Print Archive
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.
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 The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law.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.
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.
Companies rely on creditors for funding to operate, making it crucial to have legislative and procedural frameworks that protect the interests of these creditors. This article engages in a comparative analysis of corporate creditors’ protection rights on a global scale, emphasizing the Ethiopian case. The study contends that while countries may adopt distinct approaches to safeguard corporate creditors, and variations may exist in the strictness of rules across different strategies, nations have a universal commitment to implement strategies to ensure adequate protection for creditors’ interests.
In international trade, State interventions often challenge the efficacy of traditional anti-dumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises.
International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations. This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women.
In the context of adoption, subsidiarity is the principle that children should remain with their birth families whenever possible, and whenever not possible, that in-country placements should take precedence over intercountry adoption. This Comment looks at the specific meaning of subsidiarity in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It highlights that the convention does not require intercountry adoption be a last resort, but rather that “due consideration” be given to placements “within the State of origin.” It reveals a broad trend of these countries implementing stricter and stricter conceptions of subsidiarity over time and concludes that presently all three countries go far beyond what the convention requires, potentially in ways that undermine the best interests of the child.
In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed on children’s screen time and internet use, nor its own previous regulations in this area. As such, it is unlikely to have violated a norm of customary international law against restricting children’s internet use.
This Comment provides a comprehensive legal analysis of the potential investor-state disputes arising from Germany’s groundbreaking Coal Exit Act, which utilizes reverse auctions to phase out coal-fired power plants. It investigates potential breaches of the Energy Charter Treaty (ECT), delves into Germany’s possible defenses to a prospective claim, and concludes by proposing a more efficient buyout transaction structure that leverages carbon markets to enable comparable emissions reductions at a lower marginal cost of abatement and reduce the state’s exposure to ISDS claims.
How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions.
The lack of resources that afflicts Ghanian and Ivorian enforcement of child labor prohibitions has allowed for the continued use of child labor in the cocoa industry. This Comment proposes a novel solution to establish an intergovernmental organization, or commodity cartel, between Ghana and Côte d’Ivoire to better regulate and coordinate cocoa export and growth, modeled after existing commodity cartels.