The Seeds of Peace and Justice

Some positive developments in international law had humble beginnings. They started from a small group of idealists who wanted to change the world for the better. Once their ideas gathered momentum, they got the support of people with power and transformed the world. State after state followed each other in a cascade toward improving international law. The purpose of this paper is to investigate the conditions that are beneficial for the initial germination of ideas with the potential to positively revolutionize international law. By using a series of case studies focused on the initiation of major transformations that improved international law, this paper attempts to recommend how national and international settings should be arranged to support such transformations.

In paragraph two of its resolution on lethal autonomous weapon systems, pursuant to U.N. General Assembly resolution 78/241, the General Assembly requested the Secretary-General to solicit the views of Member States and Observer States regarding lethal autonomous weapons systems (LAWS). Specifically, the request encompassed perspectives on addressing the multifaceted challenges and concerns raised by LAWS, including humanitarian, legal, security, technological, and ethical dimensions, as well as reflections on the role of human agency in the deployment of force. The Secretary-General was further mandated to submit a comprehensive report to the General Assembly at its seventy-ninth session, incorporating the full spectrum of views received and including an annex containing those submissions for further deliberation by Member States.

In implementation of this directive, on February first, 2024, the Office for Disarmament Affairs issued a note verbale to all Member States and Observer States, drawing attention to paragraph two of resolution 78/241 and inviting their formal input. Corresponding communications—notes verbales and letters—were also disseminated to the entities identified in paragraph three of the resolution, requesting their contributions on the matter.  For the first time, this Article analyzes the positions of States parties on LAWS submitted to the Secretary-General in 2024, pursuant to UN General Assembly Resolution 78/241 calling for the views of Member States and Observer States on lethal autonomous weapons systems, inter alia, “on ways to address the related challenges and concerns they raise from humanitarian, legal, security, technological and ethical perspectives and on the role of humans in the use of force.” The Article focuses on Member States’ positions in relation to human-centric approaches to LAWS and compliance with international humanitarian law. Moreover, it argues that the standard for autonomous weapons systems’ compliance with the laws of war should not only be whether they follow the principles of international humanitarian law of distinction, proportionality, and precaution, but whether they can be free of algorithmic bias. The last several years of data analysis have shown that data bias and algorithmic bias can result in unintended consequences that pose the risk of unlawful discrimination. From housing to finance, mortgage lending to credit worthiness, and college applications to job recruitment, the use of artificial intelligence (AI) can result in unintended consequences that pose the biggest risk to women and minorities. While relying on potentially biased inputs, the “black box” of a machine can magnify these biases in its outputs or decisions. Furthermore, machine learning can help algorithms even learn to discriminate.

AI mistakes are often patterned, reflecting patterns in training data, algorithms, or the AI’s fundamental design. The Article asks whether Yale Law School professor Oona Hathaway’s recent arguments on individual and state responsibility for the patterns of “Mistakes” in War may also apply to the pattern of biases in AI-driven LAWS. In current and future disputes, machines do and will continue to make life-and-death decisions without the help of human decision-making. Who will then be responsible for the “mistakes” in war?

Although much has been written about algorithmic bias, an “algorithmic divide” can create an AI-driven weapons asymmetry between different nation states depending on who has access to AI. In the final analysis, the Article argues that the transformative potential of AI must be harnessed not in conflict but in conflict resolution.

The purpose of this article is to reassert the primacy of each state’s territorial jurisdiction as a fundamental basis for resolving international IP disputes. It identifies the principle that I have elsewhere termed the “territorial independence of IP laws” as specially relevant to the problems of parallel imports and cross-border IP infringement, and it explains how the proper application of the territorial independence principle resolves IP disputes in a manner that avoids running afoul of international law, maintains the integrity of basic U.S. principles of statutory construction, and remains consistent with the various federal statutes protecting IP rights. The territorial independence principle arises from the basic doctrine of international law that states have primary prescriptive jurisdiction with regard to their own territories, and this has important implications for how IP laws should be interpreted in multinational IP disputes.

How can you tell where someone is “from”? Historically, an individual’s national identity was singular, starting with formal nationality. One’s national center of gravity was readily determinable. Not so today. Determining one’s primary national identification is no longer an easy thing in many cases. This is consequentially enabled by the growing acceptance of dual citizenship. One can openly identify as a formal member of more than one country in a way that was disfavored in the past.

International investment law, however, has not caught up to this reality. In an increasing number of international arbitrations, tribunals are shutting the doors on dual national claimants under the doctrine of “dominant and effective nationality.” The test, which requires arbitrators to determine to which of two nationalities a claimant is more strongly attached, works from antiquated conceptions of nationality as essentially singular. Contemporary sociological conditions now allow for fluid and non-zero-sum national associations. Moreover, application of the dominant nationality test will have unintended consequences. It may revive an imperial era practice in which investors from the Global North carefully nurture their homeland citizenship even while they establish themselves permanently as non-citizens, alongside their investments, in states of the Global South.

For better or worse, citizenship’s place in the world has been transformed. International investment law has been generally slow to absorb change, siloed from scholarship outside the perimeter of specialized arbitration journals. The nature of international arbitration, moreover, systemically inclines it to putative doctrinal regularity. Here as in other areas tribunals should come to incorporate elements of global social meanings into their decision-making presumptions. This Article brings citizenship theory to bear on a field that is systemically insulated from exogenous bodies of scholarship.

Thousands of international investment and trade agreements contain provisions protecting investments made by parties from the signatory states. One such provision is Investor-State Dispute Settlement (ISDS), a mechanism allowing foreign investors to sue host states in arbitration for treaty violations. Fossil fuel investors are increasingly utilizing ISDS successfully to hold states liable for climate action; arbitral tribunals are awarding large compensations to these investors when states deny them permits for upstream activities or enact phase-out policies attempting to ban fossil fuel consumption. These awards impose heavy burdens on states while simultaneously deterring climate action by creating fears of liability. This Comment proposes that states could invoke the security exception, a common clause in these international agreements that allows a state to violate its treaty obligations to protect its essential security interests, to defend action targeting fossil fuel assets for the purpose of mitigating climate change. Historically, tribunals have accepted a broad slate of interests, from economic to environmental, as within the purview of the security exception, and they have afforded wide discretion to invoking states in defining their security interests for themselves. Climate change poses a significant security threat to the socioeconomic and political stability of countries. Invoking the security exception to defend climate action would be a novel and potentially effective defense that could help states win such disputes, advancing global efforts to achieve the Paris Agreement climate goals.