Law Commons^™

Bridging Divides, Building Futures: Affirmative Action From A Global Perspective, Irene Rhodes

Case Western Reserve Journal of International Law

Affirmative action in higher education has long been central to U.S. constitutional debate, but the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) ended race-conscious admissions. This Article uses a comparative framework to examine how Canada, the United Kingdom, Brazil, and India reconcile equality, diversity, and meritocracy. Common law systems emphasize incremental positive action, while Brazil and India employ quota-based statutory models. These contrasts reveal that effective diversity policies must align with constitutional traditions. For the United States, durable reforms should include race-neutral socioeconomic indices, statutory authorizations, and programmatic supports with built-in review mechanisms. By drawing on …

The Rise Of Accountability Mechanisms: The Next Wave Of International Law Justice?, Jacqueline R. Mcallister

Case Western Reserve Journal of International Law

Since 2011, the United Nations (UN) has increasingly deployed investigative mechanisms—or commissions of inquiry, fact-finding missions, and other ad hoc investigations—to not just monitor and document egregious human rights abuses, but also to collect, preserve, and analyze evidence in order to lay the groundwork for future accountability. Importantly, these “accountability mechanisms” tend to deploy in places where the International Criminal Court (ICC) lacks jurisdiction or national courts are unwilling or unable to conduct prosecutions. They thus work to counter impunity gaps. However, since their debut, accountability mechanisms have faced immense political, financial, administrative, and institutional challenges, which have hindered their …

Mapping The Invisible: A Topology Of De Facto Amnesties And The Shifting Landscape Of Accountability, Francois Naaman

Case Western Reserve Journal of International Law

This article introduces the concept of de facto amnesty as a distinct category within transitional justice. While international law has increasingly restricted de jure amnesties, it has paid less attention to informal or structural practices that foreclose accountability in fact. Such practices, whether extensions of statutory amnesties, tacit political bargains, or systemic enforcement failures, have often been tolerated, and at times legitimized, by international actors. Without a clear framework, they risk being conflated either with impunity or with legitimate reconciliatory measures. The paper proposes a working definition of de facto amnesty and a five-step diagnostic method for its identification. It …

Creeping Alliances In Foreign Policy Choices: A World Of Clusters And The Outline Of A Fragmented World Order, Kerem Gülay

Case Western Reserve Journal of International Law

International cooperation and conflict has long been studied through formal institutions, namely, membership in international organizations and participation in bilateral or multilateral treaties. This hardly grasps the informal and contingent relationships and the tacit and pragmatic alliances reflected in countries’ joint positions on multilateral issues. While most theories of alliances were preoccupied with why such formal alliances were formed, this article offers a reconceptualization of international cooperation based on empirical data. It proposes “creeping alliances,” tentatively defined as gradual and often informal cooperation that develops over time characterized by increasing mutual foreign policy alignment, to explain an undertheorized domain of …

The Unspeakable Unspoken: Terrorist Imagery, Symbolic Expression And The Shifting Boundaries Of Free Speech, Ayşe Yağmur Tunçak

Case Western Reserve Journal of International Law

A simple fruit like a watermelon can convey many meanings: solidarity for some, terrorism sympathies for others. Among other things, increasing restrictions on speech drive individuals to the use of symbols for political expression, which may lead to legal controversies at the international level due to the untended complexity of symbolic speech in legal discussions. Unlike verbal communication, the meaning and communicative content of symbols are often indirect and open to interpretation. Thus, international human rights standards should rely on context-sensitive evaluations to prevent arbitrary limitations. Although the European Court of Human Rights (ECtHR), due to its subsidiary role, assumes …

Governing Economic Statecraft: Procedural Guardrails From State Practice, Wto Rules, Multilateral Trade, Dah-Wei Yih

Case Western Reserve Journal of International Law

National security exceptions have long been part of international trade law, but their use has expanded alongside the rise of economic statecraft. States now increasingly rely on geoeconomic tools such as sanctions, subsidies, tariffs, and investment and export controls to pursue geopolitical goals. This phenomenon, described by political scientists as “weaponized interdependence,” has blurred the boundary between economic policy and national security, thereby straining the integrity of WTO rules and the multilateral trading system.

Against this backdrop, how can states promote rule-of-law values such as transparency and predictability on the international plane as they implement geoeconomic policies?

This Article makes …

Ecocide And The International Criminal Court: Reassessing The African Union-Icc Impasse, Ikechukwu Ugwu

Case Western Reserve Journal of International Law

The refusal of the African Union (AU) and its leaders to cooperate with the International Criminal Court (ICC) led to the negotiation of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights 2014 (the Malabo Protocol). The Protocol incorporates the core crimes of the Rome Statute and, in addition, expands on the meaning of international crime by defining crimes related to the environment, among others. Although the Malabo Protocol is innovative in its provisions, it lacks the potential to prevent ecocide in Africa or to serve as a model for …

Institutional Authority Without Ratification: Rethinking International Organizations’ Governance In The Post-Treaty Era, Izadora Coutinho

Case Western Reserve Journal of International Law

This Article examines the growing normative authority exercised by international organizations through informal governance mechanisms that operate without treaty ratification or formal consent. It argues that international law is undergoing structural transformation: global standards increasingly emerge from flexible, network-based arrangements rather than negotiated treaties. Using the OECD/G20 Global Anti-Base Erosion (GloBE) Rules as a case study, this Article illustrates how nonbinding instruments can generate de facto binding effects. Their adoption by numerous jurisdictions reflects systemic incentives, reputational pressures, and tax base erosion threats. While such mechanisms enhance flexibility and responsiveness, they also raise significant concerns about legitimacy, sovereignty, and accountability. …

State Complicity And The Threshold Of Knowledge: From Fragmentary Evidence To Evidentiary Saturation, Christina Bradic

Case Western Reserve Journal of International Law

The International Court of Justice’s (ICJ) 2007 judgment in Bosnia v. Serbia turned on evidentiary gaps. Although the ICJ recognized that genocide had been committed at Srebrenica, it declined to hold Serbia complicit, reasoning that the record did not prove awareness of genocidal purpose. Intelligence was piecemeal, contemporaneous witnesses were scarce, and the ICJ refused to infer knowledge absent direct proof.

Two decades later, the evidentiary environment looks radically different. In October 2024, ninety-nine American healthcare professionals who had volunteered in Gaza sent an open letter to the White House reporting that children with gunshot wounds to the head or …

Closing Remarks To The American Society Of International Law 2025 Midyear Meeting, Rt. Hon. Alex Chalk Kc

Case Western Reserve Journal of International Law

No abstract provided.

Keynote Speech For The American Society Of International Law 2025 Midyear Meeting, Dr. Mark Ellis

Case Western Reserve Journal of International Law

No abstract provided.

Talking Foreign Policy: "Turning Points And Paradigm Shifts In U.S. Foreign Policy" June 23, 2025 Broadcast, Talking Foreign Policy

Case Western Reserve Journal of International Law

No abstract provided.

Individual Olympic Athlete Participation Model: Moving Toward The Standardization Of International Olympic Committee Sanction Power, Claire Fedor

Case Western Reserve Journal of International Law

In 2024, at the Paris Olympic Games, the Russian Olympic Committee was notably absent; however, the International Olympic Committee admitted a select group of Russian and Belarusian athletes to compete under the title “Individual Neutral Athlete.” The athletes’ eligibility was determined by an Individual Neutral Athlete Eligibility Review Panel, and their participation required strict adherence to specifically tailored principles. This model is the most recent approach to permitting individual athletes’ participation despite their National Olympic Committee (NOC)’s suspension from the Olympic Games. This Note examines the absence of a uniform application for individual athlete participation in the Olympic Games amid …

Equal-Access Extraction: Necessary Revisions To The Extent Of The 1920 Svalbard Treaty Due To Norway's Deep-Sea Mining Decision, Louden J. Keihl

Case Western Reserve Journal of International Law

Svalbard’s 100-year-old governing treaty, the Svalbard Treaty, has been the cause of several disputes regarding its applicability to maritime zones not developed at the time of its negotiation. This Note argues that, considering Svalbard’s importance, the different treaty parties should renegotiate and revise the Svalbard Treaty to clarify ambiguities regarding its geographic scope. The reasons why the dispute has not been solved to date and the differing views on the Treaty’s geographic scope are also discussed. Potential clarifying language is proposed and analyzed. (from the author)

The Doctor Won't See You Now: Legal Proscriptions For Medical Tourism Control And Regulation, Shenley W. Wish

Case Western Reserve Journal of International Law

The Medical Tourism industry has experienced remarkable growth in the past decade and is tracking to exceed that growth dramatically in the coming decade. With this rapid expansion, however, comes growing pains—predominantly lackluster patient safety. This Note examines the opportunities and challenges that would arise from regulating Medical Tourism through an international treaty, recognizing that an international treaty approach provides the most comprehensive and practically feasible solution for addressing complex cross-border constraints to create a safer global medical industry. (from the author)

The “Multi-Normative” Biological Weapons Convention: A Study Of The 2022 Article V Meeting In Geneva, Robert Lawless

Emory International Law Review

In September 2022, States parties to the Biological Weapons Convention (BWC) held a Formal Consultative Meeting in Geneva pursuant to Article V of the Convention, following Russia’s allegations that the United States and Ukraine had developed biological weapons in violation of BWC prohibitions. Although largely overlooked in public discourse, the Geneva meeting provides a revealing example of the BWC in practice. This article examines the Geneva meeting to assess the Convention’s normative role in contemporary international relations. It argues that States parties reaffirmed their commitment to the BWC’s core prohibition against the hostile use of biological agents against humans. Moreover, …

Consensus Decision-Making: Decision-Making Model Of Chinese Constitutional Review, Songfeng Li

Emory International Law Review

The judgment model of constitutional review in China adopts a consensus-based judgment model involving multiple stakeholders, including review authorities, drafting authorities, relevant interest parties, and the general public. Through multi-level, multi-stage, and multi-round interactive communication and negotiation, consensus is reached on constitutional judgments. This judgment model aligns with the power division political system under the NPC system, reflecting the institutional concept of people’s sovereignty and the cultural foundation of valuing harmony. It is also a result of the decentralization of constitutional review authority leading to insufficient power for actual reviewers, the parallel nature of factual and normative judgments in constitutional …

Treating Social Media Corporations As Quasi-State Actors To Address The Use Of Artificial Intelligence In Content Moderation, Michael T. Tiu Jr.

Emory International Law Review

Corporations have become powerful actors in the international system. They have the potential to disrupt the protection of values that states have been performing for decades. One of these values–freedom of expression–has been the recipient of impact of emerging technologies owned by corporations. Social media platforms have become new governors of expression. Content moderation rules cause adverse impacts on freedom of expression. The vagueness of certain criteria and the inconsistency of their application have led to censorship of speech which would have been protected offline. This situation is exacerbated by the use of artificial intelligence in content moderation, owing to …

Table Of Contents, Loyola University Chicago International Law Review

Loyola University Chicago International Law Review

No abstract provided.

The Right Of Access To The Court In The Practice Of The European Court Of Human Rights And Constitutional Courts In Europe, Filip Novaković

Loyola University Chicago International Law Review

The right of access to a court is recognized as a fundamental component of the right to a fair trial under Article 6(1) of the European Convention on Human Rights (“ECHR”) and has emerged as a cornerstone of the European human rights system. Initially conceived as an implicit guarantee, the right has been progressively shaped by the jurisprudence of the European Court of Human Rights (“ECtHR”) and further developed through the practice of constitutional courts across Europe. This article examines the evolution of the right of access to courts, focusing on its scope, permissible limitations, and relationship to the broader …

Lost, Never Found: Syria's National Commission For The Missing, Sara Jordan

Loyola University Chicago International Law Review

This article discusses the enactment of Presidential Decree No. 19, enacted by interim Syrian President Ahmed al-Sharaa, which established the National Commission for the Missing. This body was created in May 2025 and is tasked with researching missing and forcibly disappeared persons, including creating a national database, providing legal and humanitarian support to victims’ families, and documenting cases. The Commission’s findings, however, cannot be used in criminal trials, and the international community, including groups such as Amnesty International, has voiced concerns about its potential ineffectiveness. Following a brief history of conflict under the Assad regime, this article offers an analysis …

The Zaporizhzhia Gambit: Great Power Conflict, Nuclear Hostage-Taking, And The P5'S Accountability Crisis, Arete Tsoukalas

Loyola University Chicago International Law Review

In a troubling precedent for modern warfare, Russian forces seized Europe’s largest nuclear facility, converting the delicate infrastructure of the Zaporizhzhia plant into a fortified military garrison rigged with explosives. Inside, Ukrainian engineers were reportedly held hostage, forced to operate the controls at gunpoint while enduring torture and the psychological terror of impending meltdown.¹ This is known as the Zaporizhzhia Nuclear Power Plant (“ZNPP”) Crisis.²

Within the reactor itself, the processes of producing nuclear energy cannot be abandoned, and constant custodianship is paramount.³ The intricacies and vulnerabilities of the fission process must be safeguarded, even during a …

Outsourcing Migration: A Comparative Analysis Of Border Externalization And The Future Of International Refugee Law, Shawn Yousefelahi

Loyola University Chicago International Law Review

The contemporary international refugee protection regime is formally anchored in the principle of non-refoulement (the prohibition against forcibly returning refugees and asylum seekers to the territories where their fundamental rights would be threatened) and the right to seek asylum at or near territorial borders. These principles have been increasingly undermined by state practices that relocate border enforcement and asylum processing beyond their territorial borders. This Article examines how the United States, the European Union, and European states operationalize a global non-entrée regime through safe third country removals and border externalization agreements that purport to comply with international law while functionally …

Dokdo/Takeshima And Maritime Delimitation Between The Republic Of Korea And Japan: A Comment On Icj Dispute Resolution, Katherine Angell

Celebrating WCL Student Authors

The Republic of Korea (Korea) should agree to submit the issue of sovereignty over Dokdo/Takeshima and the issue of maritime delimitation in the East Sea/Sea of Japan to the International Court of Justice (ICJ) because the ICJ is likely to decide that Dokdo/Takeshima is Korean territory and the tensions in the East Sea/Sea of Japan can be resolved to allow further cooperation between the two nations. The ICJ is the primary avenue for peacefully resolving territorial and maritime delimitation disputes between nations, and the ICJ has developed a substantial body of case law analyzing these issues. The ICJ considers various …

The Intertemporal Law Doctrine’S Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

All Papers

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and …

From Weapon To Shield: Risk And Special Intent In South Africa’S Case Against Israel, Heidi Matthews

Articles & Book Chapters

South Africa’s genocide case against Israel at the International Court of Justice is best understood as a mode of judicial self-help, instead of a method of undermining Israel’s sovereignty. The fact that South Africa claims standing – based partly on its own obligation to prevent genocide – has been largely overlooked in scholarly discussions of the case. However, centring this fact allows us to see that it is Israel’s alleged intentional creation of circumstances that give rise to a serious risk of genocide in Gaza that constitutes the core of South Africa’s case. The plausible existence of such a risk …

The Institutions Of Exceptions: Justification In Trade And Investment Treaties, Julian Arato

Michigan Journal of International Law

International economic law binds states in the interest of liberalizing markets, including in cross-border trade in goods and services (trade) and capital (investment). The treaty regimes for both trade and investment do this by disciplining states through legal rules, while preserving a modicum of governmental authority over domestic policy. The preservation of policy space in these regimes usually involves a process of exceptions-based justification – through formal exceptions clauses in most trade treaties and some investment agreements, and also through informal exceptions-style reasoning by adjudicators in the investment treaty regime more generally. This “exceptions paradigm” of justification has worked well …

Escape Probability: Rethinking Wartime Protection Of Nuclear Facilities, Pearle M. Lipinski

Michigan Journal of International Law

The 2022 Russian attacks on the Chernobyl and Zaporizhzhia nuclear facilities in Ukraine shocked the international community. Claims that the attacks constituted war crimes immediately entered the public consciousness, and a flurry of opinions were set forth on the international humanitarian law (“IHL”) protections afforded to nuclear plants, focusing on Article 56 of Additional Protocol I of the Geneva Conventions, which provides special protection to nuclear electrical generating stations. These opinions primarily focused on the immediate applicability and shortcomings of Article 56 on the attacks at hand, often operating on the presumption that a massively consequential environmental and humanitarian disaster …

Reproductive Rights & Absolutist Abortion Bans: Beatriz V. El Salvador & Human Rights Standards In The Inter-American Court Of Human Rights, Jordan Schucker

Human Rights Brief

On December 20, 2024, the Inter-Amer­ican Court of Human Rights (IACtHR) issued its judgment in Beatriz v. El Salvador. The case concerned an impoverished Salvadoran woman, known as Beatriz, who had severe pre-existing conditions impacting her pregnancy, including systemic lupus erythematosus, lupus nephritis, and rheumatoid arthritis. After a first pregnancy,  in 2012 that triggered severe preeclampsia, she became pregnant again in 2013. Ultrasounds showed the fetus was anencephalic, making it incompatible with life outside the uterus.

Leaning Into Absence: Lessons From Kony, Mark A. Drumbl

Scholarly Articles

This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional …