A Massacre of Unspeakable Brutality

With Bangladesh and India to the west, and China, Laos, and Thailand to the east, Myanmar (formerly Burma) is the largest country in mainland Southeast Asia.Footnote ¹ Myanmar’s history since independence in 1948 has been dominated by military dictatorship, ethnic strife, and civil war.Footnote ² During this time, Myanmar’s military – known as the Tatmadaw – has steadily resisted democratic reform while supporting and participating in extreme sectarian violence against minority ethnic groups. The Tatmadaw’s decades-long targeting of the predominately Muslim Rohingya people has been especially unyielding, amounting to what has been characterized by a UN fact-finding mission as “severe, systemic and institutionalized oppression from birth to death.”Footnote ³ The Rohingya are barred from obtaining Myanmar citizenship, rendering them stateless.Footnote ⁴ Their travel within and outside Rakhine state, where most Rohingya live, is subject to strict and discriminatory limitation, as is their right to public assembly.Footnote ⁵ In June and October 2012, two waves of pogrom-like violence against the Rohingya erupted with the encouragement of a government-supported campaign of “hate and dehumanization,” resulting in the internal displacement of more than 140,000 and further severe violations of the Rohingya’s human rights.Footnote ⁶

On August 25, 2017, Rohingya militants attacked a number of security force outposts across northern Rakhine State, killing twelve security personnel. Within hours, Myanmar’s military launched a response the UN described as “immediate, brutal and grossly disproportionate.”Footnote ⁷ The Tatmadaw began what it called “clearance operations,” resulting in 392 Rohingya villages – 40 percent of all settlements in northern Rakhine – being partially or totally burned to the ground.Footnote ⁸ Mass killings were common, while “[l]arge-scale gang-rape was perpetrated by Tatmadaw soldiers in at least ten village tracts of northern Rakhine State.”Footnote ⁹ One of the sites of this terror was the village of Tula Toli.

On August 30, 2017, Myanmar military forces and local villagers armed with machetes descended on Tula Toli.Footnote ¹⁰ Advancing soldiers trapped several hundred unarmed Rohingya villagers on the sandy bank of a turbulent river that surrounds the village on three sides. What unfolded over the next several hours, Human Rights Watch lamented, was “a massacre of unspeakable brutality.”Footnote ¹¹ Hassina Begum, a twenty-year-old Rohingya woman, was one of few survivors. She and other survivors described how soldiers separated women and children from men, and then systematically murdered the men over several hours, dumping their bodies into pits and setting them on fire. Soldiers then took the women and children away in small groups, killing some children on the beach, and tossing others into the rushing river to drown.Footnote ¹²

Human Rights Watch summarized the horror inflicted on Ms. Begum and her family:

The UN mission later confirmed that Tula Toli was not an isolated case, but one of many villages razed to the ground amidst organized mass killing and “large-scale gang rape.”Footnote ¹⁴ The UN considered the estimate of 10,000 deaths by Médecins Sans Frontières to be “conservative,” and characterized the government’s “clearance operations” as “a human rights catastrophe.”Footnote ¹⁵ Ultimately, the mission concluded that there was ample evidence of genocidal actions and intent to warrant investigation and prosecution of senior Tatmadaw officials for genocide.Footnote ¹⁶

More than 742,000 Rohingya – half of them children – fled the terror to neighboring Bangladesh.Footnote ¹⁷ Many had fled violence years before, and today almost a million Rohingya (of a total estimated population of 1.4 million) live in crowded refugee camps in Bangladesh.Footnote ¹⁸ At the time of this writing, liberal reformers and various ethnic groups were locked in civil war against the Tatmadaw, with “no end in sight.”Footnote ¹⁹ There is no reasonable prospect of the Rohingya returning en masse to Myanmar soon, if ever. Many will need to find a permanent home elsewhere.

This chapter considers how the burden of taking in and caring for almost a million Rohingya refugees is to be distributed and shared across the international community. More specifically, we consider the manner and extent to which norms of mandatory cooperation establish a framework for “burden-sharing” – by distributing the burden of taking in the Rohingya and others who are forced to flee their country of origin. We first set out briefly the core features of the legal regime created by the UN Convention Relating to the Status of Refugees (Refugee Convention)Footnote ²⁰ and the subsequent UN Protocol Relating to the Status of Refugees (Protocol).Footnote ²¹ We argue that ensuring protection for refugees is a “common concern of humanity” under the international community’s collective stewardship, not merely a burden that falls on states of first refuge, such as Bangladesh for Rohingya refugees.

In a nutshell, we suggest that international refugee law carves out an exception to state authority to exclude outsiders, and that this exception is an especially poignant example of equitable norms proscribing the abuse of sovereign rights (in this case, the right to exclude). Consistent with equitable principles, states may exercise their sovereign right to exclude only in a manner that reflects due regard for the interests of other states and foreign nationals. We argue that this equitable framework not only grounds the international prohibition against returning refugees to territories where they would face persecutionFootnote ²² but also supports a requirement of equitable burden-sharing. According due regard to the equitable interests of other states and foreign nationals means, in part, that states must do their fair share to make good on international refugee law’s promise, which is that people fleeing persecution will have access to a decent safe harbor. Thus, refugee burden-sharing is a strong candidate for mandatory cooperation under international law.

The argument for recognizing a legal obligation for states to participate in refugee burden-sharing is largely aspirational, but enjoys some support in state practice. We argue that the 2016 New York Declaration for Refugees and Migrants (New York Declaration),Footnote ²³ the 2018 Global Compact for Safe, Orderly and Regular Migration (Global Compact for Migration),Footnote ²⁴ and the 2018 Global Compact on RefugeesFootnote ²⁵ represent substantial efforts to bring a measure of mandatory cooperation to burden-sharing. Indeed, by establishing burden-sharing frameworks based on nationally defined contributions, these instruments arguably reflect states’ recognition that they bear joint stewardship obligations to ensure that all refugees have access to a decent safe harbor. In the final part, we assess some of the ways this approach to burden-sharing in the case of the Rohingya satisfies the demands of mandatory cooperation.

International Refugee Law

The cornerstone of international refugee law is the Refugee Convention’s duty of non-refoulement, which obligates states-parties to refrain from returning refugees to places where their life or freedom would be threatened.Footnote ²⁶ This duty is widely recognized as a customary norm because states generally do not forcibly repatriate refugees, and they do not do so, in part, because they believe themselves under a legal obligation not to do so.Footnote ²⁷ There is also a growing consensus that the duty has a peremptory or jus cogens character, as affirmed in various Conclusions of the Executive Committee of the UNHCR,Footnote ²⁸ the Cartagena Declaration,Footnote ²⁹ and scholarship.Footnote ³⁰ It follows from the duty’s customary status that it binds states that have not ratified the Refugee Convention and Protocol, as well as those that have done so. Moreover, if the duty is peremptory, then it applies to all states without the possibility of limitation or derogation. Reflecting the nascent rise of international human rights law at the time of its drafting, the Refugee Convention enshrines principles of nondiscrimination and nonpenalization. Under Article 3, states must apply the Convention “without discrimination as to race, religion, or country of origin.”Footnote ³¹ And Article 31 bars states from penalizing asylum-seekers who have entered the state without authorization, so long as those persons “present themselves without delay to the authorities and show good cause for their illegal entry or presence.”Footnote ³²

Importantly, however, the Refugee Convention’s protection is limited in a variety of other ways. It does not expressly provide a permanent or even temporary right of asylum, nor rights to permanent resident status or citizenship.Footnote ³³ Moreover, the weaker duty of non-refoulement provided under Article 33(1) does not apply to every person threatened with serious harm abroad. An individual counts as a “refugee” protected under the Refugee Convention only if they are outside their country of nationality or habitual residence and “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … [are] unable or unwilling to avail [themselves] of the protection of that country.”Footnote ³⁴ Thus, people who face risks arising from climate change or natural disasters are excluded. Other historically marginalized persons, such as women and sexual minorities, have to show that their persecution stems from their “membership of a particular social group.”Footnote ³⁵ Furthermore, the prohibition of refoulement does not apply to any person of “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”Footnote ³⁶ Other possible claimants to refugee status are barred by the Refugee Convention’s Article 1(F) “exclusion clauses,” which exclude persons from claiming refugee status if they have engaged in crimes against peace, war crimes, crimes against humanity, serious nonpolitical crimes, or acts “contrary to the purposes and principles of the United Nations.”Footnote ³⁷

Wider protection is available under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)Footnote ³⁸ in cases where “there are substantial grounds for believing that [the individual would be in danger of being subjected to torture.”Footnote ³⁹ The inquiry mandated by the CAT does not concern itself with the grounds of persecution; the test is simply whether there are “substantial grounds for believing” that an individual may be tortured if deported.Footnote ⁴⁰ For cases falling outside the CAT, however, the restrictive definition from the Refugee Convention is the default standard of international refugee law.

Significantly for present purposes, there is no bar in the Refugee Convention on a receiving state closing its borders to claimants arriving from a safe third country. Nor does the Refugee Convention expressly prohibit states from interdicting possible claimants on the high seas or in foreign jurisdictions so as to prevent them from reaching the host state, or from using carrier sanctions and visa requirements for the same purpose.Footnote ⁴¹ The lack of an express right to asylum in the receiving country, the absence of a bar on returning a claimant to a safe third country, and the positive law’s silence regarding non-entrée policies combine to supply the receiving state with a strong textual argument in favor of its alleged entitlement to determine whether an asylum-seeker is eligible to make an asylum claim in the receiving state or must instead make the claim somewhere else. In other words, the Refugee Convention does not expressly grant asylum-seekers the right to choose where they will seek asylum, resulting in some policymakers filling the void with absolutist state authority to create burden-sharing arrangements that determine the country in which refugees can seek asylum.Footnote ⁴² Proponents of maritime interdiction and non-entrée policies argue, therefore, that burden-sharing lies within the state’s prerogative, so long as the state does not violate the duty of non-refoulement.Footnote ⁴³

Cooperation for Burden-Sharing

Burden-sharing is sometimes considered problematic because its enforcement may involve states forcibly deporting refugees to countries where they lack meaningful ties and face “warehousing” in primitive camps that resemble prisons.Footnote ⁴⁴ Cooperation agreements billed as “burden-sharing” may erect roadblocks that prevent asylum-seekers from accessing refuge from persecution. States have conspired with one another to disrupt global migration routes, preventing asylum-seekers from reaching countries in the Global North where they could access asylum and establish a minimally decent life.Footnote ⁴⁵ Cooperation in this context reveals its potential to erode refugee protection in violation of international human rights law and international refugee law.Footnote ⁴⁶

In principle, however, international cooperation need not render refugees less safe or less free. Burden-sharing can take a variety of forms. It includes measures that promote refugee welfare, such as direct humanitarian assistance to refugee populations, indirect assistance through international organizations like the Office of the UN High Commissioner for Refugees (UNHCR), and resettlement programs that allow refugees to voluntarily relocate to safe third-countries. Burden-sharing also includes states establishing legal pathways whereby refugees at their borders may obtain asylum and a path to citizenship. Such measures honor the spirit of the Refugee Convention and Protocol by ensuring that refugees have access to a decent safe harbor.

Conventional wisdom suggests that states have broad discretion to choose whether or to what extent they will embrace these mechanisms for refugee burden-sharing. International lawyers tend to assume that states are free to decide for themselves whether they will provide humanitarian assistance to distant refugees, give asylum to refugees at their borders, and offer resettlement to refugees interned abroad. Aside from the peremptory duty to refrain from refoulement, states are not thought to bear legal obligations to cooperate in refugee burden-sharing.

However, there are good reasons to question this conventional wisdom. To the extent that forced migration jeopardizes refugees’ human rights, international cooperation is often necessary to fulfill states’ joint stewardship obligation under the UN Charter and international human rights treaties to ensure “universal respect for, and observance of, human rights and fundamental freedoms for all.”Footnote ⁴⁷ At a minimum, states must “take steps, individually and through international assistance and cooperation,” to ensure that vulnerable refugees have access to adequate food, clothing, housing, primary and secondary education, and medical care.Footnote ⁴⁸ States that refuse to contribute resources to assist needy refugees, such as the Rohingya in Bangladesh, violate this requirement under international human rights law. Likewise, to the extent that refugee warehousing, maritime interdiction, and non-entrée policies threaten refugees’ human rights, mandatory cooperation arguably requires states to cooperate in other ways, including by admitting and offering asylum to vulnerable refugees. In this sense, international human rights law both constrains how states may conduct burden-sharing and imposes affirmative requirements to cooperate in protecting and fulfilling refugees’ human rights.

In the next section, we sketch a joint stewardship theory of international refugee law that lends further support for mandatory cooperation.Footnote ⁴⁹ We argue that this joint stewardship theory and norms of mandatory cooperation mutually support one another, providing a framework for limited and principled burden-sharing. Roughly, joint stewardship provides the legal basis and structure for burden-sharing, while mandatory cooperation supplies the means and methods. Both are premised on an equitable and constitutional conception of sovereign equality, and both conceptualize international law as tracing its ultimate justification back to the individuals it serves.

Refugee Protection as a Joint Stewardship

Our theory of international refugee law is premised on the state’s occupation of dual but complementary stewardship (or fiduciary) positions.Footnote ⁵⁰ One is local, the other global. The local position is the state’s role as a public steward entrusted and authorized by international law with sovereignty over a given territory and the people amenable to its jurisdiction, including foreign nationals who arrive at the state’s border. The second position occupied by the receiving state – the global position – is that of joint stewardship of the earth’s surface held with all other states on behalf of humanity.Footnote ⁵¹ Eyal Benvenisti calls the state in this position “a trustee of humanity”Footnote ⁵² and concludes that the state is under an “obligation not to deny entry to migrants and refugees without taking into account the asylum seekers’ individual concerns and at least providing justification for their exclusion.”Footnote ⁵³

The argument for joint stewardship proceeds from the normative consequences of a particular kind of spillover effect produced by state possession of sovereign power. In our view, states are not entitled to set policies unilaterally that have spillover effects prejudicial to the rights or justice claims of foreign nationals. Policies related to greenhouse gas emissions are a prominent example of measures that have these kinds of spillover effects, as discussed in Chapter 7.Footnote ⁵⁴

This spillover principle applies to borders and a state’s sovereign right to exclude. Mattias Kumm observes that borders present a “structural” justice-sensitive externality, one that arises as a consequence of international law’s organization of the world into multiple territorially sovereign states.Footnote ⁵⁵ The global territorial regime under which every state has the right to exclude outsiders raises the specter of a refugee with no place to exist lawfully. At the limit, if the refugee were forcibly driven from her home state and denied a right of asylum by all others, the territorial jurisdiction exercised over the earth’s surface by sovereign states would convert her very physical existence into an illegality. Her body occupies space and must exist somewhere, but she herself (on the present assumption) has no right to be anywhere. And so her mere and unavoidable presence somewhere would constitute a permanent trespass.Footnote ⁵⁶ She would do wrong by merely existing.

The possibility of doing wrong by merely existing is a structural spillover effect arising from international law’s distribution of territorial sovereignty to states. Under the joint stewardship model, that distribution can be legitimate only if it can be understood to be made on behalf of every person subject to it, which is to say, on behalf of humanity. For this to be possible, international law must guarantee that every individual has a reasonable opportunity to pursue a decent life somewhere. Ordinarily, this opportunity is provided in the first instance through an individual’s home state. But if a person is forced to flee or is stripped of citizenship, international law must step in to provide the refugee somewhere safe to live. Without the availability of surrogate protection, international law would not guarantee to every individual a reasonable opportunity to live a life of dignity somewhere. International law would lose its claim to universal legitimacy because it could not be said to authorize territorial sovereignty on behalf of every person subject to it; refugees and the stateless would be excluded.

A plausible way to avoid this result is to conceive of states, at the global level, as joint stewards of the earth’s surface on behalf of humanity. Under this conception, international law grants states a general right to exclude as part of their territorial sovereignty, but requires as a condition of the grant that states participate in a collective regime of surrogate protection in the service of exiled outsiders. International refugee law supplies the legal framework for a regime of surrogate protection by carving out an exception to exclusive territorial sovereignty in favor of refugees. While states retain a general claim to exclusive territorial jurisdiction, the claim is not absolute. States are barred by equitable principles from exercising their right to territorial sovereignty in a way that would refuse entry to refugees. Any such use of state power would amount to an abuse of right, and, from the perspective of mandatory cooperation, would infringe the duty of all states to have due regard for the interests of vulnerable foreign nationals. The joint stewardship model explains the refugee’s standing to make a claim on international refugee law’s equitable limitation on states’ exercise of territorial sovereignty by positing states as joint stewards of the earth’s surface on behalf of humanity, and in particular on behalf of asylum-seekers entitled to resort to surrogate protection. Properly understood, the stewardship theory does not place limits on otherwise unbridled sovereign power, since under this approach there is no de jure sovereign power to exclude asylum-seekers unilaterally. Rather, the stewardship model reconceives territorial sovereignty in a manner that makes it consistent with equitable principles that affirm the universal entitlement of every member of humanity to have their bare physical existence never treated as a wrong.

The New York Declaration and the Global Compacts

Within the past several years, states have affirmed their joint stewardship responsibility for refugees, endorsing the principle that they should share the burdens of refugee protection equitably. In response to the mass movement of asylum-seekers and the high loss of life in the Mediterranean Sea in 2015, the United Nations convened a Global Summit on Refugees and Migrants in September 2016. The Summit resulted in the unanimous adoption by all 193 UN member states of the New York Declaration for Refugees and Migrants, a statement of principle committing the international community to address jointly global migration issues.Footnote ⁵⁷ The parties to the New York Declaration recognized “a shared responsibility to manage large movement of refugees and migrants in a humane, sensitive, compassionate and people-centred manner.”Footnote ⁵⁸ The parties likewise underlined “the centrality of international cooperation to the refugee protection regime.”Footnote ⁵⁹ They pledged to work together to “ensure … protection for all who need it,”Footnote ⁶⁰ including asylum-seekers still in transit.Footnote ⁶¹ They noted the disproportionate burden of refugee hosting undertaken by developing countries, and committed to “a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees.”Footnote ⁶² Committing to “actively promote durable solutions” compatible with equitable burden-sharing, the parties declared their intent “to expand the number and range of legal pathways available for refugees to be admitted to or resettled in third countries,” with the goal to “provide resettlement places and other legal pathways for admission on a scale that would enable the annual resettlement needs identified by [UNHCR] to be met.”Footnote ⁶³

Two years after the summit in New York, states adopted two global compacts: the Global Compact for Migration, and the Global Compact on Refugees.Footnote ⁶⁴ Like the New York Declaration, the global compacts are non-binding political agreements that seek to “foster[] international cooperation among all the relevant actors on migration, acknowledging that no State can address migration alone.”Footnote ⁶⁵ The global compacts also track the New York Declaration in expressing states’ collective commitment and shared responsibility for safeguarding refugees’ human rights and fundamental freedoms.Footnote ⁶⁶

The Global Compact for Migration lays out twenty-three multilateral policy objectives aimed at promoting safe, orderly, and regular migration. The objectives include commitments to “[e]nhance availability and flexibility of pathways for regular migration,” “[a]ddress and reduce vulnerabilities in migration,” and, most generally, “[s]trengthen international cooperation and global partnerships for safe, orderly and regular migration.”Footnote ⁶⁷ A further objective, significant for our purposes, requires states to “[m]inimize the adverse drivers and structural factors that compel people to leave their country of origin.”Footnote ⁶⁸

The parties’ commitments to achieve this last objective include investing in programs geared toward “climate change mitigation and adaptation.”Footnote ⁶⁹ States undertake to “[s]trengthen joint analysis and sharing of information to better map, understand, predict and address migration movements, such as those that may result from sudden-onset and slow-onset natural disasters, the adverse effects of climate change [and] environmental degradation.”Footnote ⁷⁰ With an explicit nod toward low-lying countries and other regions on the frontlines of climate change, the parties commit to “[d]evelop adaptation and resilience strategies to sudden-onset and slow-onset natural disasters, the adverse effects of climate change, and environmental degradation, such as desertification, land degradation, drought and sea level rise.”Footnote ⁷¹ These provisions are significant because people forced to migrate as a result of climate change do not ordinarily qualify for protection under the Refugee Convention and the Global Compact on Refugees. Implementation of these provisions is overseen by the International Migration Review Forum, an international conference convened by the United Nations every four years.Footnote ⁷²

Thus far, the Global Compact on Migration’s cooperative framework for addressing climate change-related migration has yielded disappointing results. The most significant international cooperation in this domain has arisen from the UN Framework Convention on Climate Change (UNFCCC), and more specifically from the Paris Agreement and the annual Conference of Parties meetings (COPs). As discussed in Chapter 7, the UNFCCC seeks to prevent global warming by encouraging states to set targets so as to reduce global carbon emissions overall. The international community has made less progress in addressing the effects of global warming on forced migration. Regrettably, the Forum concluded at its first meeting in 2022 that “efforts to mitigate and adapt to the adverse effects of climate change have been insufficient, including in climate finance.”Footnote ⁷³ Perhaps the most that can be reasonably expected from the Global Compact on Migration in this domain is that its Forum might offer periodic assessments of mitigation and adaptation efforts that relate to climate-induced migration.

The Global Compact on Refugees begins by announcing that “[t]he predicament of refugees is a common concern of humankind.”Footnote ⁷⁴ The central policy challenge facing the international community is the development and implementation of a framework to facilitate “more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees, while taking account of existing contributions and the differing capacities and resources among States.”Footnote ⁷⁵ The overarching methodology proposed for the development of this policy is international cooperation, which is characterized as “a core purpose of the United Nations, as set out in its Charter, and is in line with the principle of sovereign equality of States.”Footnote ⁷⁶ However, the mission of the Global Compact on Refugees extends far beyond states, identifying a wide range of “relevant stakeholders” envisioned to play a role in equitable burden-sharing, including “international organizations within and outside the United Nations system … ; other humanitarian and development actors; international and regional financial institutions; regional organizations; local authorities; civil society, including faith-based organizations; academics and other experts; the private sector; media; host community members and refugees themselves.”Footnote ⁷⁷ This multisectoral strategy is sometimes referred to as a “whole-of-society approach,” since it enlists civil society actors and organizations to contribute to the stewardship of migration, along with member states and the UN Migration Network.Footnote ⁷⁸

Like the Global Compact for Migration, the Global Compact on Refugees is “soft law,” in that it is not legally binding. Instead, the Global Compact on Refugees purports to represent “the political will and ambition of the international community as a whole for strengthened cooperation and solidarity with refugees and affected host countries.”Footnote ⁷⁹ The “interlinked and interdependent” objectives of the Global Compact on Refugees are to “(i) ease pressures on host countries; (ii) enhance refugee self-reliance; (iii) expand access to third-country solutions; and (iv) support conditions in countries of origin for return in safety and dignity.”Footnote ⁸⁰ To achieve these objectives, this Global Compact adopts a modus operandi similar to the Paris Agreement. Whereas under the Paris Agreement states are called on to specify and realize “nationally determined contributions (NDCs),” under the Global Compact on Refugees, states and relevant stakeholders are asked to make voluntary contributions or pledges that they themselves determine, “taking into account their national realities, capacities and levels of development, and respecting national policies and priorities.”Footnote ⁸¹

Much like the way NDCs are monitored at the yearly COP under the UNFCCC framework, voluntary pledges are monitored at the Global Refugee Forum that convenes every four years to oversee implementation of the Global Compact on Refugees.Footnote ⁸² The first Global Refugee Forum met in 2019. The second met in December 2023. More than 4,200 participants from 168 countries attended the 2023 Refugee Forum.Footnote ⁸³ Over 1,600 pledges were undertaken to support refugees and host countries, including 43 multi-partner commitments led by governments. An estimated USD 2.2 billion in new financial commitments were made by states and other stakeholders, including some 250 million pledged by the private sector.Footnote ⁸⁴

In his closing remarks at the December 2023 Refugee Forum, UN High Commissioner for Refugees Filippo Grandi lamented that since October 2023 alone, 700,000 people had been displaced by conflict in Myanmar, bringing the total of internally displaced persons within Myanmar to more than 2.5 million.Footnote ⁸⁵ At the same time, he applauded the “multistakeholder whole-of-society pledging approach” taken by stakeholders.Footnote ⁸⁶ The case of the nearly one million Rohingya exiled in camps in Bangladesh is instructive.

Under the Global Compact on Refugees framework, forty-nine states and civil society organizations have pledged to support the Rohingya and Bangladesh, including thirty-five new pledges in 2023.Footnote ⁸⁷ The pledges address a wide range of socioeconomic needs arising from protracted confinement in refugee camps. They support diverse programs in the camps that aim to provide or improve the delivery of crucial public goods, including elementary education and literacy, occupational and agricultural skills training, healthcare, mental health and psychosocial support, hygiene, nutritional and food-security services, assistance for survivors of gender-based violence, child welfare and safety initiatives, climate adaptation agricultural and economic programs, disaster-response services, community strengthening and resilience measures (e.g., enhancing digital communication capacity), and disability support programs.Footnote ⁸⁸ Some of the pledges address resettlement, such as the pledge from Amnesty International Australia “to mobilize our movement to advocate to the Australian government to increase Australia’s annual humanitarian program to 40,000.”Footnote ⁸⁹

Within Bangladesh, the UN Strategic Executive Group (SEG) provides overall guidance to the international community’s Rohingya response. Consisting of UNHCR, the International Organization for Migration (IOM), and the UN Resident Coordinator, the SEG in 2023 pledged “to continue bolstering and mobilizing solidarity with the Government of Bangladesh – as the largest host of Rohingya refugees globally – to sustain support to the Rohingya humanitarian response.”Footnote ⁹⁰ The SEG also pledged concrete assistance to refugee resilience and empowerment programs, but plainly understands its mission to include international advocacy to support Bangladesh as host. In other words, the SEG understands its mandate to include attracting economic and political support for equitable burden-sharing, whether that happens through resettlement in other host countries, support for camps in Bangladesh, or eventual return to Myanmar. This multisectoral, whole-of-society effort is grounded within the overarching institutional structure created by the Global Compact on Refugees and its periodic Refugee Forum.

From Soft Law to Mandatory Cooperation

The Global Compact on Refugees, like the New York Declaration that generated it, is an expressly nonbinding agreement. In the lexicon of international lawyers, it is “soft law” inasmuch as it is not a formally binding treaty. Pledges made within its framework are often characterized as humanitarian in nature, which can convey the idea that they are praiseworthy but not obligatory. Nonetheless, there are good reasons to think that the Global Compact on Refugees is legally significant from the standpoint of mandatory cooperation. As with various international declarations addressing transboundary pollution,Footnote ⁹¹ the Global Compact on Refugees evinces a serious effort on the part of the international community to coordinate publicly joint action around urgent matters, and these efforts can bolster sometimes-flagging political will. State commitments to the Global Compact on Refugees are normatively significant under international law – even if in practice they are nonjusticiable or otherwise unenforceable – insofar as they reflect a good faith effort by the participating states to satisfy their obligations to cooperate for the benefit of refugees and other forced migrants.

When the Global Compact on Refugees was presented for the approval of the UN General Assembly, it was approved overwhelmingly by a vote of 181 in favor to 2 against (United States and Hungary), with three abstentions (Eritrea, Liberia, Libya).Footnote ⁹² However, even states that opposed the Global Compact on Refugees arguably have an obligation to support its successful implementation based on their role as joint stewards of the earth’s territory. Recall that under the joint stewardship theory of international refugee law, states’ duty of non-refoulement is justified as an equitable implication of states’ exclusive jurisdiction over the earth’s habitable territories: persons to whom all states closed their doors would trespass and do wrong just by existing, because their presence anywhere would be illegal. For the international legal order to be legitimate, we claimed, asylum-seekers must be able to find decent safe harbor somewhere. Decent safe harbor, however, is not costless. It is an international public good. For the cost of that good to be distributed in a manner that is more equitable than letting first receiving states such as Bangladesh shoulder the burden alone, an international institution is required in which states-parties can hold each other to account publicly as they negotiate fair contributions. For now, that institution is the regime of pledging and monitoring created by the Global Compact on Refugees. Becoming a member in good standing within that institution is an obligation that falls on every state because every state claims exclusive territorial jurisdiction, and therefore every state is subject to the equitable restriction on exclusive territorial jurisdiction that asylum-seekers can rightfully claim. It follows that every state has an obligation to participate in good faith as an equal in an international policy-setting institution that aims to distribute equitably the cost of providing decent safe harbor to refugees. A recalcitrant state that refuses to cooperate with others on equal terms subverts its claim to exclusive jurisdiction over its territory, since the claim to exclusive jurisdiction relies on making good on the promise of an equitable limit on territorial sovereignty in favor of asylum-seekers.

This theory is supported by states’ broad participation in the Global Refugee Forum’s framework of national pledges and contributions.Footnote ⁹³ A possible explanation for this emerging practice is that states recognize a general obligation to burden-share, but, as was the case with the Paris Agreement and NDCs, they wish to retain ultimate legislative control over the specific content of that obligation through a system of pledges. The fact that neither the general obligation to burden-share nor specific pledges under the Global Compact on Refugees are presently enforceable as a matter of international law does not necessarily mean they lack legal significance. For example, should states-parties generally continue to pledge and deliver on their pledges in a manner akin to the way they perform NDC-type treaty obligations under the Paris Agreement, a future court could find that pledges on which other stakeholders or refugees detrimentally rely are in some cases enforceable as a matter of customary law, or possibly under a doctrine of promissory estoppel.Footnote ⁹⁴ Over time, soft law can harden, which itself suggests that soft law is an inchoate or embryonic form of law.

Some might reject the analysis above on realist grounds, suggesting perhaps that cooperation under the Global Compact on Refugees is driven by states’ self-interested motive to advance their reputations rather than any sense of legal obligation or constraint. The frequent characterization of pledges as humanitarian supports this understanding, since humanitarianism responds to an imperfect duty of beneficence or charity under which the humanitarian agent does good whether they give a little or a lot. However, the mere existence of the Global Compact on Refugees can be read to suggest that states acknowledge a collective obligation to provide decent safe harbor for refugees. The difficulty arises at the moment of interpreting and applying the general injunction to provide decent safe harbor to the specific circumstances of each state. And since each state can determine its own pledges, this too seems to reinforce a realist reading under which states make humanitarian gestures to improve their reputations. A legalist account of burden-sharing is nonetheless available.

The key to understanding the legal quality of good faith deliberations and negotiation over burden-sharing is appreciating the distinction between legislation and interpretation. By coming together to establish the Global Compact on Refugees, the injunction to provide decent safe harbor to which states have jointly subscribed is legislative in nature: it directs states, collectively, to provide decent safe harbor. The all-purpose means for them to do so is international cooperation, but the specific contributions of each state are subject to each state’s interpretation of its own fair share, taking into account the burden-sharing capacity and willingness of other states. At the stage of interpretation and application of the general injunction to provide decent safe harbor, every state in effect adopts the judicial role of interpreter.

Using the analogy of children arguing over the interpretation of a rule in a winner-take-all game that is played without a referee, David Dyzenhaus claims that states in international law, even without the benefit of separate dispute-resolution institutions, will sometimes occupy a judicial interpretive role with respect to the rules of international law.Footnote ⁹⁵ The judicial role brings with it a variety of implicit commitments, such that children and states alike who adopt that role necessarily undertake to abide by the following principles: “to offer reasonable interpretations of what a rule requires … ; to take into account for the sake of fairness the way in which the rule has been previously interpreted in analogous situations; to treat each participant as an equal when it comes to interpretation.”Footnote ⁹⁶ States and game-playing children alike who occupy the judicial role have “accepted the onus of showing precisely why the different interpretations were not reducible to a player’s [or state’s] interests.”Footnote ⁹⁷ They occupy this role jointly with other states, and on equal terms, such that none is entitled to dictate unilaterally the interpretation of a rule that will bind the group. In short, the various norms internal to and constitutive of the joint judicial role show why interpretations offered by good faith states (or game-playing children) cannot be reduced to their interests, and count as legal interpretations, properly so-called.

This is so whether the ultimate legislative genesis of such interpretations is a formal treaty, such as the Paris Agreement, or a nonbinding agreement, such as the Global Compact on Refugees. The substantively legal quality of good faith deliberations is similar in both cases because the basic norms governing the judicial role of states and legal interpretation are similar in both. This too helps explain how the soft law from the Global Compact on Refugees could harden over time as customary law. States operating in good faith within the regime set by the Global Compact on Refugees will understand and abide by the norms governing their judicial role when they interpret the burden-sharing rule and apply it to themselves in accordance with equitable principles. Because the reasons for their interpretation of the rule commanding decent safe harbor are conditioned by legality and therefore distinct from whatever interest they have in defending a favored interpretation, that interpretation cannot be reduced to their self-interest. A state’s reasonable, good faith interpretation of its burden-sharing contribution is most easily explicable by attributing to the state a commitment to the form of legality intrinsic to the judicial role. And this conclusion paves the way for the eventual recognition of the norms of cooperation under the Global Compact on Refugees – norms governing multilateral pledging and the performance of pledges – as binding international customary law. Although duties of mandatory cooperation have yet to fully crystallize at this stage of international refugee law’s development, the Rohingya people and Bangladesh may one day be able to demand that the international community contribute its fair share to the Rohingya refugee crisis as a matter of right.

Conclusion

The plight of the Rohingya people is terrible and ongoing. In the Global Compact on Refugees the international community acknowledges that the “predicament of refugees” like the Rohingya “is a common concern of humankind.”Footnote ⁹⁸ Through its multisectoral whole-of-society approach, the Global Compact on Refugees supplies a framework through which a significant number of states-parties, international organizations, and civil society organizations have joined forces to support the nearly one million Rohingya exiled in Bangladesh. While Bangladesh is still shouldering a massively disproportionate amount of the burden of hosting and caring for the Rohingya, there is at least now an international regime in place to facilitate burden-sharing through consultation, negotiation, and collective implementation. Formally, this regime is nonbinding soft law. Nonetheless, we have suggested that it has a legal character that may in time give rise to obligations under customary international law.

In the last section of this chapter, we discussed briefly the possible implications of states adopting a judicial role as joint interpreters of the rules of international law. Of course, international law now has arbitral and judicial institutions of its own. In Chapter 12 we suggest that, contrary to conventional wisdom, states have an obligation to resort to such institutions if a dispute turns intractable. Before taking up that argument, however, in the next chapter we explain how mandatory cooperation applies to settings where multiple states have regulatory jurisdiction over the same people, property, or activities, posing a risk of international regulatory conflicts.

Dorm Rooms, Boardrooms, and Back Room Deals

In 1996, Stanford graduate students Sergey Brin and Larry Page developed an innovative search engine for navigating the Internet. Two years later, they dropped out of school, filed articles of incorporation, and moved their fledgling business from their dorm rooms to a friend’s garage in Menlo Park, California. Public demand for their search engine soon exploded. By 2022, it received 8.5 billion search requests daily, accounting for nearly 90 percent of all searches in the United States and 70 percent worldwide. So great was its global popularity that the company’s name – Google – became synonymous with searching the Internet.

Google leveraged its success as a search platform to become an advertising powerhouse. As the Internet drew consumers away from print media and television, global online advertising surged from approximately USD 6 billion in 2000 to USD 360 billion in 2020.Footnote ¹ Much of this revenue went to Google, which enjoyed significant advantages over its competitors due to its dominant position in the search market and its ability to leverage user data for targeted advertising. But Google was not content to rest on these competitive advantages alone. It worked to cement its market dominance by buying up would-be competitors and expanding into adjacent markets, such as operating systems, mobile phone apps, and hardware for phones and tablet computers. These moves grew the Google family of companies – now consolidated under the holding company Alphabet – into a trillion-dollar corporate behemoth.Footnote ²

As Google’s empire expanded, its activities attracted regulatory scrutiny. The US Department of Justice (DOJ) filed multiple lawsuits against Google, arguing that the company has engaged in anticompetitive behaviors that violate American antitrust law. Antitrust law is concerned with prescribing terms of fair competition to protect consumers from exploitation by dominant firms. The law seeks to achieve this goal by prohibiting mergers and acquisitions that lead to monopolies, prohibiting anticompetitive tactics to achieve or sustain monopolization (e.g., abuse of a dominant position), and banning collusion between competitors to restrain trade (e.g., price-fixing). Because the international community has not developed binding general rules for antitrust, the regulations that national authorities apply arise from domestic or regional sources, not international law.

In the case of Google, the DOJ alleges that the firm has contracted with mobile device manufacturers, wireless carriers, and browser developers to become the default search engine for their smartphones and other devices.Footnote ³ Combined with Google’s Android mobile platform and Chrome browser, these agreements have made Google the default search engine for over 80 percent of all devices in the United States, further entrenching its dominant market position.Footnote ⁴ US regulators also accuse Google of other anticompetitive practices, such as blocking or down-ranking search results from competitors and driving up advertising prices by representing both buyers and sellers for its advertising services. If these allegations were not troubling enough, regulators claim that Google has conspired with Meta, the parent company of Facebook, to give the latter preferential treatment in its advertising auctions in exchange for Meta’s agreement not to compete with Google’s advertising business. Collectively, these accusations paint an unsettling picture of the global tech titan exploiting its dominant position as the “gatekeeper of the internet” to deliberately stifle competition, suppress innovation, and inflate the prices it charges for its services.Footnote ⁵ Based on these concerns, a federal district court held in August 2024 that Google’s anticompetitive practices violated American antitrust law.Footnote ⁶

Google’s controversial tactics have also drawn fire from European regulators. In June 2017, the European Commission fined Google €2.4 billion under EU competition law for using its search algorithm to funnel users toward its comparison shopping service, “Google Shopping,” to the detriment of competitor sites.Footnote ⁷ The following year, Google incurred an additional €4.3 billion fine for illegally requiring Android manufacturers and network operators to preinstall its search app on mobile devices.Footnote ⁸ In March 2022, authorities in the European Union and the United Kingdom launched parallel investigations into the alleged conspiracy between Google and Meta to carve up the online advertising market.Footnote ⁹ Thus, European authorities have not shied away from enforcing their competition laws against Google, a corporation headquartered across the Atlantic.

This chapter uses antitrust law as a case study to explain why and how mandatory cooperation should apply to settings where states have concurrent regulatory jurisdiction under international law. Within the past century, the United States and the European Union have extended their domestic antitrust laws to foreign actors operating abroad.Footnote ¹⁰ Rising powers, such as Brazil, China, and India, have also asserted jurisdiction to regulate the anticompetitive behavior of foreign firms.Footnote ¹¹ Supporters of these practices argue that extraterritorial regulation is necessary to enable states to protect their people from foreign-sourced harm and generate public goods that benefit the entire international community.Footnote ¹² Left unchecked, however, extraterritorial lawmaking can also undermine sovereign equality by subjecting a state to unilateral foreign governance.Footnote ¹³ Both extraterritorial regulation and its absence can enable neo-imperialism: the former by subjecting people to foreign rule and the latter by removing legal obstacles to exploitation by multinational corporations.Footnote ¹⁴ In this chapter, we argue that the equitable model of sovereignty requires a different approach: states must resolve disputes over their concurrent regulatory jurisdiction through mandatory cooperation.

Does Equal Sovereignty Require Exclusive Jurisdiction?

Prior to the twentieth century, the principle of sovereign equality was generally understood to impose limits on a state’s prescriptive jurisdiction.Footnote ¹⁵ As early as the fourteenth century, Bartolus declared that “it is not for one city to make the law upon another, for an equal has no power over an equal.”Footnote ¹⁶ In 1825, the US Supreme Court reiterated this view in The Antelope: “No principle of general law is more universally acknowledged, than the perfect equality of nations … It results from this equality, that no one can rightfully impose a rule on another.”Footnote ¹⁷ Justice Joseph Story derived two general maxims of prescriptive jurisdiction from sovereign equality: first, “that every nation possesses an exclusive sovereignty and jurisdiction within its own territory,” and second, “that no state or nation can, by its laws, directly affect, or bind property out of its own territory, or bind persons not resident therein” except perhaps its own subjects.Footnote ¹⁸ Giving municipal laws extraterritorial effect would be unthinkable, Story asserted, because it “would at once annihilate the sovereignty and equality of every nation, which should be called upon to recognize and enforce them.”Footnote ¹⁹ Max Huber endorsed this assessment in the Island of Palmas arbitration: “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”Footnote ²⁰ Thus, for centuries, international lawyers tended to accept that the concept of sovereignty and the principle of sovereign equality required that states must be free to govern their respective territories without interference from foreign law.Footnote ²¹

The Permanent Court of International Justice (PCIJ) dealt a significant blow to this idea in The Lotus when it concluded by the narrowest of margins that international law did not forbid Turkey from applying its criminal law to foreign nationals aboard a vessel flying the French flag (and therefore under French sovereignty). The Court recognized that “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State.”Footnote ²² However, the Court rejected the idea that states exercise “power” if they merely “extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory” without enforcing those laws extraterritorially.Footnote ²³ By distinguishing lawmaking from enforcement in this manner, the Court suggested that states were free under international law to exercise unlimited prescriptive jurisdiction. The Lotus thus gave states carte blanche to use their national laws to regulate the rest of the world.

The Lotus arrived at the apex of the colonial era, a moment in history when there were relatively few recognized states and the voluntarist model of sovereign equality was ascendant. As discussed in Chapter 1, legal scholars often cite the “Lotus principle” that “whatever is not explicitly prohibited by international law is permitted”Footnote ²⁴ as the high-water mark for voluntarist approaches to international law.Footnote ²⁵ In contrast, international lawyers today generally take the PCIJ’s sweeping pronouncements on extraterritorial prescriptive jurisdiction with a grain of salt. Most legal scholars prefer to read The Lotus as standing for the narrower proposition that states may exercise prescriptive jurisdiction over conduct that causes substantial harm within their borders. This narrower reading accords with subsequent developments at the national level, where legislation authorizing effects-based jurisdiction has become increasingly common.

The 1945 Alcoa judgment of the US Court of Appeals for the Second Circuit marked a turning point in the rise of effects-based jurisdiction.Footnote ²⁶ At issue in the case was an international price-fixing conspiracy between Alcoa, an American company, its Canadian sister company, and several foreign aluminum producers.Footnote ²⁷ The central legal question before the court was whether American antitrust law applied to the extraterritorial conduct of foreign corporations.Footnote ²⁸ The court concluded, as a matter of statutory interpretation, that foreign corporations were subject to antitrust liability under the Sherman Act if their actions “were intended to affect imports [into the United States] and did affect them.”Footnote ²⁹ Alcoa thus established the precedent that transboundary harm could support extraterritorial prescriptive jurisdiction under American antitrust law.

European regulators eventually embraced a similar effects-based approach to prescriptive jurisdiction. In 1964, the European Commission held that European Economic Community (EEC) rules apply to “all agreements which are apt to affect commerce between Member States and which have as their object or result to prevent, restrict or distort competition within the Common Market.”Footnote ³⁰ Two decades later, the European Court of Justice (ECJ) adopted a modified effects-based approach to prescriptive jurisdiction in Wood Pulp.Footnote ³¹ The ECJ concluded that although the defendants – numerous wood pulp producers and two associations of producers – were headquartered outside the EEC, their price-fixing agreement was subject to EEC competition law to the extent that the parties implemented the agreement through prices charged to EEC customers.Footnote ³² The ECJ thus accepted that at least two states could exercise prescriptive jurisdiction over a price-fixing conspiracy: the state where the parties organized their conspiracy and the state where the parties implemented their agreement.

By the end of the twentieth century, conventional wisdom held that international law permitted a state to exercise extraterritorial prescriptive jurisdiction in various contexts where “there is a genuine connection between the subject of the regulation and the state seeking to regulate.”Footnote ³³ Not only could a state regulate the activities of its nationals wherever they might be located (nationality jurisdiction),Footnote ³⁴ but, more controversially, a state could also extend its law extraterritorially to protect its expatriate nationals from harm (passive personality jurisdiction), safeguard essential sovereign interests from foreign-sourced threats (protective principle jurisdiction), and enforce peremptory norms of general international law (universal jurisdiction).Footnote ³⁵ This expansion of states’ prescriptive jurisdiction has divided international lawyers. Critics argue that extraterritorial prescriptive jurisdiction undermines national sovereignty and self-determination by subjecting states to foreign imperialism.Footnote ³⁶ Supporters counter that a strict territorial approach would also have sovereignty costs because it would make states dependent on foreign powers to suppress extraterritorial activities that inflict transboundary harm.Footnote ³⁷

What makes this debate so intractable is that there is merit on both sides. Alone, neither strict territoriality (the classical approach) nor concurrent regulatory jurisdiction (the modern approach) can explain and honor sovereign equality as the organizing idea of international law that impedes powerful states and their firms from dictating terms to others. Strict territoriality prevents states from regulating foreign-sourced harm, placing them at the mercy of states where the harm originates. However, concurrent regulatory jurisdiction also fails to curb domination: allowing a state to regulate people and conduct outside its borders, at its sole discretion, would subject other states and their people to alien control. Both the classical and modern approaches to extraterritorial jurisdiction, without more, invite unilateralism and subvert a constitutional understanding of sovereign equality that takes seriously the “equal rights and self-determination of peoples.”Footnote ³⁸ Extraterritorial regulation therefore raises concerns like those that arise in other settings, such as transboundary rivers and border-straddling fisheries, where states’ overlapping rights or powers trigger mandatory cooperation.Footnote ³⁹

The difficulty in this context parallels the controversy discussed in Chapter 5 with respect to the authority of target states to use force against hostile groups from another state (the “host state”) whose actions cannot be imputed to that state. The ICJ avers that the UN Charter does not authorize target states to use force against nonstate hostiles within the territory of the host state without the host state’s consent, while some commentators claim that international law permits target states to use force without the host state’s consent if the host state is unwilling or unable to address the threat. The ICJ treats the host state’s territorial sovereignty as an absolute at the expense of the target state’s territorial integrity, while the “unwilling or unable” approach would subject the host state’s territorial sovereignty to the target state’s unilateral view of its security needs. Both approaches undermine sovereign equality because both subject one state to the discretion of the other. The way forward, we argued, is to take seriously international law’s demand that target states and host states cooperate to negotiate equitable solutions that forgo treating territorial sovereignty and territorial integrity as legal absolutes.

The classical and modern approaches to prescriptive jurisdiction also treat as absolutes strict territoriality, on the one hand, and an entitlement to extraterritorial prescriptive jurisdiction, on the other (whether delimited by an effects-based criterion or not). Here too, the way forward is good faith cooperation between the state asserting extraterritorial regulation and the host state from which transboundary harm originates. Generally, the territorial claim of the host state must yield to equitable interests of the state that suffers transboundary harm. The state that seeks to exercise prescriptive jurisdiction must also demonstrate due regard for the host state’s sovereignty and its people’s right to self-determination. Under the now-familiar norms of mandatory cooperation, the process called for is one of good faith information sharing, consultation, negotiation, mediation, conciliation, and if necessary third-party arbitration or adjudication. With equitable principles supervening on sovereign rights and with a process that treats the parties as legal equals throughout, mandatory cooperation coordinates the parties’ contending sovereignties so they may fit together commodiously as part of a unified legal order, rather than subjugate one sovereignty to the other. Mandatory cooperation thereby offers the promise of interstate relations that live up to the demands of sovereign equality understood as a constitutional ideal that privileges the “equal rights and self-determination of peoples.”

The remainder of this chapter discloses that international legal practice only partially subscribes to the framework of mandatory cooperation, and that global competition law as such is largely soft law and so, strictly speaking, not binding and mandatory. Nonetheless, to the extent that international law is committed to a constitutional understanding of sovereign equality, mandatory cooperation offers a laudable institutional framework through which sovereign equality can unfold into constitutional form in the context of extraterritorial regulation.

Tempering Extraterritoriality Through Adjudication

Recognizing the tensions between extraterritorial regulation and sovereign equality, American courts have used canons of statutory construction to rein in the geographic reach of domestic laws. The US Supreme Court has established a strong presumption that federal legislation does not apply to people and activities outside the United States.Footnote ⁴⁰ Even when statutes reach outside the United States, courts have resisted applying them when the resulting imposition on another state’s territorial sovereignty would be “unreasonable.”Footnote ⁴¹ Lower courts have assessed whether extraterritoriality is unreasonable based on various considerations, including the links between the regulated activity and the regulating state, the character of the activity to be regulated, the importance of the regulation to the regulating state, and the likelihood of conflict with foreign law.Footnote ⁴² In the landmark 2004 decision, F. Hoffman-La Roche Ltd. v. Empagran, the Supreme Court held that extraterritorial regulation is unreasonable if foreign conduct lacks a genuine connection to the United States.Footnote ⁴³

Empagran is especially notable because the Supreme Court linked its interpretive canons to international law. The Court asserted that the presumption against extraterritoriality and the canon against unreasonable extraterritoriality are both based on “prescriptive comity” – that is, states’ responsibility to “take account of the legitimate interests of other nations when they write [domestic] laws.”Footnote ⁴⁴ The canon against unreasonable extraterritoriality, in particular, “reflects customary international law – law that (we must assume) Congress ordinarily seeks to follow.”Footnote ⁴⁵ Narrowing the extraterritorial scope of domestic legislation in deference to foreign interests “helps the potentially conflicting laws of different nations work together in harmony – a harmony particularly needed in today’s highly interdependent commercial world.”Footnote ⁴⁶

Some legal scholars have challenged the Supreme Court’s view that prescriptive comity reflects customary international law.Footnote ⁴⁷ For example, Bill Dodge argues that Empagran erroneously conflates international comity and international law.Footnote ⁴⁸ Whereas international law establishes binding obligations, international comity is “a matter for each nation’s discretion” and “does not bind the United States on the international plane or give rise to international responsibility.”Footnote ⁴⁹ According to Dodge, the presumption against extraterritoriality and the presumption against unreasonable extraterritoriality are comity-based canons rather than reflecting international legal obligations.Footnote ⁵⁰ The influential Restatement of the Law (Fourth)—Foreign Relations of the United States (Restatement) concurs that the presumption against extraterritoriality is not designed “to avoid violations of international law” but instead to prevent “unintended clashes between our laws and those of other nations which could result in international discord.”Footnote ⁵¹ The Restatement acknowledges that “prescriptive comity … accounts for the legitimate sovereign interests of other nations and helps the potentially conflicting laws of different nations work in harmony,” but it stops short of characterizing prescriptive comity as reflecting international law.Footnote ⁵² This approach accords with the jurisprudence of most European courts, which do not recognize reasonableness as limiting a state’s prescriptive jurisdiction.Footnote ⁵³ Thus, international lawyers tend to agree that international law does not require states to consider foreign interests when determining the extraterritorial reach of their domestic law.

The conventional wisdom that international law does not require states to exercise prescriptive comity makes sense only if we accept the waning voluntarist view of sovereign equality. Under the voluntarist view, a state may exercise prescriptive jurisdiction however it pleases as long as it does not violate a prohibitive rule of international law.Footnote ⁵⁴ In contrast, the ascending constitutional view of sovereign equality requires a state to pay due regard to foreign rights and interests whenever it holds prescriptive jurisdiction concurrently with another state. This equitable obligation is a legal requirement emanating from the principle of sovereign equality; it is not committed to a state’s unilateral discretion.

The constitutional view of sovereign equality explains the Supreme Court’s oft-cited dictum that prescriptive comity is “neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.”Footnote ⁵⁵ States are not absolutely obligated to abstain from applying their domestic law extraterritorially, but that does not mean they may disregard foreign interests entirely. To respect the principle of sovereign equality, each state must find a way to reconcile its rights and powers with other states’ rights and powers in accordance with equitable principles. Insofar as the presumption against extraterritoriality and the canon against unreasonable extraterritoriality respond to these concerns, they answer to the demands of the constitutional view of sovereign equality expressed through customary international law. In this sense, the Supreme Court was correct to reason that “principles of international law” impose binding “limitations on a nation’s exercise of its [prescriptive] jurisdiction.”Footnote ⁵⁶

Where Adjudication Falls Short

Nonetheless, judicial canons of statutory interpretation are poor vehicles for resolving international regulatory conflicts. Mandatory cooperation’s substantive and procedural requirements are addressed primarily to diplomats and regulators, not judges. To satisfy international law, national authorities must consult with one another, share information about their national interests and policy preferences, pay due regard to foreign interests and preferences, and pursue an equitable solution that manifests due regard for their respective national interests. Courts are ill-equipped to perform these sensitive political functions.Footnote ⁵⁷ The most national courts can do, consistent with their institutional role, is nudge lawmakers toward international cooperation. Courts can give lawmakers the benefit of the doubt by presuming that they would not have extended domestic law unilaterally to settings where international law requires international cooperation. When domestic law does extend extraterritorially, courts can apply the “rule of reason” canon to curb manifestly inequitable interference with another state’s territorial sovereignty.Footnote ⁵⁸ Yet, these judicial stopgaps, however beneficial, are no substitute for international regulatory cooperation.

The problem with relying on domestic courts to reconcile extraterritorial regulation with sovereign equality is that evaluating whether extraterritorial regulation is reasonable is, to some extent, in the eye of the beholder, and domestic judges struggle to conduct this inquiry impartially. In antitrust cases, for example, American judges rarely decide that applying domestic antitrust law to extraterritorial activities would be unreasonable. Plaintiffs therefore enjoy a clear home-field advantage when they ask US courts to enforce the Sherman Act against foreign defendants based on extraterritorial activities that cause domestic injury.

A notable illustration of this problem is the Uranium Antitrust Litigation.Footnote ⁵⁹ In 1976, confidential documents leaked from an Australian uranium company found their way to the California Energy Commission, which shared them with the world. The documents confirmed the existence of an international cartel composed of uranium producers from Australia, Canada, France, South Africa, and the United Kingdom.Footnote ⁶⁰ When an American firm filed an antitrust lawsuit against cartel members, the international reaction was heated. Foreign governments complained that American regulators had been suppressing the price of uranium for years by prohibiting nuclear power reactors in the United States from using foreign uranium. Without international cooperation to maintain uranium prices at levels comparable to those in the United States, the uranium industry outside the United States would “bleed to death for sure.”Footnote ⁶¹ Critics of the United States also noted that the companies’ home governments firmly supported the uranium cartel. Enforcing the Sherman Act thus imperiled the uranium industry outside the United States and manifested flagrant disregard for the considered policy judgments of foreign governments. Despite these concerns, the trial court entered a default judgment against the cartel members,Footnote ⁶² and the Court of Appeals affirmed, concluding, over the objections of foreign governments, that applying the Sherman Act to the international uranium cartel was not an abuse of discretion under a “jurisdictional rule of reason” analysis.Footnote ⁶³

In fairness to the judges who presided over the Uranium Antitrust Litigation, they were saddled with an impossible task. There was no way they could craft a judgment that would reconcile the contending states’ exercise of their equal sovereign powers when the national interests and regulatory policies of the United States and other uranium-producing countries were diametrically opposed.Footnote ⁶⁴ The judges could not simply rewrite the Sherman Act to fashion a compromise between the states’ conflicting policies. The limited tools of statutory construction at their disposal – the presumption against extraterritoriality and the canon against unreasonable extraterritoriality – offered only two options: (1) apply domestic law or (2) don’t apply domestic law. The first option would subordinate foreign regulators’ policy judgments to the demands of US antitrust law, while the second would put domestic uranium markets at the mercy of a foreign cartel. Neither option would reconcile the competing interests of the states concerned in a manner congenial to sovereign equality.

The Promise of Regulatory Cooperation

A better pathway for reconciling antitrust regulation with sovereign equality runs through international cooperation. When states cooperate to resolve antitrust disputes based on equitable principles, they can develop solutions responsive to their national interests without subordinating other states to their unilateral will.

After the Uranium Antitrust Litigation, the United States worked to patch things up by establishing bilateral cooperation agreements with Australia and Canada.Footnote ⁶⁵ The Australia-US agreement acknowledged the parties’ past conflicts over antitrust policy and affirmed “the need for such conflicts to be resolved with mutual respect for each other’s sovereignty and with due regard for considerations of comity.”Footnote ⁶⁶ Australia agreed to notify and consult with the United States when it adopted a policy that “may have antitrust implications for the United States,” and the United States committed to provide notice and consult with Australia when it undertook antitrust investigations impacting Australian interests.Footnote ⁶⁷ Both sides resolved to “seek earnestly to avoid a possible conflict between their respective laws, policies and national interests and for that purpose to give due regard to each other’s sovereignty and to considerations of comity.”Footnote ⁶⁸ Two years later, Canada and the United States concluded a memorandum of understanding with similar provisions, emphasizing the need for notice, consultation, good faith consideration of the other party’s interests, and the cooperative pursuit of conflict avoidance, accommodation, and compromise.Footnote ⁶⁹ Today, the United States has cooperation agreements with dozens of other states.Footnote ⁷⁰

The most important international competition agreement to date is the bilateral 1991 Competition Laws Cooperation Agreement between the European Communities and the United States (EC-US Agreement).Footnote ⁷¹ The EC-US Agreement outlines requirements of notification, consultation, exchange of information, and cooperation and coordination in enforcement activities.Footnote ⁷² It also requires each party to consider the other’s interests when deciding whether to enforce its laws extraterritorially. Factors relevant to this inquiry include whether parties engaged in anticompetitive activities are intended “to affect consumers, suppliers, or competitors within the enforcing Party’s territory” and “the relative significance of the effects of the anticompetitive activities on the enforcing Party’s interests as compared to the effects on the other Party’s interests.”Footnote ⁷³ The agreement also adopts a procedure now known as “positive comity”: “If a Party believes that anticompetitive activities carried out on the territory of the other Party are adversely affecting its important interests, [it] may notify the other Party and may request that the other Party’s competition authorities initiate appropriate enforcement activities [at the other Party’s discretion].”Footnote ⁷⁴ By encouraging intergovernmental cooperation in this manner, the EC-US Agreement reduces the parties’ reliance on extraterritorial antitrust regulation.

Efforts to establish global standards for competition law have yet to bear fruit. Beginning in the mid-1990s, the World Trade Organization (WTO) hosted negotiations to develop treaty-based rules against cartels, the abuse of market dominance, and other anticompetitive activities impacting international trade. This initiative encountered a tepid reception outside Europe. Developing states feared global competition rules would impose onerous regulatory burdens while entrenching global inequality. The United States worried that a multilateral convention would water down antitrust enforcement by ensconcing suboptimal competition norms and institutions. As a result, the WTO abandoned the effort in 2003.Footnote ⁷⁵

With hopes fading for a global competition treaty, the international community has attempted to fill the gap with nonbinding “soft law” standards. For example, the Organisation for Economic Co-operation and Development (OECD) has recommended measures to suppress hard-core cartels and strengthen international cooperation for corporate merger reviews.Footnote ⁷⁶ It has also collaborated with the International Competition Network, an association of public and private competition experts, to study state practices, identify opportunities for enhancing cooperation, and promote regulatory harmonization.Footnote ⁷⁷ These initiatives have reduced the urgency for concluding a multilateral competition treaty. Still, more robust international cooperation will be needed in the years to come to reduce powerful states’ reliance on extraterritoriality and protect weaker states from foreign domination.Footnote ⁷⁸

Thus far, the international community has yet to recognize international cooperation as a mandatory feature of global competition law. When states weigh options for international regulatory cooperation in this domain, they assume they are free to opt out and proceed unilaterally, if they choose. Yet, without international cooperation, competition laws imposed unilaterally by a state or regional organization (or the absence of national regulation) would subject other states to domination. To respect sovereign equality in accordance with equitable principles, states must accord due regard for other states’ rights and powers when establishing competition rules. Accordingly, states must consult with one another, share relevant information, and negotiate mutually acceptable regulatory standards that are responsive to their respective interests.

If these requirements have been slow to take root in global competition law, as compared to other fields like the international law of the sea, this may be attributable, in part, to the fact that international courts and tribunals lack jurisdiction over disputes involving national competition rules. Until international courts and tribunals assume jurisdiction to resolve these disputes, there will be no landmark cases comparable to the Fisheries Jurisdiction Cases or the North Sea Continental Shelf Case to affirm that states must cooperate to establish shared regulatory frameworks for global economic competition. Meanwhile, without judicial guidance, the pathways for mandatory cooperation to become entrenched in global competition law are limited. States could conclude a multilateral treaty codifying obligations to cooperate in managing regulatory conflicts, as they have done in many other fields of international law. Alternatively, mandatory cooperation could become a generally accepted feature of customary international law through the gradual accretion of state practice and opinio juris, as states consult and negotiate with one another as good neighbors to harmonize their national regulations in accordance with equitable principles.

Of course, even if mandatory cooperation were to become firmly embedded in international competition law, it could not completely level the playing field between states. Great powers will continue to wield disproportionate influence over the global economy regardless of whether international law considers regulatory cooperation optional or mandatory.Footnote ⁷⁹ Nonetheless, mandatory cooperation is preferable to the current laissez-faire approach to extraterritorial regulation because it would give weaker states legal protections that they could use to counter great power domination. Mandatory cooperation would bring the interests of weaker states to the fore as legitimate considerations that powerful states must formally recognize and address (not simply ignore) in international negotiations. Although weaker states would lack the right to veto powerful states’ preferred solutions, the other side of the coin is that powerful states could not lawfully impose their preferred solutions on weaker states unilaterally. Hence, if weaker states hold out for a more equitable deal, powerful states would have three choices under international law: (1) they could offer to sweeten the deal; (2) they could declare a stalemate and impose (impermanent and reversible) provisional measures while continuing to pursue international dialogue; or (3) they could submit the dispute to a third-party. This limited menu of options would give weaker states leverage to counteract, however imperfectly, powerful states’ asymmetrical bargaining position. Outside mandatory cooperation’s domain, weaker states have no such protections. Thus, mandatory cooperation would likely enhance weaker states’ capacity to protect their national interests, at least relative to the status quo.

Global Cooperation in the Digital Era

Mandatory cooperation faces significant headwinds in the digital era. The dominant market power of some global technology companies has prompted states to defend their “digital sovereignty.”Footnote ⁸⁰ For example, the European Union’s Digital Markets Act (DMA) imposes strict requirements on large web platforms like Amazon, Facebook, and Google, which function as “gatekeepers” for the global electronic marketplace.Footnote ⁸¹ Former US Trade Representative Charlene Barshefsky has excoriated the DMA as a “rigged competition law” because it “seems designed to impose blanket prohibitions on the business models and conduct of US companies.”Footnote ⁸² However, European leaders have rallied behind the Act, seeking to rein in Silicon Valley tech titans while grooming homegrown alternatives. “The battle we’re fighting is one of sovereignty,” French President Emmanuel Macron has proclaimed.Footnote ⁸³

Amidst this transatlantic tug-of-war over the digital economy, multinational technology companies have pleaded for greater regulatory cooperation. In April 2021, Google Vice President Karan Bhatia lamented that “the technology trade relationship between the US and Europe – once one of the closest in the world – is fraying.”Footnote ⁸⁴ Bhatia urged the White House to accept the European Union’s invitation to participate in a new EU-US Trade and Technology Council (TTC):

Bhatia’s vision for an effective transatlantic partnership aligns closelywith the requirements of mandatory cooperation. According to Bhatia’s proposal, American and European regulators would renounce “unilateral approaches” that undermine the other’s sovereign authority. Instead, they would jointly pursue cooperation through procedures that reflect due regard for their equal sovereignty. These procedures would include giving notice of potential investigations, exchanging relevant information, consulting regularly, treating foreign interests without discrimination, avoiding preemptive actions that could frustrate alignment, and pursuing international consensus in good faith. Robust cooperation between the European Union and the United States would benefit technology companies like Google by enabling them to organize their business around a more consistent and predictable set of regulatory ground rules.

There are some encouraging signs that regulators in Europe and the United States might be ready to embrace tighter regulatory cooperation for the digital economy. Two months after Bhatia’s plea for transatlantic cooperation, the European Union and the United States formally announced the establishment of a high-level TTC. Among the initiative’s major objectives was the aspiration “to facilitate regulatory policy and enforcement cooperation and, where possible, convergence, … without prejudice to the regulatory autonomy of the United States and the European Union.”Footnote ⁸⁶ The parties also formed a US-EU Joint Technology Competition Policy Dialogue to “focus on approaches to competition policy and enforcement, and increased cooperation in the tech sector.”Footnote ⁸⁷ US regulators raised detailed objections to the DMA in private correspondence. They also negotiated face-to-face with their European counterparts, seeking amendments barring the DMA from discriminating unfairly against American companies.Footnote ⁸⁸

Time will tell whether these efforts will produce a tighter transatlantic consensus about how best to safeguard competition in the digital marketplace. Enhanced cooperation between the EU and the United States would only be a first step, of course. Taking mandatory cooperation seriously would also require deeper engagement with other states and regional organizations, including developing nations that have criticized the EU and the United States for engaging in “digital colonialism” through multinational corporations like Google.Footnote ⁸⁹ For the time being, however, recent efforts to bridge the transatlantic divide between the EU and the United States offer grounds for cautious optimism that even states and regional organizations with divergent interests might be able to find common ground as they replace unilateralism with cooperation.

“Nicaragua Shall Not Be the Patrimony of Imperialists”

In 1927, a guerilla force commanded by General Augusto Caesar Sandino began carrying out attacks on US Marines and American mining interests in Nicaragua.Footnote ¹ Sandino’s fame and popularity spread quickly throughout Latin America, fueled by his vigorous critique of American imperialism:

Opposed to Sandino was Anastasio Somoza García, appointed as Nicaragua’s Director of the National Guard at the urging of the United States. Somoza would go on to found a family dynasty that ruled Nicaragua with US support for forty-three years (1936–1979).Footnote ³ Commenting on “the special nature of the House of Somoza” the day the leftist Frente Sandinista de Liberación Nacional (FSLN) took Managua in 1979, the editors of the New York Times lamented that not only “have the Somozas owned a lordly share of the country’s riches, but bribes and kickbacks have been their price of doing business.”Footnote ⁴

When the United States pulled its marines out of Nicaragua in 1933, negotiations commenced between the US-backed government and Sandino’s guerillas. The peace process was upended, however, by an act of treachery that would become a culture-defining landmark of Nicaragua’s history. On February 21, 1934, during a ceasefire and immediately following a round of peace talks, Somoza’s National Guard detained Sandino, his brother, and two of his generals outside the Presidential Palace. They summarily executed Sandino and his associates the same day. Two years later, Somoza orchestrated a coup d’état that launched his family’s forty-three-year dynastic fiefdom.

The National Guard remained loyal to the Somoza ancien régime long after the Sandinistas deposed Anastasio Somoza, the third Somoza despot. With US support and guidance, former members of the National Guard and other opponents of the Sandinistas created the contra force, a paramilitary organization based in Honduras that engaged in more than 1,300 terror attacks on civilians and civilian infrastructure in Nicaragua between 1979 and 1990.Footnote ⁵ In addition to supporting the contras, in 1983 and 1984 US operatives mined various Nicaraguan harbors and conducted attacks on shipping in Nicaraguan territorial waters.Footnote ⁶

In a case of David-and-Goliath proportions, Nicaragua filed suit against the United States at the International Court of Justice (ICJ).Footnote ⁷ Nicaragua alleged that the United States breached its obligation under Article 2(4) of the UN Charter “to refrain from the threat or use of force against the territorial integrity or political independence of Nicaragua.”Footnote ⁸ Nicaragua also alleged that the United States violated general and customary international law by engaging in or supporting a wide range of unlawful interventions, including armed attacks inside Nicaragua, the mining of harbors, aerial trespass, and efforts to coerce and intimidate the Government of Nicaragua.Footnote ⁹ On the merits, a majority of the ICJ found that the United States, “by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted … in breach of its obligation under customary international law not to intervene in the affairs of another state.”Footnote ¹⁰ A majority likewise found the United States in breach of customary international law prohibiting the use of force against another state by virtue of mining and maritime operations directed against Nicaragua.Footnote ¹¹ Separate majorities concluded that the United States had violated customary and treaty law for having conducted overflights and for having imposed a general trade embargo on Nicaragua in violation of a 1956 Treaty of Friendship, Commerce and Navigation between the two states.Footnote ¹² The ICJ therefore ordered the United States “to cease and to refrain from all such acts as may constitute breaches of the foregoing [customary international law and treaty] obligations” and to pay Nicaragua reparations for the injury caused.Footnote ¹³ Adjusted for inflation, the original USD 12 billion reparation award would have been more than USD 31 billion in 2023.Footnote ¹⁴

Several years before specific reparations were ordered, however, the United States disputed the ICJ’s jurisdiction to hear the case.Footnote ¹⁵ The ensuing debate over jurisdiction is especially significant, as it vividly reveals the rival conceptions of international law that have dueled throughout this book; that is, the absolutist and voluntarist understanding, on the one hand, and the constitutional view that gives pride of place to sovereign equality and equitable principles, on the other.

This chapter draws on the Nicaragua Jurisdiction Case to make three arguments concerning the jurisdiction of international courts. The first is that the foundational principles of mandatory cooperation – the duty of states to resolve disputes peacefully, sovereign equality, and the duty of states to exercise sovereign powers equitably – entail that states have a duty to resort to arbitration or adjudication if good faith negotiation, mediation, or conciliation fail to resolve an impasse.Footnote ¹⁶ The second argument builds on the preceding one to explain why the role of consent within the Nicaragua Jurisdiction Case was attenuated in favor of compulsory jurisdiction. The third argument defends the duty to seek adjudication as an equitable constraint on state sovereignty.

In the final section of the chapter, we enlist UK constitutionalism as a comparator to reply to realist objections to international adjudication based on the possibility of states withholding their consent to the jurisdiction of particular courts. We also address the United States’ use of its Security Council veto to avoid the reparations ordered by the ICJ.Footnote ¹⁷ Article 94(1) of the UN Charter stipulates that “[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party,” while Article 94(2) provides recourse to the Security Council for states to enforce ICJ judgments.Footnote ¹⁸ Publicists noted quickly that the United States’ use of its veto in this context was in sharp tension with the legal principle that prohibits parties from being judge and party of the same cause.Footnote ¹⁹ We concede that the veto held by the permanent five members of the Security Council (P5) strains international legal order, and this strain is especially pronounced when it is used to avoid a remedy flowing from an ICJ judgment. Nonetheless, we claim that this abuse of power does not denude a relevant ICJ judgment of either its legal status or its value as the international community’s authoritative judicial condemnation of a violation of international law.

Between Authority and Power

Established to build on and replace the Permanent Court of International Justice (PCIJ) of the League of Nations, the ICJ was founded in 1945 as the judicial organ of the United Nations.Footnote ²⁰ All Member States of the United Nations are parties to the Statute of the ICJ, which is annexed to the UN Charter.Footnote ²¹ The ICJ derives compulsory jurisdiction over legal disputes from unilateral declarations of states-parties made pursuant to Article 36 of its Statute. Article 36(2) provides:

In addition, Article 36(5) provides:

On August 26, 1946, the United States made a declaration, pursuant to Article 36(2), recognizing the jurisdiction of the Court subject to certain reservations, the most significant of which stated that the declaration would “remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration.”Footnote ²⁴ In other words, the United States accepted the ICJ’s jurisdiction for five years, and thereafter indefinitely, but subject to withdrawal on six months’ notice. On April 6, 1984, however, just three days before the Court received Nicaragua’s application to commence proceedings, US Secretary of State George Shultz preemptively notified the UN Secretary-General that the 1946 declaration “shall not apply to disputes with any Central American State or arising out of or related to events in Central America.”Footnote ²⁵ This narrowing of the ICJ’s jurisdiction over the United States purported to “take effect immediately and … remain in force for two years.”Footnote ²⁶

The 1984 notification would prove controversial, but before the Court could consider its possible legal effect, it had to consider whether both Nicaragua and the United States were otherwise subject to the Court’s jurisdiction. Under Article 36(2), the ICJ can have compulsory jurisdiction over an international dispute only if a reciprocity condition is met: the parties concerned must be states “accepting the same obligation” to submit to the ICJ’s jurisdiction.Footnote ²⁷ So, for Nicaragua to rely on the US declaration of 1946, Nicaragua had to show that it too was subject to the Court’s compulsory jurisdiction.

To this end, Nicaragua relied on Article 36(5), which allows a declaration accepting the PCIJ’s jurisdiction to serve as a declaration accepting the ICJ’s jurisdiction. Nicaragua cited a 1929 declaration from its authorized representative to the League of Nations, stating: “On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice.”Footnote ²⁸ However, Nicaragua apparently never deposited its declaration with the Secretary-General of the League of Nations in Geneva, as required under the Statute of the PCIJ.Footnote ²⁹

This meant that Nicaragua had never become a party to the Statute of the PCIJ, and therefore had never been subject to the PCIJ’s jurisdiction. Nonetheless, Nicaragua argued that its 1929 declaration sufficed to confer jurisdiction on the ICJ via Article 36(5). Recall that Article 36(5) stipulates that declarations accepting the jurisdiction of the PCIJ must be “still in force” to activate the ICJ’s compulsory jurisdiction. Accordingly, Nicaragua had to argue that although its 1929 declaration ultimately failed to bring it under the jurisdiction of the PCIJ, the declaration nonetheless was “still in force” within the meaning of Article 36(5) so as to give the ICJ compulsory jurisdiction over Nicaragua.

While an eleven-judge majority of the Court sided with Nicaragua, the five judges who dissented on this point – Judges Jennings, Ago, Oda, Mosler, and Schwebel – arguably had the more persuasive doctrinal arguments. Four of the five held that the ICJ had other grounds for jurisdiction. Judge Schwebel, however, wrote a lengthy dissent, denying jurisdiction across the board and cogently laying bare the relative frailty of the majority’s legal arguments. Judge Schwebel rightly pointed out that under international law the plain and ordinary meaning of “in force” denotes that a treaty or norm is binding on the parties to which it applies. Accordingly, following the plain and ordinary meaning, a declaration would “still be in force” only if the party that made the declaration is still bound by the declaration’s terms.Footnote ³⁰ As Nicaragua never deposited its 1929 declaration with the Secretary-General of the League of Nations, the declaration was plainly not “in force” in this conventional sense.

Nicaragua admitted that its failure to deposit its ratification meant that it was never a party to the Statute or Protocol of the PCIJ, and therefore was never bound by its 1929 declaration to submit to the PCIJ’s jurisdiction. Nicaragua insisted, however, that because its declaration “had not expired,” it remained “‘in force.’”Footnote ³¹ The majority agreed that Nicaragua’s declaration was still “in force” because “it was valid for an unlimited period” with “a certain potential effect which could be maintained indefinitely.”Footnote ³² This “potential effect” was the declaration’s potential to make Nicaragua a party to the Statute of the PCIJ upon ratification and delivery to the Secretary-General of the League of Nations. Importantly, this potential effect could have ended at any time had Nicaragua put a temporal limit on its declaration. At the expiry of such a hypothetical limit, the declaration would have been invalid and not “in force,” whether expiration took place prior to or after the deposit of ratification. By separating a narrow understanding of validity from the question of whether the declaration bound Nicaragua to the Statute and Protocol of the PCIJ, the majority explained how in principle a non-deposited and nonbinding declaration could be “in force” within the meaning of Article 36(5), and thereby serve as a foundation for the ICJ’s jurisdiction over Nicaragua.

The majority and minority writers also offered contrasting interpretations of the underlying purpose of Article 36(5). For Judge Schwebel, the core purpose of Article 36(5) was to allow the ICJ to assume the compulsory jurisdiction of the PCIJ as it existed at the time the ICJ was established. Having never accepted the PCIJ’s jurisdiction, Nicaragua fell outside the scope of Article 36(5), Judge Schwebel argued. In contrast, the majority held that the purpose of Article 36(5) was not limited to transferring compulsory jurisdiction from the PCIJ to the ICJ. According to the majority, the provision’s wider object was to ensure continuing “progress” toward “the cause of compulsory jurisdiction.”Footnote ³³

In support of their divergent views, the majority and dissent both cited the ICJ’s judgment in the Case Concerning the Aerial Incident of 27 July 1955 (Israel v. Bulgaria).Footnote ³⁴ In that case, Israel sought to establish the ICJ’s jurisdiction over Bulgaria based on a ratified 1921 declaration that made Bulgaria a party to the Statute of the PCIJ. Bulgaria argued that Article 36(5) did not apply to its declaration, because Bulgaria did not become a UN member and a party to the ICJ’s Statute until 1955, long after the PCIJ ceased to exist. The Court sided with Bulgaria, holding that a declaration in force vis-à-vis the defunct PCIJ could not be revived to apply to the ICJ. In the course of its judgment, however, the Court signaled that the purpose of Article 36(5) was to maintain to the extent possible seamless continuity between the PCIJ and its successor: “the clear intention which inspired Article 36, paragraph 5, was to continue in being something which was in existence, to preserve existing acceptances, to avoid that the creation of the [ICJ] should frustrate progress already achieved.”Footnote ³⁵ Reflecting on these findings from Aerial Incident, the Court in the Nicaragua Jurisdiction Case agreed unanimously that a core purpose of Article 36(5) was to ensure that the ICJ’s creation would “not result in a step backwards in relation to the progress accomplished towards adopting a system of compulsory jurisdiction.”Footnote ³⁶

Noting that Nicaragua was represented at the San Francisco Conference and signed and ratified the UN Charter, the majority argued that Nicaragua’s 1929 declaration had become legally binding through Article 36(5). In support of this argument, the majority quoted Aerial Incident: “Consent to the transfer to the International Court of Justice of a declaration accepting the jurisdiction of the Permanent Court may be regarded as effectively given by a State which, having been represented at the San Francisco Conference, signed and ratified the Charter and thereby accepted the Statute in which Article 36, paragraph 5, appears.”Footnote ³⁷ According to the majority, Nicaragua’s ratification of the Statute of the ICJ had “exactly the same effects as the ratification of the Protocol of the [PCIJ] would have had, that is to say, in the case of Nicaragua, the step from potential commitment to effective commitment.”Footnote ³⁸ By ratifying the Statute of the ICJ, Nicaragua “effectively” consented to convert its 1929 declaration into a legally binding acceptance of the ICJ’s compulsory jurisdiction, the majority concluded.

Judge Schwebel offered a narrower interpretation of the Aerial Incident dictum concerning participants in the San Francisco Conference. He noted that the dictum followed these findings:

In short, Article 36(5) was concerned solely with maintaining states’ preexisting commitments to accept compulsory jurisdiction, facilitating “the transfer to the new Court of the compulsory jurisdiction of the old,” rather than extending the ICJ’s jurisdiction to states like Nicaragua that had never formally embraced the PCIJ’s jurisdiction.Footnote ⁴⁰

The divergent conclusions reached by the majority and Judge Schwebel reflect different visions of the role that compulsory jurisdiction plays within the international legal system. For Judge Schwebel, compulsory jurisdiction is an artifact of state consent and, as such, apt to be read down if a state fails to express its consent in clear conformity with formal requirements. In contrast, the majority envisions compulsory jurisdiction as an ideal of legality underlying the creation and practices of both the PCIJ and the ICJ. As such, for the majority compulsory jurisdiction serves as a constitutional principle that should guide interpretation of the enabling statutes of international courts, with ambiguities resolved in favor of compulsory jurisdiction, and with infringements on compulsory jurisdiction requiring express and unequivocal statutory language. This constitutional interpretive principle helps to explain why, for the majority, it was significant that the drafters of Article 36(5) declined to use the term “binding.”Footnote ⁴¹ It also clarifies why the majority presumed that “the highly experienced drafters” of the Statute of the ICJ would have used “a very different formula from the one which they in fact adopted” if they had a “restrictive intention” with respect to Article 36(5) – especially given the drafters’ “overall concern” to aim at “the maximum, and not some merely quasi optimum preservation” of compulsory jurisdiction.Footnote ⁴²

A similar difference in approach marks the majority and dissenting opinions’ handling of Secretary Schultz’s 1984 notification that purported to remove the United States from the ICJ’s compulsory jurisdiction vis-à-vis Nicaragua. As noted, the United States’ 1946 declaration permitted the United States to withdraw from the ICJ’s compulsory jurisdiction only after six months’ notice.Footnote ⁴³ Having never given notice to terminate – in conformity with the six-month notice period or otherwise – the 1946 declaration remained in effect. Therefore, according to the declaration’s plain terms, the United States remained subject to the ICJ’s compulsory jurisdiction vis-à-vis other states “accepting the same obligation.”Footnote ⁴⁴ However, the 1984 notification purported to suspend for two years the effect of the 1946 declaration in relation to “disputes with any Central American State or arising out of or related to events in Central America.”Footnote ⁴⁵ If legally valid, the 1984 notification would have denied the ICJ jurisdiction to hear the case Nicaragua filed three days later.Footnote ⁴⁶

The majority affirmed the conventional understanding that declarations “even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration.”Footnote ⁴⁷ In applying this general principle to the facts before it, the majority acknowledged that the United States retained the right to modify or terminate the 1946 declaration. Nevertheless, the majority held that the United States “assumed an inescapable obligation towards other States” under the 1946 declaration “by stating formally and solemnly that any such change should take effect only after six months have elapsed as from the date of notice.”Footnote ⁴⁸

Judge Schwebel’s central argument for giving effect to the 1984 notification turned on the principle of reciprocity and the idea that the United States could not properly be held to a six-month time constraint that did not also apply to Nicaragua. Whereas the majority concluded that Nicaragua could terminate its declaration on such reasonable notice as good faith might allow, and that such notice would have to be greater than three days, Judge Schwebel asserted that Nicaragua had the right to terminate its declaration on immediate notice. He pointed out that states-parties were entitled to withdraw from the UN Charter on immediate notice, and that other states had withdrawn from indefinitely accepting the ICJ’s jurisdiction without a period of reasonable notice.Footnote ⁴⁹ For the dissenting judge, this raised the question of whether the United States should not also be entitled to modify or terminate its declaration on immediate notice, under a principle of reciprocity that is “closely tied to considerations of mutuality and of the sovereign equality of States before the law and before the Court.”Footnote ⁵⁰ Judge Schwebel thus relied on an argument of principle that the parties would not be treated as legal equals if Nicaragua were permitted to engage the Court while possessing an entitlement to immediate termination not enjoyed by the United States. In his view, the United States had a “reciprocal right” to modify or suspend its 1946 declaration on immediate notice, which it did with the 1984 notification, thereby leaving the ICJ without jurisdiction to consider Nicaragua’s claims.Footnote ⁵¹ The majority, on the other hand, held that reciprocity “is concerned with the scope and substance of commitments entered into, including reservations, and not with formal conditions of their creation, duration or extinction.”Footnote ⁵² Accordingly, for the majority, “reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration.”Footnote ⁵³

Once again, the majority treats compulsory jurisdiction as a preeminent constitutional ideal against which state declarations and principles such as reciprocity must be interpreted. The minority judge, by contrast, adopts a more voluntarist understanding of compulsory jurisdiction. He privileges a conception of state sovereignty under which states have maximum leeway to accept or not the compulsory jurisdiction of the ICJ, including an entitlement to opt out of its jurisdiction just days before an adverse state files suit. For Judge Schwebel, the 1984 notification as well as considerations of reciprocity, mutuality, and sovereign equality must be read through a voluntarist lens. Nonetheless, despite the substantial differences separating the contending judgments, they also reflect shared presuppositions and points of reference. We briefly set these out now, since having the common ground in view lays some of the foundation for the arguments that follow regarding the mandatory nature of using peaceful means to resolve disputes at international law.

The common ground that unites the majority and dissent in the Nicaragua Case is their shared understanding that legal principles attenuate the requirement for state consent to the jurisdiction of international courts and tribunals. First, the judges all affirmed or presupposed that the parties’ relations between themselves and to the Court were informed by principles of sovereign equality, mutuality, reciprocity, and formal legal equality. While they disputed the content and application of some of these principles, none suggested that legal principles could be supplanted by pleadings of self-interest or a notion of might makes right. By the same token, the judges all recognized that relevantly similar past judgments carried persuasive authority with respect to the case before them. They all acknowledged that fresh consent was not necessary for a state to be subject to the compulsory jurisdiction of the ICJ; prior consent to the PCIJ, via Article 36(5), was adequate. Similarly, they all acknowledged that consent signaled decades ago through declarations under Articles 36(2) or 36(5) did not need to be reasserted for the ICJ’s compulsory jurisdiction to remain intact. They likewise agreed that, in principle, exercises of past state sovereignty could fetter future state sovereignty (e.g., notice periods established for terminating a declaration). This marked a departure from the principle of plenary authority that governs legislative lawmaking in most states, under which a present legislature cannot fetter or constrain the lawmaking power of a future legislature. The judges on both sides also accepted that once a state files an application to initiate a proceeding, parties to the proceeding cannot modify their declarations of acceptance to avoid the ICJ’s jurisdiction.

Lastly, the judges agreed that both parties had an “obligation to seek a solution to their disputes by peaceful means in accordance with international law.”Footnote ⁵⁴ In the next section we deploy this and other foundational premises of mandatory cooperation to argue that if states in a dispute reach an irresoluble impasse, they have a general duty at international law to submit their dispute to adjudication. We argue that this duty is independent of treaty-specific duties to seek adjudication that are sometimes triggered if a dispute arising within a treaty framework proves intractable.Footnote ⁵⁵ The duty therefore applies even when states have not specifically committed to international adjudication or arbitration by treaty or through unilateral declarations.

The Duty Seek Adjudication

As discussed in preceding chapters, states have a duty under Article 2(3) of the UN Charter to “settle their disputes by peaceful means.”Footnote ⁵⁶ Article 33(1) of the Charter makes the obligation concrete where “the continuance of [a dispute] is likely to endanger the maintenance of international peace and security.”Footnote ⁵⁷ In these circumstances, the Charter requires parties in conflict to “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”Footnote ⁵⁸ Relatedly, the Charter prohibits states from resolving disputes by force or the threat of force unless they are acting in self-defense or authorized by the Security Council.Footnote ⁵⁹ Citing with approval Article 33(1), the Court in the Nicaragua Merits Case added that the injunction to resolve disputes by peaceful means has the status of customary international law, with the implication that it legally binds all states.Footnote ⁶⁰ If follows that states are under a legal obligation to use peaceful means to settle conflicts even if they have never formally consented to the norm, and indeed even if they oppose it. The duty to use peaceful means to resolve disputes is international law’s doctrinal expression of one of mandatory cooperation’s central prescriptions.

The Nicaragua Case also illuminates international law’s embrace of sovereign equality as a deep-seated principle and organizing idea of mandatory cooperation. The first substantive principle articulated in the UN Charter is that the UN system “is based on the principle of the sovereign equality of all its Members.”Footnote ⁶¹ From the standpoint of sovereign equality, differences between states in terms of their geographic size, population, wealth, or military strength are irrelevant. All states enjoy equal authority to govern within their territory and to represent their people internationally, and all states are to be treated as legal equals in their interactions with one another.Footnote ⁶² Mirroring and informing the content of the sovereign equality of states, the Charter likewise affirms that peoples enjoy equal rights and self-determination.Footnote ⁶³ From these constitutional principles of international legal order – where sovereign equality is understood to entail rights to equal self-determination – it follows that no state is entitled to dictate terms to another state or its people. An imperial entitlement of this kind would imply that the subordinate state and its people would not be self-determining equals; by hypothesis, their international rights or internal governance would be subject to the will of one or more ascendant states.

The difficulty from the standpoint of international legality is not simply that, as a matter of fact, the strong would dominate the weak. The graver concern is that the strong would be legally empowered to dominate the weak, contrary to international law’s understanding of sovereign equality as the legal equality of states that represent peoples equal in rights and self-determination. Recall from Chapter 1 Vattel’s claim that “a small Republic is no less a sovereign State than the most powerful Kingdom.”Footnote ⁶⁴ Vattel’s quip that “a dwarf” is as much a person as “a giant” offers an apt image of the contest between legal equals that in 1984 would see the “dwarf” Nicaragua challenge the “giant” United States under the aegis of sovereign equality.

A further animating principle of mandatory cooperation that supports a context-sensitive duty to seek adjudication is the obligation of states to exercise their sovereign powers equitably, which is to say, with “due regard” for the interests of other states and foreign nationals.Footnote ⁶⁵ As discussed in previous chapters, due regard for foreign interests does not require putting them ahead of national interests, but it generally does require “reasonable, appropriate, optimal regard.”Footnote ⁶⁶ An exercise of sovereign power that fails to show due regard for the interests of other states or foreign nationals is akin to an abuse of right, where the right holder exercises a right in a way that causes needless or disproportionate harm to others.Footnote ⁶⁷ And so, in the Lake Lanoux Arbitration that pitted upstream France against downstream Spain,Footnote ⁶⁸ the Tribunal held that France, in its exercise of sovereign authority over waterways within its territory, “is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interest of the other riparian State with its own.”Footnote ⁶⁹

Bringing the threads together, core doctrines of customary international law prohibit the use of force to resolve disputes while also requiring states to use peaceful means to resolve them. Sovereign equality demands that states be regarded as legal equals authorized to represent peoples equal in rights and self-determination. For states and their peoples to enjoy sovereign equality so understood, other states cannot be entitled to dictate terms or otherwise use unilateral force against them, as international law provides. Instead, states must resolve disputes through peaceful means, as international law provides, and they must be prepared to exercise their sovereign powers equitably for the sake of a just resolution.

Ideally, states will settle their disputes though good faith negotiation, mediation, or conciliation. If rivalrous parties reach an intractable impasse, however, then the duty to use exclusively peaceful means to resolve disputes must be understood to include mandatory adjudication. To allow stronger parties in these circumstances to avoid adjudication altogether would infringe sovereign equality and raise serious questions about the legitimacy of the international legal order. Moreover, having the shadow of mandatory adjudication in the background of negotiations will tend to give the parties’ negotiations salutary contact with legal standards and precedents, since both parties would know that if they fail to settle, a judge or arbitrator will decide the matter. This account of mandatory adjudication resonates with the views of two theorists who loom large in the literature on international dispute resolution: Thomas Hobbes and Immanuel Kant.

In The Doctrine of Right, Kant claims not only that individuals have a duty to leave the state of nature to enter a civil or rightful condition (i.e., a state, preferably a constitutional republic) but also that an individual in the state of nature “may impel the other by force to leave this state and enter into a rightful condition.”Footnote ⁷⁰ Kant’s justification for the use of force in this context focuses on the lack of a judiciary in the state of nature. While admitting that the state of nature need not be a dystopia of relentless war, he insists that “it would still be a state devoid of justice (status iustitia vacuus), in which, when rights are in dispute (ius controversum), there would be no judge competent to render a verdict having rightful force.”Footnote ⁷¹ In a civil condition, the judge’s verdict has rightful force because the judge enjoys the standing of a public authority who is authorized to apply law to facts to resolve disputes. Private individuals in both the state of nature and civil society have no such standing. If they resort to force rather than legal institutions to settle disputes, they simply impose their will on others. So, for Kant, using force to bring someone into a civil condition is legitimate because the actor who seeks to remain outside the law, breaching their duty to enter a rightful condition, purports to reserve to themselves an entitlement to set unilaterally the terms of their relations with others.

Kant’s uncompromising insistence on the necessity of legal order lends principled support for the ICJ’s judgment in the Nicaragua Jurisdiction Case. If the ICJ did not exercise jurisdiction, the United States might continue to assert the prerogative to intervene in Nicaragua unilaterally, frustrating the establishment of a rightful condition between the two states. On a Kantian approach, therefore, the commanding necessity to establish legal order would arguably justify the majority’s strained interpretation of the ICJ Statute, as well as its willingness to discount Nicaragua’s failure to ratify its 1929 declaration and its rejection of the United States’ eleventh-hour stratagem to evade the Court’s compulsory jurisdiction.

Hobbes also gives adjudication an exalted place in his legal and political theory. Before setting out the state of nature and developing a solution in Leviathan, Hobbes offers an account of “right reason” (i.e., public reason or authoritative reason) that is itself a compressed version of the extended argument he will later give for a legal order designed to ensure peace. When there is a controversy, Hobbes says, “the parties must by their own accord set up for right reason the reason of some arbitrator or judge to whose sentence they will both stand, or their controversy must either come to blows or be undecided.”Footnote ⁷² Hobbes subsequently insists that it is a “law of nature” (a legal principle knowable through reason) that parties in a dispute must “submit their right to the judgment of an arbitrator,” and that a failure to do so results in them being “as far from peace as ever.”Footnote ⁷³ The arbitrator, in turn, must “deal equally between them … The observance of this law … is called Equity.”Footnote ⁷⁴ Hobbes likewise subscribes to the venerable principle nemo iudex in causa sua, “no man is a fit arbitrator in his own cause.”Footnote ⁷⁵ For Kant, this principle is simply a presupposition of public adjudication; adjudication must be impartial to avoid collapsing into unilateralism. Hobbes, however, offers a complementary but different justification for nemo iudex and impartial adjudication generally.

Hobbes’ rationale for adjudication is not that the strong will unjustly dominate the weak without it, but that equity allows each party equal benefit, and so “if one be admitted to be judge, the other is to be admitted also; and so the controversy, that is, the cause of war, remains, against the law of nature.”Footnote ⁷⁶ Taking Hobbes’ argument in stages, his initial claim is that if one party were made judge, the other party would no longer enjoy equality before the law, in violation of the principle of equity. Formal equality could be restored by making both parties judges, but doing so would return them to the state of nature, where all are entitled to judge for themselves how best to pursue their self-preservation. Thus, for Hobbes, as for international law, the duty to seek adjudication is tied closely to the idea that the status of disputants as legal equals – equals under law in civil society and not the state of nature – depends on the availability of adjudication. Whereas for Kant adjudication makes equal freedom possible, for Hobbes adjudication makes legal equality possible. In international law, the principles of equal freedom and legal equality are the double helix of sovereign equality’s DNA. Inextricably linked, they are both necessary and together sufficient to explain the equal independence of sovereign states made possible by an international legal order structured by mandatory cooperation, part of which includes the duty to seek adjudication in the event of an irresolvable impasse.

Jurisdiction as Equity

The duty to seek jurisdiction rests on relatively mundane legal premises: the prohibition of the use of force to resolve disputes, the duty to use peaceful means for this purpose, sovereign equality as equal independence and legal equality, and the duty to exercise sovereign powers equitably. Nonetheless, it remains the case that international law is conventionally understood to require states to consent to the jurisdiction of specific courts in order for those courts to have jurisdiction over them. In the Nicaragua Jurisdiction Case, for example, the two parties had signaled consent by unilateral declaration.Footnote ⁷⁷ States may also come under the ICJ’s jurisdiction by special agreement through which they jointly petition the Court to hear a specific matter. And states can include in treaties jurisdiction clauses that accept that Court’s jurisdiction to resolve disputes over the interpretation and application of a treaty.Footnote ⁷⁸ Today there are some 300 treaties with jurisdiction clauses.Footnote ⁷⁹ The justification usually given for the consent requirement is one that appears on the ICJ’s website: “States are sovereign and free to choose how to resolve their disputes.”Footnote ⁸⁰

Of course, states are not entirely “free to choose how to resolve their disputes.” As we have seen, generally they cannot use force or the threat of force; instead, they must choose how to resolve disputes from the peaceful means available. Plainly, the ICJ does not contest the requirement that states must cooperate with one another in good faith and use peaceful means when they disagree. Still, giving sovereignty even this much latitude poses a puzzle: if states are entitled to stand on their sovereign rights to choose how to resolve their conflicts, and if this discretion allows them to insist on an alternative to adjudication, such as continued negotiation or nonbinding mediation, then in the event of an impasse is the alleged duty to seek adjudication really a duty at all?

A possible solution to the puzzle draws on mandatory cooperation’s principle that sovereign rights must be exercised equitably, a principle that distinguishes sharply between sovereign rights, on the one hand, and the equitable requirement that states use their rights with due regard for other states and foreign nationals, on the other. Just as France in the Lake Lanoux Arbitration enjoyed territorial sovereignty over the waters within its territories but nonetheless had to exercise its sovereignty in a manner that took Spanish interests into account, if a genuine and intractable impasse arises in good faith negotiation, mediation, or conciliation, the parties to the controversy are subject to Hobbes’ equitable injunction to submit their dispute to an impartial third party. Assuming the parties are not already subject to the jurisdiction of the ICJ, another international court, or an arbitral tribunal, their sovereignty entitles them to decide jointly on a convenient forum. But their sovereignty does not allow them to imperil sovereign equality by avoiding impartial adjudication altogether if best efforts otherwise fail to settle the matter.Footnote ⁸¹ The distinction between law and equity and its salience in international law can thus explain how states may have sovereign rights to determine how to resolve their conflicts, but also be subject to an equitable requirement to exercise those rights in a way that gives due regard to other states and foreign nationals, with the implication that irresolvable impasses must go to impartial adjudication.

Admittedly, in cases such as the Lake Lanoux Arbitration, the equitable constraint on sovereign power operates at the object level of determining the appropriate primary rules, with a background institution already in place to resolve the dispute. With the puzzle under consideration – explaining how states can have the right to choose how to resolve disputes while being under a context-sensitive duty to seek adjudication – the assumption is that an adjudicative institution is not yet seized with jurisdiction, and that equity can explain and inform the duty of the parties to seek an impartial third party. Still, in both cases the core equitable justification is the same: under appropriate circumstances, legal rights must be exercised in accordance with equitable constraints to ensure they do not become vehicles of abuse and corrosive to the rationale for having the relevant rights in the first place. Concretely, the right of sovereign states to choose a convenient forum must be reconciled and coordinated with the duty to seek adjudication; from a legal point of view, the former cannot serve as pretext or device to avoid the latter.

A skeptic might consider the equitable requirement to seek adjudication too weak and amorphous to be of significant assistance to parties in real world disputes. The Nicaragua Jurisdiction Case shows, however, that where consent is in doubt or there are questions attending formalities required to communicate consent, judges who ultimately rule in favor of compulsory jurisdiction do so because they recognize the value of the constitutional and equitable grounds for compulsory jurisdiction. The debate between the majority and Judge Schwebel revealed that, in practice, a majority bench of the ICJ was prepared to defend the finest of distinctions (e.g., “valid” declarations versus “binding” declarations) to support the cause of compulsory jurisdiction inaugurated with the PCIJ and continued with the ICJ. Statutory text, relevant case law and contrary historical evidence were read down in order to sustain the case for jurisdiction. The principles in favor of jurisdiction thus provided resources for creative gap-filling and statutory interpretation. Plausibly, the majority were comfortable resting jurisdiction on somewhat fragile textual and jurisprudential grounds because they believed (i) the parties had a general duty to seek adjudication that the United States was trying to avoid, (ii) the parties had in substance consented to jurisdiction through unilateral declarations, and (iii) the ICJ was an appropriate venue for the matter’s adjudication.

Opting Out and Legitimacy

Realist skeptics may yet question the value of international adjudication on the ground that states can opt out or refuse from the outset to accept the jurisdiction of adjudicative regimes. Skeptics might also observe that using the Security Council to enforce remedies ordered by the ICJ against the P5 may prove challenging given their possession of a veto. The Nicaragua Jurisdiction Case is again illuminating. Although the ICJ refused to accept the 1984 notification, the United States eventually did withdraw from the ICJ’s compulsory jurisdiction in 1986. The withdrawal came shortly after the ICJ released its judgment in the Nicaragua Jurisdiction Case, though only after giving six months’ notice as prescribed by the 1946 declaration.Footnote ⁸² And as mentioned in the introduction to this chapter, the United States used its veto on the Security Council to avoid paying the sizable awards ordered in favor of Nicaragua. These aspects of contemporary international legal order chafe at the constitutional aspiration of compulsory jurisdiction that motivated architects of the PCIJ and the ICJ. The possibility of states opting out and avoiding remedies also strains the international rule of law. Nonetheless, this institutional frailty does not show that international adjudication lacks legitimacy or fails to count as law.

In liberal democracies, the rule of law ordinarily implies that officials and private citizens alike are subject to the law, including the compulsory jurisdiction of municipal courts.Footnote ⁸³ In commonwealth countries, however, Parliament and its Members (when acting in their official capacities) are not subject to significant swaths of the ordinary law. Under the doctrine of parliamentary privilege, Parliament and its Members are immune from suit in relation to activities considered necessary for Parliament to fulfill its constitutional tasks, such as control of “debates and proceedings in Parliament” as guaranteed by the UK Bill of Rights of 1689.Footnote ⁸⁴ Similarly, public officials who perform their duties in good faith typically enjoy immunity for harms that result from their conduct as officials.Footnote ⁸⁵ In individual states as well as in international legal order, the judiciary lacks comprehensive jurisdiction, notwithstanding that compulsory jurisdiction is the default norm at the national level and usually applies irrespective of a subject’s consent.

There is also an important sense in which the sovereign right of states to choose how to resolve their disputes parallels parliamentary sovereignty under the UK constitution. For constitutional theorist A. V. Dicey, the British unwritten constitution consisted of two closely connected legal principles: parliamentary sovereignty and the rule of law. Parliamentary sovereignty, according to Dicey, meant that Parliament has “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”Footnote ⁸⁶ Parliament’s lawmaking authority is therefore both plenary and supreme. As Mark Walters has argued, however, on Dicey’s account Parliament’s sovereignty is determined and conditioned by law in three ways: “first, law defines what Parliament is; second, the sovereignty enjoyed by Parliament is itself a legal power; and, third, the sovereignty of Parliament is legislative sovereignty only, i.e., it is not the power to do anything but only the power to make law through legislation.”Footnote ⁸⁷ These legal attributes of parliamentary sovereignty, Walters claims, condition how it can be exercised and make it possible for Dicey’s second constitutional principle – the rule of law – to complete the United Kingdom’s law-giving framework.Footnote ⁸⁸

Dicey believed that the rule of law required due process and formal legal equality, but perhaps more significantly still, it also required judges to interpret Parliament’s legislation “in the spirit of legality” and consistent with “the general spirit of the common law.”Footnote ⁸⁹ Today, judges in commonwealth countries interpret statutes and review administrative action using a “principle of legality” that calls on them to interpret legislation, to the extent possible, in a manner consistent with human rights, common law values, and equitable principles.Footnote ⁹⁰ Administrative action that encroaches on rights, values or principles without express statutory warrant may be declared invalid. It is a vexed question whether, ultimately, Parliament is entitled to use unambiguous language to infringe gratuitously legal principle and have that plain language applied by the courts.Footnote ⁹¹ Generally, however, “[p]arliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights,” though it must use especially clear language because “Parliament must squarely confront what it is doing and accept the political cost.”Footnote ⁹²

The point for present purposes is that in the United Kingdom and commonwealth states without written constitutions, Parliament can effectively avoid judicial review by using express language. Much as states at international law can use their sovereign power to withhold or withdraw consent to avoid the jurisdiction of particular international courts, Parliaments can use their plenary lawmaking power to adopt express language to avoid judicial review of administrative action that infringes on human rights or common law values. In both cases, the use of plenary sovereign power can result in an evasion of accountability before judicial authorities that may strain the rule of law. Yet, in both cases too, judges can take up David Dyzenhaus’ recommendation that they adopt the role of a “weatherman” who reports on the repugnancy to the rule of law of both a statute that offends principles of legality and a state policy that breaches the duty to seek adjudication.Footnote ⁹³ And in both cases, a failure of legality may be recognized as such only because in other cases legality visibly succeeds. That Nicaragua won both the jurisdiction and merits cases showed that sovereign equality can serve as the basis for a system of adjudication in which the weak can successfully challenge the strong as legal equals.

One final comparison to British constitutionalism offers further grounds for doubting the force of the realist critique. The rule of law for Dicey consisted in judicial review of administrative action. The main institutional tools used by judges conducting review were the prerogative writs. The substance if not the form of these writs is still found in the remedies available in judicial review of administrative action today, which include: certiorari (quashing or setting aside administrative decisions), mandamus (ordering the performance of a public duty), quo warranto (requiring a demonstration of legal authority), habeas corpus (requiring the presentation of a detained person and justification of the detention), and prohibition (supervising the jurisdiction of ecclesiastical and administrative decision-makers).Footnote ⁹⁴ The writs originated in the Middle Ages and were generally issued by the king or his delegates (e.g., the Court of King’s Bench, the Privy Council, the Lord Chancellor) to address a complaint against an inferior tribunal or an administrative decision-maker. They embodied the king’s prerogative power to supervise the diffuse institutions administering justice on the king’s behalf.

Consider, for example, the writ of certiorari. The writ began in the thirteenth century as a written request issued by the king to obtain judicial records for examination. At the turn of the seventeenth century, certiorari was available from both Chancery and the Court of King’s Bench. S. A. de Smith notes that the anonymous author of A Treatise of the Maisters of the Chauncerie identified certiorari as a “writ of grace.”Footnote ⁹⁵ When Francis Bacon became Lord Chancellor in 1618, he issued an order that writs of certiorari, habeas corpus, and prohibition (among others) should not be issued without his approval. His purpose, according to de Smith, was to maintain the principle “that writs closely associated with the rights of the Crown should not issue out of Chancery to the subject as of course.”Footnote ⁹⁶

Within less than two decades, applications for certiorari were largely made to the Court of King’s Bench. The Court began to use certiorari not only to examine the final orders and convictions of justices of the peace, but to quash them if warranted.Footnote ⁹⁷ Before a claimant could ask the Court to examine or quash an order or conviction, however, they had to show sufficient cause to acquire the writ of certiorari. If successful, the claimant would deliver the writ to the clerk of the peace who held the relevant record, and the clerk would subsequently return the record to King’s Bench for examination and disposition. The Court’s examination was strictly limited to the written record. In some cases the record failed to include evidence that was readily available. The claimant could request that the clerk of the peace prepare a detailed factual record, but only with the consent of the local justices subject to the writ.

For purposes of comparison with international adjudication, there are three particularly important features of the seventeenth-century certiorari process: first, the availability of certiorari from Chancery by grace and not by right; second, the requirement to show cause to obtain the writ from the King’s Bench; and third, the need to secure the consent of the challenged justices to have the record amended for examination. Together these features disclose a practice of judicial review conducted at the sufferance of the sovereign. In any given case, the affected individual could be denied from the outset the opportunity to have their record examined and an adverse decision quashed. The position of individuals vis-à-vis judicial review in the seventeenth century was thus in an important sense analogous to the position of weaker states seeking a forum for international adjudication. In both cases, the availability of a judicial forum depends on the consent of a public authority. While in the case of judicial review the relevant public authority is the subject’s own judiciary and not another state, the prerogative writs were discretionary writs of grace that could be refused without notice or reasons. Whereas the majority in the Nicaragua Jurisdiction Case found that states must give reasonable notice to withdraw from the compulsory jurisdiction of the ICJ, seventeenth-century British courts were under no obligation to give notice or reasons for declining an application for a prerogative writ, since they were exercising the king’s prerogative. The position of an individual seeking judicial review was in this way more precarious than Nicaragua’s when it instituted proceedings at the ICJ against the United States.

Over time, the fragility of the individual’s standing to apply for judicial review lessened as the practice became more established and customary. By the end of the nineteenth century, Dicey was able to identify judicial review as the central institution of the rule of law, and the rule of law as one of the two fundamental principles of the UK constitution. It is impossible to know whether the practice of international adjudication will follow a similar trajectory. The lesson we can glean from the history of the prerogative writs is that legal institutions do not necessarily spring into existence fully developed. They can take considerable time to catch up to their underlying presuppositions, and progress is unlikely to be linear. Nonetheless, relatively inchoate legal institutions such as international adjudication have value notwithstanding their deficiencies because they contribute to the transparency and accountability of public authorities. They also provide stable venues for dispute resolution and the salutary development of law as a culture of justification.Footnote ⁹⁸

Much the same can be said in reply to the objection that the Security Council veto of the P5 members makes a mockery of international adjudication. At the founding of the United Nations at the San Francisco Conference in 1945, the Big Five countries presented the veto power as a non-negotiable feature of the draft Charter.Footnote ⁹⁹ Other states reluctantly accepted the P5’s privileged position based on the pragmatic calculation that their own sovereign equality and national security could be better preserved in practice if they entrusted international peace and security to the Security Council’s “legalized hegemony.”Footnote ¹⁰⁰ The motivation of the critique of the veto is that the P5 can always use it to avoid a judicial remedy, and on its face the veto is an affront to sovereign equality given that it is held by five states rather than all. We need not deny the inequality produced by the veto, however, to recognize that the ICJ offers an independent public forum in which claims of right may be assessed and settled. The United States’ use of its veto did nothing to diminish the ICJ’s authoritative judgment in favor of Nicaragua: the veto blocked enforcement of the judgment but had no effect on its authority as a judicial statement on the international wrongs committed by the United States against Nicaragua. The United States’ assiduous efforts to deny the ICJ’s jurisdiction – efforts expended while knowing that an adverse judgment could never be enforced – suggest that the United States itself considered the ICJ’s proceedings to be significant.

The veto available to the P5 is a particular instance of a wider concern in public law, which is executive compliance with judicial decisions. When Chief Justice Marshall decided in Worcester v. Georgia that Georgia laws purporting to seize Cherokee lands violated federal treaties,Footnote ¹⁰¹ President Jackson is famously said to have responded, “John Marshall has made his decision: now let him enforce it!”Footnote ¹⁰² President Jackson and Georgia simply ignored the decision. Courts generally have no direct enforcement mechanism against their executives, and when state interests and judicial orders do not align, they ultimately may have to rely on what Dyzenhaus refers to as “the compulsion of legality.”Footnote ¹⁰³ The compulsion of legality arises from the obligation of states “to justify all acts of state as having a legal warrant, the authority of law.”Footnote ¹⁰⁴ This compulsion thus follows from a commitment to the normativity of law, and entails “that jurists proceed as if law’s claim to authority can be vindicated.”Footnote ¹⁰⁵ Whether states comply with international judicial decisions out of rational self-interest, a sense of duty, socialization or internalization of human rights norms, or a mix of motives, it bears underscoring that they comply with roughly 65 to 75 percent of the ICJ’s decisions.Footnote ¹⁰⁶ For most states subject to the ICJ’s compulsory jurisdiction, the reasons for compliance tend to outweigh the reasons for defiance.

Conclusion

Pitting a hegemonic power of the North against a small and developing state of the South, the Nicaragua Jurisdiction Case reveals the ICJ majority’s steady commitment to compulsory jurisdiction and sovereign equality. The majority used these ideals as guiding principles to read down formalities usually required to indicate consent and to dismiss the United States’ last-minute attempt to withdraw its acceptance of the ICJ’s jurisdiction. While the United States was eventually able to avoid the remedy ordered, it could do so only by disregarding a judicial order and breaching its duty to the Court to comply. This breach of duty could neither avoid nor tarnish the ICJ’s judgments on jurisdiction and the merits. A tiny country ruled as a dynastic fiefdom by three generations of corrupt despots took the United States to court for waging an illegal campaign of violence against it and won. While the rise of reactionary nationalism in recent years may make the aspiration of international legality seem utopian, the proliferation of international courts since the end of the Cold War and the emergence of a customary duty to resolve disputes through peaceful means offer an important counterweight.

Within mandatory cooperation’s framework, the duty to seek adjudication when other peaceful means have been exhausted is explained as an implication of viewing sovereign equality as the legal equality of states tasked by international law to govern and represent peoples that are equal in rights and self-determination. In practice, sovereign equality means that no state can rightfully dominate or dictate terms to another. The duty to seek adjudication adopts the form of a constraint on sovereignty and takes its substance from equity; thus, it is an equitable constraint on exercises of sovereignty. Adjudication serves as an antidote to unilateralism and as a guarantee of legal equality. While international adjudication today cannot lay claim to the kind of universal compulsory jurisdiction enjoyed by its national counterparts, it compares favorably to judicial review of administrative action in its early days, when individuals had to rely on “writs of grace.” In summary, as the institutional apex of mandatory cooperation, international adjudication enables states to resolve their disputes as equals under law, and through peaceful means oriented toward justice.

The New International Law

Having endured the turmoil and brutality of World War II, many international lawyers in the 1940s were eager to reform the international legal system for the benefit of future generations. Among the most prominent voices calling for international law’s reconstruction was Alejandro Álvarez, the renowned Chilean jurist, scholar, and diplomat. For decades, Álvarez had campaigned to establish a “new international law” based on principles of international solidarity and cooperation.Footnote ¹ Álvarez argued that the classical, absolutist conception of state sovereignty should be retired in favor of a new approach that better accounted for states’ interdependence and common interests of the international community.Footnote ² Addressing a gathering of Latin American lawyers in 1943, Álvarez attributed the war’s horrors to Europe’s antiquated, individualistic legal culture. Treating states as independent agents without any obligations to the greater good was a recipe for perennial conflict and misery, he claimed. To save humanity from future calamity, international law should instead embrace and promote solidarity – a sensibility “unknown in Europe,” but “strongly developed in the nations of America and its rulers.”Footnote ³

Following his election to the International Court of Justice (ICJ) in 1946, Álvarez sought to make his new international law a reality. In a series of separate opinions, Álvarez asserted that the legal reformation proposed in his scholarly writings was already well underway, and he argued that international courts like the ICJ should play a leading role in promoting its progressive realization.Footnote ⁴ The “strictly individualistic international law” of previous generations was “being more and more superseded by what may be termed the law of social interdependence.”Footnote ⁵ This new law took as its point of departure the observation that

This new law of social interdependence “approaches nearer to the notion of equity,” Álvarez argued.Footnote ⁷ Its equitable character was apparent in various characteristics:

These features of the new international law could not be dismissed as mere lex ferenda, Álvarez argued, because states had incorporated them into the UN Charter and other international agreements. Nonetheless, Álvarez recognized that the new international law had yet to fully supplant the absolutist conception of state sovereignty.Footnote ⁹ Until this transition was complete, the international community could expect to encounter jarring collisions between the old order and the new. These clashes were the birth pangs of a new international legal system.

Throughout the nine years he served on the ICJ, Álvarez presented himself as a lone voice in the wilderness – a solitary prophet for the new international law.Footnote ¹⁰ And true to prophetic tradition, his visionary pronouncements often encountered a skeptical, if not openly hostile, reception. None of Álvarez’s contemporaries on the ICJ joined his separate opinions or endorsed his account of the emerging law of social interdependence. Legal scholars sharply disputed some of the conclusions Álvarez derived from his account, including his controversial claims that the General Assembly could override a Security Council member’s vetoFootnote ¹¹ and that the ICJ could exercise compulsory jurisdiction over states without their consent.Footnote ¹² With the onset of the Cold War, his appeal to global solidarity appeared increasingly quixotic amidst rising geopolitical tensions, economic rivalries, and proxy wars that divided East from West and North from South. Critics argued that Álvarez had “built a house of cards” by positing “the existence of a sentiment of solidarity” which did not, in fact, prevail among states.Footnote ¹³ Consequently, Álvarez’s argument for a new international law went largely unheeded during his tenure on the ICJ, dismissed by contemporaries as an idiosyncratic, utopian project lacking a solid foundation in state practice and opinio juris.

Foundations of Mandatory Cooperation

Despite the limited reception of his approach while he served on the ICJ, history has shown Álvarez to be a jurist ahead of his time, astutely anticipating trends that would transform international law over the next several decades.Footnote ¹⁴ Álvarez predicted the emergence of a new set of equitable obligations – what we call mandatory cooperation – which safeguard sovereign equality in our increasingly interconnected and interdependent world. As this book has shown, mandatory cooperation now applies to a wide variety of domains, requiring states to engage with one another in a spirit of mutual respect and accommodation, while resolving their disputes peacefully through negotiation or international dispute resolution. States must refrain from abusing their sovereign rights, and they must collaborate in safeguarding common concerns of humanity. True to Álvarez’s original vision, these obligations promote “economic, social, intellectual and humanitarian progress” for humanity’s collective benefit.Footnote ¹⁵

The ICJ has taken a leading role in promoting mandatory cooperation. In dozens of judgments and advisory opinions, the Court has declared that states must cooperate with one another to resolve disputes involving matters where their sovereign jurisdiction is uncertain, concurrent, or jointly shared, or where their sovereign rights are interdependent. As prior chapters have shown, ICJ jurisprudence now supports applying mandatory cooperation to the apportionment of international rivers, maritime delimitation, fishery conservation, and atrocity prevention, among many other subjects. Other international courts and tribunals have followed the ICJ’s lead, holding that mandatory cooperation applies to disputes concerning pollution of the marine environment and conflicting legal entitlements under international trade agreements. Meanwhile, national authorities have enshrined requirements to cooperate in dozens of landmark agreements, including the Antarctic Treaty, the UN Convention on the Law of the Sea, the Genocide Convention, the Outer Space Treaty, and the International Covenant on Economic, Social, and Cultural Rights. These treaties reflect the international community’s growing recognition that cooperation is necessary to respect the principle of sovereign equality and fulfill states’ responsibilities to safeguard common concerns of humanity. Thus, the international community has pivoted slowly but surely to codify by treaty the new international law Álvarez envisioned nearly a century ago.

Significantly, mandatory cooperation now rests on a more solid legal basis than Álvarez’s early sociological account. Rather than assume national authorities share Álvarez’s commitment to global solidarity, international courts and tribunals today base mandatory cooperation on the juridical principle of sovereign equality. Under this approach, cooperation is a legal requirement that applies to all states irrespective of whether they are motivated by concerns for cosmopolitan justice. Indeed, mandatory cooperation is necessary to safeguard states’ sovereign equality precisely because without it stronger states could abuse their rights with impunity by imposing their will on weaker states. Ironically, mandatory cooperation has flourished over the past seventy years precisely because international courts and tribunals have embraced the legal-formalist approach to international law that Álvarez himself questioned.Footnote ¹⁶

Mandatory cooperation likely would not have emerged when it did without the sustained intellectual leadership and advocacy of international lawyers like Álvarez from the Global South. Throughout the nineteenth century and into the early twentieth century, Latin American delegates to international conferences, such as Carlos Calvo of Argentina, Ruy Barbosa of Brazil, and José Tible Machado of Guatemala, laid the groundwork for mandatory cooperation by lobbying great powers of the Global North to recognize and respect the principle of sovereign equality.Footnote ¹⁷ During and after World War II, anticolonial nationalists in Africa, Asia, and Latin America campaigned successfully for the international community to accept sovereign equality and the right to self-determination as twin pillars of a new international legal order.Footnote ¹⁸

These hard-won victories transformed the international legal system. The right to self-determination called for dismantling colonial rule, liberating formerly colonized peoples to pursue self-government within their own independent states. Sovereign equality, in turn, aimed to protect weaker and newly independent states from great power domination.Footnote ¹⁹ For anticolonial nationalists, sovereign equality’s primary contribution was to affirm that newly independent states were entitled to freedom from foreign intervention.Footnote ²⁰ But the principle also had broader applications, which came to light only gradually through the accumulated jurisprudence of international courts and tribunals. Taking sovereign equality seriously meant that great powers could no longer act unilaterally in domains where their sovereign rights were entwined with the rights of other states. Instead, the principle of sovereign equality mandated that great powers would have to cooperate with their less powerful neighbors to resolve many disputes through negotiation or third-party dispute resolution based on equitable principles. Like the right to self-determination, sovereign equality promoted global liberty – especially, but not exclusively, for formerly colonized peoples – by dismantling formal hierarchy and unequal membership in favor of a more egalitarian international legal order.Footnote ²¹ Without decades of concerted advocacy by international lawyers and diplomats from the Global South, it is doubtful whether this transformational realignment of the international legal system would have come about.

Mandatory Cooperation’s Unfinished Business

This does not mean that international law’s reformation is complete. Far from it: mandatory cooperation remains a work in progress. In some domains, mandatory cooperation has achieved a high degree of international recognition through judicial and arbitral judgments and extensive codification in multilateral treaties, whereas in others it is only beginning to enter international legal discourse. An important objective of this book has been to trace and illuminate mandatory cooperation’s development by specifying its legal basis while pointing to areas where the international community’s commitment to sovereign equality has yet to bear fruit as mandatory cooperation.

The case studies in this book suggest that mandatory cooperation tends to develop in several stages:

1. (1) A state asks an international court or arbitral tribunal to resolve an international dispute concerning states’ uncertain, concurrent, or jointly shared jurisdiction or conflicting sovereign rights.

2. (2) The international court or tribunal delivers a judgment affirming that the states concerned must harmonize their equal sovereignties by pursuing a negotiated solution in accordance with equitable principles.

3. (3) Taking cues from the international judgment, states incorporate mandatory cooperation into treaties for the relevant field.Footnote ²²

4. (4) States establish institutional frameworks, develop soft law instruments, and adopt domestic laws and policies to facilitate international cooperation in accordance with their obligations under international law.

5. (5) States cooperate to resolve disputes in the relevant field through consultation, information-sharing, negotiation, and third-party dispute resolution.

The further an international legal regime progresses along this path, the more mandatory cooperation becomes entrenched in positive law and state practice. As international judicial decisions, arbitral judgments, and treaties elucidate mandatory cooperation’s requirements, the law’s applications within a particular field become more legible to national authorities. Establishing institutional frameworks, soft law instruments, and domestic laws and policies facilitates state compliance, allowing mandatory cooperation to cross the threshold from formal law into the realm of practical implementation. Finally, the ongoing practice of consultation, information-sharing, negotiation, and third-party dispute resolution reconciles the legally equal sovereignties of stronger and weaker states.

Since international dispute resolution often serves as a catalyst for mandatory cooperation, it should come as no surprise that mandatory cooperation’s requirements are most fully developed in fields of international law that frequently generate international arbitration and adjudication, such as the regimes governing rivers and oceans. In contrast, mandatory cooperation’s development tends to lag in areas outside the jurisdiction of international courts and tribunals. Until states expand access to international dispute resolution, there will be no equivalent of the Lake Lanoux Arbitration or the North Sea Continental Shelf Case to clarify how mandatory cooperation applies to issues such as transnational cyberattacks or refugee burden-sharing. This dynamic has delayed mandatory cooperation’s development in a wide variety of areas where sovereign equality calls for its immediate application.

Mandatory cooperation most clearly requires development in contexts involving threats of transboundary harm. International courts and tribunals have recognized that mandatory cooperation governs cross-border environmental harm,Footnote ²³ and states have committed by treaty to cooperate with one another in preventing and suppressing transnational piracy and terrorist attacks.Footnote ²⁴ However, these measures capture only a small fraction of transboundary harms. Infectious diseases, malware attacks, and financial contagion do not respect national borders. Atmospheric pollution in one state contributes to rising sea levels, deadly droughts, and catastrophic storms on the opposite side of the globe. Regulatory failures in a single national jurisdiction can endanger populations, economies, and ecosystems worldwide, eroding states’ independence. Mandatory cooperation calls on states to work together to prevent, suppress, and mitigate these and other transboundary harms – even in contexts where they have not specifically consented to these requirements by treaty.Footnote ²⁵

By clarifying when, why, and how mandatory cooperation applies to international relations, the legal framework outlined in this book can assist national authorities to identify settings where international cooperation is mandatory without having to await direct guidance from international courts and tribunals. The criteria are reasonably straightforward: whenever interstate disputes involve matters that are subject to uncertain, concurrent, or jointly shared jurisdiction or conflicting sovereign rights, mandatory cooperation applies. States must consult with one another, share relevant information, and pursue either a negotiated solution or international dispute resolution in accordance with equitable principles. Conversely, mandatory cooperation does not apply when international law supplies a controlling rule of decision or assigns decision-making authority exclusively to one side.Footnote ²⁶ All interstate disputes can be divided into one of these categories; either a dispute concerns a setting where states’ rights are settled, independently controlling, and mutually exclusive (making mandatory cooperation inapplicable) or their rights are uncertain or interdependent (activating mandatory cooperation’s equitable requirements).

Challenges Ahead

Whether mandatory cooperation can withstand the current anti-globalist backlash remains uncertain. Within the past decade, nationalist political parties in Europe, Latin America, and the United States have challenged the constitutional vision of international legal order enshrined in the UN Charter, joining authoritarian states that seek to establish an international regime akin to the pre–World War II Old World Order. Great powers like China, Russia, and the United States have chafed against the constraints of sovereign equality and mandatory cooperation, sometimes pursuing imperialist agendas at odds with other states’ rights under international law. Mandatory cooperation places faith in states’ sociability and their capacity to work together to address common concerns even when this may require compromises that impact their immediate self-interest.Footnote ²⁷ Under the sway of nationalist political agendas, however, some states are resisting the constitutional model of sovereign equality by continuing to invoke the old absolutist model. Other states recognize international law’s call for cooperation yet shirk their commitments. As a result, the emerging international law of mandatory cooperation remains vulnerable to national backsliding despite its firm foundation in international treaties, customary international law, and judicial decisions.

The international community’s efforts to combat the COVID-19 pandemic illustrate some of the recurring challenges for mandatory cooperation. As early as 1931, Álvarez argued that international law required states to cooperate with one another to prevent the spread of infectious diseases for humanity’s collective benefit.Footnote ²⁸ After World War II, the international community established the World Health Organization (WHO) to coordinate its collective response to public health emergencies.Footnote ²⁹ The WHO later embraced mandatory cooperation by issuing the International Health Regulations (Regulations), which require states to notify, consult, share information, and assist one another in addressing emerging public health emergencies, such as deadly epidemics.Footnote ³⁰ However, these legal obligations failed to prevent COVID-19 from infecting over 150 million people and claiming over three million lives worldwide between 2020 and 2023.Footnote ³¹

In 2023, an independent review panel commissioned by the WHO’s Director-General delivered a landmark report evaluating the international community’s response to the COVID-19 crisis.Footnote ³² The panel concluded that the pandemic’s catastrophic impact on human health and the global economy were exacerbated by cooperation failures between the WHO and national authorities. The panel called for systemic change at the international level to prevent future pandemics. Specifically, the panel recommended that the international community develop a robust surveillance and global alert system for infectious diseases, establish a Global Health Threats Council to facilitate intergovernmental coordination, create an international platform for vaccine development and distribution, and codify these and other commitments in a new framework convention for pandemic response.Footnote ³³ To prevent the next pandemic, states would have to commit to “a change of paradigm to a resilient, equitable and inclusive system for pandemic preparedness” based on robust regulatory cooperation.Footnote ³⁴

While the independent review panel was conducting its study, the WHO convened an intergovernmental negotiating body (INB) to prepare a framework treaty on pandemic preparedness and response.Footnote ³⁵ The participants finalized a new Pandemic Agreement in May 2025.Footnote ³⁶ The Pandemic Agreement recognizes that averting the next pandemic will require “the widest possible international and regional collaboration, cooperation and solidarity with all people and countries … in order to ensure an effective, coordinated, appropriate, comprehensive and equitable international response.”Footnote ³⁷ While the Pandemic Agreement affirms “the principle of the sovereignty of States in addressing public health matters,”Footnote ³⁸ it also commits states to cooperate with one another “to sustainably strengthen the pandemic prevention, preparedness and response capacities of all Parties, particularly developing country Parties,” through sharing research, facilitating technology transfer and access to vaccines, sharing scientific and legal expertise, financial assistance, and other means.Footnote ³⁹

A skeptic might question whether the new Pandemic Agreement will deliver better results than the WHO’s Regulations. Without an enforcement mechanism to ensure that states notify, consult, and coordinate their responses to infectious diseases, what is to prevent states from shirking their obligations to cooperate? Is it reasonable to expect affluent states to meet their commitments to transfer proprietary technology and provide financial assistance to less affluent states? Will less affluent states prioritize pandemic preparation and response over other national concerns, such as primary health care, education, and economic development? On a skeptical view, the Pandemic Agreement is vulnerable to the same critique as Álvarez’s solidarity-driven account of the new international law: to the extent that its success depends upon states prioritizing community interests over their national self-interest, the Pandemic Agreement might be thought to rest on a utopian house of cards.

One weakness of this critique is that it assumes cooperating for pandemic response runs counter to states’ rational self-interest. Not all international cooperation problems are zero-sum games. Global pandemic response is better understood as what game theorists call a “stag-hunt game.”Footnote ⁴⁰ Because participants in a stag-hunt game are each better off participating if others participate, they lack incentives to defect so long as others remain within the game. If there is one lesson that the COVID-19 pandemic has driven home, it is that every state has a commanding political, economic, and humanitarian interest in supporting the global pandemic response game. No one wants another deadly epidemic to spiral out of control. Even the most tough-minded political realist should appreciate that international cooperation to prevent and mitigate global pandemics serves every state’s rational self-interest. It is reasonable to expect, therefore, that states can be persuaded to cooperate in fighting deadly epidemics if other states bear their fair share of the costs. Hence, the primary obstacle to achieving a more effective global regime for pandemic response is not convincing states that cooperation is worthwhile in the abstract but instead persuading them that specific international institutions, such as the WHO, are fit for service and equitably apportion the costs of cooperation among participating states.Footnote ⁴¹

Some international disputes, however, are zero-sum games. For example, dwindling fresh water at the Rio Grande means that the more water Mexico or the United States draws away for its use, the less is available to the other. Similarly, in both the North Pacific Fur Seals Case and the Icelandic Cod Wars, states competed to harvest scarce resources, risking a tragedy of the commons. Each of the parties to these disputes would have preferred to claim exclusive jurisdiction, but international law at the time conferred concurrent rights over the relevant resources. Had the disputes involved one-off interactions, the logic of a one-shot prisoner’s dilemma might have driven the states to defect from international cooperation. But international disputes are seldom one-shot interactions; they typically arise within ongoing, multifaceted relationships between states that are, in many respects, mutually interdependent. Accordingly, states often are best served by embracing mandatory cooperation for conservation and sustainable utilization. Through sustained engagement, states may cultivate the mutual trust necessary to facilitate conservation and sustainable utilization over the long haul.

Mandatory cooperation is less likely to thrive when defections are hard to detect and violations do not invite reciprocity or retaliation. Transnational cybercrime illustrates this challenge. As discussed in Chapter 5, international law obligates states to exercise due diligence to prevent and suppress harmful cyberattacks emanating from their territories. However, it can be difficult to pinpoint where such attacks originate, and even when this can be discerned, it is not always clear whether the originating state has exercised due diligence to prevent or suppress the harm. If the originating state benefits from such attacks, and if it does not expect to be the target of similar or more damaging attacks, it may have weak incentives to cooperate with transnational law enforcement.

Similar dynamics jeopardize international cooperation to address climate change. All states have an interest in avoiding the catastrophic environmental harm associated with climate change. However, given the high costs associated with transitioning away from a carbon-based economy, some states may prefer to freeride on other states’ efforts to mitigate climate change. There is a serious risk, therefore, that states might pledge to reduce their carbon emissions to spur action from other states without keeping their own commitments.

Mandatory cooperation addresses these misaligned incentives. With the recent advisory opinions on climate change from the ICJ, the International Tribunal for the Law of the Sea, and the Inter-American Court of Human Rights, there is now international jurisprudence affirming that states must contribute to the international campaign against climate change – even if they would prefer to freeride on others’ efforts.Footnote ⁴² By affirming that international law requires cooperation, these advisory opinions raise the reputational costs of noncompliance. In theory, the advisory opinions’ conclusions could also lay the groundwork for international sanctions or countermeasures against nonconforming states.Footnote ⁴³ Absent robust information exchange and independent monitoring, however, defections from international cooperation may be difficult to identify and deter. The more defections occur and become normalized, the harder it will be to persuade conforming states to continue to make sacrifices for the greater good. For hard problems like climate change, mandatory cooperation’s success or failure ultimately may depend on states accepting Álvarez’s invitation to embrace a “spirit of solidarity” that transcends national self-interest.Footnote ⁴⁴

Another challenge to mandatory cooperation involves great powers imposing their will on less powerful states. As discussed in Chapter 1, when Russia invaded Ukraine in 2022, Vladimir Putin opportunistically invoked the absolutist model of sovereignty.Footnote ⁴⁵ But Russia is hardly the only powerful state to infringe the principle of sovereign equality. The United States violated the principle when it conducted clandestine operations in Nicaragua and then refused to cooperate in related proceedings before the ICJ.Footnote ⁴⁶ The United Kingdom disregarded Mauritius’s equal sovereignty when it unilaterally established a marine protected area around the Chagos Archipelago in 2010.Footnote ⁴⁷ And China continues to undermine its neighbors’ sovereignty by unilaterally claiming sovereignty over the entire South China Sea in violation of its neighbors’ rights to participate as equal partners in maritime delimitation.Footnote ⁴⁸

For great powers like China, Russia, the United Kingdom, and the United States, complying with mandatory cooperation means giving up some of their capacity to direct international affairs unilaterally. Hegemons do not cede such power easily. Even when they have accepted legal obligations to cooperate, they may at times backslide into unilateralism. When countries elevate leaders who romanticize the Old World Order in which might made right, international cooperation inevitably suffers.Footnote ⁴⁹ For these reasons, it has taken the better part of a century for mandatory cooperation to rival and in some cases displace state unilateralism as the governing regime for settings where states’ rights under international law are mutually intertwined.

The Chinese Vision

Given these dynamics, some may think it is naive to believe that great powers could accept mandatory cooperation as a general principle of international law. Yet, recent signals from Chinese President Xi Jinping offer a basis for tentative optimism. Since the 1950s, China has viewed international law through the prism of the late-Premier Zhou Enlai’s “Five Principles of Peaceful Co-existence”: mutual respect for territorial integrity and sovereignty, mutual nonaggression, mutual noninterference in internal affairs, equality and mutual benefit, and peaceful coexistence.Footnote ⁵⁰ Within the past several years, however, Xi has updated the Five Principles by offering a fresh “Vision of Building a Community with a Shared Future for Mankind,”Footnote ⁵¹ presenting the principle of sovereign equality and the Chinese ideals of “harmony within diversity” and “solidarity toward common progress” as foundational cornerstones for international order.Footnote ⁵²

In a June 2024 speech commemorating the seventieth anniversary of the Five Principles, Xi characterized the Vision as a principled framework for reconciling sovereign equality with the increasingly interdependent nature of sovereign rights and authority. According to Xi, the Five Principles acknowledge “the importance of mutuality and equality in handling state-to-state relations, thus highlighting the essence of international rule of law, i.e. the intercorrelation of rights, obligations and responsibilities of all countries.”Footnote ⁵³ Accordingly, Xi presented international cooperation as the key to harmonizing states’ equal sovereignty in settings where states lack exclusive sovereign rights or authority over matters of international concern:

Although Xi did not use the term “mandatory cooperation,” his proposed approach aligns closely with the conception of international law defended throughout this book. As Xi acknowledged, the principle of sovereign equality prohibits states from abusing their rights by imposing their will on one another. Instead, states must consult and negotiate in good faith with an eye to finding mutually acceptable solutions to their common concerns. Xi also recognized that states must cooperate to safeguard international peace through multilateral norms and institutions, not the unilateral use of force. In each of these respects, Xi’s call for “a new type of international relations” founded on peaceful cooperation echoes what mandatory cooperation already requires of states.Footnote ⁵⁵

There is room, of course, to question the depth of China’s commitment to mandatory cooperation, particularly given its controversial campaign to establish de facto sovereignty over the South China Sea. A cynic might read the Vision as part of a broader national strategy to steer the international community toward a new generation of Chinese-sponsored international frameworks – including the Global Security Initiative, Global Development Initiative, Global Civilization Initiative, and Belt and Road Initiative – which would augment China’s global influence and normalize autocratic government.Footnote ⁵⁶ International partnerships that purport to be “win-win,” such as China’s various agreements to construct hydroelectric dams along the Mekong River, may operate in practice as tools for exploitation and domination, forging chains of economic dependency and imposing serious environmental harm.Footnote ⁵⁷

Be this as it may, the fact remains that China’s Vision offers a principled restatement of both the constitutional model of sovereign equality and the associated requirements of mandatory cooperation. Contrary to conventional wisdom, China no longer envisions a minimalist international legal order focused solely on facilitating peaceful coexistence but instead supports a “new model” that accepts sovereign equality as a constitutional principle of international law and pursues intensifying cooperation to harmonize states’ “intertwined interests.”Footnote ⁵⁸ With the public-facing rhetoric of a great power like China now emphasizing international cooperation as the path to realizing sovereign equality, there is hope that other great powers may eventually recognize and embrace mandatory cooperation as a general principle of international law.

How Good Neighbors Cooperate

In Robert Frost’s classic poem, Mending Wall, the narrator presses his neighbor to explain why the two must meet each spring to repair breaches in a stone wall that divides their properties. The neighbor replies simply, “Good fences make good neighbors.”Footnote ⁵⁹ This principle also applies to international relations: by dividing Earth’s territory among states and prohibiting foreign intervention, international law establishes jurisdictional boundaries that enable states to coexist as equal sovereigns.

But good fences are not enough to make good neighbors. In the interconnected world of the twenty-first century, states do not resemble reclusive landowners on independent estates. Rather, as Eyal Benvenisti has observed, state sovereignty today is “more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families.”Footnote ⁶⁰ The fate of each state is inextricably intertwined with every other state. One state’s actions can easily impact another’s rights, as when a state pollutes a transboundary river or emits ozone or methane into the atmosphere. States also interact with one another in common spaces outside the jurisdiction of any single state, such as the high seas and Antarctica. They depend upon each other to accommodate their exercise of sovereign rights, as when landlocked states seek access to blue water. And they rely upon one another to carry out their joint-stewardship responsibilities, including protecting international human rights, preserving world heritage sites, and conserving global biodiversity. “The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise,” Benvenisti remarks. Add to the mix existential threats like climate change and nuclear proliferation, and it becomes clear that the “privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.”Footnote ⁶¹ Accordingly, being a good neighbor in the twenty-first century requires far more than merely refraining from violating other states’ territorial integrity and political independence; it demands that states cooperate with one another for their own and humanity’s collective benefit.

Mandatory cooperation is how international law responds to these pressing concerns. As this book has shown, it is only by cooperating in accordance with equitable principles that states can reconcile their equal sovereignties in settings where their sovereign rights are interdependent. International cooperation is necessary, therefore, to respect the principle of sovereign equality under international law. But mandatory cooperation’s value extends beyond legal-formalist concerns about sovereignty and the rule of law. As international lawyers and jurists from the Global South have long recognized, the principle of sovereign equality serves an important practical function in safeguarding weaker states from domination by great powers. Moreover, it is only through robust multilateral cooperation that states can respond effectively to the great existential threats of our time, such as global pandemics, nuclear proliferation, and climate change. Perhaps more than at any previous era in history, “[h]umanity’s welfare – and, indeed, humanity’s very future – depend on solidarity and working together as a global family to achieve common goals.”Footnote ⁶² While presently a patchwork quilt and a work in progress, mandatory cooperation makes possible the idea of humanity as a mutually supporting global family.