In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.

In “Are There ‘Inherently Sovereign Functions’ in International Law,” Frédéric Mégret suggests that the fact that international legal practice has sought to preserve a state monopoly over the use of force strengthens the argument that international law considers some functions to be inherently sovereign. Mégret's analysis goes much further than this in seeking to develop a thicker and broader understanding of inherently sovereign functions (ISFs) by reasoning inductively from international human rights law. This essay largely supports this approach through a case study of the approach taken by the United Kingdom to outsourcing military and security functions. It explores an understanding of inherently sovereign functions based on the state's monopoly on the legitimate use of force and claims that outsourcing military and security functions undermines state sovereignty.

In the recent theoretical scholarship on sovereignty, it has become commonplace to encounter the numerous ways in which state sovereignty has been quietly “outsourced” and “pooled” with other agents and institutions, especially international institutions aimed at promoting global governance and commerce. Frédéric Mégret's fascinating article, which contributes to this growing body of scholarship, adds an important twist to this literature, by focusing specifically on the privatization of state sovereignty—that is, how various sovereign functions, once thought to be essential or “inherent” to statehood, have now been outsourced and handed over to private actors. While Mégret's analysis concerns the consequences of privatized sovereignty on modern public international law, there is a rich pre-modern legal history anticipating the conceptual and normative problems explored in this piece. This essay focuses on some of those early modern sources, especially the theory of Jean Bodin (c.1530–1596), which bear a striking resemblance to Mégret's analysis. Like Mégret, Bodin, the preeminent theorist of state sovereignty, approached the concept of sovereignty by focusing on those qualities that were regarded to be exclusive.

It is the core and intended function of borders to discriminate. Descriptively, their purpose is to differentiate or distinguish among different categories of persons, sorting those who may enter and belong from those who may not. But it is also a core function of modern borders to discriminate in the normatively prejudicial sense—they allocate fundamental human rights differentially on the basis of race, gender, class, national origin, sexual orientation, and disability status, among others. In this essay, I briefly sketch what I have described elsewhere as the contemporary system of racial borders: border regimes that variously allocate and curtail mobility and migration on a racial basis, largely relying upon facially race neutral mechanisms. Second, I reflect on the increasing prevalence of digital technologies in border regimes and their enforcement, with an emphasis on their racial implications, drawing from my recent report to the UN General Assembly on racial discrimination in digital border enforcement. The contribution of this essay is thus to reflect on the co-constituting and mutually reinforcing effects of racial borders and digital borders, which require specific attention together as digital racial borders.

This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.

Managing global migration is one of the most pressing issues of our time. Traditionally, international law has not generally regulated immigration and citizenship law; it defers to state authority in setting up rules and procedures for entry into the territory and citizenry. The lack of clear regulation—and a commonly accepted methodology on how to evaluate discriminatory borders—creates acute problems in terms of protecting human rights, promoting state interests, and setting up international cooperation. Against this background, this essay offers a legal framework to examine when borders are discriminatory. It includes a three-step process that examines the goals, criteria, and means of immigration and citizenship selection. With almost 300 million international immigrants worldwide living outside their country of origin in 2020, developing such a framework has become an urgent need.

Migration control does not end at the border. Rather, controlling migration (and migrants) continues inside host countries as migration status is used to stratify benefits and limit rights across social, economic, cultural, and political life. This differentiation typically has exclusionary effects and aggravates structural disadvantages that migrants face. This essay argues that we should use anti-discrimination law to address such practices of differentiation and remedy their detrimental effects. While non-discrimination clauses in international human rights treaties provide a powerful resource to this end, they are currently often interpreted in a restrictive manner. “Differentiation within” includes a variety of measures such as restrictions on migration status that limit the right to work, restrictions on political participation, restrictions on freedom of movement based on migration status, and requirements of cultural adaptation.

It is possible to identify gendered disadvantage at almost every point in a migrant woman's journey, physical and legal, from country of origin to country of destination, from admission to naturalization. Rules which explicitly distribute migration opportunities differently on the grounds of sex/gender, such as prohibitions on certain women's emigration, may produce such disadvantage. Women may also, however, be disadvantaged by facially gender-neutral rules. Examples of indirectly disadvantageous provisions include those which classify certain forms of labor as either “low-” or “high-” skilled, using this categorization to distribute migration opportunities differentially. Such rules may disproportionately affect the mostly female workers whose labor in certain fields is considered “low-skilled” in comparison to that undertaken by their predominantly male, “high-skilled” counterparts. Scholars have identified the diverse ways in which states’ immigration and nationality laws continue to involve gendered and racialized exclusion, subordination, and violence. Migration control practices, including those concerned with deterrence, detention, and deportation, have also been impugned on these bases. This essay draws on this literature to examine whether rules that produce gendered disadvantage are open to challenge under the international legal regime charged with eradicating discrimination against women, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

International human rights law recognizes a general right to non-discrimination. This right has proved to have plenty of legal “bite.” It is regularly invoked at both international and national levels to challenge state action which discriminates against vulnerable groups on “suspect grounds,” such as race, gender, and disability. Such legal challenges periodically succeed in generating significant law reform and sometimes even social change. However, this (relative) success has not been replicated when it comes to migration control. Non-discrimination challenges to state immigration restrictions have rarely been successful, even though human rights experts, NGOs, and other critics repeatedly express concern about the discriminatory impact of such restrictions. Furthermore, the state of human rights law remains radically underdeveloped in this area: the normative content of international non-discrimination norms, as they apply to migration control, is still lacking substance. This essay seeks to analyze why the cutting edge of the right to non-discrimination becomes blunted at the border, and generally lacks impact when invoked to challenge state migration controls.

Dispute settlement is entrenched in the 1982 UN Convention on the Law of the Sea (UNCLOS) through the Part XV compulsory mechanisms. It is also reflected in UNCLOS's indication that delimitation of the exclusive economic zone or the continental shelf is to be by way of agreement between coastal states. While maritime boundary delimitation may be viewed as dominated by judicialization, that is not reflected in UNCLOS. The maritime boundary delimitation project unleashed by UNCLOS gave primacy to delimitation by agreement, with third party settlement under Part XV the secondary mechanism. The 2018 Australia/Timor-Leste maritime boundary settlement highlights how, even when Part XV third party mechanisms were used, the coastal states were able to reach agreement on a maritime boundary by negotiation, without recourse to judicialization.

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak define “legalization” as international legal constraints, and “judicialization” of the law of the sea as states’ sense that their policy options are legally bounded, and that courts have gained the authority to define the meaning of the law of the sea. The authors are generally correct that the processes of legalization and judicialization under the UN Convention on the Law of the Sea (UNCLOS) fundamentally alter interstate behavior in significant ways, whatever the choice of dispute settlement mechanisms a state party to UNCLOS has made. However, as I explain in this essay, the International Tribunal for the Law of the Sea (ITLOS) should be the most often utilized mechanism to settle UNCLOS disputes, and its potential as a dispute settlement mechanism has yet to be used to the fullest extent.

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make an important contribution to the literature that considers if and how international courts influence the behavior of states beyond the process of adjudication. Their analysis shows that states that declare an Article 287 choice for dispute resolution when signing the UN Convention on the Law of the Sea (UNCLOS) are more likely to solve their conflicts in peaceful ways, compared to signatories who do not, suggesting this relationship is not epiphenomenal. Their finding provides us with yet another piece of the puzzle in understanding how legalization and judicialization shape the behavior of states. We still, however, have much to learn about how states interact with legalization and adjudication. This essay argues that while the article's statistical analysis adds to the evidence that judicialization influences state behavior, the uniqueness of UNCLOS makes it doubtful that we can replicate this finding for other international courts and tribunals. In addition, while the statistical analysis suggests that states that make Article 287 declarations behave differently in the face of maritime conflict, we do not really know why states made the choice to declare a preference for adjudication. Finally, given that states strongly prefer negotiations to using UNCLOS formal adjudication mechanisms, we need to understand better the path to adjudication or arbitration.

Sara Mitchell and Andrew Owsiak's examination of the impact of UN Convention on the Law of the Sea (UNCLOS) and Article 287 declarations on the peaceful resolution of maritime disputes significantly advances the literature on the relationship between international law/international courts and maritime issues. To their credit, the authors employ a wide range of empirical tests in the article to provide readers with confidence in the empirical results. Nonetheless, there are some important limitations in their approach. Drawing on insights from the causal inference literature, I argue that Mitchell and Owsiak's empirical analyses suffer from two biases that both (1) raise concerns about the causal relationships identified in the article, and (2) suggest some important scope conditions in its empirical findings. I investigate the biases and propose suggestions for legal scholarship to produce more credible results.

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make a valuable contribution to an expanding body of scholarship that considers whether and how international courts have out-of-court “shadow effects.” The authors argue that, in the UN Convention on the Law of the Sea (UNCLOS) regime, the threat of binding international dispute settlement (IDS)—which entails high costs for states—encourages rational potential litigants to settle out of court through other peaceful and less costly IDS mechanisms. In this essay, I challenge the narrow focus of Mitchell and Owsiak's analysis, considering the diverse aims and processes of judicialized international cooperation in two key ways. First, the authors’ focus on peaceful IDS as the sole outcome of interest overlooks other important cooperation goals driving judicialization and delegation to international courts. An emphasis on out-of-court IDS, even when achieved peacefully, can actually undermine other objectives for judicialized international cooperation, including the development of international law and greater compliance with international law. Second, Mitchell and Oswiak's theoretical mechanism assumes that an international court contributes to its out-of-court influence through its case law, but this discounts how international courts can engage in a range of out-of-court, non-adjudicative activities that can affect potential litigants’ cost-benefit analyses regarding judicialized versus non-judicialized IDS. Indicating its preference for increasing its “direct effects” through adjudicating disputes, the International Tribunal for the Law of the Sea (ITLOS) has developed capacity-building and training programs to encourage judicialized IDS under UNCLOS and states’ litigation at the ITLOS. Overall, I highlight how there is a broad range of actors and processes underpinning international courts’ out-of-court effects, and how these actors and processes can work towards multiple, at times conflicting, aims for judicialized international cooperation.

In “Judicialization of the Sea: Bargaining under the UNCLOS Regime,” Sara McLaughlin Mitchell and Andrew P. Owsiak examine the extent to which legalization and judicialization of the law of the sea has changed how states manage conflicts. They argue that legalization and judicialization have diminished maritime conflict because disputing parties are able to predict how a court would rule and, therefore, they will be more likely to bargain out-of-court to achieve more favorable outcomes. Their analysis suggests that how adjudicators perform as dispute resolution bodies is basically irrelevant. Drawing on the literature on the performance of international courts, this essay identifies numerous ways that the contribution of international courts to the resolution of disputes is contingent on key performance criteria, including legal clarification and compliance. When international courts perform at their best, judicialization enhances the impact of legalization. If performance is a contingent feature of international adjudication, then the generalizability of Mitchell and Owsiak's argument might be limited by the extent to which adjudicators achieve certain key performance criteria.

If, as has been claimed by one of their most successful proponents, blockchain technologies “automate away . . . center[s]” of authority, in lieu of subordinating peripheries, then what might this imply for global governance: already the work of a distributed politico-legal regime without a single center? Does blockchain seem likely to emancipate and equalize in the ways frequently anticipated? Whose authority is being “automate[d] away” and whose is being augmented by prevailing blockchain implementations? How might blockchain-borne redistribution bear upon law and legal institutions, or what might it demand of those, on the international plane? How might we envision blockchain-based futures on the global plane? These are among the questions taken up by contributors to this symposium. Before examining the various ways in which this rich suite of essays approach these and other cognate questions, the central object of their concern—blockchain—warrants brief, explanatory attention.

This essay considers the ideological context of blockchain technology. This technology is often celebrated for its potential for decentralization, distribution, privacy, and a lack of intermediaries and coordinators for transactions and general governance. Because of these features, blockchain technology, and, in particular, its most famous inauguration—the bitcoin blockchain—is frequently identified with libertarianism. In this essay, we argue that the ideological context of blockchain technology is much more complicated. In addition to unraveling a number of background ideologies and their role in this technology, we raise the ontological issue concerning the relationship of ideology to technology. These matters have implications for, among other things, the approach that should be taken to blockchain's governance, as well as how international lawyers may approach this “foreign”-seeming phenomenon that has its proponents from the European Central Bank to the United Nations (not, however, forgetting the private sector nor the digital underground).

Blockchain technology has spurred the emergence of powerful narratives to promote new ways of governing outer space. The list of proposed uses for blockchain applications in outer space is endless—from property registries for asteroid mining, to supply chain management systems, or interplanetary cryptocurrencies for the space economy—along with Elon Musk claiming that “SpaceX is going to put a literal Dogecoin on the literal moon.” Yet, thus far, none of these projects have gone beyond simple declarations or white papers, mostly due to the inherent limitations on the effective enforcement of blockchain-based rules outside of their own technical framework. In this essay, we argue that blockchain technology is relevant for outer space because it fosters novel narratives advancing possible futures characterized by new modes of governance. The strongest and most prominent of these narratives is the crypto-libertarian one, which draws heavily on the absence of a state, the sanctity of property, and the primacy of private ordering through decentralized markets. But there are other narratives proposed by relevant actors in the blockchain space that are dedicated to other modes of governance. By focusing on alternative narratives for blockchain technology, we illustrate how the possible applications of blockchain technology in outer space may extend beyond the current libertarian dreams, to support a more commons-based approach to outer space governance.