26.1

Summer

2025

Geographical indications (GIs) designating wines, spirits, and agricultural products have been the subject of a trade war between the U.S. and EU for several decades. The American legal regime often denies European producers exclusive rights to use GIs in the American market because U.S. authorities consider many European terms generic. As a result, EU regulators are reluctant to protect American designations of origin in the European market. Little progress has been made toward reaching a consensus about which terms should be protected and how they should be protected in transatlantic trade.

Economics has been the dominant lens through which the U.S.-EU conflict has been viewed, and commercial considerations have driven the parties to the current stalemate. This Comment proposes to break the impasse by suggesting that GIs should be understood in a new legal context: as a form of cultural property (CP). GIs are CP by definition and analogy, and several principles in national and international CP regimes have implications for the GI debate: producers of CP have a right to exclusive possession and use of their property, CP protection increases cultural strength, and bilateral arrangements in conjunction with national legal regimes can accomplish international goals of CP protection.

The principles in this Comment apply generally to all types of agricultural products marketed using geographically specific terms, but the piece will use the wine sector as a central example. To that end, this Comment makes the following recommendations for achieving progress in resolving the trade dispute: 1) for moral and economic reasons, there should be balanced American recognition of a greater number of European GIs in exchange for reciprocal European recognition of American ones; 2) the GI debate on the international stage should be connected to the burgeoning movement to protect traditional knowledge; 3) engagement between the U.S. and EU on the subject of GIs should continue on a bilateral basis; and 4) part of that bilateral interaction should be a notice register of U.S. and EU GIs. 

Big data—extremely large quantities of information and the analytics used to process it—is now crucial to the way militaries operate on the battlefield. Data is used to run weapons systems, analyze intelligence, procure and deploy personnel, evaluate battlefield conditions, detain prisoners, and more. And not only is data increasingly being used on the battlefield, but operations targeting adversaries’ data—to acquire it, delete and destroy it, or distort or poison it—are becoming increasingly important as well. Beyond the battlefield, big data lies at the epicenter of adversarial activities below the armed conflict threshold. Because data is the fuel of artificial intelligence (AI), it is generating an AI arms race among the U.S., China, Russia, and other states, incentivizing large-scale cyber operations related to data. And big data is increasingly central to humanitarian operations on, and adjacent to, the battlefield, for example to monitor humanitarian crises, facilitate early warning systems, and deliver aid, as well as to investigate and prosecute atrocities.

All of these uses of data in military operations raise challenging interpretive questions under key bodies of international law: international humanitarian law (IHL), the jus ad bellum and international human rights law (IHRL). But they also challenge us to consider anew various long-standing critiques of legalism in the international sphere more generally: what we might call the efficacy critique—are these laws effective at all in constraining state and non-state actors?—what we might call the legitimation critique—do laws of war actually sanitize, and thereby legitimate, acts of aggression?—and the critique that law is simply ineffective in adapting to rapid technological or societal change.

This Article uses the rise of big data on the battlefield first to respond to these critiques and defend the importance of legalism when addressing armed conflict, and second to consider the multiple interpretive challenges and gaps in the law that are created by the new techno-social reality of big data on the battlefield. As in other instances of disruptive technological and societal change, the laws of armed conflict must be both justified anew and then adjusted, either through textual gap-filling, interpretive translation, policymaking, or the construction of new legal paradigms.

This Article explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet now amplifies and democratizes this model, enabling coordination and norm diffusion without requiring state action or legal enforcement. Examples such as the Net Zero Space Initiative and a range of climate-related platforms illustrate how the pledging order bypasses formal treaty regimes in favor of reputational incentives, public transparency, and symbolic participation.

The Article evaluates the values, risks, and institutional dynamics of this emergent order, including its emphasis on pluralism, voluntarism, and functional over status-based participation. Ultimately, the pledging order reflects a shift from constitutional, rule-restraining global law toward a voluntarist, productivity-oriented attempt to address 21st-century transnational challenges—particularly where formal multilateralism has stalled.

The modern system of international criminal justice, which was born out of World War II and built in its current form during the early 1990s, is both revolutionary and a relic. The ideals, innovation, and vision that created the international legal order were ground-breaking at the time but have failed to evolve at a pace that ensures its relevance and efficacy. The challenges we face today are drastically different from those in the period in which the framework was conceived, the institutions were formed, and the laws were drafted. While these changes have been incremental over several decades, technological advances have led to fundamental transformations in how individuals communicate, how societies interact, and how states engage with each other and their constituents. The law, in contrast, has been slower to evolve, owing in large part to the dearth of enforcement mechanisms. One can point to an abundance of academic literature and soft law instruments that provide scholarly guidance on the interpretation of international law applicable to new and emerging technologies. However, this debate is siloed from the practical realities of international law in which very few court cases have tested how international law applies to these technologies in practice. This Article assesses the effectiveness of the current system of international criminal justice in the face of emerging threats, assessing whether and how existing international law applies and identifying where it falls short.

International investment agreements (IIAs), while intended to prop cross-border investment, have faced persistent criticism for potentially undermining the regulatory sovereignty of developing countries. Various mechanisms have been proposed as alternatives to traditional bilateral investment treaty (BIT) models, often with the goal of curbing investor-state dispute settlement (ISDS) filings. While existing research has uncovered the impact of nonlegal factors, such as macroeconomic crises, little has been done to systematically examine how legal provisions in either major model BITs or ISDS reform toolboxes influence ISDS filing patterns. To address this gap, this Article analyzes the interplay between (i) legal texts of 2,148 BITs and treaties with investment provisions (TIPs) and (ii) the occurrence of 1,060 ISDS cases. It builds on the United Nations Conference on Trade and Development (UNCTAD)’s IIA Mapping Project to assess the impact of key legal deterrents recommended by ISDS reform proponents, while leveraging large language models to identify the key legal drivers of ISDS filings. The outcome of Poisson regression appears to reveal that: (i) procedural provisions resembling those in the 2012 U.S. Model BIT are the strongest positive predictors of ISDS filings, outweighing the impact of economic crises, whereas substantive provisions such as investor treatment and expropriation clauses are not; (ii) the effectiveness of deterrent provisions remains inconclusive, suggesting that their ability to curb ISDS filings requires further scrutiny; and (iii) the assumption that IIAs between developed host countries and developing states are more prone to ISDS filings is unsubstantiated. These findings could contribute to ongoing discussions on BIT reform by highlighting the legal determinants of ISDS frequencies, with implications for policymakers seeking to balance investment protection with regulatory autonomy.

A day without space, a term used to describe the loss or destruction of America’s space assets, and the potential generation of novel biological threats using AI and synthetic biology present catastrophic and potentially existential threats to U.S. security in a way that nuclear weapons did before and continue to do so today. Yet they have not received the level of attention from national security lawyers or commentators they warrant. This article describes the threats. It describes the current and inchoate nature of the law to address these threats. And it makes initial recommendations to policymakers and lawyers about how to use law to address these threats. This article is a warning order: It is time for national security lawyers across the government and not just specialists to engage these issues, which require whole of government and whole of country solutions. 

In a potential future peer-on-peer or near peer conflict, the technological capabilities that are both taken for granted and a source of military superiority will be an immediate and high-value target. Global navigation and positioning systems, satellite imaging, precision guidance, instantaneous communication, and much more— the adversary will seek to shut down these capabilities. Turning off the technology, or fighting “in the dark,” presents complex operational and tactical challenges of navigation, logistics, communication, command and control, coordination, and targeting, to name just a few. However, executing military operations in such a technology-deprived environment also requires the application and implementation of the law of armed conflict (LOAC) in the dark, which introduces a set of parallel challenges and concerns.

This Essay explores the challenges for the law when all the technological capabilities that are deeply incorporated into our daily lives and our military operations are not available in armed conflict—because the capabilities have been turned off, jammed, spoofed, or taken down. The law of armed conflict, in contrast, will not be turned off. LOAC applies regardless of capability, type of conflict, or any other distinguishing scenario about a particular conflict. A first challenge lies in the application of LOAC in such situations, including training for the wars the military will need to fight, new questions of interoperability with partners and allies, and a more careful understanding of the relationship between law and policy in the implementation of military operations. Second, the application of LOAC “in the dark” presents the risk of significant pressures on the law as our understandings of and discourse about key principles are put to new tests. Consider proportionality and precautions, for example—current implementation of both core principles of targeting is replete with reliance on technological capabilities that may or will be degraded or rendered unavailable. And yet the absence of those capabilities does not diminish or alter these core legal obligations, highlighting the need to analyze and reaffirm the meaning and application of these fundamental rules. Other pillars of LOAC that will face significant pressure are the role of reasonableness, doubt, and certainty in decision-making and the relationship between capabilities and obligations.

The emergence of user-generated evidence has revolutionized how atrocities and human rights violations are documented globally. Since 2011, when Syrian human rights defenders began documenting atrocities on their smartphones, a professional field has emerged around the collection, authentication, and preservation of digital evidence. However, this professionalization has created unintended consequences, as expertise and verification power shifted away from frontline communities to Global North institutions. This Article examines this tension through two case studies: the Rohingya Genocide Archive, and Nigeria's #EndSARS movement. These examples demonstrate both the power of locally-informed evidence collection and the challenges when verification skills remain concentrated among elite institutions. As the rise of synthetic media through generative artificial intelligence poses new threats to the practice of fortifying the truth through digital evidence, we urge collaborative work to ensure that frontline communities are empowered with locally relevant skills and tools to protect their rights.

Imaginations of Planet Earth as-a-whole—that is, Earth conceived in planetary terms by wide publics—have been shaped over several decades by the growing capabilities of artificial Earth satellites to image the whole Earth, to specify all locations, and to integrate the Earth’s diverse orbital space with everyday human activities. Different Earth orbits are becoming more densely used, more securitized, more intensely managed from Earth, and more integral to activities on Earth.

This Article focuses on two categories of satellite systems that contribute directly to planetary knowledge, Global Navigation Satellite Systems (GNSS) and Earth Observation Satellite Systems (EOSS). GNSS and EOSS have earlier military and intelligence origins, but were readily associated with 1990s-type “globalization”—the encouragement of trade and communication, and the monitoring and discouragement of illicit activities and flows. More recently both have also been integral to a process of “planetization”—the construction and wide diffusion of understandings of Earth in planetary terms, as a shared and contingent habitat with many dependencies. This Article traces the policies and conditions under which data from these satellite systems has become (for the time being) open and widely available to general publics, and the basis for “planetary” infrastructural development and dependence.

We argue that the major GNSS have all become “infrastructural”: broadcasting without charge freely available signals which enable timing, positioning, and navigation via receivers and downstream products for billions of users, as well as a fast-increasing range of important environmental uses. EOSS supply images and other data which flow into scientific models of Earth systems and many business and governmental use cases—with or without charge or restriction, depending on the provider and on government controls. EOSS have become, or are becoming, infrastructural for many forms of planetary knowledge. However, the provision of comprehensive, free-to-all, and highly reliable GNSS and EOSS data and services is not legally embedded or guaranteed, and it is far from assured. Both are “dual use” and vulnerable to kinetic or cyber disruption in conflict. GNSS are government-provided but readily spoofed or jammed, and governments are seeking to develop more resilient alternatives. EOSS are often privately owned or government-controlled, and the data or downstream products are increasingly liable to private enclosure or to government restriction on release. Questions about their assured availability and extension swirl together with renewed nationalism, military prioritization, and contestations of “planetary” politico-legal thinking and its imaginaries. It is now necessary to “think infrastructurally” about legal, policy, and economic means to ensure the reliable and universal availability, sustenance, and supplementation of these important foundations of planetary knowledge.

This article discusses a new guide that has been developed to support the responsible use of digital open-source information to investigate systematic and conflict-related sexual violence (SCRSV). Drafted by the Institute for International Criminal Investigations and the Human Rights Center at UC Berkeley School of Law, the just-published pilot version of the Open-Source Practitioner’s Guide to the Murad Code aims to minimize the risks and maximize the potential for digital investigations into SCRSV.  Part I of this article opens with a brief history of accountability for SCRSV, touching on the need to strengthen SCRSV investigations and providing a brief introduction to existing ethical guidelines. That is followed by a short history of digital open source investigations. Part II brings those histories together, touching on the various roles that digital investigations are beginning to play in the investigation and prosecution of SCRSV, acknowledging challenges to integrating digital methods into investigations, offering suggestions for resolving those challenges, and summarizing the guide’s relevant content. Part III looks to the future, exploring the potential for both tech-assisted and machine-led processes to strengthen the investigation and prosecution of SCRSV. The article concludes with some thoughts on how emerging digital technologies, and especially machine learning-based research methods, may prove useful to future accountability for SCRSV crimes.