Volume 25.2

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25.2
The International Law of Land (Grabbing): Human Rights and Development in the Context of Racial Capitalism
Gabriele Wadlig
Max Weber Fellow, European University Institute, Florence Italy.

I wish to extend my sincere gratitude to Katrina M. Wyman, Sally Engle Merry, Gráinne De Burca, and Vasuki Nesiah for their invaluable guidance and dedicated mentorship throughout my doctoral dissertation, which formed the foundation of this Article. I am also deeply thankful to José Enrique Alvarez, Hannah Birkenkötter, Julia Dehm, Sué González Hauck, Neha Jain, Michele Krech, Christopher Roberts, Marcela Prieto Rudolphy, Frank Upham, and the participants at the LSA Early Scholars Workshop in 2023 for their insightful feedback on earlier drafts.

This article investigates the concept of tenure security within international law, emphasizing the global legal architectures that influence and shape land tenure governance at the intersections of international human rights law and development. By tracing the evolution of tenure security from colonial practices to modern development paradigms, the article contends that international development and human rights frameworks often perpetuate dispossession and inequality. It critiques the convergence of human rights and development narratives around the formalization of land tenure, demonstrating how this practice reinforces Western legal frameworks and ontologies of land. The article examines a range of instruments including various UN CESCR General Comments, Reports and Guidelines issued by UN Special Rapporteurs, the Voluntary Guidelines on the Responsible Governance of Tenure, and the Sustainable Development Goals and indicators. It explores the mechanisms through which these international frameworks propose solutions for securing land tenure based on a resource ontology, highlighting how they perpetuate land commodification, marginalize and displace vulnerable populations, and contribute to the proliferation of racial capitalism. It further underscores the limitations of international human rights law mechanisms in addressing the complexities of land tenure security, dispossession, and the neoliberal agendas underlying and driving global land governance. Advocating for a decolonial approach, it challenges some of the foundational assumptions of international law and calls for the unsettling of Eurocentric and capitalist ontologies of land embraced by international development and international human rights law alike.

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25.2
Anchoring Digital Sovereignty
Vivek Krishnamurthy
Associate Professor, University of Colorado Law School; Faculty Associate, Berkman Klein Center for Internet & Society, Harvard University

Many thanks to Myka Kollmann and Sebastian Blitt for their outstanding research assistance; to S. James Anaya, Mailyn Fidler, Asaf Lubin, Cymie Paine, Blake Reid, Donald Rothwell, and Peter Swire for their feedback on previous versions of this Article; to participants at the 2022 “Four Societies” Conference, the 2024 Law & Tech Workshop Series, and internal workshops at the Universities of Ottawa and Colorado for their insights; and to Regina Bateson, Anupam Chander, David Sloss, Rich Furman, Pratheepan Gulasekaram, Margot Kaminski, Molly Land, Marina Pavlović, and Penelope Simons for their guidance and support. Any remaining errors of fact or law are mine alone.

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet’s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world’s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.
Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state’s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character.

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25.2
Decolonial Constitutionalism
Richard Albert
Hines H. Baker and Thelma Kelley Baker Chair in Law, Professor of Government, and Director of Constitutional Studies at The University of Texas at Austin.

For their helpful comments and suggestions, I am grateful to audiences at Airlangga University (Indonesia), Amity University (India), Arizona State University, Christ University (India), Dharmashastra National Law University (India), National Academy of Legal Studies and Research (India), Pontificia Universidad Católica del Perú, Universidad de Nariño (Colombia), Universidad de Especialidades Espíritu Santo (Ecuador), University of the Free State (South Africa), the University of the West Indies, Cave Hill (Barbados), and the 10th Biennial Jamaica Diaspora Conference, the Congreso Bicentenario de la Constitución de 1824 (Mexico), the Congreso Internacional de Jurisprudencia (Mexico), the Second International Congress of the Contentious Administrative Jurisdiction of the Colombian Caribbean, and the 10th Annual Conference of the International Society of Public Law. My thanks to the entire editorial team at the Chicago Journal of International Law, with special thanks to Clarissa Boyd, Connie Chen, George Ericsson, Christina Hartman, Kaylin Jeon, Julia-Jeane Lighten, Josh Low, Grace Masback, Anjali Patel, Ian Peacock, Joseph Robinson, Max Rotenberg, Raam Tambe, Varun Vijay, Kirby Voss, and Zelai Xu. I welcome comments by email at richard.albert@law.utexas.edu.

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to great power, the United States modeled for subordinated peoples abroad how to win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones in the new global model of decolonial constitutionalism that now lights the path to self-determination.
Decolonial constitutionalism is the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state that is legally or politically subordinate to domestic or foreign actors. In contrast to the American model of revolutionary self-determination, this new global model of decolonial constitutionalism has pluralized actors and sites of contestation, though the decisive objective of decolonization remains the same. Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society. Nor does self-determination today necessarily entail establishing a new state in the international order and taking a seat among equals alongside the countries of the world. In our new era of non-violent claims to sovereignty, decolonial movements choose instead to write new constitutions for existing states, to amend enduring constitutions, to enforce treaty rights, to promulgate multilateral agreements, or to pursue analogous courses of disruptive constitutional activity well short of declarations of independence. Decolonial constitutionalism therefore refers to a suite of strategies to exercise self-determination, defined expansively to comprise a broad scope of decolonial objectives consistent with the rule of law.
In this Article, I introduce, illustrate, and theorize decolonial constitutionalism as the modern form of self-determination. Drawing from historical and modern decolonial movements, I show how subordinated peoples have seized the levers of law and politics to innovate new paths to self-determination without taking up arms, in the process showing similarly situated peoples how to achieve their own goals of independence, nationhood, or constitution-making in a manner that reinforces rather than undermines the rule of law. These strategies have proven ultimately more productive for decolonial movements to free their peoples from bondage in law or politics, to attract ideologically aligned partners at home and abroad, and to more effectively communicate to internal and external audiences the moral legitimacy of their claims to self-determination.

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Comment
25.2
The Expressive Effects of Bilateral Labor Agreements
Ian G. Peacock
B.A. 2015, Brigham Young University; M.A. 2017 University of California, Los Angeles; Ph.D. 2022, University of California, Los Angeles; J.D. Candidate 2025, The University of Chicago Law School.

Thank you to Professors Adam Chilton and Tom Ginsburg along with Nicholas Amador, Rupan Bharanidaran, Sara Evans, Nabil Kapasi, Jennifer Kuo, Tyler Lawson, Hana Nasser, Bernie Pellissier, George Phelan, Tom Raffaelli, Sunayana Rane, Joseph Robinson, Max Rotenberg, and Kai Thompson for their gracious and incisive feedback on earlier versions of the Comment.

Bilateral labor agreements (BLAs) aim to facilitate the movement of temporary migrant workers between countries. So far, studies of BLAs have focused on whether they have effects on migration flows. Despite countries entering hundreds of BLAs, evidence for their effects on migration flows remains limited. Yet, even if BLAs have limited material effects, they may still have important symbolic effects. On this topic, this Comment highlights BLAs’ potential to change rhetoric about international migration among heads of state. Drawing on an original empirical analysis focused on BLAs with the Philippines, the Comment analyzes how BLAs may influence leaders’ expressed attitudes toward international migration during United Nations General Assembly (UNGA) debates. Results reveal significant positive shifts in sentiment about international migration after countries form BLAs with the Philippines. The improved sentiment has a limited duration, however, diminishing after initial surges. Considering these findings, the Comment contributes to three bodies of legal scholarship, namely, those dealing with (1) the need for more social science research in international law, (2) the socioeconomic and political effects of BLAs, and (3) the utility of international agreements to constrain or prompt change in state action. Ultimately, the Comment calls for a comprehensive assessment of international agreements, recognizing their ability to affect not only intended outcomes but also high-profile symbolic outcomes.

CJIL Online 4.1

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CJIL Online 4.1
Minority Rights Protections in the Post-Arab Spring Egyptian and Tunisian Constitutions
Sahar M. Omer
J.D. Candidate 2025, The University of Chicago Law School

I would like to extend my gratitude to the editorial board and staff of the Chicago Journal of International Law and to Professor Tom Ginsburg for advising me. I would also like to thank my friends and family for their constant support.

The 2011 Arab Spring was an inflection point for the Middle East and North Africa region, representing an opportunity for democracies in countries that have only experienced authoritarianism as sovereign nations. Both Tunisia and Egypt drafted and ratified new constitutions in the wake of their revolutions. Among the chief worries that citizens and onlookers had in their drafting processes was the role that Islamists would have, particularly in human rights and minority protections. As more citizens wanted fundamental rights protected in their constitutions, the drafters had the task of incorporating them with the Islamic identity of the state. Compromises by the Tunisian Islamists and secular groups led to a more well-received constitution by minority groups, while the opposite happened in Egypt. This Comment argues, based on the comparative success of the 2014 Tunisian Constitution, that religious-based democratic states will need to include more protections for minority and historically marginalized groups to increase their acceptance and longevity.

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Comment
CJIL Online 4.1
Administering an International Climate Migration Lottery
Hana Nasser
B.A., University of Illinois Urbana-Champaign, Ph.D., University of Virginia, J.D. Candidate at the University of Chicago

I would like to thank my comment editors, Amara Shaikh and Tyler Lawson for their feedback and guidance. Professor Nicole Hallett provided detailed comments on drafts and helped me sharpen the argument. Professor Tom Ginsburg provided valuable feedback on the comment’s proposed design for a climate migration lottery.

Experts predict that millions of people will need to migrate internally and across borders due to global warming. Currently, international legal frameworks do not extend the same legal protections to climate migrants as are afforded refugees and asylum seekers. While international law recognizes the right to asylum based on political persecution, there is no international right to migrate based on climate-based harms that states are legally bound to observe. This Comment proposes a climate migration lottery (CML) that would be administered internationally to address current and future climate-based migration. Under this proposal, receiving states would agree via a treaty to admit their fair share of the total pool of climate migrants selected through the lottery. Migrants from countries with a high susceptibility to having large portions of territory rendered uninhabitable by climate change would be eligible to enter the CML. This comment argues that a CML can alleviate the strain on regions in developing states that must accommodate internally displaced persons as well as the burden on countries that are near low-lying Pacific island states that will experience significant rates of displacement due to sea level rises.