudhir Jadhav, asserted by India to be an Indian national, who had been convicted of engaging in acts of terrorism and espionage in Pakistan. This is the third dispute over the interpretation of Article 36 of the Vienna Convention on Consular Relations (VCCR) to come before the International Court of Justice (ICJ). In contrast to the Applicants in the previous consular rights cases, India sought relief that included the annulment of Jadhav's conviction in Pakistan, his release from custody, and his safe transfer to India. After unanimously finding it had jurisdiction, fifteen judges of the ICJ, with only Judge ad hoc Jillani dissenting, held on the merits that Pakistan had breached VCCR Article 36 by failing to inform Jadhav without delay of his rights under that provision; by failing to notify without delay the appropriate consular post of India in Pakistan of his detention; and by depriving India of its right to communicate with Jadhav, to visit him in detention, and arrange for his legal representation. In addition, the Court, with only Judge ad hoc Jillani dissenting, found that Pakistan is under an obligation to inform Jadhav of his rights without further delay and is obliged to provide Indian consular officers access to him. The Court further found that appropriate reparation required Pakistan to provide, by means of its own choosing, effective review and reconsideration of Jadhav's conviction and sentence to ensure that full weight is given to the effect of the violation of his rights. Finally, the ICJ, again with Judge ad hoc Jillani dissenting, declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of Jadhav's conviction and sentence.

With Judgment No. 21995/2019 (the Judgment), the Italian Court of Cassation (Court of Cassation) once again tackled the limits of sovereign immunity with regard to crimes against humanity (para. 7). The Judgment is part of litigation originating in Greece with the Leivadia Tribunal's 1997 Distomo decision, confirmed in 2000 by the Areopago (Hellenic Supreme Court), which ordered Germany to pay compensation and legal costs of approximately 50 million euros to the relatives of 218 victims of the Distomo massacre committed by the German military in 1944. In this Judgment, the Court of Cassation addressed whether sovereign immunity blocked the seizure of German assets located in Italy as part of that compensation order. The Court of Cassation's decision is noteworthy because it takes the discussion on sovereign immunity from jurisdiction and crimes against humanity one step further by addressing, in particular, the question of compensation and attachment of claims and rights held by the debtor against third parties.

In Vedanta v. Lungowe, the United Kingdom Supreme Court determined that civil claims for negligence brought by Zambian claimants against an English parent company (Vedanta) and its Zambian subsidiary (Konkola Copper Mines plc (KCM)) for damages experienced in Zambia can proceed in English courts. While framed as a domestic tort law case, the decision is significant for international efforts aimed at holding businesses accountable for their “negative impacts” on human rights. Writing for a unanimous Court, Lord Briggs's judgment hinged narrowly on the right of victims to access substantial justice. More broadly, Lord Briggs suggested that parent companies that hold themselves out in public disclosures as overseeing the human rights, environmental, social, or labor standards employed by their subsidiaries assume a duty of care to those harmed by the subsidiary. This suggestion has the potential to transform current corporate approaches to human rights due diligence and accountability.

In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

This Essay argues that trade agreements may overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. Free trade agreements (FTAs) may exacerbate supply chain concentration, especially through loose rules of origin. And WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for aggressive action only in the face of a crisis. Thus, WTO members risk flouting WTO rules if they do not limit aggressive, preventative supply chain regulation.

On November 18, 2019, Secretary of State Mike Pompeo stated that the “establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” This announcement contrasts with the approach taken by the State Department late in the Obama administration. Although embraced by Israel, the position announced by Pompeo was criticized by Palestinians, Security Council members and other states, who maintain that Israeli settlements in the West Bank violate international law. In January of 2020, the Trump administration released its proposed peace plan for the Israelis and Palestinians, which met with approval from Israeli leaders and rejection from Palestinian leaders.

In the MV “Norstar” Case (Norstar Case), the International Tribunal for the Law of the Sea (ITLOS) produced two reasoned decisions. In the first, the Tribunal established jurisdiction over the relevant dispute and the admissibility of Panama's claims. In the second, it found that Italy had violated Panama's right to freedom of navigation on the high seas. In the latter decision, the Tribunal relied on an expansive understanding of flag state jurisdiction—prompting a vociferous joint dissent by seven of its twenty-three judges. The majority's understanding of the jurisdictional exclusivity of the flag state as extending to prescriptive as well as enforcement jurisdiction is a significant expansion of flag state rights—and will have a corresponding impact on the way that shipping is regulated internationally.

On December 18, 2019, by a majority vote, the House of Representatives impeached President Trump for abusing power by soliciting Ukrainian interference in the 2020 presidential election and then obstructing the House's impeachment investigation. The allegations against Trump rested substantially on a phone conversation between Trump and Ukrainian president Volodymyr Zelensky on July 25, 2019. During this conversation, Trump asked Zelensky to investigate the prior conduct of Joe Biden—Trump's likely political opponent for the 2020 presidential election. While the House was conducting its impeachment investigation, the White House directed executive branch officials not to testify or to turn over documents. Less than two months after the impeachment, on February 5, 2020, the Senate voted to acquit Trump of the charges, with a majority of Senators voting in favor of acquittal.

During the spring of 2020, the Trump administration continued efforts to reduce the ability of individuals to seek asylum in the United States, particularly at its southern border. The administration received temporary authorization from the U.S. Supreme Court to put into effect the Migrant Protection Protocols (MPP)—an arrangement that requires non-Mexican asylum seekers to wait in Mexico for the duration of their immigration proceedings—while the administration petitions the Court to reverse a lower court decision enjoining the MPP's implementation. The administration has also sought to implement its asylum cooperative agreement with Guatemala, whereby the United States sends certain non-Guatemalan migrants to Guatemala to apply for asylum there. The legality of this agreement is presently being challenged, and, in March of 2020, the COVID-19 pandemic caused Guatemala to stop accepting flights of migrants sent by the U.S. government. Citing COVID-19, the Trump administration itself issued various suspensions of entry into the United States of noncitizens during the spring of 2020, including with respect to asylum seekers at the U.S.-Mexico border.

The United States requested environmental consultations with South Korea under the United States-Korea Free Trade Agreement (KORUS) in September 2019. This request occurred on the same day as the release of a report to Congress raising concerns about South Korea's response to illegal, unreported, and unregulated fishing. Following the consultations, South Korea amended its law regulating the Korean fisheries industry in order to make more enforcement mechanisms available.

The COVID-19 pandemic has been accompanied by shortages and potential shortages of products critical to the public health response. Many nations have responded with export restrictions on these products, restrictions that are permitted under international trade law as a temporary response to short supply conditions generally and to public health emergencies in particular. This Essay argues that such export restrictions are economically counterproductive from a global efficiency perspective, and that governments acting unilaterally will nevertheless employ them due to international externalities that propagate through the “terms of trade.” This observation raises a puzzle as to why international law should facilitate rather than curtail them. The most plausible answer is that legal authority for such measures is a politically necessary “escape clause” in trade agreements, akin to safeguard measures.

On October 3, 2019, the United States and the United Kingdom reached a bilateral agreement to facilitate more efficient data access between the two countries for law enforcement purposes. The Agreement on Access to Electronic Data for the Purpose of Countering Serious Crime (U.S.-UK Data Access Agreement) was signed by U.S. Attorney General William Barr and UK Home Secretary Priti Patel. This is the first such agreement made by the United States after the passage of the 2018 Clarifying Lawful Overseas Use of Data (CLOUD) Act, which authorizes and structures future bilateral agreements on data sharing. Pursuant to the CLOUD Act, Congress has 180 days following receipt of a notification regarding the U.S.-UK Data Access Agreement to block its entry into force via a joint resolution, which would require a majority vote in both houses of Congress and either presidential signature or a subsequent congressional override of a presidential veto.

On March 26, 2020, the U.S. Department of Justice (DOJ) announced the indictment of Venezuelan leader Nicolás Maduro, along with fourteen current and former regime officials, on charges mostly related to drug trafficking. Specifically, an indictment unsealed in the Southern District of New York charges Maduro with leading the Venezuelan narcotrafficking group Cártel de Los Soles and conspiring with the Revolutionary Armed Forces of Colombia—People's Army (FARC) guerilla group to “‘flood’ the United States with cocaine” and “us[e] cocaine as a weapon against America.” Although the United States, consistent with international law, normally treats sitting heads of state as immune from prosecution, U.S. Attorney General Barr indicated that Maduro did not qualify for head-of-state immunity because the United States does not recognize him as the president of Venezuela. Instead, the United States and fifty-seven other countries recognize Interim President Juan Guaidó. The indictment may mark a shift in the broader U.S. policy toward Venezuela, which had largely relied on targeted sanctions against key Maduro allies to encourage defection.

On September 25, 2019, the Third Extraordinary Congress of the Universal Postal Union (UPU) adopted a proposal on terminal dues rates—a decision that led the United States to remain a member state. The United States had given its one-year notice of withdrawal from the UPU eleven months earlier, citing concerns that the existing system unfairly advantaged certain developing nations, including China. Following the UPU's decision, the United States rescinded its notice of withdrawal. Under the new system, the United States can begin self-posting terminal dues rates in July 2020.

In late November of 2019, Congress passed the Hong Kong Human Rights and Democracy Act of 2019 (HKHRDA) with overwhelming bipartisan backing. Although its substantive provisions were modest in scope, this bill sent a strong indication of congressional support for protesters in Hong Kong. Despite having some reservations about this bill, President Trump signed it and a companion bill into law on November 27. The following month, Congress signaled attention to another human rights situation in China—the treatment of Uighurs in Xinjiang—by including a provision in the National Defense Authorization Act for Fiscal Year 2020 that requires an executive-branch report on this issue.

The COVID-19 pandemic highlights the importance of the Federal Reserve as a leading actor in global economic governance. As a creature of U.S. domestic law with an international presence and operational independence, the Fed wields authority without a well-defined international legal status, international legal standards to guide its conduct, or accountability to those around the world affected by its decisions. This Essay explores three conceptual approaches that could be used to develop norms, standards, and principles to address this gap.