Showing papers in "American Journal of International Law in 2019"

Designing Border Carbon Adjustments for Enhanced Climate Action

Abstract: The Paris Agreement advances a heterogeneous approach to international climate cooperation. Such an approach may be undermined by carbon leakage—the displacement of emissions from states with more to less stringent climate policy constraints. Border carbon adjustments offer a promising response to leakage, but they also raise concerns about their compatibility with international trade law. This Article provides a comprehensive analysis of border carbon adjustments and proposes a way to design them that balances legal, administrative, and environmental considerations.

Transnational Climate Litigation: The Contribution of the Global South

Abstract: Since the conclusion of the Paris Agreement, climate litigation has become a global phenomenon, casting courts as important players in multilevel climate governance. However, most climate litigation scholarship focuses on court actions in the Global North. This Article is the first to shine a light on the Global South's contribution to transnational climate litigation. Analysis of this experience is essential if transnational climate jurisprudence is to contribute meaningfully to global climate governance, and to ensuring just outcomes for the most climate-vulnerable.

“Half the Truth is Often a Great Lie”: Deep Fakes, Open Source Information, and International Criminal Law

Abstract: The video opens with a man—now known to be Commander Al-Werfalli of the elite Libyan Special Forces team al Saiqa—throwing a quick glance over his shoulder as a black SUV rolls off camera. Cradling a gun, he saunters towards three men kneeling on a sidewalk, hands bound behind their backs, faces turned toward the wall. He raises the gun in his left hand. Without pausing, he walks methodically down the row, a bullet punctuating every other step. The men slump forward as they fall. Werfalli's first hint of emotion is visible only when he unloads multiple bullets into the final body.

Prosecutor v. Jean-Pierre Bemba Gombo

Abstract: On June 8, 2018, in a surprising turn, the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of Jean-Pierre Bemba Gombo and acquitted him of crimes against humanity and war crimes. The four separate opinions, raising questions about Pre-Trial and Trial Chamber procedures, the standard of Appellate Chamber review, and the scope of command responsibility, have revealed sharp disagreements between ICC judges and created considerable confusion over the state of ICC law and procedure.

The Private Law Critique of International Investment Law

Abstract: This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

Abstract: Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom's continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. Nearly unanimous—the sole dissenter on the merits was Judge Joan E. Donoghue of the United States—the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both. It did so in a manner that implicated the ICJ's role as the judicial organ of the United Nations, in whose General Assembly and other political bodies the next episodes in the Chagos controversy seem destined to unfold.

Reputation as a disciplinarian of international organizations

Abstract: As a disciplinarian of international organizations, reputation has serious shortcomings. Even though international organizations have strong incentives to maintain a good reputation, reputational concerns will sometimes fail to spur preventive or corrective action. Organizations have multiple audiences, so efforts to preserve a “good” reputation may pull organizations in many different directions, and steps taken to preserve a good reputation will not always be salutary. Recent incidents of sexual violence by UN peacekeepers in the Central African Republic illustrate these points.

Theorizing Emancipatory Transnational Futures of International Labor Law

Abstract: The economic mandate of the “misnamed” International Labour Organization (ILO) has long been “othered” internationally. The ILO's 1944 constitutional annex, the Declaration of Philadelphia, confirms the ILO's “responsibility … to examine and consider all international economic and financial policies and measures in the light of th[e] fundamental objective” of lasting peace on the basis of social justice. After 1945, through decolonization, and prior to the emergence of a Washington consensus-based neoliberal globalization, the ILO enabled some states to mediate the “social” in economic regulation—that is, to adopt free trade economic liberalism promoted transnationally with social redistribution addressed domestically, also referred to as embedded liberalism. States established and harmonized international labor standards through multilateral processes steeped in an organizational tripartism that made workers’ and employers’ representatives ILO institutional actors alongside governments. At least in the global North, the ILO fostered a high degree of normative convergence nationally, regionally, and on shop floors. For the first Director-General, Albert Thomas, the ILO “taught the world to speak something like the same language on social questions.” Its approach has been nuanced, pragmatic, and transnational, taking leadership on issues like social protection that should also have been—but were not—the focus of other international economic institutions.

The Security Exception In WTO Law: Entering a New Era

Abstract: For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

Governing the New Space Race

Abstract: The first trend, democratization, means space activities are expanding to a growing number of states and nonstate actors, distinguishing this space age from one when two powers—the United States and the Soviet Union— were dominant.1 Democratization2 does not, however, mean that states themselves are displaced.3 For the foreseeable future, states will remain central to the international space saga, often as backers and consumers of space technologies and products, prime architects of strategies and policies, and designers of governance frameworks. The United States, Russia, and Europe remain important. The contemporary difference is the emergence of lesser-known states intent on capturing industrial benefits,4 ranging from independent space powers like Japan, China, and India, to entrants such as Australia, Luxembourg, the United Arab Emirates (UAE), Israel, Pakistan, Turkey, and South Africa, to name a few. Many of these states have unilaterally created space agencies.5 Others have capitalized on expertise in a technology, such as Israel with small satellites,6 or staked out regulatory niches, such as Luxembourg on space

The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters

Abstract: On July 2, 2019, the Hague Conference on Private International Law (HCCH) adopted a new multilateral Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.1 When brought into force,2 the Convention will commit contracting states to recognize and enforce civil and commercial judgments rendered by the courts of other contracting states, and to do so without a substantive review of the merits of the underlying dispute. The goal of the Convention is to fill a significant gap in the field of private international law by establishing for foreign judicial judgments a regime to complement the 2005 Hague Convention on Choice of Court Agreements,3 and, in some respects, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.4 If widely adopted and fairly implemented, the new Convention could contribute significantly to the stability and predictability of transborder commercial transactions and thereby promote trade, investment, and the growth of the global economy. Traditionally, the recognition and enforcement of judgments rendered by foreign courts has been a matter exclusively governed by the domestic law and practice of each state and therefore subject to differences in national approaches to such matters as jurisdiction,

From the WTO's Crown Jewel to its Crown of Thorns

Abstract: The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

Wightman et al. v. Secretary of State for Exiting the European Union

Abstract: The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state, and that revocation brings the withdrawal procedure to an end” (para. 74).

The Attribution Problem and Cyber Armed Attacks

Abstract: In late 2018, the U.S. Secretary of Homeland Security suggested that “cyber-attacks now exceed the risk of physical attacks.” Yet the law has not kept pace with this reality. In particular, identifying who is responsible for a cyberattack makes it difficult to regulate this conduct. A state often cannot practically respond to a threat unless it knows from where the threat emanates and potentially who is responsible. Attribution of cyber conduct is critical from a legal perspective because the unlawful act must be attributable to another state for state responsibility to be engaged. This essay provides an overview of this attribution problem in the context of cyberattacks that might qualify as armed attacks for purposes of the jus ad bellum. These attacks are especially grave and, as such, ones that states will most want to respond to decisively. Understanding the availability and limits of a lawful response is therefore critical. The essay begins by briefly reviewing the current state of international law concerning armed attacks and self-defense, and whether and how cyberattacks fit within this framework. It then examines the attribution problem, noting that there are both technical and legal hurdles to overcome when attempting to reconcile conventional approaches to attribution with the unconventional characteristics of a cyberattack. Finally, it proposes a more contextually appropriate model for attribution that states could use in the case of cyber armed attacks to address the attribution problem.

María de los Ángeles González Carreño v. Ministry of Justice

Abstract: The ruling of the Spanish Supreme Court in Judgment No. 1263/2018, recognizing, for the first time, the binding character of the Views of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), augmented the normative authority of the Views of the human rights treaty monitoring body, not only at the domestic level, but also within the international legal sphere. In the Judgment, the Spanish highest court held that the government must comply with the Views of the CEDAW Committee as a matter of the state's constitutional mandate as well as its international obligations. The Court's interpretation in this case meets the expectation of human rights treaty monitoring bodies that states are obligated to respond to their Views concerning individual communications, despite some states parties’ claims to the contrary.

What is International Trade Law for

Abstract: Events of the past few years, including the Brexit vote in the United Kingdom and the demise of the Trans-Pacific Partnership and election of Donald Trump as President in the United States, have reignited debates about the global trade regime. In particular, many have begun to question whether the trade regime has done enough for those who feel left behind by globalization. While some have held fast to the view that redistribution of trade’s gains is primarily a matter of domestic policy, others have suggested tweaks to the international trade agreements aimed at better spreading the wealth. But what if the problem isn’t policy, but principle? The major international economic institutions of the last few decades have been based on and around a normative principle of “growing the pie” and “raising all boats.” Most policy tweaks that have been suggested assume this neoliberal principle, even while trying to soften it harder edges. But it’s not clear that those voting against trade agreements agree. This essay reconsiders the normative basis of international economic law, searching for a new narrative that can reopen and reinvigorate trade politics while justifying and directing the regime going forward. Surveying various normative narratives put forward in the past, it asks what an embedded liberalism might look like in an era of complex transnational supply chains. It suggests that an international economic order built around a state’s obligations to provide for the welfare of its people might need to reorient around other policy issues like tax and regulations, shifting trade from the driver to passenger in international negotiations.

WTO Dispute Settlement: Can We Go Back Again?

Abstract: The world's twenty-year experiment with a rule-based international trading order is most likely ending. Trade wars are raging again for the first time in two decades as World Trade Organization (WTO) members unilaterally impose and counterimpose sanctions. In Geneva, the WTO Appellate Body, whose existence is essential to the functioning of the WTO Dispute Settlement Understanding (DSU), is on a trajectory to shut down in December 2020. For all the fireworks, however, many commentators retain an optimism that the recent events will be a passing phase and that the world will return to a more law-oriented trading system after the present crisis.

The Czar and the Slaves: Two Puzzles in the History of International Arbitration

Abstract: In 1822, the Russian czar resolved a dispute over compensation for slaves fleeing to British lines during the War of 1812. American observers have long asserted that this canonical decision favored the United States. But new debate has recently arisen among historians. Uncovering evidence from diplomatic archives, this Article concludes that the czar did indeed side with the United States. Moreover, the case demonstrates how nineteenth-century American statesmen pressed international law into service in support of slavery.

NAFTA Is renegotiated and signed by the United States

Abstract: A twenty-four-year-old agreement was reborn on October 1, 2018, when President Trump announced that the North American Free Trade Agreement (NAFTA) had been successfully renegotiated. The deal came after an arduous, year-long negotiation process that almost left Canada behind. As one indicator of its contentiousness, the deal lacks an agreed-upon name, but the United States is referring to it as the United States-Mexico-Canada Agreement (USMCA). It keeps some key NAFTA provisions mostly the same, including with respect to state-to-state dispute resolution, but eliminates, modifies, and adds other provisions. Among the changes: investor-state dispute settlement has been eliminated as between the United States and Canada; rules of origin for automobiles and rules for U.S. dairy products have been modified; and new provisions address labor protections, intellectual property rights, rights for indigenous persons, rules for trade negotiations with non-market countries, and the agreement's termination. The agreement was formally signed by the leaders of all three countries on November 30, 3018. It must be approved through the domestic ratification procedures of the three countries before it enters into force.

The Economic Structure of International Investment Agreements with Implications for Treaty Interpretation and Design

Abstract: This Article argues that international investment agreements (IIAs) serve a dual economic function—to discipline host country policies that impose international externalities on foreign investors, and to curtail inefficient risks associated with agency costs, risk aversion, asymmetric information, and time inconsistency problems that uneconomically increase the cost of imported capital in host countries. It draws on the economic analysis to explain central features of IIAs and their evolution over time, and to address various controversial issues in international investment litigation.

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)

Abstract: More than thirteen decades after Chile annexed Bolivia's coastal regions, the International Court of Justice (ICJ) denied Bolivia's longstanding claim that Chile had undertaken a legal obligation to negotiate granting it sovereign access to the Pacific Ocean.

The Creation of Elusive Investor Responsibility

Abstract: The issue of investor responsibility reveals a stubborn bias within international investment law. That law addresses mistreatment by host states of foreign investors but consistently fails to address investor misconduct in host states. The traditional emphasis on state responsibility in this context has allowed abusive, pollutive, and corrupt investor behavior to thrive. International investment law is the current object of scrutiny, criticism, and reform in large part because many see it as overprotecting investors. However, scholars and reformers have focused on state responsibility, tinkering with the legal and institutional conditions that determine the international wrongfulness of state conduct. Unless and until investor responsibility is integrated into international investment law reform, the overprotection of investors owing to an accountability gap will continue to undermine its legitimacy. This essay posits that the first step to integration is understanding why investor responsibility scrabbles to find purchase in international investment law. I argue that elusive investor responsibility was created by omission, with injurious consequences that highlight the need to alter, rather than accept, the status quo.

Global Lawmakers: International Organizations in the Crafting of World Markets. By Susan Block-Lieb and Terence C. Halliday. Cambridge, United Kingdom: Cambridge University Press, 2017. Pp xix, 456. Index.

Abstract: the crime of aggression will not pull the court into unresolvable political disputes, he also underscores the narrow force of the crime. The crime’s definition and its constraining jurisdictional regime mean that it is unlikely that we will see an aggression prosecution anytime soon at the ICC. As a result, with regard to some of the most contentious issues surrounding the state use of force today—including humanitarian interventions and self-defense—the crime of aggression will have little relevance. The material that is packed into this wonderful two-volume commentary shows how much there is to say on this subject, but what it all ultimately means remains uncertain. Is this the beginning, the middle, or the end of the story of the development of the crime of aggression? At Nuremberg, there was another crime born— crimes against humanity—that was similarly narrow in its first instantiation, but which later blossomed to become the central crime prosecuted by the ad hoc international criminal tribunals and the ICC. Will the crime of aggression similarly have an illustrious future after a modest beginning? Only time will tell.

American law institute releases a volume of the restatement fourth of the foreign relations law of the United States, partially revising the restatement third

Abstract: In late 2018, the American Law Institute released a volume of the Restatement Fourth of the Foreign Relations Law of the United States. Initiated in October 2012 under the direction of Coordinating Reporters Sarah Cleveland and Paul Stephan, this volume covers three areas of U.S. foreign relations law: treaties, jurisdiction, and sovereign immunity. It remains to be seen whether the American Law Institute will revisit other portions of the Restatement Third, which was published in 1987. “[I]n the meantime, the provisions of the Third Restatement remain the position of The American Law Institute except where superseded by provisions in this Fourth Restatement.

Case No. ICC-RoC46(3)-01/18

Abstract: On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (ICC or Court) ruled by a majority—Judge Perrin de Brichambaut dissenting—that it has jurisdiction to hear cases concerning crimes that occurred only in part within the territory of a state party to the Rome Statute. In so ruling, the Court granted the ICC prosecutor's request to rule on jurisdiction and confirmed its territorial jurisdiction over the alleged deportation of Rohingya people from the territory of Myanmar (a state not party to the Rome Statute) to Bangladesh (a state party). The Court also affirmed unequivocally its objective international legal personality vis-a-vis non-party states and hinted strongly that the prosecutor should consider the possible prosecution of at least two additional crimes in connection with this situation.

Reimagining Trade Agreements for Workers: Lessons from the USMCA

Abstract: A backlash against the post-Cold War order of liberal globalization has taken hold in the rich North Atlantic countries. Concerns about wages, working conditions, and economic opportunity are central to the critique of international trade agreements of the last three decades. While labor rights have progressively been included in trade agreements, they have done little to reshape workers’ well-being and workplace conditions. The new United States-Mexico-Canada Agreement (USMCA) may signal a pivot to a new model requiring reforms of domestic labor law and other issues important to workers. However, there is much more to be done to rebalance the power between capital and labor in trade agreements. In addition, for the United States and other rich countries, reform at home may be equally important.

Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”

Abstract: At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,”2 as the Manual itself terms them, actually “provid[e] international law advice”3 to states operating in cyberspace? Given the Manual’s own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare,4 one may indeed wonder whether states have used the Manual as intended—as a manual. However, to ask whether states have “accepted,” “follow,” “reject,” or “maintain a ‘wait and see’ approach toward the Tallinn Rules”5 does suppose that these are, in fact, rules. Though the authors remain notably quiet on what they think the status of the Tallinn Manual is, exactly, the repeated reference to the “Tallinn Rules,” the word “Rule Book” in the article’s title, and even the capitalization of the word itself—“Rules”6—all suggest that the authors consider the Manual to be at the very least “a normative point of reference.”7 I don’t question the correctness of that assumption. The point of this essay is not to assess whether the Manual “got the law right,” or to point out that the experts are “really” doing lex ferenda rather than lex lata.8 I do argue, however, that the authors’ quiet acquiescence to what the Manual itself says it is becomes problematic when one considers the dictates of the Manual as a form. What I mean to say is that the Manual must claim, for reasons I will go into below, that it restates lex lata. This dictate of the form not only provokes the kind of research question that Efrony and Shany ask, but it also goes a very long way in predetermining their answers. In order to show why this is the case, I will first ask what is implied in the Manual as a form for international legal writing. The second part of the essay then discusses the way Efrony and Shany themselves refer to the Manual. Their failure to question the Manual’s form is problematic the moment we realize what follows from the claims the Tallinn Manual makes about what it is (for). This also means that the answer to their research question seems in some ways inevitable. In conclusion, perhaps we could even say that, however paradoxical it may seem, the demands of the Manual as a form preordain its own desuetude.

Decentralized Cyberattack Attribution

Abstract: Attribution of state-sponsored cyberattacks can be difficult, but the significant uptick in attributions in recent years shows that attribution is far from impossible. After several years of only sporadic attributions, Western governments in 2017 began attributing cyberattacks to other governments more frequently and in a more coordinated fashion. But nongovernment actors have more consistently attributed harmful cyber activity to state actors. Although not without risks, these nongovernmental attributions play an important role in the cybersecurity ecosystem. They are often faster and more detailed than governmental attributions, and they fill gaps where governments choose not to attribute. Companies and think tanks have recently proposed centralizing attribution of state-sponsored cyberattacks in a new international entity. Such an institution would require significant start-up time and resources to establish efficacy and credibility. In the meantime, the current system of public-private attributions, decentralized and messy though it is, has some underappreciated virtues—ones that counsel in favor of preserving some multiplicity of attributors even alongside any future attribution entity.

Dealing with Allegations of Corruption in International Arbitration

Abstract: With the rise of corruption as a subject of international instruments and the convergence of obligations around its prevention, detection, and remediation in both the public and private sectors, corruption has increasingly figured as an issue in international arbitration. Indeed, its acceptance as a public policy issue at both the international and transnational levels has resulted in the need for tribunals, in both commercial and investor-state disputes, to grapple with questions of jurisdiction, admissibility, and consequences, as well as standards of proof. As this essay demonstrates, the challenges presented by the issue of corruption pose special difficulties for arbitration. Time will tell if tribunals will move from their current largely binary, all-or-nothing approach to a more nuanced one based on proportionality.