Public International Law

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Article
CJIL Online 2.2
Technologically Enabled Surrender Under the Law of Armed Conflict
David A. Wallace
Brigadier General (ret.) David A. Wallace previously served as the Professor and Head, Department of Law, United States Military Academy, West Point, New York, and has been designated a Professor Emeritus. He is currently the United States Naval Academy Class of 1971 Distinguished Military Professor of Law & Leadership.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

Shane R. Reeves
Brigadier General Shane R. Reeves is the 15th Dean of the Academic Board of the United States Military Academy, West Point.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

Christopher J. Hart
Lieutenant Commander Christopher J. Hart is a submarine officer stationed at the United States Naval Academy as a senior instructor in the Leadership, Ethics, and Law Department.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

This Article discusses the development of the modern legal consequences of surrender under the law of armed conflict and explores how technologically enabled surrender is being used in Ukraine. It concludes with an analysis of the impact of these technologies on the surrender process and presents an adaptive interpretation of existing norms, leading to three overarching themes.

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26.1
The Law of Armed Conflict – in the Dark
Laurie R. Blank
Clinical Professor of Law and Director, International Humanitarian Law Clinic, Emory University School of Law.

With thanks to The U.S. Army Judge Advocate General’s Legal Center and School and the Military Law Review, this Essay builds on my remarks for the Sixteenth Annual Waldemar A. Solf and Marc L. Warren Chair Lecture in National Security Law in March 2023 (published as an edited transcript at 231 Mil. L. Rev. 147 (2023)).

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26.1
Digital Evidence: Facilitating what and for whom?
Rebecca Hamilton
Rebecca Hamilton is a Professor of Law at American University, Washington College of Law.

The authors would like to thank our colleagues at the Counter Evidentiary Network, colleagues at WITNESS, and partner communities whose courage continue to inspire. Our gratitude also to the editors of the Chicago Journal of International Law.

Adebayo Okeowo
Dr. Adebayo Okeowo is a human rights lawyer and currently serves as the Associate Director of Programs at WITNESS.

The authors would like to thank our colleagues at the Counter Evidentiary Network, colleagues at WITNESS, and partner communities whose courage continue to inspire. Our gratitude also to the editors of the Chicago Journal of International Law.

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26.1
Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
James Kraska
James Kraska is the Charles H. Stockton Chair of International Maritime Law at the United States Naval War College and Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School.

I am grateful to Michael N. Schmitt, Wolff Heintschel von Heinegg, Raul (Pete) Pedrozo, and Nick Kadlec for their generous peer review comments.  

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26.1
Technology and the Law of Jus Ante Bellum
Asaf Lubin
Dr. Asaf Lubin is an Associate Professor of Law at Indiana University Maurer School of Law and a Faculty Affiliate of the Hamilton Lugar School of Global and International Studies. He is additionally an Affiliated Fellow at Yale Law School’s Information Society Project, a Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University, and a Research Associate at the Hebrew University of Jerusalem Federmann Cyber Security Research Center.

I am grateful to Rebecca Crootof for the in-depth discussions we had at the outset of this project, which were instrumental in refining my thinking on the subject. I am also grateful to the participants of the Saint Louis University Law Journal Symposium titled “Contemporary Challenges in International Humanitarian Law: Is there Hope for the International Order? for offering excellent feedback on an earlier draft. In particular I wish to thank Adi Gal, Eric Talbot Jensen, Marco Roscini, Afonso Seixas-Nunes, SJ, and Jennifer Trahan for their valuable insights. I also extend my deep appreciation to the Board of the Chicago Journal of International Law for the opportunity to contribute to this symposium and for their thoughtful feedback and editing. Finally, this symposium has brought together some of the kindest people and sharpest minds currently working at the intersection of international law and technology. It is an incredible privilege to be included among them, and I look forward to engaging with their ideas and contributions in the years to come.

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26.1
Large Language Models and International Law
Ashley Deeks
Vice Dean and Class of 1948 Professor of Scholarly Research in Law, University of Virginia Law School; Senior Fellow, Miller Center of Public Affairs, University of Virginia
Duncan Hollis
Laura H. Carnell Professor of Law, Temple University School of Law

Large Language Models (LLMs) have the potential to transform public international lawyering in at least five ways: (i) helping to identify the contents of international law; (ii) interpreting existing international law; (iii) formulating and drafting proposals for new legal instruments or negotiating positions; (iv) assessing the international legality of specific acts; and (v) collating and distilling large datasets for international courts, tribunals, and treaty bodies.

This Article uses two case studies to show how LLMs may work in international legal practice. First, it uses LLMs to identify whether particular behavioral expectations rise to the level of customary international law. In doing so, it tests LLMs’ ability to identify persistent objectors and a more egalitarian collection of state practice, as well as their proclivity to produce inaccurate answers. Second, it explores how LLMs perform in producing draft treaty texts, ranging from a U.S.-China extradition treaty to a treaty banning the use of artificial intelligence in nuclear command and control systems.

Based on these analyses, the Article identifies four roles for LLMs in international law: as collaborator, confounder, creator, or corruptor. In some cases, LLMs will be collaborators, complementing existing international lawyering by drastically improving the scope and speed with which users can assemble and analyze materials and produce new texts. At the same time, without careful prompt engineering and curation of results, LLMs may generate confounding outcomes, leading international lawyers down inaccurate or ambiguous paths. This is particularly likely when LLMs fail to accurately explain particular conclusions. Further, LLMs hold surprising potential to help to create new law by offering inventive proposals for treaty language or negotiating positions.

Most importantly, LLMs hold the potential to corrupt international law by fostering automation bias in users. That is, even where analog work by international lawyers would produce different results, humans may soon perceive LLM results to accurately reflect the contents of international law. The implications of this potential are profound. LLMs could effectively realign the contents and contours of international law based on the datasets they employ. The widespread use of LLMs may even incentivize states and others to push their desired views into those datasets to corrupt LLM outputs. Such risks and rewards lead us to conclude with a call for further empirical and theoretical research on LLMs’ potential to assist, reshape, or redefine international legal practice and scholarship.

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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
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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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.

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Comment
18.1
Rethinking Espionage in the Modern Era
Darien Pun
J. D. Candidate, 2018, The University of Chicago Law School.

I would like to thank Professor Abebe for his patience and guidance throughout the writing process, and the editors of the Chicago Journal of International Law for their thoughtful suggestions.