Showing papers in "Berkeley Journal of International Law in 2013"

Globalization and Sovereignty

Abstract: Globalization represents the reality that we live in a time when the walls of sovereignty are no protection against the movements of capital, labor, information and ideas—nor can they provide effective protection against harm and damage.1 This declaration by Judge Rosalyn Higgins, the former President of the International Court of Justice, represents the conventional wisdom about the future of global governance. Many view globalization as a reality that will erode or even eliminate the sovereignty of nation-states. The typical account points to at least three ways that globalization has affected sovereignty. First, the rise of international trade and capital markets has interfered with the ability of nation-states to control their domestic economies.2 Second, nation-states have responded by delegating authority to international organizations.3 Third, a “new” international law, generated in part by these organizations, has placed limitations on the independent conduct of domestic policies.4

The Law on Recognition and Enforcement of Foreign Judgments: Is It Broken and How Do We Fix It?

Abstract: Transnational practitioners and litigants are bound to encounter at least one case that will require the recognition and enforcement of either a U.S. court judgment1 abroad, or a foreign court judgment in the United States.2 Upon encountering this situation, these parties may be interested to learn that while the United States has been a signatory of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards3 (“New York Convention”) since 1970, it is not currently party to any international treaty for

Valuation in Investor-State Arbitration: Toward a More Exact Science

Abstract: The chapter focuses on compensation of fair market value as a means of achieving such reparation, as opposed to restitution, contractual formulas, or moral damages. It sets forth the framework of challenges facing investor-state arbitration, within the context of its continuing expansion. The chapter links those challenges to questions about the legitimacy of valuation. The chapter addresses two fundamental aspects of valuation. First, it discusses the issue of awarding interest. The recent trend toward awarding compound interest illustrates how convergence on damages methodologies furthers the legitimacy of arbitral awards. Second, it describes perhaps the prominent method of determining fair market value: discounted cash flow (DCF) analysis. The chapter suggests that tribunals should not reject a well-pleaded DCF analysis simply on the basis of “uncertainty,” “speculation,” and “going concern” tests. The experts would help arbitrators make valuation a more exact science, and that is critical for the legitimacy of investor-state arbitration. Keywords:discounted cash flow (DCF) analysis; exact science; fair market value; investor-state arbitration; legitimacy challenges

"Never Again"? German Chemical Corporation Complicity in the Kurdish Genocide

Abstract: German chemical corporations were complicit in the gassing of Allied troops in World War I and concentration camp prisoners in World War II. The shock of the Holocaust resulted in adoption of the Genocide Convention and the determination to never let this happen again. Genocide, of course, has happened again, but the great irony is that German chemical corporations were once more complicit in the genocide that wiped out thousands of Kurdish civilians in northern Iraq in 1988. Corporations should be criminally liable for their conduct - including genocide. This paper reviews the evidence and makes the case for prosecuting German chemical corporations for their involvement in the Kurdish genocide.

From Paris to London: The Legal History of European Reparation Claims: 1946-1953

Abstract: One of a series of both published and planned studies of the history of European reparations following World War II. This paper narrates the history of the first period of that era, from 1945 to approximately 1952. This period is marked by the disappointment of the expectations of former Allies, especially those that had been under German occupation, to obtain adequate reparations through multilateral arrangements; a frustration that led to later bilateral reparations treaties with the Federal Republic of Germany. It also marks the beginning of the era in which individual subjects who had suffered persecution struggled to establish their own agency - efforts that contributed to the establishment of international human rights in later decades.

Review of The Principles and Practice of International Commercial Arbitration by Margaret L. Moses

Abstract: In recent decades, globalization has expanded and strengthened states’ economic relations around the world. In this context, the effects of globalization have benefited private commercial entities by providing them broader and more attractive means of concluding transactions. As a consequence, international transactions have experienced increasing degrees of complexity regarding legal matters. The old paradigm that applied local laws in every dispute is no longer the answer for new international transactions. The latest element of internationalization involves application of other countries’ laws and, consequently, involvement of their judicial systems. This latter effect represents a disadvantage for private entities unfamiliar with the legal system of a particular country. International litigation can also be very expensive, and it may take several years before the parties reach a final resolution. Therefore, parties are usually resistant to subjecting themselves to the jurisdiction of a foreign court.1 Not surprisingly, “[a]rbitration has become the dispute resolution method of choice in international transactions.”2 International commercial arbitration is a relatively new method of dispute resolution in which the parties can create their own private system in order to resolve disputes.3 In arbitration, parties have the opportunity to choose the rules of procedure applicable in the resolution of the dispute, the governing law of the contract, the place where the dispute should be resolved, the decision-makers who will decide the dispute, and the language used during the proceedings, among many other essential considerations. In addition, by selecting arbitration as their dispute resolution

When Actions Speak Louder Than Words: The Relevance of Subsequent Party Conduct to Treaty Interpretation

Abstract: The way in which a treaty is implemented by the parties can provide important evidence as to its interpretation. This article proposes that subsequent party conduct is primarily relevant to the exercise of treaty interpretation where that conduct demonstrates the parties' agreement to the interpretation of the treaty's terms, and the agreed interpretation comes within the four corners of the treaty text. Otherwise, subsequent party conduct may produce other legal consequences such as through the operation of estoppel.

A "Special Track" for Former Child Soldiers: Enacting a "Child Soldier Visa" as an Alternative to Asylum Protection

Abstract: Approximately 300,000 child soldiers currently serve in more than 30 conflicts around the world. The international legal community widely considers these children to be victims of severe human rights violations in spite of the atrocities that many of them commit. Although few of these children will ever make it to the United States, those who do manage to escape and arrive in the U.S. face a number of challenges in achieving immigration status. In general, advocates for child soldiers have focused on how the United States’ asylum laws could be changed to make it easier for former child soldiers to receive asylum status. In particular, the proposals have urged clarification of the definition of “particular social group” and incorporation of duress and infancy defenses into the exclusionary bars to asylum. These proposals, although they have merit, fail to acknowledge the floodgates and national security concerns that have likely stalled these needed changes to the asylum laws. This article offers a solution for child soldiers outside the context of asylum law: a Child Soldier Visa that applies only to former child soldiers and which attempts to reconcile the United States’ humanitarian and national security interests. While acknowledging the need to ultimately reform U.S. asylum laws so they conform to the Refugee Convention and state practice, this article discusses a solution that may be more realistic in the short-term than amending the asylum laws.

Securing the resources of the deep: dividing and governing the extended Continental Shelf

Abstract: Half of the world's coastal states are in the process of delineating continental shelf limits seawards of their 200 nautical mile exclusive economic zones. The paper briefly outlines this process and progress towards the finalisation of such limits. Key potential resource opportunities that may arise within the "extended continental shelf ' areas are then highlighted and challenges in securing rights over these resources explored.

Sovereigntism's Twilight

Abstract: Sovereigntism is having a good run in the academy and the courts. Scholars skeptical of international law succeeded in prompting a searching reexamination of the Restatement (Third) of Foreign Relations Law and the conventional wisdom it had come to represent. Sovereigntist positions have found a receptive audience in recent decisions of the Roberts Court, with additional victories just over the horizon. But sovereigntism is bound to fail. Massive material changes in the nature of global interaction will overwhelm sovereigntist defenses, which (notwithstanding their constitutional pedigree and apparent gravity) are in the end incapable of stemming the tide. International law is insinuating itself into U.S. law through multiple channels. In the end, globalization is not a quantity to be rejected, accommodated, or accepted as a policy option. The Constitution will not be able to plug the gaps. This essay considers four clusters of cases that appear to evidence sovereigntism’s continued ascendancy, relating to self-execution, the Alien Tort Statute, the detention of terror suspects, and the use of international law in constitutional interpretation. Although these clusters appear to vindicate sovereigntist perspectives, short-term victories are likely to be reversed by material forces of globalization. The Constitution will inevitably and radically adapt to the changed international context.

Transnational Rights Enforcement

Abstract: A central debate among international law scholars revolves around the question of how, if at all, international human rights are enforced. Based on recent empirical research, the leading explanations for human rights enforcement are: 1) the democracy thesis; 2) the constitutional thesis; and 3) the international non-governmental organization (INGO) thesis. In order to gain better insight into the causal mechanisms involved and the interplay between these different factors in human rights enforcement, this article tests these competing theories through controlled comparisons and qualitative case studies focused on a single widely ratified right, the right to education. It identifies transnational rights enforcement as an alternative mechanism of human rights enforcement. In this model, transnational civil society actors contribute to human rights enforcement by overcoming international constraints, leveraging domestic commitments, and accelerating compliance with regional norms.