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GJIL Vol. 43

Volume 43

Issue 4

Remarks

Jonathan Drimmer, Resurrection Ecology and the Evolution of the Corporate Alien Tort Movement
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William Casto, Sosa v. Alvarez-Machain and the End of Histor
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Gary Clyde Hufbauer, Why Shouldn't Corporations Be Liable Under the ATS?
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Chimène I. Keitner, Some Functions of Alien Tort Statute Litigation
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Vivian Grosswald Curran, Remards on the GJIL Symposium on Corporate Responsibility and the Alien Tort Statute
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William A. Reinsch, Economic Impact of the Alien Tort Statute
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Anton Metlitsky, The Alien Tort Statute, Federal Common Law, and Corporate Human Rights Litigation
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William S. Dodge, Corporate Liability Under Customary International Law
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Marco Simons, Human Rights Litigation and International Trade and Investment: Deterring Destructive Engagement and Rewarding Good Behavior
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Jodi Westbrook Flowers, Remarks on the GJIL Symposium on Corporate Responsibility and the Alien Tort Statute
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Nicole Erb & Owen Pell, Kiobel's New Focus on Extraterritoriality Under the Alien Tort Statute Could Put Resolution of the Corporate Liability Issue Indefinitely Out of Reach
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Kristen Sjøvoll, If the Shoe Does Not Fit: Why the ATS Does Not Work
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Kristin Linsley Myles, Some Thoughts on the Alien Tort Statute as the Supreme Court Considers Kiobel
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Articles

Samuel T. Morison, Accepting Sosa's Invitation: Did Congress Expand the Subject Matter Jurisdiction of the Alien Tort Statute in the Military Commissions Act?

     The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action under the ATS, but this is entirely a matter of respecting the separation of powers. If Congress enacts a statute that "occupies the field," the Court observed, then a judge’s task is to faithfully enforce the norms delineated in the statute. To date, the Military Commissions Act (MCA) has been almost completely ignored in human rights litigation under the ATS, perhaps because it does not provide for civil remedies. But this overlooks the fact that the MCA is not an ordinary domestic criminal statute with a long-arm provision. Instead, the statute purports to "occupy the field" of war crimes, at least for U.S. domestic purposes. Perhaps most importantly, the MCA penalizes terrorism, broadly construed, providing material support for terrorism, and conspiracy as war crimes, when committed by private, non-state actors in the context of and associated with an armed conflict. If the MCA is a valid exercise of Congress’s prescriptive authority to define and punish violations against the law of nations, it follows that such norms should be actionable in ATS litigation. Accordingly, if the constitutionality of the MCA is ultimately affirmed by the Supreme Court on these grounds, the decision will come with a previously unacknowledged systemic cost, namely a sharp increase in the scope of ATS liability.
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Federico Fabbrini, Europe in Need of a New Deal: On Federalism, Free Market, and the Right to Strike

     The Article analyzes the protection of the right to strike in Europe in a comparative perspective with the United States. The Article argues that the overlap and interplay between state law and European Union (EU) law in the field of industrial relations has generated major tensions. Although the protection of collective labor rights varies widely across EU member states, the development of a judge-made standard for the regulation of industrial action at the supranational level has challenged the effectiveness of the protection of the right to strike in most EU countries. In fact, the right to strike has been recognized at the EU level, but has been subjected to significant limitations in order to ensure free market principles. As the Article claims, nevertheless, the dynamics that Europe is currently experimenting are not sui generis and rather reveal numerous analogies with the constitutional experience of the United States. For a long time tensions between social rights guarantees and free market rules have characterized the United States because of the interaction between state and federal law. During the New Deal, however, the United States found a way to address the challenge of protecting labor rights in a federal system committed to the free market by enacting federal legislation, such as the Wagner Act. The Article hence explores how additional reforms may be envisaged in the EU constitutional system to strengthen collective labor rights vis-à-vis free market principles and advances the argument that Europe should enact an EU regulation setting a standard for the protection of strike action in labor management disputes having a cross-border dimension. Taking also into account the unprecedented effects of the current economic crisis, the Article concludes that if Europe wants to take the right to collective action seriously and strike a new balance between market integration and social protections, it needs a New Deal.
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Nicolo Nourafchan, Judging Torture: Lessons from Israel,with Forward by Judge Stephen R. Reinhardt

     The War on Terror has presented the United States judiciary with an arduous challenge: to ensure that the executive branch’s efforts to protect national security not trample on fundamental human rights and freedoms. This Article examines the role of U.S. courts in formulating a constitutional interrogation policy for terror suspects, and compares the U.S.’s experience with that of Israel. In the face of ongoing terrorist threats, U.S. courts have consistently refused to rule on the legality of Washington’s interrogation policies and have deferred that task to the political branches of government. This has disrupted the separation of powers, the rule of law, and the system of checks and balances, and has enabled the executive branch to implement an interrogation regime that has compromised certain non-derogable human rights. In support of these claims, the Article employs a case study analysis and compares the seminal Second Circuit decision, Arar v. Ashcroft, against a milestone decision by the Israeli Supreme Court, Public Committee Against Torture in Israel v. Israel. The Arar decision offers a prime example of a court remaining silent over claims of executive abuses committed during wartime. By contrast, the Public Committee Against Torture case exemplifies how Israel’s bold and active judiciary prevented human rights abuses and ensured government accountability. The Article concludes with a series of policy prescriptions derived from the Israeli experience and urges U.S. courts to adopt a similar model to protect human rights more vigorously while allowing the government to fight an effective War on Terror.
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Fiona O'Regan, Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism

     In the Confirmation of Charges Decision rendered in the Bemba Gombo case on June 15, 2009, the Pre-Trial Chamber (PTC) of the International Criminal Court declined to confirm a number of cumulative charges based on acts of gender-based violence. The PTC held that torture (through rape)—as a crime against humanity and a war crime—and the war crime of outrages upon personal dignity were all subsumed within broader rape charges, which had been confirmed. The failure to retain the cumulative charges brought by the Prosecutor was unfortunate from the perspective of the importance of expressiveness in international criminal law, and its significance in the gender-based violence sphere in particular. Expressive theorists hold that one of the crucial functions of the law is its ability to articulate and shape norms, and that this function may carry particular force within the international criminal context, specifically within the realm of gender-based violence, where norms are still in the process of development. This Article examines the decision of the PTC with the aim of highlighting, first, how a more permissive approach to the cumulative charging issue could have been facilitated and, second, the utility of cumulative charging from the point of view of expressivism.
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Notes

Ziad Haider, Corporate Liability for Human Rights Abuses: Analyzing Kiobel & Alternatives to the Alien Tort Statute

     Can corporations be held liable for human rights abuses under international law? According to the Second Circuit’s highly controversialKiobel decision, the answer is "no." Specifically, corporations are not liable for human rights abuses under the Alien Tort Statute (ATS)—a statute that has become the central battleground for debating the role of international law in U.S. courts. In an era of prolific transnational economic and legal activity, Kiobel entails a fascinating and sharply-worded debate on the duties that corporations as private actors owe under international law, as well as key insights into how an influential U.S. court interprets international law and the scope of its authority to create legal remedies. Despite the importance of these issues for scholars and practitioners of international law, current scholarship does not comprehensively analyze this decision issued in October 2010, the various opinions issued in February 2011 denying en banc and panel rehearing, and the ensuing circuit split—leading up to oral arguments before the Supreme Court in February 2012. This Note weaves together these important strands into a singular narrative and provides a rigorous framework to analyze Kiobel’s major themes, fault lines, and consequences. Furthermore, it uniquely combines an analysis of Kiobel and its narrowing of ATS corporate liability with a detailed examination of alternatives to the ATS in holding corporations accountable for human rights abuses. Following a careful evaluation of the ATS’s deficiencies, it proposes alternate forms of relief, including suing corporate officers and directors, initiating state law claims, suing in specific foreign jurisdictions, and relying on multilateral corporate social responsibility initiatives. It further proposes two novel statutory alternatives to the ATS: imposing corporate civil liability, modeled on the Foreign Corrupt Practices Act, and individual criminal liability for violating the law of nations.
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Amanda J. Wall, The Alien Tort Statute Circuit Split: Two Questions for the Supreme Court

     A circuit split on the question of corporate liability for human rights violations under the Alien Tort Statute has culminated in the Kiobel petition, currently pending before the Supreme Court. Before the Court can answer this question, however, it must settle on a definition for the term "corporate liability" itself. The four Circuit Court decisions leading up to Kiobel have created a more nuanced picture of corporate liability, operating on two definitional axis. In order to understand the question of corporate liability, the court must first decide how to define corporate liability: a jurisdictional concept, or a substantive one? A broad term, or a narrow one? This Note will argue that the Supreme Court would be best guided by the D.C. Circuit’s decision in Doe, which settled on a broad, jurisdictional definition of the term. This definition, if adopted, would provide the most clarity and consistency in U.S. law, would respect a positive role for customary international law in U.S. courts, and would avoid a potentially unjust result.
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Lauren Treadaway, Big Pharma's Heart of Darkness: The Alien Tort Statute and Preventing Clinical Trial Colonialism

     In recent years, U.S. pharmaceutical companies have begun to export clinical trial drug research to foreign countries at an alarmingly high rate in an effort to cut costs and quickly introduce new drugs into the market. Alongside this overall numerical increase has been a rise in the documented instances of unethical research practices as well as reported patient injury and death. Because FDA guidelines fail to effectively oversee foreign clinical trials as they happen, foreign participants harmed during the course of clinical trial research must resort to post hoc judicial recourse for protection. The Alien Tort Statute provides for the most effective avenue of recovery for harm resulting from unethical practices "in violation of the law of nations." Abdullahi v. Pfizer set the stage for holding drug companies liable for failure to obtain informed consent from patients during foreign clinical trials. The Second Circuit’s recent decision in Kiobel v. Royal Dutch Petroleum Co. to immunize corporations from liability under the ATS, however, has added to the growing body of overall uncertainty surrounding liability under the ATS. Because the economic deterrence model of tort liability demands certainty in the law in order to adequately deter harmful behavior, the Supreme Court must clearly articulate the perimeters of corporate liability under the ATS when deciding Kiobel. Since limiting corporate liability will not deter pharmaceutical companies from employing unethical practices in foreign clinical trials, the Supreme Court, then, must allow for corporate civil liability under the ATS.
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Frederick Gaston Hall, Not Everything is as Easy as a French Press: The Dangerous Reasoning of the Seventh Circuit on Proof of Foreign Law and a Possible Solution

     Given current rules concerning cases with a conflict of laws, U.S. judges are often required to interpret the laws of a foreign nation to resolve the controversy before them. In federal courts, Federal Rule of Civil Procedure 44.1 governs the procedure for proof of foreign law in federal courts; the rule is permissive, allowing courts to determine the law by hearing experts or doing its own research. A recent Seventh Circuit case, Bodum USA, Inc. v. La Cafetière, Inc., dangerously argues that judges should restrict themselves to judicial research; instead, the goal should be to expand the available methods. Reviewing the practices of other domestic legal systems reveals that a recent New South Wales Supreme Court reciprocal agreement with the Court of Appeals of New York can serve as the model for an additional method of proof of foreign law. The Hague Conventions on Evidence and Service of Process can serve as models for a multilateral process, but there are difficulties with implementing such a treaty in the United States.
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Issue 3

Articles

David S. Jonas, General and Complete Disarmament: Not Just for Nuclear Weapons States Anymore

     This article addresses the topic of general and complete disarmament as that term appears in Article VI of the Nuclear Nonproliferation Treaty. Article VI establishes an obligation among all states party to the Nuclear Nonproliferation Treaty to pursue negotiations in good faith on a treaty on general and complete disarmament. Per the Vienna Convention on the Law of Treaties, the article seeks to establish an interpretive framework for understanding the contours of this obligation. General and complete disarmament may be properly defined as the comprehensive elimination of all weapons. The article goes on to demonstrate that, despite their Article VI obligations, states party to the Nuclear Nonproliferation Treaty have to date failed to meet their requirements.
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Chris Wold, Grant Wilson, & Sara Foroshani, Leveraging Climate Change Benefits Through the World Trade Organization: Are Fossil Fuel Subsidies Actionable?

     Even as carbon dioxide (CO2), a byproduct of fossil fuel combustion, warms the planet, the world's nations are subsidizing the consumption of fossil fuels by more than $312 billion annually and the production of fossil fuels by perhaps another $100 billion. By any measure, fossil fuel subsidies are enormous, wasteful, and trade distorting. They also contribute to climate change and inhibit the transformation to renewable energy sources by ensuring that petroleum products enter the market below production costs. Elimination of fossil fuel subsidies could reduce CO2 emissions from 5 percent to 18 percent. The $400 to $500 billion a year in fossil fuel subsidies is roughly 1 percent of world gross domestic product—the amount that the Stern Review estimated was required to limit global warming to no more than a two degrees Celsius rise in temperature (500–550ppm CO2eq). Although the G–20 has called for the phase out of fuel subsidies, little has been done to do so. The World Trade Organization (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement) provides a possible mechanism for challenging a country's fossil fuel subsidies in the same way that Brazil successfully challenged U.S. cotton and EU sugar subsidies.
     Yet, such a challenge would face several obstacles. First, marshalling and analyzing the trade data to successfully challenge a fossil fuel subsidy can be extremely difficult, especially for smaller countries that do not possess sufficient resources. Also, WTO members may be unwilling to challenge fossil fuel subsidies because they fear a retaliatory suit against their own fossil fuel or renewable energy subsidies. In addition, any injury or serious prejudice claim must be to a domestic industry of a member producing a "like product." Fossil fuels are clearly not "like" other renewable energy products, such as wind turbines, solar panels, and other products designed to produce renewable energy. Pure biodiesel is likely not "like" pure petrodiesel. On the other hand, biodiesel blends are possibly "like" petrodiesel. While the SCM Agreement precludes actions where products are not "like," members have other options. For example, they may impose higher tariffs on fossil fuels than wind turbines and other renewable energy products that are not "like" fossil fuels. Whatever the solution to fossil fuel subsidies may be, action must be taken soon to combat global climate change and other urgent environmental risks resulting from over-consumption of fossil fuels.
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Patrick B. Fazzone, The Transpacific Partnership—Towards a Free Trade Agreement of Asia-Pacific?

     Since 1989, the member economies of the Asia-Pacific Economic Cooperation (APEC) forum have consulted and cooperated to address issues affecting trade and investment in the Asia-Pacific region. Beginning in 1993, the Heads of State of the APEC economies have met annually to announce outcomes reflecting the members' cooperation in addressing challenges to trade and investment. At their 1994 meeting in Bogor, Indonesia, the Leaders announced the goal of achieving free trade and investment in the Asia-Pacific region by the milestone years of 2010 (for industrialized economies) and 2020 (for developing economies). In the years since, the APEC economies have negotiated a number of free trade agreements among themselves. APEC has played a significant role in encouraging consistency and the negotiation of high-quality agreements. There has been no definitive indication, however, as to whether and how the goals of the Bogor Declaration would be achieved and what role APEC would play in this. More recently, the APEC Leaders have indicated an interest in realizing and building on the Bogor Goals through the conclusion of a free trade agreement encompassing the various APEC economies. At the same time, the United States and eight other APEC economies have conducted negotiations on a Trans-Pacific Partnership trade agreement designed to achieve broad liberalization and a high degree of economic integration among the parties. This article examines whether a free trade agreement among all APEC members is feasible, and if so, how it might be achieved. The article concludes that the Trans-Pacific Partnership agreement could serve as the basis for a broader free trade agreement of the Asia-Pacific region, although such an arrangement is not likely to be achieved in the near future.
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Ross B. Buckley & Gill North, A Financial Transactions Tax: Inefficient or Needed Systematic Reform?

     The European Commission has included a Eurozone financial transaction tax in its long-term budget as a first step towards a global tax. This move was taken despite negative European Commission and International Monetary Fund staff reports, which concluded that a tax would reduce the efficiency of capital markets and raise the cost of capital. The efficiency frameworks used in the staff reviews were unduly narrow. Markets work best when there are strong links between market trading and real economic activity. Of late, these links have become increasingly tenuous and latent market and financial system risks are mounting. Carefully calibrated legal and tax responses are required to change market behavior. Such a tax as part of an integrated policy framework would reduce short-term momentum trading and promote longer-term investment that would better reflect underlying economic fundamentals. Thus, we argue that the European Commission is correct in proposing to adopt a financial transactions tax.
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Stephen Kim Park, Bridging the Global Governance Gap: Reforming the Law of Trade Adjustment

     How will the American worker compete in the international economy? This Article considers this question and the broader issues that it implicates by examining an oft-neglected aspect of international economic law. The focus of this Article is trade adjustment assistance (TAA), which provides transitional assistance to domestic workers and companies adversely affected by trade. This Article suggests that TAA is a vital element of the international trading system, and proposes new ways of re-conceptualizing the role of adjustment in the global trade regime in order to fulfill the promise of free trade as a driver of growth and innovation.
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Notes

Kevin T. Carroll, Afghan Corruption—The Greatest Obstacle to Victory in Operation Enduring Freedom

     The United States' campaign in Afghanistan is in danger of failure because of pervasive corruption from the lowest to the highest levels of the Afghan government. This endemic corruption has resulted in a loss of confidence by the Afghan people in their leaders, a vacuum the Taliban has skillfully exploited to fuel their insurgency. The Afghan people and press, the U.S. government, and international anti-corruption bodies and non-governmental organizations all recognize the seriousness of this problem. The U.S. should take immediate measures to ameliorate the problem, including the facilitation of a free and fair Afghan presidential election in 2014, stopping the sub-contracting of U.S. convoy security to private Afghan guards, and allowing U.S. officials on the ground to suspend aid programs subject to corruption.
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Lindsay Windsor, Is the State Secrets Privilege in the Constitution? The Basis of the State Secrets Privilege in Inherent Executive Powers & Why Court-Implemented Safeguards are Constitutional and Prudent

     The invocation of the state secrets privilege frequently acts to bar all further litigation of a case, even where core civil liberties and constitutional rights are at stake. Given such harsh results of invocation, one might expect a clear constitutional basis for the state secrets privilege. Instead, circuit court judges are divided on the issue. Despite this confusion, the state secrets privilege has clear basis in the Constitution as well as in evidentiary law. The Executive's powers to protect national security information encompass the state secrets privilege. While Congress could codify the privilege or amend its procedural invocation, it remains solidly within the purview of the executive branch. The Judiciary can and should exercise limited oversight of the privilege to safeguard it from abuse by reviewing the Executive's invocation to ensure state secrets are in fact at stake.
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Christine Waring, The Removal of International Law from Guantanamo Detainee Litigation: Problems and Implications of Al-Bihani v. Obama

     In 2008, the Supreme Court extended habeas corpus rights to detainees held in Guantanamo Bay, Cuba. However, the Supreme Court left it to the lower courts to define the limits of the President's detention authority. With the right to challenge their detention in federal court, Guantanamo detainees began bringing their petitions to the United States District Court for the District of Columbia. Using the Supreme Court's prior rulings as a guide, the District Court used the international law of war to limit the President's detention authority. However, upon review by the United States Court of Appeals for the District of Columbia Circuit, the application of the law of war as a limit on the President's powers to detain was rejected. This declaration gave the President the broadest authority to detain individuals connected with the war on terror. This Note argues that the decision to remove international law from Guantanamo detainee litigation is flawed in a number of respects. One of the most problematic consequences is the effect of this decision on the individuals detained at Guantanamo. This effect is evidenced through three case studies demonstrating that the removal of international law has resulted in the reversal of previously granted habeas corpus petitions. Given the problems with the decision and the implications for detainees, this Note urges the Supreme Court to take action to clarify this area of law.
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Joanna Wasik, Court Delays in Poland: Mediation as a Way Forward in Commercial Disputes

     Enforcing a contract takes longer in Poland than in other post-communist or European Union countries. The slow speed of enforcement can be attributed in large part to delays in the court system. Court delays negatively impact public opinion of the judicial system, tarnish Poland's image abroad, and may indirectly hinder economic growth. However, despite the inefficiency of courts, businesses continue to use the court system, exhibiting businesses' high demand for dispute resolution mechanisms. This Note proposes that increased use of mediation in commercial disputes could be a part of the solution to Poland's court delays. It argues that creating a viable system of mediation will require revising Poland's 2005 Law on Mediation, improving quality control of the mediation process, and "mainstreaming" mediation through educational and advertising tools.
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Issue 2

Articles

Daniel H. Joyner, The Security Council as a Legal Hegemon

     This article will examine the United Nations Security Council's efforts to implement, preserve, and universalize the obligations of the 1968 Nuclear Nonproliferation Treaty. This discussion will lead to questions regarding the Security Council's role and authority in the international legal system, and ultimately to a consideration of how the international legal system can better guarantee that the Security Council does not exercise an unwarranted degree of legal power at the expense of the member states of the United Nations.
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Mark V. Vlasic, Assassination & Targeted Killing—A Historical and Post-Bin Laden Legal Analysis

     In many ways, September Eleventh ushered in a new threat, new methods of warfare, and with time, a new emphasis on targeted killing. Whereas assassination and targeted killing is nothing new in warfare, the covert hit squads of the past are slowly being replaced with technology.  Today's sophisticated belligerents can eliminate an enemy leader from thousands of miles away with little threat to friendly lives. In this article, Professor Vlasic traces the evolution of the law of assassination and targeted killing from its roots in ancient times, through the Twentieth Century and into the present. Professor Vlasic explores the complex problems of domestic law, international law, self-defense, terrorist combatant status, and drone warfare, and applies the current law to the recent targeted killings of Colonel Muammar al-Qadhafi and Osama bin Laden. The article answers an important question: in the struggles against terrorism and against tyranny, what separates an illegal assassination from a lawful targeted killing?
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Jan Arno Hessbruegge, Human Rights Officer for Legal Advocacy, Executive Office of the U.N. High Commissioner for Human Rights,Justice Delayed, Not Denied: Statutory Limitations and Human Rights Crimes

     From the vantage point of morality and sound legal policy, time bars should not apply to the prosecution of human rights crimes or related reparation claims. Under the civil law tradition, however, even the most serious crimes have traditionally been subject to prescription. In common law systems, statutes of limitations have posed a major obstacle to reparation claims based on human rights crimes, including historical wrongs.
     In the era of the Rome Statute of the International Criminal Court, customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts. Furthermore, the vast majority of states are obligated under international treaty law to also abolish statutes of limitations for other human rights crimes, in particular torture and extrajudicial killings.
     This also has repercussions for crimes committed in a more distant past, as international law allows (but does not require) states to abolish domestic statutes of limitations with retroactive effect, even where the prosecution of acts amounting to international crimes had already become time-barred.
     While justice delayed no longer means justice denied in respect of the prosecution of human rights crimes, not enough thought has been given to whether the same can be said for related reparation claims. This Article demonstrates that the right to an effective remedy under international human rights treaty law renders claims based on genocide, crimes against humanity, and war crimes imprescriptible. Regrettably, state practice does not follow this approach, which has so far prevented the emergence of a norm of customary international law to that effect.
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Pedro J. Martinez-Fraga, Good Faith, Bad Faith, But Not Losing Faith: A Commentary on the 2010 IBA Rules on the Taking of Evidence in International Arbitration

     The 2010 iteration of the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration constitutes a laudable effort, albeit organic work-in-progress, that expressly aspires to provide an "efficient, economical, and fair process" for the taking of evidence in international arbitrations. The newly introduced standards of "reasonably relevant to the case and material to its outcome," as well as "good faith" have the potential of serving as pivotal premises in the Rules' workings. The application of the identical standard for purposes of both the taking of evidence pre-final hearing phase and at hearings and the final hearing concerning admissibility requires sustained consideration and reconsideration. The arresting absence, however, of definition and specificity attendant to terms rudimentary to these criteria hampers the Rules' theoretical underpinnings and practical application by inordinately enhancing the scope of inherent arbitral authority at the expense of the most critical, almost sacrosanct principles that underlie international arbitration: party-autonomy, uniformity, predictability, and transparency of standard. A suggested approach in addressing the absence of any definition for "good faith" within the Rules' rubric is to borrow from the "transparency" requirements that now pervade the Rules as a principle susceptible to cross-cultural understanding and one that may meet the most fundamental expectations of parties from different legal traditions. Good faith in the taking of evidence is inextricably intertwined with transparency and may perhaps find theoretical support and functional application when understood through the prism of a "transparency" standard, as arbitral authority cannot be boundlessly enhanced as a consequence of uncertainty and lack of definition.
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James Kraska, I.O. 2.0: Indian Ocean Security and the Law of the Sea

     This Article analyzes the most pressing issues affecting Indian Ocean security against the backdrop of international law. The Indian Ocean provides a look at regional politics from the maritime perspective, which is a fundamentally different lens than that obtained by focusing on the land terrain. The Article also provides a vision of how the international law of the sea will help to shape strategy. The central narrative arc in this drama involves a collision of two rivalries—the India-Pakistan security dyad, and the gathering competition between China and the United States. These two adversarial security relationships may be thought of as two concentric circles that overlap in the Indian Ocean, with China supporting Pakistan and the United States moving closer to India (even as it moves farther from Pakistan). India, Pakistan, China, and the United States dominate the politics of the Indian Ocean region, even though China and the United States are located outside of the maritime terrain.
     This Article argues that the international law of the sea has served to help alleviate, as well as in some ways facilitate conflict in the Indian Ocean. In Section II, this Article outlines the political and historical context for the current state of geo-politics in the Indian Ocean region. Section III continues by examining the international law of the sea by drawing on examples from interested parties in the Indian Ocean. Finally, Section IV examines the contribution of the law of the sea to the complex strategic geography of the Indian Ocean region.
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Notes

Luke Engan, In Search of Necessity: Congruence, Proportionality, and the Least-Restrictive Means in Investor-State Dispute Settlement

     Investment tribunals have exhibited several distinct methods of defining "necessity" as the term appears in international investment agreements, as well as the necessity defense in customary international law. At the World Trade Organization, panels and the Appellate Body have faced the question of how to define necessity as it appears in the general exceptions to goods and services trade disciplines, and the Appellate Body has developed a framework that is applicable in the context of investment law. Reduced to its essence, the framework has three elements. First, the framework includes a means-ends nexus, or congruence, requirement by considering the challenged state action's contribution to the state's policy objectives. Second, panels and the Appellate Body consider the proportionality of the challenged state action, weighing the relative importance of the interests or values that the state intends to protect and the action's detrimental impact on exports or imports. Third, the framework examines whether the state action constitutes the least restrictive means of achieving the state's objectives by examining alternative measures to determine whether they are reasonably available and whether they would constitute a lesser deviation from the state's obligations under trade rules. This framework should be adopted in investor-state arbitral proceedings, with appropriate deviations in its application to account for instrumental differences between the necessity defenses found in investment law and customary international law and the necessity exceptions in trade law.
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Peter Jeydel, Yoking the Bull: How to Make the FCPA Work for U.S. Business

     The U.S. government's harsh, discretionary and broad-reaching enforcement of the Foreign Corrupt Practices Act (FCPA) has imposed a heavy regulatory burden that puts small and mid-sized U.S. businesses with significant international activities at a competitive disadvantage vis-a-vis their foreign peers. This restraint on foreign business activity will stymie the Obama Administration's stated goal of increasing exports from the U.S. as the way out of economic stagnation. The marginal improvements in foreign business conduct, if any, that the government achieves with its enforcement strategy are not worth the costs. The U.S. Congress should move forward with reforms to the FCPA currently under consideration by the House of Representatives that would make the law more clear and more balanced. At the same time, the government should broaden its foreign anti-corruption efforts by enlisting all of the resources at its disposal, rather than focusing almost exclusively on supply-side law enforcement.
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Leah Schloss, The Limits of the Caroline Doctrine in the Nuclear Context: Anticipatory Self-Defense and Nuclear Counter-Proliferation

     The international law doctrine of self-defense has traditionally been defined by the United Nations Charter and the customary international law doctrine from the Caroline case. Under this standard, force cannot be used in anticipation of a pending military attack unless such use of force is necessary to combat an imminent attack. This Note argues that, in the nuclear context, this doctrine is insufficient. Once an aggressor nation has developed a nuclear program, any action taken in self-defense could result in nuclear war or other catastrophe. Requiring that states wait until this point in order to exercise their self-defense rights would effectively eliminate the right of self-defense in this context.
     The last few decades have seen two military actions taken against developing nuclear programs with the Israeli military strikes on the Iraqi nuclear reactor in 1981 and the Syrian nuclear facilities in 2007. In the wake of the 1981 Iraq strike, scholars began to question whether theCaroline doctrine warrants reconsideration. The international silence following the strike on the Syrian facilities further provides support that the doctrine is ripe for change due to a shift in state practice.
     Because of the insufficiency of the current doctrine, and the shifts in both state practice and the views of scholars, this Note proposes a new doctrine that is both workable and provides a reasonable limit on the use of force in line with the goals of the United Nations Charter. As exhibited through the example of Iran, this proposed doctrine would allow for a military strike in anticipatory self-defense against nuclear programs being developed by an aggressor state when the nuclear program is imminent, rather than requiring that states wait until the program has developed and an actual nuclear attack is imminent.
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Issue 1

Judge Judith M. Barzilay, Foreword
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Practitioner Commentaries

Victor Mroczka, Overview Of 2010 Decisions By The U.S. Court Of International Trade In Appeals Of Determinations Of The U.S. International Trade Commission

     U.S. Court of International Trade decisions in 2010 of U.S. International Trade Commission determinations reflected the ongoing tug-of-war between the Court and the agency as to the amount of evidence and analysis required for the agency to legally discharge its obligation under U.S. law. This article discusses three relevant cases that address whether a final determination was supported by substantial evidence on the record or otherwise in accordance with law or whether further remand was necessary. The cases discussed herein do not ultimately and conclusively resolve the "evidence and analysis" issue, but contribute to the ongoing dialogue between the Court and the agency as to what is ultimately necessary to satisfy and conclude a Court's review.
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Claudia Burke & Melissa M. Devine, 2010 Court Of International Trade Decisions Reviewing Dumping Or Countervailing Duty Orders On Goods From Market Economy Countries

     This article reviews some of the more significant 2010 decisions from the Court of International Trade. Focusing solely upon market economy antidumping and countervailing duty issues, the article provides analysis of the decisions. The article uses as a framework the issues that arise chronologically during the normal life of a Court of International Trade case, from injunctions through revocation of an order, and discusses the seismic shifts in zeroing cases and other general trends in the Court's treatment of the substantive merits issues raised by Department of Commerce determinations.
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Craig A. Lewis, Jonathan A. Stoel, & Brian S. Janovitz, The United States Court Of International Trade In 2010: Is Commerce Suffering From Adverse Decisions It Wasn't Double-Counting On?

     A review of opinions issued by the U.S. Court of International Trade (CIT) in 2010 reveal particularly noteworthy developments in the recent antidumping and countervailing duty determinations by the U.S. Department of Commerce (Commerce). First, several 2010 opinions suggest that the CIT, with support from the Federal Circuit, is tightening disciplines on Commerce's application of "adverse facts available" (AFA). These cases demonstrate a more searching scrutiny by the CIT into the circumstances warranting application of AFA, the scope of information for which AFA may be applied, the parties to whom AFA maybe applied, and the selected AFA rate itself. A true shift in judicial policy would be welcome as the previous lack of standards in this important area possibly encouraged increasing abuse of Commerce's AFA authority.
     Second, the CIT continued to address the controversy over Commerce's decision to impose both countervailing duties and non-market economy antidumping duties on Chinese goods imported into the United States. In GPX II, the CIT held that Commerce's remand solution to the "double remedy" problem did not adequately address the legal and practical difficulties the court had identified in GPX I. A second remand determination was issued in response to GPX II, and subsequently was appealed to the Federal Circuit. Commerce has refused to change its AD/CVD methodologies in subsequent investigations and administrative reviews involving Chinese exports until the final resolution of GPX in the Federal Circuit.
     Finally, it is difficult to discern whether the Supreme Court's recently enunciated standards in Twombly and Iqbal have raised the bar to any significant degree in terms of the level of specificity and support required in a CIT complaint in order to withstand a motion to dismiss. However, it is still relatively early in the development of jurisprudence under Twombly, and its limited application may reflect a concomitant enhancement of the quality of complaints as practitioners face the uncertainty of its application.
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Patrick C. Reed, Philip Yale Simons, & Jerry P. Wiskin, Court of International Trade Decisions During 2010 Under 28 U.S.C. § 1581(i) Residual Jurisdiction

     CIT decisions under its § 1581(i) residual jurisdiction during 2010, as in past years, are noteworthy for presenting particularly arcane legal issues. One group of cases addresses the availability of judicial review under residual jurisdiction, encountering new factual patterns and requiring probing analysis of complex statutory frameworks. Other cases under the court's residual jurisdiction reach the merits, but remain arcane because they arise in obscure corners of customs and international trade law. In 2010 these decisions on the merits address issues in customs bond law and the liquidation of antidumping entries. In its most noteworthy residual jurisdiction case during the year, the CIT held that it possesses supplemental jurisdiction to hear a private plaintiff's claims against private defendants, as long as those claims are within the same case or controversy as the plaintiff's claims against the government.
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Frances P. Hadfield & Amanda M. Simpson, A Discussion of 2009 And 2010 Cases Decided Under The United States Court Of International Trade's 28 U.S.C. § 1581(a) Jurisdiction

     This article discusses the substantive decisions made by the U.S. Court of International Trade (CIT) pursuant to its 28 U.S.C. § 1581(a) jurisdiction in 2009 and 2010.
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Michael Roll, Customs Penalties, Liquidated Damages, And Responsible Supervision: Developments In 28 U.S.C. § 1582 In 2010

     This article reviews the decisions issued by the U.S. Court of International Trade (CIT) in 2010 where the United States government was the plaintiff. Known as "1582 cases" in reference to 28 U.S.C. §1582, the section granting the CIT jurisdiction over certain types of collection actions brought by the United States government, the CIT's decisions in 2010 offer three main teachings to the trade community. First, the Court continues to ensure that the government follows appropriate administrative procedures before taking the more drastic step of initiating a collection action against a private party. Second, the government also must take care in following appropriate judicial procedures and requirements if it is to successfully sue private parties for violations of U.S. trade laws. Third, Customs must follow its own administrative rulings and practice and not change them without notice to the trade community.
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Notes

Benjamin J. Bay, The World Trade Organization And The Millennium Development Goals: The Role Of Multilateral Trade Negotiations In Achieving Food Security For The World's Most Vulnerable Populations

     The Millennium Development Goals set a target of halving the number of people who live with hunger and food insecurity by the year 2015. The Goals also aim to further develop an open and non-discriminatory international trading system, while at the same time addressing the needs of the world's least developed countries. But are these goals compatible given the direct relationship between agricultural trade policy and food security issues, given that the Doha Development Round is currently deadlocked over agricultural trading schemes?
     The World Trade Organization's activities, in partnership with the World Bank and other organs of the United Nations, can support efforts to meet the short-term goal of the 2015 Millennium Development Goals targets on food security. But more importantly, they are vital to sustaining the gains made in developing countries beyond the Millennium Development Goals deadline. This Note maps out a basic framework of the issues between trade and food security, the effects of the interests of key players on the trade negotiations, and prior attempts by the World Trade Organization to improve food security in developing nations. Finally, it suggests a pragmatic way to break the Doha Round deadlock while maximizing the potential of the Doha Agricultural Negotiations so the mechanisms put in place can be used to sustain the legacy of the Millennium Development Goals for years to come.
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Joshua M. Kagan, Making Free Trade Fair: How The WTO Could Incorporate Labor Rights And Why It Should

     Labor rights protections for workers participating in international trade have been a part of United States trade pacts and preference programs since the Tariff Act of 1890. These worker protections have gained increased attention in the modern era, as they have become a linchpin for securing bipartisan support of trade agreements in the U.S., a means of promoting international human rights, and a prevalent embodiment of the sustainable development and "fair trade" movements. However, even as labor chapters have become a mainstay in U.S. and European trade agreements, the World Trade Organization has chosen not to directly incorporate labor rights into its negotiating rounds. This note argues that the labor provisions of U.S. trade agreements and preference programs provide a viable model for integrating these same protections into the WTO system. Moreover, this note contends that as the largest multilateral framework in the world committed to trade, WTO has both a moral and an economic imperative to include worker protections.
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