ANGEL GABRIEL CABRERA SILVA*
International human rights law was built on a straightforward legal assumption: that every human rights violation can be pinpointed as a single state’s responsibility. Grounded in a (now outdated) vision of state sovereignty, this doctrinal emphasis on “single-state” responsibility not only oversimplifies the socio-political reality of our times, but in certain circumstances, also imposes severe limitations on the prospects of justice.
The crisis of migrant disappearances sweeping through Central and North America highlights the increasingly evident limitations of this legal framework. As thousands of migrants go missing in transit to the United States, human rights has been a powerful language to mobilize a regional network of advocates. However, and perhaps ironically, human rights law has also proven to be largely insufficient as a tool for justice.
Drawing from my experience as a clinician, this article reflects on the mixed role that human rights play in this regional crisis. The first part summarizes the background context. The second part sheds light on how the emphasis that human rights puts on the model of “single-state” responsibility imposes practical limitations on migrants’ struggles for justice. The third part spotlights an emergent solution; it describes how the legal strategies pursued by collectives of families of Central American migrants are challenging these limits and pushing human rights towards a perspective based on “shared responsibility.” This reformulated perspective is opening a pathway for justice and delivering important lessons for the broader human rights ecosystem.
1. The Regional Crisis of Migrants’ Disappearances
On May 1, 2022, a group of 49 Central American women crossed the border between Mexico and Guatemala. Unlike most of their compatriots, they were bound not to the United States but to Mexico City. The women were taking part in the “XVI Caravan of Mothers of Missing Migrants,” a symbolic event organized every year by the Mesoamerican Migrant Movement to demand justice for the thousands of Central American migrants that have gone missing in their transit to the United States. This year, the caravan represented the struggle of various collectives of Central American families that are still searching for over 2,000 of their missing sons and daughters. That number does not include all cases of missing migrants, but is already higher than the 1,800 cases of missing foreigners reported by Mexican authorities.
The struggle of those women is sadly inserted in a human rights crisis of even greater proportions. Over the last decade, more than 75,000 migrants have gone missing along the corridor that connects Central America, Mexico, and the United States. This figure includes Mexicans, Central Americans, and persons from other countries that have perished or vanished somewhere along the journey north—most of them in Mexico, but also many within the United States. Statistics are by their nature imperfect, but evidence collected by civil society groups suggests that migrants disappear or go missing because they fall victim to criminal organizations, police abuse, or the harshness of the route. What all these migrants have in common is that they are all persons who left their homes hoping to find a better future, but would neither get there nor ever return home.
The regional crisis of missing migrants has an incommensurable human toll on every victim and his or her family. However, its effects are especially harsh when a migrant disappears outside his country of origin. In those situations, the families must grieve the loss of a loved one and, at the same time, they must confront all the migratory and administrative hurdles of trying to access the justice systems of foreign countries—from obtaining a visa to demonstrating their legal standing as relatives of a victim. In the case of Central American families, actions as simple as reporting a disappearance in Mexico or filing a judicial claim in the United States turn into onerous endeavours. More complicated tasks like participating in the search of a missing migrant, inquiring about the status of an investigation, requesting reparations, or even repatriating any mortal remains become extremely complex to complete.
Over the years, civil society groups have denounced and documented the difficulties that migrant’s families face in their pursuit for justice. In Central America, groups of families have organized through various “Colectivos de Familiares” (like COFAMIDE, COFAMIGUA, and many others) to put the issue under the international spotlight. Additionally, non-governmental organizations have established networks to facilitate families’ transnational access to state institutions. International bodies have documented patterns in the disappearances of migrants and failures in state policies. And even academic institutions have made efforts to support the forensic identification of migrant remains and to diagnose the structural bases of the problem.
However, the challenge persists, and the families of missing Central American migrants are still fighting an uphill battle simply to have access to justice. The obstacles that these families confront due to deficient inter-state cooperation then are compounded with the multiple flaws that already hamper the performance of national institutions charged with investigating disappearances. Many of the relatives of missing migrants are thus forced to embark on their own transnational odyssey: this time not to seek a better future, but to pursue justice.
2. Limits of Human Rights Law
Scholars have criticized human rights law for many reasons including its state-centric vision, ideological imperialism, reductive discourses, and tendency to individualize claims. However, the dire situation of families of missing Central American migrants sheds light on another problematic—yet under-analyzed—limit imposed by human rights norms, the doctrinal requirement to pinpoint a specific human rights violation as the individual responsibility of a particular state. Let me briefly summarize the implications of this model of legal reasoning based on “single-state” responsibility.
Under international human rights law, every person has the right to be protected against enforced disappearances. If an enforced disappearance occurs, the victim’s family has a right to truth, justice, and reparations. These standards apply to every state that has ratified the relevant human rights treaties—which arguably includes all states involved in the Central and North American crisis.
Correspondingly, international human rights law establishes rules to determine which state shall bear the responsibility for the realization of all these rights. In the case of enforced disappearances, the primary determinant of responsibility is territorial control. Generally, the state where the disappearance took place is the one responsible for guaranteeing the rights of migrants and their families. Within the regional crisis of missing migrants, this means that either Mexico or the U.S. would hold primary responsibility towards most families of Central American migrants—as most disappearances occur within their borders.
Allocating the primary legal responsibility to the country where a migrant went missing is quite problematic. The transnational nature of the crisis implies that no individual state can meet its obligations to missing migrants on its own. Without coordination with Central American authorities, it is extremely hard for Mexico or the U.S. to procure the necessary evidence to conduct an adequate investigation, perform the identification procedure required to repatriate migrant remains, or communicate with families entitled to reparations. In fact, without regional coordination, neither Mexico nor the U.S. can even receive reports of potential disappearances from relatives of migrants who stayed back home.
The mismatch between human rights law and the complexity of the migration crisis creates some perverse incentives. On the one hand, Central American governments could avoid their responsibilities to missing migrants by simply deflecting claims to their northern neighbors. On the other hand, Mexico and the United States could blame their inefficiency in handling the crisis to the challenges of inter-state cooperation.
Civil society organizations have made great efforts to avoid these pitfalls by fostering deeper inter-state coordination. Their strategies have been quite consequential. In 2015, for example, civil society advocacy led to the creation of the Mexican “Mecanismo de Apoyo al Exterior” (Mechanism for Foreign Support or MAE), an inter-institutional policy established by the Mexican government. The MAE is an unprecedented initiative that aims to offer a solution for families of Central American migrants who have disappeared in Mexico. At its core, the policy aims to use Mexican consulates in Central America as conveyors, to receive reports of migrants that disappeared in Mexico and then transmit the results of investigatory efforts back to the families. In this way, families in Central America can access the Mexican justice system without having to leave their own countries. Additionally, the MAE also strives to facilitate coordination between families in Central America and the complex ensemble of Mexican authorities in charge of searching missing migrants, investigating disappearances, and providing reparations.
The MAE has been formally operating for over half a decade now, but its practical implementation is still incomplete and deficient in many ways. During this time, the improvement of the MAE has become a tactical priority in the agenda of the regional movement for migrants’ rights. One key part of the ongoing improvement efforts seeks to enhance the performance of Mexican institutions involved with the MAE (especially the Mexican consulates and prosecutor’s office). However, another part of ongoing efforts to improve the MAE is to push Central American States to take a more proactive approach to the mechanism. The MAE can hardly succeed if Central American governments do not—at the very least—ensure that migrants’ families know of the MAE’s existence, are able to travel to the cities where Mexican consulates are located and are capable of obtaining technical advice to use the mechanism.
It is at this point where the model of “single-state” responsibility threatens to become increasingly problematic. Even if the MAE has planted the seeds for an unprecedented form of transnational cooperation, civil society efforts to improve its implementation must confront the predominant logic embedded in human rights law. The current logic creates the risk that if Central American states fail to engage adequately with the MAE, they can still squeeze out of formal human rights responsibility. Advocates could denounce recalcitrant states for violating basic moral principles or even for running against general principles of international cooperation. However, at the end of the day, under the formalistic logic of human rights law, the responsibility for migrants who disappear in Mexico would fall upon Mexico, and Mexico alone.
3. Building a Way Forward: A Vision of Shared Responsibility
From a strictly doctrinal perspective, the limitations imposed by human rights law often appear unescapable. However, socio-legal literature abounds with examples of social mobilizations that have been able to deploy human rights norms in innovative ways. The Central American movement for migrants’ rights is a clear example of how advocates can overcome these obstacles. A few years ago, civil society organizations launched an advocacy strategy that is outmaneuvering the doctrinal emphasis on single-state responsibility. While the process is still ongoing, if successful, it may very well create an institutionalized model of shared responsibility around the MAE.
Back in January 2021, a group of family collectives (with the support of the Fundación para la Justicia y el Estado de Derecho and Boston University’s Human Rights Clinic) filed a General Allegation before the UN Working Group on Enforced and Involuntary Disappearances (WGEID). Established in 1980, the WGEID is one of the earliest special procedures created by the United Nations Human Rights Commission—now the UN Human Rights Council. The General Allegation procedure is a non-judicial mechanism intended to alert states to obstacles in the implementation of the “Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance” (the Declaration). The General Allegation mechanism is activated when civil society groups approach the WGEID to denounce situations where the rights protected by the Declaration are being violated. After the reliability of the sources is confirmed, the WGEID transmits the information to the concerned state and typically requests further information. Subsequently, after a state submits its responses to the General Allegation, the WGEID can decide to keep monitoring the situation and assist that individual state to comply with their duties under the Declaration.
Even if the mechanism itself is anything but new, the strategy advanced by this civil society group incorporated two very innovative aspects. The first ground-breaking feature is that the General Allegation was effectively introduced against multiple states. In this case, the civil society coalition denounced all states involved in the regional crisis. To my knowledge, this was one the first occasions in which the WGEID transmitted the submission to multiple states at the same time (Honduras, Guatemala, El Salvador, and Mexico).
The second innovative characteristic of this legal strategy lies in the way it is framed around a transnational solution. Typically, General Allegations are used to denounce violations of human rights. However, the submission went a step beyond that. Besides denouncing the severity of the regional crisis of migrants’ disappearances, it also showcased the potential of the MAE to build a solution and documented the various obstacles that hinder this potential— especially the lack of inter-state coordination.
In this way, the advocacy strategy stands out, not only because it engages all States involved in the regional crisis, but because it does so through the lens of their shared responsibility in building a particular solution (namely the MAE). By stepping beyond a simple denunciation of the crisis itself, this framing avoids falling into the single-state model of allocating responsibility on the basis of territorial jurisdiction. In other words, putting the MAE at the center of the conversation means that the degree of responsibility of a particular state within a pattern of migrants’ disappearances becomes less relevant than the collective responsibility of all States to implement a transnational solution.
Today, this strategy is still developing. After its submission in early 2021, the WGEID transmitted the General Allegation to the States involved—who then were given the opportunity to provide a response and submit information. As is true with many international mechanisms, the procedural delays are lengthy. Knowing that it would take a while to process their submission, family collectives and their NGO allies continued to advocate for the gradual improvement of the MAE. A notable effort came in October of 2021, during a recent visit of the UN Committee on Enforced Disappearances to Mexico, where Central American families were able to highlight the situation of missing migrants as a pressing issue within Mexico’s titanic crisis of disappearances.
However, last January 2023 marked the second anniversary of the General Allegation. During these two years, the civil society coalition prepared a follow-up submission that took another step in their advocacy before the WGEID. This submission emphasizes the need for the WGEID to get more closely involved in monitoring the MAE’s performance. According to its mandate, the WGEID can “provide appropriate assistance in the implementation by States of the Declaration.” Given that the crisis of migrant’s disappearances is ongoing and that the MAE’s implementation remains deficient, the hope is that the WGEID will exercise its mandate to “assist” States more proactively to help create the transnational coordination required to realize the MAE’s full potential.
Naturally, this legal strategy is full of uncertainty—as most innovative strategies are. However, in its first submission, the civil society coalition has already suggested one way forward. The coalition requested the WGEID to conduct a sequence of country-visits to monitor the way each State engages with the MAE in order to recommend coordinated actions to improve its performance. Another potentially effective action would be for the WGEID to become a convening authority that brings representatives of each state and civil society together to deliberate about how best to implement the MAE. However, even for this author, it is unclear what form such proactive measures could (or should) take in practice. The only thing that seems certain is that an ideal solution would require a significant degree of creativity and an openness to experimentation.
It is not an overstatement to say that we live in troubled times. The struggle of the families of Central American migrants is just one among many others transnational social movements who are engaged in and are vying to open new ways forward for the protection of migrant’s rights. In the current global context, the innovative strategy before the WGEID not only holds the potential to advance a solution to this specific crisis but could also inspire other transformative actions.
We can learn two main lessons from the legal struggle of Central American families around the MAE. The first lesson is that human rights strategies need not subscribe to the “single-state” mode of responsibility that prevails in human rights doctrine. As the struggle of these families shows, when such framing becomes an obstacle for justice, activists can strive to articulate their claims in ways that foreground the “shared responsibility” of various states.
The second lesson is the possibility (and importance) of recognizing that the existing framework of human rights institutions is not a fixed set of rules and mechanisms, but an institutional edifice that can be updated—even if only gradually—without the need for formal legal reform. The WGEID is a decades-old human rights body, and yet a regional movement of migrants’ families conceived a strategy that aims to repurpose its procedures so that the institution can rise to the challenge presented by the regional crisis.
The ultimate outcome of the strategy is yet to be seen. However, whatever the future may bring, these lessons can inform struggles in other areas. Across the globe, human rights crises are becoming increasingly too complex to tackle through the strict lenses of mainstream human rights legal doctrine. Climate change, social inequality, and the ever-growing flows of migrants and refugees are challenges with transnational and collective dimensions that demand creative thinking, transnational action, and a whole lot of strategic savvy.
[*] SJD Candidate; LLM’16 Harvard Law School; LL.B. Universidad de Guadalajara. Former Clinical Instructor at Boston University’s International Human Rights Clinic (2021-22). This article was inspired through collaborating with clinical colleagues Susan Akram and Yoana Kuzmova, our partner in Central America, Claudia Interiano and our team of excellent clinical students Rachel Medara, Katherine Grisham and David Andreu. I would also like to thank Susan Akram for her comments to this article and Lloyd Lyall for his help during the editing process. All flaws are my own. The author thanks the University of Guadalajara for its support.
 ‘Marcha de Madres Centroamericanas’ Busca an sus Hijos en Mexico, Deutsche Welle (May 8, 2022), https://perma.cc/BHV3-C8AN (last visited Dec. 14, 2022).
 Caravan of Mothers of Missing Migrants Kick Off a Global Migration Search Movement, UN News, Nov. 6, 2018, https://perma.cc/5QL6-SBYB (last visited Dec. 14, 2022).
 Caravan of Central American Mothers Resumes Search for their Missing Children in Mexico, Pledge Times (May 2, 2022), https://perma.cc/CY48-GX4E (last visited Dec. 14, 2022).
 Statistic extracted from the official database of foreigners reported missing and not found in Mexico since 2014. See Version Publica RNDPDNO, National Search Commission, https://versionpublicarnpdno.segob.gob.mx/Dashboard/Sociodemografico (last visited Dec. 14, 2022).
 Boston Univ. Int’l Hum. Rts. Clinic, Disappeared Migrants from Central America: Transnational Responsibility, the Search for Answers and Legal Lacunae 7 (2021) [hereinafter Disappeared Migrants From Central America], https://perma.cc/V6MQ-NVL8.
 See generally Servicio Jesuita a Migrantes-Mexico, Informe sobre Desaparicion de Personas Migrantes en Mexico: Una Perspectiva desde el Servicio Jesuita a Migrantes-Mexico (Apr. 2022), https://perma.cc/QJ24-LHU2.
 COFAMIDE stands for “Comite de Familiares de Migrantes Desaparecidos de El Salvador.” COFAMIGUA stands for “Comite de Familiares de Migrantes Desaparecidos la Guadalupe.” Other examples of family collectives are “Comite de Familiares del Centro de Honduras,” the “Comite de Familiares de Migrantes Desaparecidos de Amor y Fe” and the “Asociacion de Familiares de Migrantes Desaparecidos de Guatemala “AFAMIDEG.” However, this is not an exhaustive list.
 One influential coalition is the Forensics Border Coalition which coordinates various organizations working to identify and repatriate migrant remains found in the United States. See Forensic Border Coalition, https://forensicbordercoalition.org/about/ (last visited Apr. 7, 2023).
 See Missing Migrant Project, International Organization for Migration, https://missingmigrants.iom.int/ (last visited Dec 14, 2022); Inter-Am. Comm’n. H.R., Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico, OEA/Ser.L/V/II., doc. 48/13 (Dec. 30, 2013), https://perma.cc/3TAP-24MB (last visited Dec. 14, 2022).
 See Disappeared Migrants From Central America, supra note 5; Boston Univ. Int’l Hum. Rts. Clinic, Missing Migrants in the United States: International Responsibility, the Search for Accountability and Legal Lacunae (2021) [hereinafter Missing Migrants in the United States], https://perma.cc/37WU-YJTJ; Stephanie Leutert, Sam Lee & Victoria Rossi, Migrant’s Deaths in South Texas (2020) https://perma.cc/9R3B-5NJB; Samuel Gilbert, Treated like Trash: The Project Trying to Identify the Bodies of Migrants, The Guardian (Jan. 12, 2020), https://perma.cc/QUU6-NS6N (last visited Apr. 10, 2023) (reporting on the Operation Identification project of the Forensic Anthropology Center at South Texas State University).
 See, e.g., Andrew Clapham, Human Rights in the Private Sphere (Clarendon Press 1993).
 See, e.g., Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press 2010).
 See, e.g., Makau Mutua, Savages, Victims and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001).
 See, e.g., David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 Harv. Hum. Rts. J. 101 (2002).
 International Convention for the Protection of All Persons from Enforced Disappearance [hereinafter ICPAPED], arts. 1 and 24, Dec. 23, 2012, 2716 U.N.T.S. 3.
 Id. arts. 1 and 24.
 Mexico, Guatemala and Honduras have either ratified the ICPAPED and/or the Inter-American Convention on the Forced Disappearance of Persons. El Salvador and the United States have not ratified either of those treaties but are still States Parties to the American Convention on Human Rights and/or the International Covenant on Civil and Political Rights. These two treaties provide protection against enforced disappearances through the rights to life, personal integrity and protection against arbitrary arrest and detention.
 ICPAPED, supra note 15, art. 9.
 Id. art. 9.1.a.
 Disappeared Migrants From Central America, supra note 5 at 100 (explaining how Central American foreign ministries often neglected to ensure that reports from families of missing migrants who disappeared abroad would prompt an official investigation).
 Acuerdo A/117/15 por el que se crea la Unidad de Investigación de Delitos para Personas Migrantes y el Mecanismo de Apoyo Exterior Mexicano de Búsqueda e Investigación y se establecen sus facultades y organización, Diario Oficial de la Federación [DOF] 16-12-2015 (Mex.), https://perma.cc/8CNL-D678 (last visited Dec. 14, 2022).
 For details about the flaws in the MAE’s implementation, see Disappeared Migrants From Central America, supra note 5 at 95-101.
 This duty has been explicitly invoked in the context of migration. See U.N. International Migration Review Forum, Progress Declaration of the International Migration Review Forum, ¶ 6, Res. A/AC.293/2022/L.1 (May 12, 2022), https://perma.cc/Y6KQ-XXKE (last visited Dec. 14, 2022).
 See Sally Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago Univ. Press 2016); Shannon Speed, Rights in Rebellion: Indigenous Struggles and Human Rights in Chiapas (Stanford Univ. Press 2007); Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty (Lucie White & Jeremy Perelman, Eds., Stanford Univ. Press 2011).
 Boston Univ. Int’l Hum. Rts. Clinic & Fundacion para la Justicia y el Estado Democratico de Derecho, General Allegation to the United Nations Working Group on Enforced or Involuntary Disappearances (Jan 26, 2021), https://perma.cc/J93B-J8TL (last visited Dec. 14, 2022).
 Commission on Human Rights Res. 20 (XXXVI), U.N. Doc. E/CN.4/RES/1980/20 (Feb. 29 1980), https://perma.cc/N8UX-YQM3 (last visited Dec. 14, 2022).
 Human Rights Council, Rep. of the Working Group on Enforced or Involuntary Disappearances on its Revised Methods of Work, U.N. Doc. A/HRC/WGEID/102/2 (May 2, 2014) https://perma.cc/9AT8-C4NW (last visited Dec. 14, 2022).
 Id. arts. 33-34.
 The General Allegation submitted in January 2021 denounced Mexico, Honduras, Guatemala and El Salvador. See Boston Univ. Int’l Hum. Rts. Clinic & Fundacion para la Justicia y el Estado Democratico de Derecho, supra note 25. Information about the United States was submitted at a later time. This document, however, is not public.
 The information submitted through the General Allegation was transmitted by the WGEID in conjunction with the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; the Special Rapporteur on the Human Rights of Migrants; the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and the Special Rapporteur on Truth, Justice and Reparations. See Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Mexico, AL MEX 5/2021 (Apr. 16, 2021) https://perma.cc/25DQ-KBD2 (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Guatemala, AL GTM 4/2021 (Apr. 16, 2021) https://perma.cc/SWX3-XNS3 (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to El Salvador, AL SLV 1/2021 (Apr. 16, 2021) https://perma.cc/NJC5-JSYD (last visited Mar. 17, 2023); Working Group on Enforced and Involuntary Disappearances et al., Letter dated Apr. 16, 2021 from the WGEID et. al. to Honduras, AL HND 2/2021 (Apr. 16, 2021) https://perma.cc/X53W-F8X4 (last visited Mar. 17, 2023). A communication to the United States is still pending.
 Comm. on Enforced Disappearances, Rep. of the Comm. on Enforced Disappearances on Its Visit to Mexico Under Article 33 of the Convention, ¶ 36-37, U.N. Doc. CED/C/MEX/VR/1 (Recommendations) (May 16, 2022), https://perma.cc/C54D-M5WN (last visited Dec. 14, 2022).
 Human Rights Council Res. 7/12, U.N. Doc. A/HRC/RES/7/12, art 2(h) (2008), https://perma.cc/R42V-AUGA (last visited Dec. 14, 2022).
 Disappeared Migrants From Central America, supra note 20 at 11.
Cover Image: Digasalinas, CC BY-SA 3.0: https://creativecommons.org/licenses/by-sa/3.0/deed.en
“Domestic Application of International Law: Focusing on Direct Applicability” by Judge Yuji Iwasawa
By Sinh Vuong Nguyen and Sarah Lorgan-Khanyile
Yuji Iwasawa’s “Domestic Application of International Law: Focusing on Direct Applicability” provides a timely elaboration on how to navigate the rapidly evolving landscape of international law. Iwasawa argues that tectonic shifts in international law have been prompted by the increased interconnectedness of States and the changing role of treaties. Where treaties once centered on the relations between States, they now increasingly center on the relations between States and individuals. As Iwasawa suggests, international law, now more than ever, reaches into the private lives of individuals. In light of these changes, he embarks on a “comprehensive study on the domestic applicability” of the rules of international law, focusing primarily on private international law. Elaborating on his previous doctrinal scholarship, Iwasawa attempts, in our view with great success, to “reconstruct the theory of direct applicability and put forward a renewed framework of analysis.”
Iwasawa articulates a crucial distinction between the direct applicability and the domestic legal effect of the rules of international law.[ii] According to Iwasawa, direct applicability concerns whether a rule of international law is “susceptible of being applied [domestically] without further measures.”[iii] In contrast, domestic legal effect is the binding legal effect (or lack thereof) of a rule of international law under the domestic legal system. Iwasawa mobilizes this distinction to argue that many courts are wrong to have concluded that direct applicability is a prerequisite to a rule of international law having domestic legal effect. The correct position, he posits, should be the opposite: domestic legal effect is the precursor to direct applicability.[iv] We agree. Direct applicability is a phenomenon occurring at the domestic level. In that regard, a state can only apply that which has already acquired the force of law. Further, the argument that only rules classified as directly applicable on the international plane may acquire domestic legal force is tantamount to a prohibition on the domestic application of rules classified on the international plane as not directly applicable. There is no evidence that such a prohibition exists under international law.
Iwasawa concludes that direct applicability is a question to be determined under domestic law. His argument is straightforward: “Since the legal force and rank of international law in domestic law are determined by domestic law, it is logical to conclude that the direct applicability of international law is also determined by domestic law.”[v] Admittedly, under his own conception, direct applicability and domestic legal effect are qualitatively different concepts. To that extent, just because domestic legal effect is decided by domestic law does not automatically mean that direct applicability must likewise be a matter decided by domestic law. Iwasawa’s argument is nevertheless defensible when considered from the perspective of private international law. The direct applicability of a rule of international law is a legal issue. Whether international law or domestic law decides the question of direct applicability is a question of the relevant choice of law to decide a legal issue. It is a truism that the forum state decides its own choice of law rules. Put differently, the forum state decides for itself whether domestic law or international law applies to decide the question of direct applicability. We submit that this is the proper basis for explaining why direct applicability is a question to be decided by domestic law. For completeness, we note that it is theoretically not impossible for the forum state’s choice of law rules to decide that international law decides the question of direct applicability, but even then, reliance on international law is justified through domestic law.
Iwasawa’s conclusion—that direct applicability is a matter to be decided under domestic and not international law—demands immediate reconsideration of the argument that the direct applicability of a treaty is governed by that particular treaty.[vi] Using the example of human rights treaties, Iwasawa forcefully argues that the question of direct applicability cannot be divined from these treaties.[vii] Here, Iwasawa’s expertise in international human rights law shines through.[viii] First, using human rights treaties to ascertain directives on the direct applicability of human rights obligations presupposes that the parties to human rights treaties have “intended” for human rights obligations to be directly applicable. But treaty parties are not very interested in the mechanisms of domestic implementation of human rights treaties; this is why all of the leading human rights instruments come with domestic implementation clauses. To that end, we find most persuasive Iwasawa’s warning that any inferred intention of the parties would be “in most cases purely fictitious.”[ix] Second, direct applicability, if understood abstractly, ignores the reality of the varied constitutional structures of states, and the reality that a treaty provision may be directly applicable in one state but not another.[x]
For all of Iwasawa’s achievements, his theoretical framework leaves a few open questions for future scholarship:
First, Iwasawa’s definition of direct applicability as “susceptible of being applied without further measures” remains unclear in terms of the juridical consequences that follow when a legal rule is applied. The paradigmatic example of directly applicable international law is a rule of international law which creates judicially enforceable individual rights in domestic law,[xi] but Iwasawa also suggests that a rule of international law can also be applied by domestic courts and administrative authorities without there being any individual rights created, for instance, as a defense to a legal claim.[xii] Because the direct application of a rule of international law may find manifestation in manifold instances, it is, in our view, a missed opportunity to define an underlying thread tying these manifold instances together.
Second, Iwasawa’s definition of direct applicability runs into some difficulty in the context of dualist systems. Having argued that domestic legal effect is a prerequisite to direct applicability, Iwasawa nevertheless argues that questions of direct applicability are still relevant in dualist systems under the logic that once “the text of the treaty is given the force of law, the question arises as to whether a provision of that treaty can be directly applied without the need for further measures.”[xiii] One could be forgiven for taking the view that, since dualist systems first require the incorporation of international law into the domestic legal system, it must follow that such incorporation amounts to a “further measure” rendering direct applicability a fortiori impossible. It is unfortunate that Iwasawa did not explain this incongruence in greater detail.
Third, Iwasawa’s thesis that direct applicability is a matter governed by domestic law runs into some difficulties in the field of EU law. It is well-settled by the Court of Justice of the European Union (CJEU) that the direct applicability of EU law is governed by EU law itself.[xiv] To that end, Iwasawa’s argument that “the concept of direct applicability is not fundamentally different in international law and EU law”[xv] conflicts with the CJEU’s case law. At the same time that Iwasawa accepts that “the legal force, direct applicability, and rank of EU law in domestic law are all determined by EU law”, he concludes that “[t]he legal force, direct applicability, and rank of international law in domestic law are thus determined by the domestic law of each State.”[xvi] Iwasawa’s positions can be reasonably reconciled in that the direct applicability of EU law is a sui generis exception from the direct applicability of international law generally speaking. But if an exception was intended, it would have been most helpful for more explanation on the rationale underlying it.
Iwasawa’s monograph is, in conclusion, a laudable effort to bring coherence and analytical rigor to a technical, difficult, and practically significant intersection between private and public international law. In thoroughly articulating the law behind domestic governance of direct applicability in international law, Iwasawa offers a rich framework to scholars and practitioners alike. Promising to influence future scholarship on the topic, the monograph invites further consideration of direct applicability and analyses of domestic governance of direct applicability as opposed to approaches of nonconforming systems (like the EU).
Yuji Iwasawa, Domestic Application of International Law: Focusing on Direct Applicability, ix (Brill Nijhoff, 2022) [hereinafter “Monograph”]. Please find the book available here.
[ii] Id. at 148–50.
[iii] Id. at 146.
[iv] Id. at 154.
[v] Id. at 162.
[vi] Id. at 47–48.
[vii] See discussion infra id. at chapters 2.B.1.–2.B.6.
[viii] Judge Iwasawa previously served as Head of the Human Rights Committee.
[ix] Monograph at 48.
[xi] Id. at 154.
[xii] Id. at 157–58.
[xiii] Id. at 7.
[xiv] Id. at 96.
[xv] Id. at 139, 141.
[xvi] Id. at 162.
PATRICK MILLER & KABIR DUGGAL*
Milton Friedman famously stated that a business has no purpose except to increase shareholder value. This approach is increasingly dying. Most international commercial lawyers have a general sense of human rights law—though it is often dismissed as a collection of non-binding, aspirational pronouncements having little practical effect on the way business is conducted or how businesses advise their clients. Indeed, human rights law in international law is often understood as obligations of states in relation to humans with a limited role for business. As a result, businesses often have only a passing understanding of the legal regimes related to business and human rights (“B&HR”).
Businesses which are not steeped in these issues can be forgiven for assuming that regimes related to B&HR are limited to the non-binding, aspirational arena, particularly as this may have been true for a time. On the one hand, we see an increased focus on Environmental, Social, and Governance (“ESG”) obligations, although these tend to be non-binding or aspirational. At the same time, we notice the creation of hard law obligations which are enforced by national governments.
Inquiries into corporate misconduct in the 20th century rarely went beyond the question of whether corporations even had a duty to protect human rights. The international conventions described below were landmark milestones in setting out a coherent framework establishing the bounds of corporate conduct and the obligations that multinationals have to various stakeholders. These milestones laid a foundation for national governments to begin enacting “hard law” regulations. We expect that ESG and B&HR obligations will take a firmer form in the years to come—although these changes will often be a result of political pressure, national priorities, and global initiatives.
This article traces the key recent developments in B&HR from international agreements to some of the leading national regulatory regimes.
I. The International Framework
International law has traditionally focused on the role of states. While the role of non-state actors has played a limited role, certain efforts to identify international obligations for businesses exist.
A. The UN Global Compact (2000)
Conceived by former UN Secretary Kofi Annan, the UN Global Compact is a voluntary initiative where companies commit to implement universal sustainability principles and take steps to support UN goals. The UN Global Compact is “open to any company that is serious about its commitment to work towards implementation of the UN Global Compact principles throughout its operations and sphere of influence, and to communicate on its progress.” Principle I requires a company to comply with all applicable laws and internationally recognized human rights while Principle 2 requires that companies are not complicit in human rights abuses. The remaining eight principles provide specific provisions for labor, environment, and anti-corruption. Even though the Compact is a voluntary initiative, by signing up, companies must produce an annual “Communication on Progress” (COP) that details their work to embed the ten principles in their activities. So far, 21,493 companies from 162 countries have signed up for the Global Compact.
B. The (Draft) Norms on the Responsibilities of Transnational Corporations (2003)
In 2003, a Working Group chaired by Professor David Weissbrodt submitted the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the “Norms”) to the UN Sub-Commission on the Promotion and Protection of Human Rights. The Norms were the first attempt to create human rights norms specifically aimed at transnational corporations.
There were specific Norms addressing non-discriminatory treatment, security of persons, rights of workers, anti-bribery provisions, consumer protection, and environmental protection. The document also identifies 14 obligations and 5 provisions aimed at implementing the Norms. The Norms were subject to “periodic monitoring and verification” by the UN, including by existing mechanisms, and a mechanism to be created regarding the application of the Norms. Even though the Norms were regarded as a landmark step, they were not approved by the UN Commission on Human Rights because they faced opposition from several states and the business community.
C. The UN Guiding Principles on Business and Human Rights (2011)
Following the failure of the Norms, the former UN Secretary General Kofi Annan appointed Harvard Professor John G. Ruggie as a Special Representative on Business and Human Rights. This led to the creation of the UN Guiding Principles on Business and Human Rights (the “Guiding Principles”). The Guiding Principles are based on three pillars: (i) a state bears the duty to protect against human rights abuses within its territory, (ii) a corporation must respect human rights and address adverse human rights impacts with which they are involved, and (iii) a state has the primary responsibility to remedy any human rights abuses within its territory.
While the Guiding Principles do not have a formal accountability mechanism, they envision that “effective grievance mechanisms” are available based on multi-stakeholder and other collaborative initiatives. As a largely voluntary initiative, the Guiding Principles are often invoked by parties in their international pleadings to argue the failure of due diligence (see Bear Creek Amicus Reply or Guatemala Counter-Memorial) or the need for human rights assessment (Metlife Amicus).
D. Draft UN Legally Binding Instrument to Regulate Activities of Transnational Corporations (2021)
Despite the failure of the Norms, since 2014, there have been efforts to create a Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises (the “Instrument”). The Open-Ended Intergovernmental Working Group (OEIGWG) created by the UN Human Right Council drafted this Instrument. The Draft makes clear that the purpose of this Instrument is to clarify the human rights obligations of business enterprises and facilitate the implementation of these obligations (art. 2.1). The Instrument places primacy of obligation on state parties who are required to “regulate effectively the activities of all enterprises within their territory, jurisdiction or otherwise under their control” (art. 6.1).
Art. 16 provides that states shall take all “necessary legislative, administrative or other action including the establishment of adequate monitoring mechanisms” to ensure implementation. Indeed, the Instrument envisions the creation of an International Fund for Victims to provide legal and financial aid (art. 15.7).
II. Efforts within National Law
We see a nascent effort to move obligations from voluntary regimes to obligations in domestic law. At this stage, the obligations are limited; however, with greater pressures from the public and with concerns about climate change, we might see further action. Listed below are examples of human rights obligations on businesses.
A. US: Uyghur Forced Labor Prevention Act (UFLPA)
Since the 1930 Tariff Act, the US has had legislation prohibiting products created by forced labor from entry into the country. However, carveouts allowed nearly all products to escape inquiry by the Government.
Over the past few years, the US Government has sought to enforce its regulations prohibiting the import of goods produced using forced labor through its increasing use of Withhold Release Orders by the US Customs and Border Protection Agency (“USCBP”) and its implementation of the Uyghur Forced Labor Prevention Act (“UFLPA”).
Many Guidance documents on complying with these regimes reference the Guiding Principles and other international best practices such as human rights due diligence as methods of ensuring that a company’s supply chains practices comport with their responsibilities under the law.
The UFLPA came into effect on 21 June 2022. It expands the scope of the US Government’s approach to prohibiting goods which it suspects were produced using forced labor from entering the US market. The enforcement plan for the UFLPA creates a rebuttable presumption that all goods (or component parts of such goods) imported into the US that have a nexus to the Xinjiang region of China, or a list of restricted entities that use Uyghur labor, were produced under conditions of forced labor.
The enforcement guidance states that US Customs and Border Protection “will implement an enforcement plan that identifies and interdicts goods from high-priority sectors that are found to have a nexus to production in Xinjiang, subsidiaries and affiliates of Xinjiang Production and Construction Corps, and any other producing entity found to utilize forced labor via a government-labor scheme.”
The UFLPA applies to all imports into the US and, importantly, does not contain a de minimis exception. Thus, even if one button on a jacket has a nexus to Xinjiang, this shipment would be prohibited from entry. It also applies to manufacturers that use Uyghur labor in other areas of China if they are on the list of restricted entities. Its geographical scope is broader than the Xinjiang region.
If USCBP determines that products are within the scope of the Act, the evidentiary burden to rebut the presumption of forced labor is extremely high. There have not yet been any reports of importers successfully rebutting the presumption of forced labor. Rather, importers have focused on demonstrating to the USCBP that the subject goods do not fall within the scope of the Act, i.e., they have no nexus to Xinjiang and/or Uyghur labor.
B. Due Diligence Regimes in EU Countries
The European Commission has recently proposed a prohibition on the import and/or export of products that were produced using forced labor. Although some EU countries require multinationals of sufficient size to establish a human rights due diligence framework to identify and prevent human rights abuses, others, including Germanyand France, have implemented human rights due diligence regimes for international supply chains.
Companies which are subject to the regulations by virtue of their size (e.g., employee numbers or revenue) must conduct their operations in accordance with governments’ expanding ESG priorities. These companies, for instance, should develop contractual frameworks with their counterparties that solidify these requirements as obligations, particularly when their counterparties are not subject to similar ESG-type regulation. For example, Section 6 of the German Due Diligence law discusses implementing: (i) contractual assurances that suppliers will comply with human rights obligations; and (ii) contractual control mechanisms when abuses are discovered.
In February 2022, the European Commission made public its Draft Directive on the proposed standard for due diligence on human rights and environmental issues (the “EU Draft Directive”). The EU Draft Directives applies to EU companies which have either (i) more than 500 employees and a net worldwide turnover of EUR 150 million, or (ii) more than 250 employees and a net world turnover of more than EUR 40 million provided 50% of the net turnover was in a “high risk” sector (such as textiles, clothing and footwear, agriculture, forestry, fisheries, and extraction of mineral resources among others). It also applies to non-EU companies which have either (i) net turnover of more than EUR 150 million in the EU, or (ii) net turnover of more than EUR 40 million but not more than EUR 150 million, provided that at least 50% of its net worldwide turnover was in a “high-risk” sector (art. 2). The EU Draft Directives lay down rules (i) on obligations for companies regarding actual and potential adverse impacts on human rights and the environment with respect to their operation, their subsidiaries, and the value chain operations, and (ii) on liability for violations of the obligations. The EU Draft Directive will be enforced by Member States that create supervisory authorities. These supervisory authorities can take remedial action, including the imposition of sanctions. When pecuniary sanctions are imposed, they are based on a company’s turnover (art. 20).
ESG obligations at the international and regional level remain at a nascent stage. With increased public focus and efforts by both the UN and the EU, however, we will likely see the creation of binding obligations that companies managing international supply chains will have to consider.
[*] Patrick Miller is the Founding Attorney of Impact Advocates APC, a law firm focused on international commercial dispute resolution, responsible supply chains and ESG-related matters. He is a strong advocate for ESG & social businesses and passionate about assisting these companies when they encounter commercial disputes. Kabir Duggal is an SJD Candidate at Harvard Law School and a Lecturer-in-Law at Columbia Law School. The views expressed are personal and the authors reserve the right to change the positions stated herein.
 See Colin Mayer, Leo E. Strine Jr. & Jaap Winter, 50 Years Later, Milton Friedman’s Shareholder Doctrine Is Dead, Fortune (Sept. 13, 2020), https://fortune.com/2020/09/13/milton-friedman-anniversary-business-purpose/.
 Scholars have referred to a “Galaxy of Norms” which includes both international conventions and national ‘hard law’ obligations. See, e.g., Elise Groulx Diggs, Milton C. Regan & Beatrice Parance, Business and Human Rights as a Galaxy of Norms, 50 Geo. J. Int’l L. 309 (2019).
 The Ten Principles of the UN Global Compact, United Nations, https://unglobalcompact.org/what-is-gc/mission/principles.
 About the UN Global Compact: Frequently Asked Questions, United Nations Global Compact, https://unglobalcompact.org/about/faq.
 The Ten Principles of the UN Global Compact, supra note 3, at Principles 1 and 2.
 Id. at Principles 3 to 10, available at: https://unglobalcompact.org/what-is-gc/mission/principles.
 United Nations Global Compact Website Cover page, U.N. Global Compact, https://unglobalcompact.org/.
 U.N. Econ. and Soc. Council, Sub-Comm’n on the Promotion and Prot. of Hum. Rts., Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003), https://digitallibrary.un.org/record/501576?ln=en#record-files-collapse-header.
 Pini Pavel Miretski ¶ Sascha-Dominik Bachmann, The UN ‘Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’: A Requiem, 17 Deakin L.R. 5, 8-9 (2012) (“Such explicit support for the Norms was accompanied by often fierce opposition from various states and the majority of the business community. Such opposition arose from the moment the Norms were formally introduced as a discussion paper after their approval by the Sub-Commission. Most states expressed strong reservations, emphasizing their determination not to depart from the traditional framework of international law, which stresses the central and pivotal role of the state as a legal subject of public international law. The Norms were eventually abandoned in 2005 and the task of regulating transnational corporate accountability was transferred to other UN organs.”) (internal citation omitted).
 Guiding Principles on Business and Human Rights, U.N. Office of the High Comm’r For Hum. Rts. (2011),https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf.
 In contrast, the 2011 OECD Guidelines for Multinational Enterprises provides for “National Contact Points” “to further the effectiveness of the Guidelines by undertaking promotional activities, handling enquiries and contributing to the resolution of issues that arise relating to the implementation of the Guidelines . . .” as well as the “Investment Committee” that shall “periodically or at the request of an adhering country hold exchanges of views on matters covered by the Guidelines and the experience gained in their application.” See Procedural Guidance, OECD Guidelines for Multinational Enter. 68 (2011), https://www.oecd.org/daf/inv/mne/48004323.pdf.
 Bear Creek Mining Corp. v. The Republic of Peru, ICSID Case No. Arb/14/21, Bear Creek’s Reply to the Amicus Curiae Submissions of Dhuma and Dr. Lopez ¶ 18 (Aug. 18, 2016).
 Daniel W. Kappes and Kappes, Cassiday and Associates v. Republic of Guatemala, ICSID Case No. ARB/18/43, Guatemala’s Counter-Memorial ¶¶ 1, 152 (Dec. 7, 2020).
 MetLife, Inc., MetLife Servicios S.A. and MetLife Seguros de Retiro S.A. v. Argentine Republic, ICSID Case No. ARB/17/17, Amicus Curaie Submission (Mar. 30, 2021), ¶ 90.
 Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Transnational Corporations and Other Business Enterprises, U.N. Open-Ended Intergovernmental Working Grp. on Transnat’l Corps. and Other Bus. Enter. With Respect to Hum. Rts. (2021), https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf.
 Forced Labor, U.S. Customs and Border Prot., https://www.cbp.gov/trade/forced-labor.
 Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China: Report to Congress, U.S. Dept. Homeland Sec. (June 17, 2022), at 8, https://www.dhs.gov/sites/default/files/2022-06/22_0617_fletf_uflpa-strategy.pdf.
 Id. at v (“The UFLPA establishes a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in Xinjiang or by an entity on the UFLPA Entity List are prohibited from U.S. importation under 19 U.S.C. § 1307.”).
 Id. at 19.
 Philip Blenkinsop, EU Proposes Banning Products Made With Forced Labour, Reuters (Sept. 14, 2022), https://www.reuters.com/markets/europe/eu-proposes-banning-products-made-with-forced-labour-2022-09-14/.
 See Lieferkettensorgfaltspflichtengesetz [LkSG] [Act on Corporate Due Diligence Obligations in Supply Chains], July 16 2021, https://www.bmas.de/SharedDocs/Downloads/DE/Internationales/act-corporate-due-diligence-obligations-supply-chains.pdf;jsessionid=71731FA3BE835852C39F24D5BEFF8C60.delivery1-replication?__blob=publicationFile&v=2.
 See French Duty of Vigilance Law – English Translation, Bus. and Hum. Rts. Res. Ctr. (Dec. 14, 2016), https://www.business-humanrights.org/en/latest-news/french-duty-of-vigilance-law-english-translation/.
 Just and Sustainable Economy: Commission Lays Down Rules for Companies to Respect Human Rights and Environment in Global Value Chains, Eur. Comm’n (Feb. 23, 2022), https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1145.
Empty Promises: Peacekeeper Babies and Discretionary Impunity Within the United Nations
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Harvard International Law Journal
For a campus map and directions, please visit the HLS website here.
Human Rights Compliance: Challenges from Practice
Professor Hélène Tigroudja
Hélène Tigroudja is a member of the UN Human Rights Committee and Law Professor at Aix-Marseille University (France), Co-Director of the Law School’s Master Program of International Law, Director of the Summer School on Practice of Human Rights and Expert on reparations before the International Criminal Court. Since 2002, she has participated in expert and field missions around the world for the United Nations, the Council of Europe, the Inter-American Court of Human Rights, UNESCO and the European Union, among others, on human rights issues. A senior Research Fellow (Hauser Global Professor) at New York University (NYU) since September 2017.
Her main areas of expertise, teaching and research cover a wide range of human rights issues: international and regional human rights law, mass violations, women’s rights, migration, reparations, immunities of States and international organizations, law of armed conflict, domestic implementation of international obligations, counter-terrorism, etc. She is the co-author with Prof. Ludovic Hennebel of a treatise in international human rights law published in French (Pedone, Paris) in 2016.
Professor Benyam Dawit Mezmur
Benyam Dawit Mezmur is currently Eleanor Roosevelt Fellow at the Harvard Law School, Human Rights Program. He is a Professor of Law at the University of the Western Cape in Cape Town, South Africa, and serves as Deputy Dean for Research and Post-Graduate Studies at the Law Faculty. He is also Coordinator of the Children’s Rights Project at the Dullah Omar Institute for Constitutional Law, Governance, and Human Rights, at UWC.
Since 2012, he is serving on the United Nations Committee on the Rights of the Child, and served its Chairperson from 2015-2017. Within the Committee, he has served as coordinator of various working groups including on SDGs; on a communications procedure (OPIC); and the Working Group that co-drafted (with the Committee on Migrant Workers) the joint General Comment on children’s rights in the context of international migration. During his time as Chairperson (2016), the Committee held its Day of General Discussion on children’s rights and the environment.
At the regional level, Benyam served on the African Committee of Experts on the Rights and Welfare of the Child, a treaty body of the African Union, for a little over a decade (from 2010-2021). He served as its Chairperson twice (2012-2014 and 2015-2017) and was focal person on violence against children and later served as its special rapporteur on children and armed conflict.
Ms. Arlene Brock
Arlene Brock served as Bermuda’s first national ombudsperson, she led the African Ombudsman Research Centre in South Africa, a training and advocacy organization for 40 ombudsmen and their staff on the African continent. Ms. Brock is an alumna of Harvard Law School her she obtained a Master of Laws (LLM) in 1991. She served as a Fellow (2019) and Senior Fellow (2020) of the Advanced Leadership Initiative at Harvard University where she worked on the development of a a ‘visual podcast’ series to present counter-narratives to the negative stereotypes of Black peoples that have persisted over the past four centuries. Previous professional work includes serving as a family magistrate, a mediator for union negotiations, an employment arbitrator, and an insolvency litigator.
Edward A. Smith Lecture – H.E. Judge Yuji IWASAWA
H.E. Judge Yuji IWASAWA has been a Judge of the ICJ since June 2018.
Judge Iwasawa is an alumnus of Harvard Law School. He studied here 45 years ago (1977-1978) to obtain an LL.M. He holds an S.J.D. from the University of Virginia and an LL.B. from the University of Tokyo. He is currently also a Vice-Chair of the London-based International Law Association and a member of the Institut de droit international.
Prior to his election, he was a professor of international law at the University of Tokyo Faculty of Law. He served on the Human Rights Committee under the ICCPR for nearly 12 years. He was elected as its Chairperson twice (2009-2011, 2017-2018). He was also formerly President of the Japanese Society of International Law, Judge of the Asian Development Bank Administrative Tribunal, and a member of the U.N. Permanent Forum on Indigenous Issues.
He was also a Visiting Fellow at the Lauterpacht Centre for International Law at the University of Cambridge three times (1991-1993, 1997, 2000-2001), a Visiting Fellow at the University of Paris (2015-2016), and a Visiting Professor at Columbia Law School (2014). He has also lectured at The Hague Academy of International Law (2002).
His books include: “International Law”, a standard textbook on international law in Japanese, published in 2020; “Domestic Application of International Law” published by Nijhoff last year; “International Law, Human Rights, and Japanese Law” published by Oxford University Press in 1998; and “WTO Dispute Settlement” published in 1995. The last book was the first of its kind in the world but it is not so well-known because it was published in Japanese.
Enforcement Challenges in Cyberspace
Professor Mariana Salazar Albornoz
Mariana Salazar Albornoz is a Professor of International Law, International Humanitarian Law and International Criminal Law at Universidad Iberoamericana in Mexico City. She recently concluded her 4-year mandate as a Member of the Inter-American Juridical Committee of the Organization of American States, where she served as Rapporteur on International Law Applicable to Cyberspace, promoting further transparency and understanding of the topic among the American States. She also served as Rapporteur on Privacy and Data Protection in the same Committee.
Ms. Salazar is currently a Member of the ICRC’s Global Advisory Board on the Protection of Civilians from Digital Threats during Conflicts, as well as of the Editorial Board of the International Review of the Red Cross. She has been recently appointed by the UN Secretary-General as Member of the Board of the UN Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory. She is an Academic Programs Associate for the Auschwitz Institute for the Prevention of Genocide and Mass Atrocities. Previously, she served for 13 years at the Ministry of Foreign Affairs of Mexico as, among others, Coordinator of International Law. Ms. Salazar holds a Law degree from Universidad Iberoamericana and a master’s degree in International Law from the Graduate Institute of International and Development Studies in Geneva. She is also a member of the International Law Association and of the Mexican Council on Foreign Relations.
Professor Duncan Hollis
Duncan B. Hollis is Laura H. Carnell Professor of Law at Temple Law School and co-faculty director of Temple’s Institute for Law, Innovation & Technology (iLIT). His scholarship engages with issues of international law, interpretation, and cybersecurity, with a particular emphasis on treaties, norms, and other forms of international regulation.
Together with Oxford University Professor Dapo Akande, he is co-convenor of the Oxford Process on International Law Protections in Cyberspace and its accompanying Compendium. He is a non-resident Scholar at the Carnegie Endowment for International Peace, an appointed member of the U.S. Department of State’s Advisory Committee on International Law, and an elected member of the American Law Institute. From 2016-2020, he served as a member of the OAS’s Inter-American Juridical Committee, including as Rapporteur for projects on binding and non-binding agreements and improving the transparency of State views on international law’s application to cyberspace.
Professor Hollis’s books include The Oxford Guide to Treaties (OUP, 2nd ed., 2020), the first edition of which received the 2013 ASIL Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers; the 7th and soon to be published 8th edition of International Law (Aspen) (with Allen Weiner and Chimène Keitner); and Defending Democracies: Combatting Foreign Election Interference in a Digital Age (OUP, 2021) (with Jens Ohlin). His articles have appeared in various journals and books, including the American Journal of International Law, European Journal of International Law, Texas Law Review, Virginia Journal of International Law, and Harvard Journal of International Law.
Professor Hollis consults regularly with various States, the United Nations, and other international stakeholders on issues of international law and international relations, including advising the Microsoft Corporation on its Digital Peace agenda.
Ms. Veronica Glick
Veronica Glick is a partner in Mayer Brown’s Washington, D.C. office and a member of the firm’s National Security and Cybersecurity practices. Veronica focuses her practice on complex and cutting-edge legal issues regarding national security, cybersecurity and international law, with particular experience responding to multi-jurisdictional cyber incidents.
Veronica served on a pro bono basis as Deputy Chief Counsel for Cybersecurity and National Security to the U.S. Cyberspace Solarium Commission, a bipartisan commission established by Congress to develop a comprehensive strategy to defend the U.S. from significant attacks in cyberspace. She is also a Term Member of the Council on Foreign Relations and a member of the United Nations Experts Committee countering terrorism through information and communications technologies (ICT). Within this committee she focuses on the prevention of exploitation of ICT and initiatives to facilitate sharing of digital evidence, while protecting human rights and the right to privacy.
She received a J.D. from Columbia Law School, where she was a John Paul Stevens Public Interest Fellow and an LL.B. from the London School of Economics.
She is a partner at Mayer Brown, focusing her practice on complex and cutting-edge legal issues regarding national security, cybersecurity and international law, with particular experience responding to multi-jurisdictional cyber incidents. She served on a pro bono basis as Deputy Chief Counsel for Cybersecurity and National Security to the U.S. Cyberspace Solarium Commission, a bipartisan commission established by Congress to develop a comprehensive strategy to defend the U.S. from significant attacks in cyberspace.
Holding States Accountable: International Tribunals & Crime of Aggression
Professor Jennifer Trahan
Jennifer Trahan is a Professor at NYU’s Center for Global Affairs where she directs the Concentration in International Law and Human Rights. She also serves as Convenor of the Global Institute for the Prevention of Aggression. She is a leading expert on topics of international law, international justice, and international criminal tribunals. She serves as one of the US representatives to the Use of Force Committee of the International Law Association and holds various positions with the American Branch. She also served on the Council of Advisers on the Application of the Rome Statute to Cyberwarfare. She additionally is part of a working group advising Ukraine and others on the Special Tribunal for the Crime of Aggression. Her book, “Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” (Cambridge University Press 2020) was awarded the “2020 ABILA Book of the Year Award” by the American Branch of the International Law Association.
Professor Charles C. Jalloh
Charles C. Jalloh is a Distinguished Professor of Law at Florida International University, a member of the International Law Commission and the founding editor-in-chief of the African Journal of Legal Studies and the African Journal of International Criminal Justice. He was formerly assistant and then associate professor of law at the University of Pittsburgh School of Law, where he was selected as the Buchanan Ingersoll & Rooney Faculty Scholar for 2013-2014. He has published widely on issues of international criminal law, one of his main areas of research interest, including book chapters as well as articles in some of the leading peer-reviewed journals in the field as well as books with prestigious academic presses.
Professor Jalloh has advised states and international organizations on issues of domestic and international law in his previous role as counsel in the Crimes Against Humanity and War Crimes Section, Department of Justice Canada; the Trade Law Bureau of the Canadian Department of Foreign Affairs and International Trade; an associate legal officer in Chambers in the International Criminal Tribunal for Rwanda working on high profile cases involving the 1994 Rwandan genocide; the legal adviser to the Defense Office in the Special Court for Sierra Leone, and as visiting professional, the International Criminal Court (ICC). In 2015, he served as the first amicus counsel representing the African Union Commission in proceedings before the Appeals Chamber of the International Criminal Court.
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