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Russia's invasion of Ukraine has triggered an unprecedented wave of sanctions targeting every facet of the Russian economy. In the early months of the conflict, the sheer scope, speed, and coordination of this response to Russia's aggression instills hope that economic pressure may yet play a decisive role in this conflict. But the massive scale of the effort is also cause for concern. In particular, it highlights the relative lack of legal constraints governing economic warfare, even in the face of potentially grave harms to third parties and the global economy. While these concerns have provoked no shortage of proposals for reform, the fragmented institutional landscape and a lack of political will are likely to frustrate any attempts at far-reaching transformation.

This Article theorizes “security” as a site of continuing struggle in the international system between competing approaches to identifying and responding to urgent threats. Rather than endorsing a single approach, this Article argues that a claim to “security” can imply any one of four approaches to law and policy, each of which has radically divergent implications for who is empowered by a security claim and how that power interacts with existing legal rules. By moving among these four approaches, security claims can disrupt established systems of knowledge-production and redescribe the world in new ways.

In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

This chapter traces the normative challenges underlying the legal framework for health security. Today’s challenges can be understood as the result of three successive stages of development in global health law. First was the securitization of global public health, whereby a diffuse group of international and national health officials, outside experts, and advocates worked to redefine infectious disease outbreaks as a critical national and international security issue. Secondly, this concept of global health security was inscribed in law through the 2005 revisions to the International Health Regulations, which adopted a governance framework that appeared to be deliberately modelled on domestic emergency powers regimes. Thirdly, this development, rather than settling the World Health Organization’s (WHO) authority in health emergencies, has in turn set off waves of contestation that concern the nature of global health security and how it should be institutionalized. This includes contestation about the internal governance arrangements within the WHO; external conflicts of jurisdiction between the WHO and other institutions; and disagreement about the normative orientation and scope of the WHO’s emergency power.

This article challenges the conventional wisdom that MFN clauses in investment treaties can always be used to “import” substantive standards of treatment (e.g. FET). It argues that most tribunals permitting this use of MFN clauses have relied on presumptions and have ignored meaningful variations among clauses. It also points out that states are increasingly questioning the conventional view, and that a recent arbitral award has firmly rejected an attempt to use an MFN clause to import substantive standards. It concludes by sketching the terms of the new MFN debate.

The revival of the non-delegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy — neither credibly — according to its own comprehensive normative doctrine.

In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

The label “incitement” could never fully do justice to the depths of ethnic hatred that pervaded Rwandan media during and leading up to the 1994 genocide.