GJIL Recent Volumes
E. Tendayi Achiume, Beyond Prejudice: Structural Xenophobic Discrimination Against Refugees
In this Article, I argue that the UN Refugee Agency’s global policy for addressing foreignness or xenophobic discrimination is inadequate. By focusing narrowly on harm to refugees resulting from explicit anti-foreigner prejudice, it ignores pervasive structural xenophobic discrimination—rights violations that result from the disproportionate effect of facially neutral measures on refugees due to their status as foreigners. I argue that the international human rights law that the UN Refugee Agency has used to compel regulation of explicit prejudice-based xenophobic discrimination also requires regulation of structural xenophobic discrimination. As a result, the UN Refugee Agency should adopt an inclusive approach that targets both forms of xenophobic discrimination.
Dawn C. Nunziato, The Beginning of the End of Internet Freedom
Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world—democracies as well as dictatorships—have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet filtering regimes may have laudable goals—like preventing children from accessing harmful content and preventing access to illegal child pornography— they inevitably lead to overblocking of harmless Internet content and present grave dangers of censorship.
International protections for freedom of expression, as well as the United States’ protections for First Amendment freedoms, provide not only substantive but also procedural protections for speech. These procedural protections are especially important for countries to observe in the context of nationwide Internet filtering regimes, which embody systems of prior restraint. Prior restraints on speech historically have been viewed with great suspicion by courts and any system of prior restraint bears a strong presumption of unconstitutionality. To mitigate the dangers of censorship inherent in systems of prior restraint such as those embodied in nationwide filtering systems, any country adopting such a system should provide the requisite procedural safeguards identified in international and U.S. law, including (1) by providing affected Internet users with the ability to challenge the decision to filter before an independent judicial body, (2) by providing meaningful notice to affected Internet users that content was filtered, and (3) by clearly, precisely, and narrowly defining the categories of speech subject to filtering.
Jordan J. Paust, Armed Attacks and Imputation: Would a Nuclear Weaponized Iran Trigger Permissable Israeli and U.S. Measures of Self-Defense?
This Article addresses a pressing issue of global concern—whether Israel and the United States would have a right under international law to engage in measures of self-defense against Iran if Iran creates a nuclear warhead. This specific question is considered in connection with two more general issues regarding the law of self-defense—first, the question of when an armed attack has commenced, and second, the question of when non-state actor armed attacks can be imputed to a state for the purpose of measures of self-defense against the state. As the Article notes, too few legal writers have paid detailed attention to various aspects of context that should be addressed when making realistic and policy-attentive decisions regarding whether an armed attack has begun. Meanwhile, too many legal writers have used the wrong test with respect to the interrelated issue of whether non-state actor armed attacks can be imputed to a state. With respect to imputation, the Article provides detailed attention to circumstances of direct and complicit aggression by a state and clarifies the substantial involvement test.
William Thomas Worster, The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches
Contemporary customary international law analysis is currently understood to be a struggle between traditional and modern approaches, implicating significant normative outcomes. These opposing approaches are supposed to reflect the use of the inductive and deductive methods respectively, with the former excusing the freedom of action of the state and the latter limiting the freedom of the state. This image of two schools, possibly in struggle, however, does not fully capture the ways in which the inductive and deductive methods are actually intertwined in customary international law analysis. The methods are not two opposing monolithic techniques. Instead, in practice, the methods are intermixed, combining a variety of choices. This Article will suggest the complex ways inductive and deductive analyses are layered in the assessment of customary international law and refute the notion that the inductive and deductive approaches can be so easily separated.
Customary international law is based on a deductive foundation that that the binding nature of the law can be based on consent, that custom is a source of law, and that custom is established by state practice and opinio juris. In determining which rules are binding under customary international law, we use either induction or deduction to construct hypotheses about the law, and determine that those hypotheses can be tested through a sampling study, amassing evidence. The conclusion that we can test for the law through an inductive process, is itself a deduction, and a deduction that avoids the question of whether the issue to be tested is truly a question of law or one of fact. After all, questions of fact are more easily understood as inductively verifiable. Once we determine that we can test for the law, we must construct most frequently through deduction, the types, forms and qualities of evidence, and the nature of the actors, that will be admissible for this examination. We reach conclusions on the form of the data pool and how it is to be assembled and we assess the sufficiency of the evidence to prove the hypothesis being tested, again most likely through deduction. Once we are convinced that the threshold of proof for the hypothesis has been met, we need to take the final step of determining whether that convincingly descriptive study can be realized as a prescription.
What we see is that fundamental, foundational questions about the methodology, process of analysis, and forms of evidence are largely deduced, whereas questions about the empirical verification of practice and opinio juris are largely induced. This conclusion means that no analysis of customary international law can be completely classified as deductive or inductive. Instead, each act of customary international legal analysis employs a blend of approaches across a handful of questions. In doing so, it balances the tension between apology and utopia, and realizes the benefit of the differing approaches. We can only critique the balance struck in each case and argue whether it is a just balance.
Shelby Leighton, Al-'Aqaba: What One Village Can Teach Us About the Law of Corruption
Al-‘Aqaba is a small village located in Area C of the West Bank, where Israel has full civil and military control. Ninety-seven percent of the structures in the village are under a demolition order, which means that the Israeli military can demolish houses, businesses, or the village school at any time. This is due to Israeli planning laws in the West Bank that block virtually all Palestinians from obtaining building permits to build on their own land. This Note examines these laws in the context of the law of occupation, questioning its applicability to prolonged occupations such as Israel’s occupation of Palestinian territories since 1967. In particular, it argues that contemporary prolonged occupations require significantly more proactive governance than conventional, temporary occupations, and that this need for increased involvement in the day-to-day lives of the occupied people contradicts the principle in Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention that the occupier must not change the laws of the occupied territory unless absolutely necessary. This Note uses Al-‘Aqaba to illustrate how a failure to update the laws of occupied territories and take a proactive approach to governance can lead to discrimination and violations of basic rights in the occupied territory. To address this failure, this Note suggests that the international community adopt a view of the law of occupation that incorporates international human rights law.
Alex Schank, Sectarianism and Transitional Justice in Syria: Resisting International Trials
Speculation has swarmed regarding prospects for transitional justice in Syria, and international actors have been particularly insistent on the need for international criminal courts to hold the Asad regime and opposition militant groups accountable for the human rights violations and war crimes they are committing on a near daily basis. These early calls for accountability in Syria often presuppose that the conflict is sectarian in nature, rendering the Syrians hopelessly divided by religion and ethnicity and in need of international assistance to bring about justice and reconciliation in their society. The historical experiences of Iraq and Lebanon caution against such a presupposition. They demonstrate how the fusing of sectarian discourse and international justice schemes has politicized international trials and entrenched ethno-religious divisions. In the Syrian context, this fusing obscures the political motivations of international actors, plays into the hands of the Asad regime’s sectarian narrative, and ignores the non-violent democratic activism that underlies the Syrian uprising. While the appropriate transitional justice mechanism for Syria is a decision for Syrians to make, this Note posits that truth-telling informed by religion can play a role in fostering reconciliation and accountable governance in the Syria of tomorrow.
Catherine M. Yang, Accounting for Accountability: A Post-Conflict Role for Transnational Advocacy Networks in East Timor
East Timor, located in Southeast Asia between Indonesia and Australia, is a fairly new democracy with a long history of colonization, occupation, and mass violence. On August 30, 1999, the East Timorese voted overwhelmingly to achieve independence from Indonesian rule. The Indonesian military and militias responded with a wave of violence that abated only with the intervention of the UN-mandated International Force in East Timor.
Though accountability mechanisms emerged in the aftermath, practical shortcomings in the efforts derailed the goal of meaningful accountability. As a result, there exists a gap in accountability for the East Timor-Indonesia conflict, such that high-level officials responsible for the violence have evaded prosecution and responsibility for their actions.
This Note takes the framework of transnational advocacy networks (TANs) out of its traditional usage—helping to end ongoing human rights violations— and applies it to the post-conflict situation in East Timor, asking whether and how TANs can influence implementation of meaningful accountability mechanisms in the aftermath of mass violence. The Note proposes three interrelated ways in which TANs can work to close the gap in accountability in East Timor: by (1) engaging in capacity building and domestic legal development, (2) participating in domestic legal proceedings, and (3) maintaining external and internal communications. It concludes that, even though there will be challenges in overcoming the present lack of political will, TANs can help to lay the groundwork for future, more comprehensive accountability efforts.
Judge Timothy C. Stanceu, full text
Jeffrey D. Gerrish and Luke A. Meisner, U.S. Court of International Trade Overview: Non-Market Economy Cases in 2012
In 2012, the U.S. Court of International Trade (CIT) advanced its jurisprudence related to antidumping proceedings involving nonmarket economy (NME) countries in a number of key areas. First, the CIT reviewed the evolving methodology used by the U.S. Department of Commerce (Commerce) for valuing labor in a NME. It upheld both an interim labor methodology and a new labor methodology used by Commerce but established certain limits on the implementation of these two methodologies based on the facts of particular cases. Second, the CIT required Commerce to more rigorously evaluate the reliability of certain data used to value raw material inputs for NME producers. Third, the CIT upheld Commerce’s application of adverse facts available to respondents who failed to cooperate in NME antidumping proceedings under a broad range of circumstances. However, the CIT was split in two decisions regarding whether Commerce could apply an adverse inference to determine a non-cooperating respondent’s entitlement to an antidumping duty rate separate from the NME-wide rate. The CIT was also split regarding the application of adverse facts available to NME respondents whose suppliers failed to provide data regarding their factors of production. In addition, the CIT signiﬁcantly limited Commerce’s discretion in calculating rates for non-cooperating respondents based on adverse facts available. Fourth, the CIT began to show increasing concern with the growing trend of circumvention and evasion of antidumping duty orders on NME countries. Finally, the CIT issued three decisions in the NME arena that, while not part of a broader pattern of cases, represent potentially signiﬁcant decisions in their own right. These decisions address Commerce’s selection of a country to serve as the primary surrogate market economy country in a NME case, Commerce’s determination of separate rate status for a company controlled by a state-owned enterprise, and Commerce’s policy of declining to conduct administrative reviews of antidumping duty orders for respondents with no unliquidated entries of subject merchandise.
Matthew R. Nicely and Robby S. Naoufal, 2012 U.S. Court of International Trade Decisions on Department of Commerce Market Economy Trade Remedy Decisions
This Article reviews the 2012 decisions of the Court of International Trade involving appeals by interested parties in Department of Commerce antidumping and countervailing proceedings for market economy countries. The Article outlines and analyzes the most important and sometimes recurrent issues addressed by the Court in 2012. Among the issues addressed were exhaustion of administrative remedies, zeroing of negative dumping margins, application of adverse inferences, collapsing entities, model matching methodologies, and calculation of production costs and sales expenses.
Neal J. Reynolds, The Court of International Trade’s Review of the International Trade Commission’s Injury Determinations in Antidumping and Countervailing Duty Proceedings in 2012: An Overview and Analysis
In 2012, the U.S. Court of International Trade issued several decisions addressing the International Trade Commission’s cumulation and likely injury analysis in sunset reviews, its injury and threat ﬁndings in original investigations, and its domestic like product analysis. The Court afﬁrmed the Commission’s determinations in each appeal, applying the appropriate level of deference to the Commission’s determinations under the statutory standard of review. The Court’s decisions reﬂect a traditional judicial approach to review of the Commission’s action under the antidumping and countervailing duty laws.
Lawrence M. Friedman and Christine H. Martinez, The Court of International Trade’s Denied Protest Jurisprudence in 2012
In 2012, the Court of International Trade considered a number of issues related to U.S. Customs and Border Protection’s denial of an administrative protest. Those decisions provide new guidance for importers involving questions of law and evidence, the use of experts in commodity classiﬁcation cases, determining the “principal use” of an article for classiﬁcation purposes, and the role of amici, intervenors, and patent jurisprudence in customs cases.
The Court also considered issues related to the content, sufﬁciency, and timeliness of the underlying administrative protest and failures that resulted in a lack of subject matter jurisdiction vesting with the Court. These issues and the Court’s decisions are analyzed and discussed in this overview of 2012 Court of International Trade opinions arising under the jurisdiction conferred in 28 U.S.C. § 1581(a).
Nancy A. Noonan, Court of International Trade Decisions during 2012 under 28 U.S.C. § 1581(I) Residual Jurisdiction
The Court of International Trade declined to use its residual jurisdiction in cases where the Court determined other jurisdictional provisions were available to plaintiffs. Where the Court reached the merits of cases brought pursuant to the residual jurisdiction provision, the plaintiffs’ relief at surviving the jurisdictional issue was short-lived. Those cases, which all involved challenges to the same statutory provision known as the Continued Dumping and Subsidy Offset Act, were dismissed for failure to state claims upon which relief could be granted. In short, the residual jurisdiction cases of 2012 do not provide any encouragement to plaintiffs who want to use the Court’s residual jurisdiction for favorable decisions on the merits. Nevertheless, it remains clear that the Court will use its residual jurisdiction in appropriate circumstances where its other jurisdictional provisions were not available to the plaintiffs.
Stephen C. Tosini, Developments in Customs Penalties in the Court of International Trade in 2012
The Court of International Trade is an Article III federal court created by Congress to address challenges to federal governmental actions involving international trade and afﬁrmative civil actions brought by the government to recover lost customs duties or penalties for violations of the customs laws. The court’s exclusive jurisdiction is narrowly deﬁned by statute to include speciﬁc matters, including certain afﬁrmative civil enforcement actions brought by the government against importers and customs brokers.
In its recent decisions related to afﬁrmative civil enforcement, the court has lessened its focus on the conduct of violators and turned its scrutiny towards the actions of U.S. Customs and Border Protection (CBP), requiring that the agency closely follow all administrative procedures before the government may sue a violator. This renewed scrutiny of government action primarily relates to two areas. First, unlike earlier decisions which focused on defendants’ conduct in penalty actions, the court has continued its recent trend of strictly requiring the government to exhaust administrative remedies during penalty proceedings, regardless of the defendants’ conduct or whether any administrative shortcoming prejudiced the defendant. Second, the court has begun to more closely scrutinize motions for default judgment in afﬁrmative enforcement actions.
The court also issued two other noteworthy decisions related to customs enforcement beyond the trend of focusing on CBP’s administrative actions. The court ﬁrst enforced CBP’s regulation which mandates that a carrier is responsible for duties owed on merchandise that is entered into the United States for re-exportation should the carrier be unable to establish that the merchandise was, in fact, re-exported. Second, the court declined to enjoin a district court action between an importer and a surety, in which the surety sought subrogation from the importer for amounts paid to CBP.
Beverly A. Farrell, Developments in Jurisdiction under 28 U.S.C. § 1581(A) and Customs Bond Enforcement in the U.S. Court of International Trade in 2012
This Article discusses several decisions issued by the United States Court of International Trade in 2012 that address the scope of the court’s jurisdiction commenced pursuant to 28 U.S.C. § 1581(a). Taken together, these decisions reﬂect that the court narrowly construes the scope of its own jurisdiction under § 1581(a). This Article also discusses a decision, currently on appeal, concerning whether the United States is entitled to equitable interest and interest pursuant to 19 U.S.C. § 580 when the government commences a collection action upon a customs bond.
Jordi de la Torre, The Hague Choice of Court Convention and Federal Power over State Courts
This Note addresses some of the constitutional issues that would arise if Congress enacted a statute to implement the Hague Choice of Court Convention. Congress could take such action under its Commerce Power or under its power to implement treaties. Because such a statute would regulate the procedures used by state courts adjudicating state law cases, it raises speciﬁc federalism concerns. This Note addresses those concerns and concludes that none of them is a bar to congressional action. State court procedures are not shielded from federal regulation. Even if Congress could not regulate state court procedures directly, however, it could federalize substantive law and then impose its choice of procedures as “part and parcel” of the newly created federal rights or as a necessary measure for its effective vindication.
Kate Hadley, Do China’s Bits Matter? Assessing the Effect of China’s Investment Agreements on Foreign Direct Investment Flows, Investors’ Rights, and the Rule of Law
Countries around the world pursue international investment agreements as an important component of their foreign policies. Government spokespeople and international organizations assert that investment agreements increase foreign direct investment (FDI) and support investors’ rights and the rule of law in developing countries. It is far from clear, however, whether investment treaties actually affect FDI ﬂows or developing countries’ legal systems. There have been few studies of the effects of investment agreements, and those that exist have advanced conﬂicting conclusions. This Note ﬁlls this gap in our understanding of investment agreements by analyzing the effects of the fastest-growing and most important bilateral investment treaty (BIT) program in the world: China’s.
This Note argues that China’s BITs seem to have been effective at promoting inbound FDI in China. On the other hand, they do not seem to have increased FDI ﬂows into China’s developing country treaty partners; this applies both to aggregate FDI inﬂows and to FDI from China alone. This suggests that, while BITs serve as a credible commitment by the Chinese government to property protection and liberal investment policies, China’s BITs with other developing countries may serve primarily political, rather than economic, purposes.
With respect to legal rights under the treaties, this Note argues that foreign investors’ rights under Chinese law have expanded and become more enforceable due to changes in the language of China’s BITs, and that these changes may promote rule of law development in China. The pro-investor and pro-rule of law changes to treaty language have occurred primarily through China’s BITs with developed, liberal partner countries. This suggests that the BIT programs instituted by developed countries and developed country groups, like the Organisation for Economic Cooperation and Development and the European Union, have been effective policy instruments for increasing investment ﬂows and strengthening investors’ rights and the rule of law. Overall, therefore, this Note argues that, for China and the developed democracies, BITs seem to be achieving their declared goals of increasing inbound FDI into China and promoting property rights and the rule of law.