International Law

A Rule-of-Law Model for Governing AI Risks: The Global Significance of Canada’s New AI Strategy

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Mike Kelly and I continued our work on AI risks and governance issues with an essay in Just Security examining the significance of Canada’s new AI strategy. Here is a short abstract of the essay:

Democratic AI governance is conventionally mapped along a single axis of regulatory intensity, with the European Union’s rights-based AI Act at one pole, the United States’ innovation-first approach at the other, and Canada and Japan occupying a middle position. This essay argues that the axis measures the wrong variable. What matters is not how much a state regulates AI but how it exercises power over AI — whether that power is rule-bound, transparent, and reviewable, or discretionary and exercised at executive speed. Remapped on that basis, the United States, which governs through procurement leverage, export controls, and executive directives rather than statute, sits at the troubling end, while Canada keeps company with the rule-bound regimes.

The significance of Canada’s “AI for All” strategy (June 2026) lies not in splitting the difference between regulation and innovation but in grounding governance in rule-of-law principles — published criteria, mandatory notice, reasons, and recourse — though its reliance on voluntary private-sector compliance remains a serious weakness. The essay further contends that all four models neglect the risk posed by artificial general intelligence, and that only credible ex ante binding commitments can constrain actors against their own competitive interests. Middle powers should emulate the Canadian model pending an eventual treaty framework.

The Tragic Demise of Japan’s Constitutional War Constraints

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Published a chapter entitled “The Tragic Demise of Japan’s Constitutional War Constraints,” the in an edited volume, The ‘Pacifist Principle’ in the Italian and Japanese Constitutions in the Wake of the War in Ukraine, Giovanni Cavaggion ed., (Springer, 2026), which came out of the conference at the University of Milan last year. The full chapter is available on SSRN, and the abstract is below:

Article 9 of the Constitution of Japan famously prohibits the use of force and the maintenance of armed forces and “other war potential.” For seven decades this provision effectively shaped national policy, constraining the government from any use of force and, to a lesser extent, moderating Japan’s national security posture. It also helped define Japan’s postwar constitutional identity. This chapter examines the process and implications of how Article 9 has been illegitimately undermined over the last decade.

First, it explains the traditional understanding and effective operation of Article 9, from its first authoritative interpretation in 1954 through 2014. Second, it analyzes the Abe administration’s process of “reinterpretation” in 2014–2015, which gutted the clear and effective constitutional constraint on the use of force in paragraph one, and explains why this was not a valid informal amendment but an unconstitutional circumvention of the formal amendment procedure. Third, it examines how Russia’s 2022 invasion of Ukraine was used as an opportunity to complete the evisceration of Article 9, with a new national security strategy that entrenched the reinterpretation and sidelined the less effective prohibition on armed forces and other war potential.

The chapter closes with reflections on the tragic nature of this demise: Article 9 was a unique experiment in constitutional incorporation of international law constraints on the use of force. Its illegitimate subversion is significant not only for constitutionalism and the rule of law in Japan, but for the broader project of subjecting state use of force to meaningful legal limits—at a time when that project is under increasing strain internationally.

New Substack – Law in Crisis

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I have launched a new substack, entitled Law in Crisis, which some might find interesting. As the masthead explains, it is a forum for “musings on how law can help our response to crises, and how to respond to the crisis in law itself – use of force and armed conflict, climate change and security, AI and security, constitutional and int’l human rights, and the rule of law more generally.”  The plan is to publish an essay of between one to two thousand words at least once a week.

The Global Risk in Trump’s AI Action Plan

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In this blog post Mike Kelly and I examine how Trump’s AI Action Plan, issued in July of 2025, contributes to the risks associated with artificial general intelligence, and explain why global governance of the research and development of AI that is at the frontier of artificial general intelligence is so important. Some are skeptical of how close we are to AGI, or how much of a risk it really posses, but as we explain, there is a non-trivial possibility that AGI could pose an existential threat to humanity, and thus the precautionary principle requires that take steps now to address that risk.