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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.

Having published in the first issue of the first volume of this journal twenty-five years ago, I am delighted to accept the invitation to comment on Professor Richard Albert’s thought-provoking new conceptualization of constitutionalism as it might relate to New Zealand. The issues are not free from controversy in New Zealand, so I tread carefully and from an orthodox constitutional perspective. I also sound a note of warning about assumptions, grounded in realism. Albert favors lawful and peaceful attempts by peoples to use the levers of politics and law to achieve constitutional recognition within a state. He sees this as preferable to the sort of revolutionary self‑determination pursued through violence, such as by the Dutch against the Habsburgs in the sixteenth and seventeenth centuries or the Americans against the British in the eighteenth century. Few would disagree. But I caution against assuming away the underlying influence of coercive power in modern nation states. A worldwide resurgence of power politics is currently underway. Legal and political mechanisms in even well-established democratic states can be susceptible to power. Underlying patterns and distribution of historical coercive power influence the path-dependent nature of constitutional evolution in any state. Historical coercive roots have a habit of running through the grain of a nation’s constitutional culture. They can determine the success of constitutional initiatives. For example, Indigenous peoples are a numerical minority in most states now and their political power tends to reflect that. In many cases, peaceful and lawful initiatives are the only means of constitutional recognition available to indigenous peoples. But such initiatives do not always succeed. In this Essay, I briefly outline how Albert’s framework can characterize aspects of the constitutional evolution of New Zealand.

On February 20, 2024, the European Court of Human Rights ruled in Mohamed Wa Baile’s favor on his claim that Switzerland violated his rights under Article 14 of the European Convention on Human Rights, in conjunction with Article 8. Mr. Wa Baile alleged that Swiss law enforcement violated his rights when they subjected him to an identity check without offering an objective reason for doing so. The Court’s finding of a substantive violation of Article 14 with respect to racial profiling was unprecedented. The Court relied on factors such as the Administrative Court’s ruling that law enforcement had no objective reason for requesting identification from Mr. Wa Baile, statistics showing the extent of racial profiling practices in Switzerland, as well as Switzerland’s failure to implement adequate measures to remedy the issue. Similar to Switzerland, statistics show the prevalence of racial profiling in France. France also hesitates to enact laws and implement measures to prevent racial profiling. This is noted in a pending class action lawsuit in the European Court of Human Rights: Seydi and others v. France. This Comment argues that the theory behind Switzerland’s liability in Wa Baile v. Switzerland gives rise to allegations of Article 14 violations in France, as law enforcement exhibits a pattern of conducting identity checks absent reasonable suspicion and objective justifications.

This Essay examines the concept of “decolonial constitutionalism,” as articulated by Professor Richard Albert, focusing on its application to Chile’s recent constitution-making processes. Albert defines decolonial constitutionalism as “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.” The Essay explores how Chile’s attempts to draft a new constitution between 2019 and 2023 reflect both the potential and challenges of decolonial constitutionalism, particularly in relation to the rights and recognition of Indigenous Peoples. The first process (2019–2022) prominently featured Indigenous demands, including the proposal to reconfigure Chile as a plurinational state, but was ultimately rejected by the public. The second process (2023), in contrast, marginalized Indigenous claims and emphasized national unity, leading to another rejection. Despite these failures, the Essay argues that the constitutional recognition of Indigenous Peoples, even in a limited form, represents a significant—albeit incomplete—step toward decolonization. The Essay concludes by suggesting that future efforts to address Indigenous rights may need to shift from constitution-making to judicial enforcement and international legal mechanisms. Through this analysis, the Essay contributes to the broader discourse on how constitutional processes can serve as tools for decolonial emancipation.

Surrogacy is a growing area of assisted reproductive technology that is used transnationally. Opinions on the practice vary widely, influencing legislation around the world. Some areas ban the practice altogether, while other areas have little regulation at all. International rights to health, including autonomy and reproductive rights, are evoked throughout the surrogacy process. Surrogacy, like wet nursing, involves women using reproductive abilities to support other families in exchange for compensation. This Comment supports regulation on surrogacy that does not ban the practice, arguing instead that international rights support the continued use of surrogacy, and that wet nursing supports the idea that surrogates should be compensated for their work.

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.