Volume 44

Issue 4

Articles

Evelyn M. Aswad, To Ban or Not to Ban Blasphemous Videos

    When the United States did not ban the Innocence of Muslims video in September 2012, world leaders and scholars began debating whether the United States was exempting itself from international law. The Article seeks to unpack this international law question by examining what the International Covenant on Civil and Political Rights (ICCPR), the key international human rights treaty on freedom of expression, provides on whether blasphemous or otherwise offensive speech must be banned by States Parties to the Treaty. The Article then examines the negotiating history of the key ICCPR provision as well as relevant state practice. The views of independent experts in the UN’s human rights machinery are considered as well. The Article concludes that not banning the anti-Islam video was in line with the existing international human rights law regime.
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Anthony J. Colangelo, The Alien Tort Statute and the Law of Nations in Kiobel and Beyond

    In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extraterritoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components—including principles of extraterritorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption in the piracy context in order to grant the United States universal jurisdiction over that offense. Rather than rely on this strong indicia of congressional intent, the Court in Kiobel instead seized upon a judicially invented presumption that came into existence twenty years after the ATS was enacted, gave it novel application to a jurisdictional statute and claims authorized thereunder, and then projected it backward in time. 

    Yet Kiobel nonetheless correctly determined that conduct-regulating rules of decision under the ATS derive from international law and that domestic law of the forum, or lex fori, provides procedures and remedies. This framework is consistent with public and private law principles of the law of nations under which the statute ought to be construed. Although this framework should have led the Court to conclude that the claims in Kiobel were actionable, the Court’s misunderstanding has not completely erased the possibility of future claims involving foreign elements from being brought under the statute. The Court left the door open for claims that sufficiently “touch and concern” the United States. The Article concludes that, going forward, courts should use international law for the conduct-regulating rules under the ATS and domestic law for procedures and remedies. Jurisdictional principles of the law of nations ought to guide analysis of whether claims involving foreign elements sufficiently touch and concern the United States so as to displace the presumption against extraterritoriality.
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Chiara Giorgetti, International Health Emergencies in Failed and Failing States

    Global health emergencies, particularly those occurring in failed and failing States, can become threats to the stability of the international community. This Article assesses the international mechanisms available to respond to such emergencies. After defining global health emergencies, it discusses the implications of global outbreaks in failed and failing States. It then examines the role played by the World Health Organization in controlling global health emergencies, with particular reference to the newly amended 2005 International Health Regulations and the Global Outbreak Alert and Response Network. Finally, it explores the role of other international organizations, including the United Nations Children’s Fund and the United Nations Office for the Coordination of Humanitarian Affairs, in addressing global health emergencies in failed or failing States. While no comprehensive and mandatory action plan exists to deal with global health emergencies, the tools developed by the World Health Organization and other international organizations are proving to be effective in dealing with global health emergencies so far. The lack of enforcement measures seems to be compensated by cooperation and voluntary actions by Member States, and significant non-State actor involvement. The lingering question is how to ensure that actions are taken in a timely and comprehensive manner in all global health emergencies.
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Stacey B. Lee, Can Incentives to Generic Manufacturers Save the Doha Declaration's Paragraph 6?

    A primary objective of the Doha Declaration was to create a process for member countries with insufficient manufacturing capabilities to access generic versions of patented drugs without violating TRIPS intellectual property standards. This year marks the tenth anniversary of the process. Referred to as the “Paragraph 6 compulsory licenses provisions,” this first and only amendment to TRIPS was intended to ensure developing countries access to affordable medicines. Over the past decade, these provisions have failed to provide the gains initially anticipated. This Article explores the reasons for this failure and suggests that an under-examined approach to reaching the Doha Declaration’s goal lies in reframing the role of generic manufacturers in the Paragraph 6 process. More specifically, the current health challenges facing many developing countries call for a compulsory licensing framework that realigns legal and business incentives to encourage generic manufacturers to become primary drivers in delivering necessary medicines to developing countries through Paragraph 6 provisions. This Article proposes such a framework.
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Chi Adanna Mgbako, Katherine Glenn Bass, Erin Bundra, Mehak Jamil, Jere Keys, and Lauren Melkus, The Case for Decriminalization of Sex Work in South Africa

    Activists for sex worker rights in South Africa are leading a sophisticated national campaign to decriminalize sex work. This Article serves as an act of solidarity with these activists’ continued efforts to fight for and realize sex workers’ human rights by examining the negative impact that criminalizing prostitution has on sex workers’ rights and presenting evidence-based arguments to show that South Africa should enact legislation to fully decriminalize sex work. South African sex workers’ real-life experiences with violence, police abuse, and lack of access to health care and the justice system, highlighted through interviews conducted by the authors during fieldwork in South Africa in November 2011, are included in this Article as testimony to the human rights violations caused by the criminalization of sex work. 

    Part I demonstrates how the legal frameworks of criminalization, partial criminalization, and legalization and regulation of sex work are costly, ineffective, and harmful approaches to sex work. Part II presents evidence from New Zealand, the only country to fully decriminalize sex work, to show the positive impact decriminalization has had on the lives and rights of sex workers. The experience of New Zealand suggests that making sex work legal through decriminalization has a positive impact on violence against sex workers, does not result in an increase in trafficking into forced prostitution or youth in the sex trade, and has no influence on the level of demand for sex work. 

    Part III advocates for the decriminalization of sex work in South Africa as the only legal regime that will uphold sex workers’ rights. Finally, Part IV demonstrates how decriminalizing sex work will fulfill South Africa’s constitutional and human rights commitments by promoting sex workers’ rights to free choice of work, association, access to health care, security of the person, and human dignity.
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Notes

Robyn R. English, Limitations on the U.S. District Courts' Discretion: Immidiate Review of Post-Aerospatiale Discovery Decisions

    This Note argues for the immediate appellate review of discovery orders against foreign litigants when district courts unjustifiably proceed under the Federal Rules of Civil Procedure rather than the Hague Convention to the detriment of foreign litigants. In Aerospatiale, the Supreme Court held that use of the Hague Convention was not mandatory when conducting discovery against foreign litigants in U.S. courts. Rather, it declared that discovery orders in accordance with the Federal Rules could be enforced against foreign litigants regardless of whether these orders violate foreign laws, giving U.S. district courts wide discretion to make these critical discovery order decisions. However, Aerospatiale indicates that this discretion is not without significant limitations. As a result of the Supreme Court decision, a district court must exercise special vigilance to protect foreign litigants from unduly burdensome discovery, closely supervise pre-trial discovery, and carefully consider objections to abusive discovery voiced by foreign litigants. This Note argues that failure to abide by these limitations is a clear abuse of discretion by district courts that warrants immediate review through a writ of mandamus. In addition, the Note makes the case for creating a judicial exception to the finality rule as another mechanism for immediate review of these discovery decisions.
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Naima Farrell, Accountability for Outsourced Torts: Expanding Brands' Duty of Care for Workplace Harms Committed Abroad

   Existing U.S. law conceptualizes employment as a stable, bilateral contract between a unitary employer and its employees. It holds employers to particular duties vis-a-vis their employees and links liability for workplace conditions to the employment relationship. Under this system, workers harmed by unsafe or unfair labor practices at the bottom of the global supply chain—who seldom have direct employment relationships with the multinational firms, or “brands,” that profit most from their labor—face nearly insurmountable barriers to achieving change or obtaining redress at the top. 

    This Note proposes an expanded duty-based liability regime in the United States that would hold brands to a duty of reasonable care to prevent violations of core labor standards throughout their global supply chains. Under such a regime, brands that no longer employ the workers that manufacture the goods they sell, but instead contract out manufacturing to suppliers, often overseas, would be responsible to their suppliers’ employees for substandard labor conditions. Although implementation of this regime would require a significant shift in the way that courts and law-makers think about the employer-employee relationship, this change is warranted by the considerable deterrence and fairness advantages that such a regime would offer in light of the realities of contemporary global production. It is also consistent with evolving conceptions of tort law and the growing global consensus that multinational brands ought to be held accountable for the consequences of outsourcing production abroad.
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Kristen Greeley, Recommendations, Communications, and Dirctives, Oh My: How the European Union Isn't Solving Its Licensing Problem

    Despite the success of online music services in the United States propelling digital uses to account for a significant portion of music industry revenue, the same services are encountering considerable obstacles in the European Union. One major reason is the territorial approach taken by EU collective management organizations to the licensing of public performance rights for online uses. The transactional costs associated with obtaining a license from a different society in each country in which an online transmission would be available creates significant barriers to entry for businesses. Recently, the EU Commission issued recommendations and directives attempting to address this problem and enable collective management organizations to issue pan-European licenses for their repertoires. Most recently, in its 2012 Directive, the EU Commission proposed the adoption of a licensing model that would require societies to meet certain minimum requirements in order to issue pan-European licenses but allow societies functionally incapable of doing so to outsource that function to other societies. The EU Commission also encouraged the development of a comprehensive information database for all works to be accessible by emerging online music services. 

    This Note will argue that the licensing model proposed by the EU Commission is desirable, in part, because it expands artist control and ensures the continued viability of collective management organizations that preserve cultural integrity through their representation of local, niche repertoires. The model, however, prevents repertoire aggregation and the consolidation of the collective management organization field, both of which would reduce the number of organizations from which an online music service would need to obtain a license to operate successfully across the EU. This Note will argue that this model could be modified to retain the minimum standards, and not allow outsourcing, but provide a safe-harbor for societies that best preserve cultural diversity of music. This proposed solution also entails the concurrent operation of a database authorized by the EU Commission to operate as the sole authoritative rights database, thereby ensuring its completeness and accuracy.
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Zoee Lynn Turrill, Finding the Patent Balance: The Novartis Glivec Case and the TRIPS Compliance of India's Section 3(D) Efficacy Standard

    The recently decided Novartis Glivec case sparked tensions about affordability of medicine and the international protection of patent rights. This Note argues that India’s Section 3(d) law is an effort to find a balance between granting patents that incentivize innovation, while not allowing the practice of “evergreening,” which could potentially delay low cost generics from ever reaching low- income patients. Furthermore, this Note concludes that the WTO Dispute Settlement Body would find Section 3(d)’s efficacy standard to be a valid use of the flexibilities of TRIPS, and that it should be taken as a proposal to clarify TRIPS while addressing concerns about evergreening.
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Issue 3

Articles

Barry E. Carter and Ryan M. Farha, Overview and Operations of U.S. Financial Sanctions, Including the Example of Iran

    Economic sanctions have had a long history dating back to the Greek city states. Their use has become more common since World War II, often being employed by the United Nations, regional entities, and individual countries, including the United States. Although a range of sanctions continue to be used, financial sanctions have grown in importance. This stems in part from the burgeoning increase in international financial transactions. Also, the terrorist attacks of September 11, 2001, provided great impetus to the United States to improve significantly the tools and techniques for tracing and identifying financial transactions by terrorists or others.
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Kian Arash Meshkat, The Burden of Economic Sanctions on Iranian-Americans

    The purpose of this Article is to reveal and discuss how U.S. persons of Iranian origin are impacted by U.S. economic sanctions against the Islamic Republic of Iran. Whether or not the sanctions are an effective tool of U.S. foreign policy towards the Iranian Regime is not the subject at issue. In the ambitious foreign policy of the Executive and Congress concerning Iran since the 1979 hostage-crises of the U.S. embassy in Iran, to the current fears over its nuclear proliferation, Iranian-Americans ability to conduct transactions that are otherwise legally permissible under the sanctions regime have been increasingly undermined. As a consequence, several Constitutional liberties, especially Due Process, are at risk for Iranian-Americans. This Article maintains that although the Judiciary gives wide discretion to Executive and Legislative actions relating to foreign policy and national security, the system of checks and balances has swayed in federal courts' jurisprudence to the detriment of many individual liberties in the implementation of the Iran Sanctions Regime. The disparity and indirect discrimination that has resulted against Iranian-Americans postulates the requisite need for some branch of government to restore the balance in order to safeguard constitutional liberties in the course of aggressive U.S. foreign policy toward Iran.
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Joy Gordon, Crippling Iran: The U.N. Security Council and the Tactic of Deliberate Ambiguity

    The U.N. sanctions on Iraq in the 1990s triggered a humanitarian crisis that lasted for over a decade. Since then, many would say that U.N. sanctions have been narrowly targeted to minimize human damage. It would seem that this is true of the U.N. Security Council sanctions imposed on Iran. However, the Security Council resolutions contain ambiguous terms which arguably authorize the much more extensive sanctions imposed by the European Union and others. These in turn have caused significant harm to the Iranian population as a whole, very much like the measures imposed on Iraq in the 1990s.
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Court E. Golumbic and Robert S. Ruff III, Who Do I Call for an EU Sanctions Exemption?: Why the EU Economic Sanctions Regime Should Centralize Licensing

    This Article explores the impact of the European Union's decentralized approach to licensing. The Article begins by chronicling the development of the EU sanctions regime through the successive European integration treaties. Following a review of modern EU sanctions policy and recent sanctions in the Middle East, the Article finds that divergence in foreign policy, administrative infrastructure, and resourcing among EU Member States can lead to inconsistent licensing practices and frustrated compliance efforts. The Article concludes that to ensure its effectiveness as a sanctioning body going forward, the EU must establish a centralized licensing infrastructure, like OFAC's, that achieves three "core competencies" essential to addressing the risks of holistic sanctions: flexibility, the ability to mitigate collateral damage, and adaptability.
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Meredith Rathbone, Peter Jeydel, and Amy Lentz, Sanctions, Sanctions Everywhere: Forging a Path through Complex Transnational Sanctions Laws

    Compliance with the web of economic sanctions laws that have proliferated over the past two decades, and which have grown far more complex still over the last few years, is an increasingly critical challenge facing many transnational businesses. These measures often reach beyond the territory of the jurisdiction that enacted them and regulate activities and entities throughout the world. Compounding the difficulty of complying with these laws, companies may find differing provisions and even conflicts among the varied regimes of the major jurisdictions that have put significant economic sanctions programs into effect. Moreover, countries are increasingly experimenting with novel ways of restricting the types of commerce that they seek to control. This Article provides a roadmap through the thicket that has grown around this area of law.
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Michael W. Lewis and Emily Crawford, Drones and Distinction: How IHL Encouraged the Rise of Drones

    The principle of distinction, which requires participants in an armed conflict to differentiate themselves from civilians and which demands that attackers distinguish between lawful targets and civilians, stands at the core of international humanitarian law (IHL). The use of armed drones presents challenges for this principle, particularly with regard to who operates them. While this topic has been discussed frequently, little has been said about the role that the principle of distinction played in encouraging the development of armed drones.

A combination of the rise in the strategic effectiveness of asymmetric warfare and the manner in which the principle of distinction was applied to asymmetric armed conflicts contributed to the rise of the armed drone. The practice of irregular armed groups blending with the civilian population challenged IHL and put pressure on the principle of distinction. On one hand IHL recognized that utilizing the civilian population to shield military objects was unlawful, but on the other it did not want this behavior to absolve attacking forces (in most cases regular state military forces) from continuing to take precautions to avoid civilian casualties. This conundrum was resolved by finding shielding to be illegal but legally effective, in that attacks upon shielded targets were judged to be illegal by several U.N. commissions of inquiry and by guidance offered by the ICRC.
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Catherine H. Gibson, Representing the United States Abroad: Proper Conduct of U.S. Government Attorneys in International Tribunals

    "May it please the Court. I represent the United States of America in this matter." These are weighty words in a U.S. court, where U.S. government attorneys are expected to embody a heightened standard of ethical conduct and further the broad interests of justice. This role contrasts sharply with that of a private practice attorney, who generally fulfills ethical duties by zealously advocating for a single client. U.S. government attorneys do not appear exclusively in U.S. courts, however; they also appear regularly in the International Court of Justice, before arbitral panels for the North American Free Trade Agreement, and in other international tribunals. What are the expectations and obligations of these attorneys in such international tribunals? What expectation do the words, "I represent the United States of America," evoke in these tribunals? As international tribunals proliferate and the U.S. government finds itself ever more frequently before them, these questions grow increasingly pressing. This Article discusses the as yet largely unexplored expectations and obligations of U.S. government attorneys acting in international tribunals and argues that these attorneys should embody the same heightened standard of conduct abroad that they do at home. In both domestic and international contexts, a heightened standard of conduct should be expected because U.S. government attorneys must take a broad view of their client, preserve the government's long-run credibility, and act as ministers of justice. Moreover, international tribunals are moving toward implementing guidelines that would require a high standard of conduct from attorneys practicing before them, and such conduct by government attorneys facilitates these international tribunals' role in the peaceful resolution of disputes.
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Notes

Kelly Mannion, International Law, Federal Courts, and Executive Discretion: The Interplay in Immigration Detenition

    This Note proposes a doctrinal framework to evaluate immigration policy in the United States, focusing specifically on the interplay between international law, federal courts, and executive agencies. Ultimately, the Note seeks to delineate the circumstances under which federal courts can and should enforce the extant customary international law norm prohibiting arbitrary detention as the federal common law of the United States, limiting the discretionary authority of lower-tier executive officials to detain certain classes of immigrants without hearing or review. Its central analysis posits that: (1) the customary international law norm prohibiting arbitrary detention is binding on the United States; (2) that federal courts can enforce this norm; (3) that Congress has not specifically expressed an intent to override this norm under all circumstances; and (4) that, in the absence of foreign policy justifications emanating from the President or his immediate subordinate, lower-tier executive officials are bound to this norm in the exercise of their prosecutorial discretion. Non-arbitrariness requires a timely and individualized balancing of equities against policy justifications for detaining, for example, immigrants who pose little flight risk and who have families or illnesses, when there are reasonable Alternative to Detention programs available to serve the same administrative purpose. The proposed doctrinal framework can apply to any proposed legislation relating to immigration reform, including that which either supplants or supplements the current regime.
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Charles L. Katz, Another Cup at the Nile's Crowded Spigot: South Sudan and Its Nile Water Rights

    This Note will examine and analyze the legal implications of South Sudanese independence on the Nile Basin's legal regime governing use of the Nile's water. South Sudan has three options with respect to usage of the Nile: (1) acceding to the 1959 Nile Waters Agreement; (2) signing and ratifying the Cooperative Framework Agreement; or (3) pursuing an independent, alternative course based on preexisting international water law. This Note will first provide a general overview of South Sudanese independence and of the Nile Basin as a whole. It will argue that South Sudan is not bound by the 1959 Nile Waters Agreement according to several theories of international law relating to state succession with respect to treaties. It will then explore the legal impact of a hypothetical South Sudanese decision to accede to the 1959 Nile Waters Agreement, and discuss what portions of the treaty will need to be renegotiated or altered to reflect a third country becoming party to the treaty. After a discussion of the 1959 Nile Waters Agreement, the Note will then discuss the treaty's relationship with the Cooperative Framework Agreement. It also will elaborate on South Sudanese legal rights under the Cooperative Framework Agreement if South Sudan decides to ratify the CFA. The final subsection of the Note provides an overview of current theories of international water, and proposes a third option for South Sudan to exercise its Nile water rights based off these theories, that of unaffiliated equitable utilization.
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Elizabeth Buckel, Curbing Comity: The Increasingly Expansive Public Policy Exception of Chapter 15

    Reflecting the general principle of comity, the UNCITRAL Model Law on Cross-Border Insolvency encourages international cooperation in cross-border insolvency proceedings. The United States incorporated the main provisions of the Model Law into Chapter 15 of the U.S. Bankruptcy Code, including a public policy exception that allows enacting courts to deny recognition or relief to a foreign proceeding if the proceeding is "manifestly contrary" to the public policy of the enacting country. Most courts have interpreted the exception narrowly and hold that it should only be reserved for "exceptional circumstances." However, recent cases In re Qimonda and In re Vitro have unjustifiably "stretched" the exception to include circumstances where the interests of U.S. creditors and interested parties are impaired by the foreign proceeding. This threatens the promotion of comity, international cooperation, and legal consistency in cross-border insolvency proceedings by increasing the inconsistency and unpredictability of U.S. recognition. Therefore, when looking to secure the interests of U.S. creditors and interested parties, courts should rather refer to section 1522 of the Bankruptcy Code, and engage in a stringent balancing test that looks at, and allows the court to tailor relief to, the interests of both U.S. creditors and foreign debtors.
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Issue 2

Articles

Richard J. Peltz-Steele, The New American Privacy

     Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking that is not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.
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Yuliya Guseva, Cross-Listings and the New World of International Capital: Another Look at the Efficiency and Extraterritoriality of Securities Law

     This Article examines the cumulative welfare effect of the application of the U.S. regulatory regime on foreign private issuers (FPI) and whether the extraterritorial reach of U.S. law creates unnecessary risks deterring cross-listings. To assess the deterrence effect and optimality of regulations, the research designs a simplified model explaining decision-making processes of control persons and applies the model to the FPI regulatory regime and case law analysis. The Article assembles a sample of seventy-five cases, interprets the application of the conduct and effects test and recent Supreme Court decisions, examines deregistration forms filed in 2001–2011, and juxtaposes statistical data with recent law reforms in the United States, the European Union, and a number of other jurisdictions. The research concludes that the U.S. policies are not uniformly value maximizing for all categories of FPI. The current single-modal policies of indiscriminate incremental deregulation fail to properly address the concerns of issuers from developed economies and may be socially wasteful and unnecessary for FPI from emerging markets. To solve this dilemma, the Article suggests three solutions premised on the policy of regulatory granularity.
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Charles B. Rosenberg, The Intersection of International Trade and International Arbitration: The Use of Trade Benefits to Secure Compliance with Arbitral Awards

     This Article examines a recent example of the intersection of the two related fields of international trade and international arbitration: the suspension of international trade benefits to secure compliance with international arbitral awards. On May 28, 2012, the United States suspended Argentina’s preferential trade status under the Generalized System of Preferences (GSP) due to Argentina’s purported failure to comply with the International Centre for Settlement of Investment Disputes (ICSID) arbitral awards in Azurix and CMS Gas. This was the first time in the history of the GSP that the United States has suspended a state’s preferential trade status for failing to pay an arbitral award. This Article endorses the United States’ novel approach as it would seem to further compliance with international arbitral awards, thereby strengthening the legitimacy of international arbitration, particularly ICSID arbitration, as a meaningful form of alternative dispute resolution.
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Sergio Puig, Emergence & Dynamism in International Organizations: ICSID, Investor-State Arbitration, & International Investment Law

     Near the fiftieth anniversary of the International Centre for Settlement of Investment Disputes (ICSID), the international organization of the World Bank Group specializing in international investment dispute settlement, the organization has become nearly synonymous with the field of international investment law. But how and why this confluence developed is a gap in the rich literature on ICSID. In an attempt to breach this gap, this Article traces ICSID’s past and present, relying on a rich variety of sources with three broad objectives in mind: First, it offers a corrective to the prevailing view among international lawyers and legal scholars that ICSID is simply another arbitration facility and that its role in developing modern international investment law has been limited to enabling investor-state arbitration proceedings. Second, it provides evidence contradicting claims among practitioners and scholars that ICSID is experiencing an unprecedented crisis. Finally, it assesses the dynamics that have impacted ICSID’s emergence and long-term development with the broader aim of contributing to the theoretical understanding of the evolution of international organizations. The Article reveals ICSID’s deep roots and far-reaching impact, and argues that while the challenges of the organization are serious and merit action, most are not unprecedented, and much can be learned from corrective measures taken in the past.
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Erdem Buyuksagis & Willem H. van Boom, Strict Liability in Contemporary European Codification: Torn Between Objects, Activities, and Their Risks

     Many national legislative frameworks in Europe limit the scope of strict liability to the specific sources of danger listed by statute. This in itself causes disparate treatment of seemingly similar dangers, since legislatively mandated instances cover some inherently dangerous situations but not others. Hence, European scholars call for the introduction of a “general clause” in the area of strict liability. A balance is sought between two opposites: restricting the application of statutory sources of strict liability on the one hand, and allowing unrestricted judicial policymaking to shape strict liability by referring to a “general clause” on the other hand. This Article aims to determine an adequate balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. It also addresses the scope of application of such rules. Should they be limited to the pursuit of abnormally dangerous activities, as many drafts propose, or to the control of abnormally hazardous objects? This Article argues that an ideal solution would be based on a legal standard that takes “object” rather than “activity” as the central criterion.
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Andrea Conzatti, The Recognition of U.S. "Opt-Out" Class Actions in China

     The question underlying this Article is whether judgments entered by a U.S. court in an “opt out” class action may be recognized and granted preclusive effects in China. More specifically, this Article seeks to investigate whether Chinese corporations and individuals investing in the United States may enjoy the benefits of a favorable class action judgment by merely choosing not to “opt out” or whether, in light of possible procedural and substantive rules under Chinese law, they might be required to take further action in order to do so. To answer such query, this Article proceeds by analysing Federal Rule of Civil Procedure 23(b)(3), and by reviewing three securities fraud cases filed with the District Court for the Southern District of New York that touch on issues relating to “opt out” class action recognition outside the United States. The doubts shared by a majority of scholars in continental Europe as to the likelihood of “opt out” class action recognition by EU courts are then addressed, and a description of the key reasons grounding such broadly held opinion is furnished. This Article then goes on to compare the current Chinese legal system to continental European jurisdictions, tracing possible similarities and distinctions between the two and re-framing the question at issue under a Chinese law perspective. This Article concludes that, in light of the legal framework currently in place in the People’s Republic of China, it seems that Chinese courts would unlikely grant res judicata effects to a decision entered by a U.S. court in an “opt out” class action judgment and that—as a consequence of the posture recently adopted by the New York Southern District in such regard, and in the absence of any further action on their part—Chinese corporations and individuals would unlikely be able to benefit from the outcome of a similar lawsuit.
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Nobuo Hayashi, Military Necessity as Normative Indifference

     What does it mean to say that international humanitarian law (IHL) “accounts for” military necessity? According to one theory, unqualified IHL rules exclude not only military necessity pleas but also humanity pleas in support of deviant behavior. Three propositions underpin this view. They are, first, that military necessity generates imperatives; second, that the imperatives emanating from military necessity inevitably conflict with those emanating from humanity; and third, that all positive IHL rules embody the military necessity-humanity interplay in the process of their norm-creation. In lieu of what may be termed an “inevitable conflict” thesis, this Article proposes and develops a “joint satisfaction” thesis. In the process of IHL norm-creation, military necessity does not furnish the law with reason to obligate or forbid given conduct. Rather, it only generates permissions. It not only robustly permits pursuing military necessities and avoiding non-necessities; it also permits, albeit moderately, forgoing success and inviting failure. In other words, military necessity is normatively indifferent. By acting as non-indifferently exhorted or demanded by humanity, the belligerent never acts in a manner affirmatively contrary to what military necessity indifferently permits. Where both humanitarian exhortations or demands and military necessity’s indifferent permissions are at stake, one always jointly satisfies them by acting in accordance with the former. When the framers of IHL validly posit an unqualified rule regarding given conduct, the rule does two things. First, it unqualifiedly obligates the pursuit of joint military necessity-humanity satisfaction with respect to the conduct in question. Second, this rule extinguishes any indifferent permission, including that emanating from military necessity, not to pursue the said satisfaction. It is for this reason, rather than the empirically troublesome claim that every positive IHL rule embodies the military necessity-humanity interplay, that unqualified IHL rules admit no military necessity and other de novo indifference pleas. The same does not necessarily hold for non-indifference considerations. It is possible that these latter considerations may survive the process of IHL norm-creation. The mere fact of an IHL rule being validly posited may not resolve the relatively rare, yet genuine, norm conflict that arises where the said rule unqualifiedly obligates certain action while humanity exhorts or demands contrary action.
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Notes

Larkin Kittel, Trying Terrorists: The Case for Expanding the Jurisdiction of Military Commissions to U.S. Citizens

     The Military Commissions Act violates equal protection under U.S. and international law because it blatantly discriminates against non-U.S. citizens without legitimate justification. Military commissions provide fewer procedural protections to noncitizen defendants in the name of national security. This Note argues that any alleged benefits provided by the use of a procedurally inferior forum are unconnected to the citizenship of the defendant. Rather, those benefits are derived from the procedural deficiencies of military commissions. If—as proponents of military commissions argue—these deficiencies are necessary to protect U.S. national security interests, concern for those interests should be reflected in the jurisdictional rules of the forum. The current regime not only fails to adequately address national security concerns, but it also fails to comply with domestic and international law.      This Note explores the ways in which the Military Commissions Act could be reformed to resolve the equal protection issues that arise under domestic and international law while balancing national security interests. Ultimately, this Note proposes that jurisdiction under the Military Commissions Act should be extended to U.S. citizens to provide the government with an alternative forum to prosecute terrorists regardless of their citizenship. This proposed solution, despite being controversial, would resolve the equal protection issues arising under domestic and international law and would preserve the integrity of the American judicial system.
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Kevin A. Klock, The Soft Law Alternative to the WHO's Treaty Powers

     As a recent decision of the World Health Assembly makes clear, many in the global health movement advocate mobilizing the World Health Organization’s (WHO) treaty-making powers to address the world’s great health challenges. The hard lawmaking power granted to the WHO in the 1940s was unprecedented, but is antiquated now given contemporary international relations and global health concerns. This Note argues that the WHO can better facilitate the development of global health ‘law’ by promulgating soft law instruments containing specific, concrete provisions. These mechanisms are different from treaties because the instruments are soft, but distinguished from ‘mere declarations’ because their contents are hard. Practitioners in other fields have deployed such instruments effectively when (1) sovereignty costs are intractable and yet normative experimentation is needed, (2) agreements are meant to coordinate rather than constrain, perhaps through a centralizing international institution, (3) non-state actor participation is essential, and (4) agreements will require constant updating to keep current with substantive developments in the subject matter. Finally, durable soft law provisions may harden into binding customary international law, thus achieving the status so desired by hard law enthusiasts. Consequently, this form of soft law instrument provides a useful and modern means to craft agreements that, while not binding legally, may have relatively more power to affect conduct and help achieve global health’s social justice ends.
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Andrew W. Hartlage, Europe's Failure to Prepare for the Next Financial Crisis Affects Us All

     Policy makers in both the United States and Europe have worked to address the regulatory weaknesses exposed by the 2007-2008 financial crisis. Though U.S. legislators have engineered a set of bank and nonbank resolution mechanisms that together can defuse systemic threats from insolvent or illiquid firms anywhere in the financial system, European leaders have left unaddressed many weaknesses of the EU system. Instead, European policymakers have sought to strengthen prophylactic prudential regulation internationally. This Note argues that the European approach has not only done little to mitigate Europe’s vulnerability to systemic threats, but also threatens to impose costs on the rest of the world by means of overly prescriptive regulation, and may undermine international coordination in financial-firm regulation.
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Issue 1

Judge Richard K. Eaton, Forward
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Practitioner Commentaries

Daniel B. Pickard & Alexandra E. Landis, The U.S. Court of International Trade in 2011: Appeals from the U.S. International Trade Commission and Department of Labor

     In 2011, the U.S. Court of International Trade reviewed eight antidumping and countervailing duty determinations issued by the U.S. International Trade Commission (ITC) as well as one trade adjustment assistance eligibility determination issued by the U.S. Department of Labor. This Article briefly revisits the Court’s decisions in all of these cases. It further focuses on two ITC appeals that highlight the tension connected with the deferential standard of review and the Court’s ability to meaningfully affect legally inadequate determinations by the ITC.
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Mark David Davis, Doug Campau, Irene Chen, Mark B. Lehnardt, Nithya Nagarajan, & Steven Yu, U.S. Court of International Trade Overview: Non-Market Economy Cases in 2011

     In this Article, the authors review the decisions of the Court of International Trade issued during 2011 arising from antidumping duty (and to some extent, countervailing duty) enforcement efforts of the Department of Commerce (Commerce) with regard to non-market economy countries, i.e., the People’s Republic of China and Vietnam. The Court’s opinions covered a number of procedural issues, regarding both Commerce’s procedures and the Court’s own procedures. Various substantive issues were also addressed, including the selection of mandatory respondents, the scope of antidumping orders, qualification for separate rates, selection of appropriate surrogate values, and the imposition of adverse facts available in case of non-cooperative respondents.
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Peter C. Alfano & Peter J. Koenig, U.S. Court of International Trade 2011 Opinions on Commerce Market Economy Trade Remedy Decisions

     This Article discusses notable 2011 opinions of the U.S. Court of International Trade as to U.S. Department of Commerce (Commerce) dumping and subsidy margin decisions involving market economies. In 2011, the Court issued opinions on a wide range of antidumping and countervailing duty issues, such as the use of adverse inferences, companies reviewed, expense allocation, zeroing, model match criteria, successor-of-interest, product scope, selling, general, and administrative (SG&A) allocation, level-of-trade, etc. From these opinions, practitioners are well advised to carefully consider the Court’s review standard in their advocacy before the Court. And, in particular, parties are going to have a difficult time appealing Commerce’s factual decisions to the Court. Although the Court reversed some key Commerce decisions, it upheld many others and showed general continued deference to Commerce decisions. The Court also had mixed views as to Commerce claims of resource constraints to justify its actions, perhaps noteworthy in today’s more resource-constrained times.
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Jason M. Kenner, Beverly A. Farrell, & Barbara S. Williams, The U.S. Court of International Trade's Broadening View: A Review of the Court's 2011 Jurisprudence Arising Under 28 U.S.C. § 1581(a)

     This Article focuses on several pivotal decisions issued by the Court of International Trade in 2011, which seem to reveal a trend in the Court’s jurisprudence to focus on pragmatic considerations in rendering its opinions. However, this trend towards pragmatism does not trump the Court’s adherence to requiring importers to satisfy statutory jurisdictional predicates.
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Neil R. Ellis & Jill Caiazzo, Court of International Trade Decisions During 2011 Under 28 U.S.C. § 1581(i) Residual Jurisdiction

     As in years past, the dispositive decisions issued in 2011 by the U.S. Court of International Trade pursuant to 28 U.S.C. § 1581(i) tested the bounds of the Court’s residual jurisdiction. More than half of these decisions grappled with jurisdictional challenges, brought by the government and, in an unusual twist, one plaintiff. The Court asserted jurisdiction in only a handful of these cases, once again demonstrating the constrained nature of the Court’s residual jurisdiction. The statute of limitations proved to be an additional barrier to relief for several plaintiffs, with the Court’s judges adopting differing views of the jurisdictional implications of this time constraint. Indeed, relief proved elusive even for the few section 1581(i) plaintiffs who managed to convince the Court to reach the merits of their cases, which dealt with perennially controversial aspects of U.S. trade remedies law. Despite the poor showing for section 1581(i) plaintiffs in 2011, the Court’s residual jurisdiction likely will remain attractive to plaintiffs whose claims are seemingly ill suited for the Court’s more traditional jurisdictional bases.
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Joel R. Junker, U.S. Court of International Trade Cases in 2011 in Penalty and Liquidated Damages Collection Actions Under 28 U.S.C. § 1582 and Its First Government Procurement Country of Origin Case Under 28 U.S.C. § 1581(e)

     This Article surveys the new jurisprudence under 28 U.S.C. § 1581(e) and those cases under 28 U.S.C. § 1582 with a review of the facts and reasoning of the U.S. Court of International Trade. In 2011, the Court issued for the first time a decision within its exclusive jurisdiction under section 1581(e) over challenges to determinations pursuant to section 305(b)(1) of the Trade Agreements Act of 1979. The Court’s opinion took care to protect the scope and exercise of its jurisdiction under section 1581(e) in a manner more assertive than for some of its other jurisdictions. In addition, the Court rendered in 2011 six decisions that refined substantive and procedural holdings under its jurisdiction in section 1582 over certain types of collection actions brought by the United States against importers and sureties. The Article observes that the Court’s decisions in these cases were unusual and counterintuitive in several respects.
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Notes

Ryan Farha, A Right Unexercised is a Right Lost?: Abolishing Antidumping in Regional Trade Agreements

     This Note considers the six regional trade agreements (RTAs) in which antidumping is prohibited: the Australia-New Zealand Closer Economic Relations Trade Agreement, Canada-Chile Free Trade Agreement, European Free Trade Association (EFTA)-Singapore Free Trade Agreement, EFTA-Chile Free Trade Agreement, and the Closer Economic Partnership Arrangements between China and Hong Kong and China and Macau. Using these agreements as case studies, the Note argues that, although antidumping provisions generally serve an important role in RTAs, in certain extraordinary cases, antidumping is neither necessary nor useful. These cases arise where the RTA parties have a very limited trading relationship, simply do not use trade remedies, or have an otherwise extraordinary relationship. In any case, antidumping has become an unexercised right as between the parties. The Note thus rejects alternative theories that look to decreased opportunities for arbitrage, trade “attrition,” or a “broader push for integration” to explain the parties’ willingness to prohibit antidumping. Finally, in these cases, competition law, although seldom utilized, serves an important function by serving as a backstop against potential future dumping activity.
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David Ryan, The Effects of Section 201 Safeguards on U.S. Industries

     This Note presents evidence on the effectiveness of temporary trade barriers, known as safeguards, implemented under section 201 of the U.S. Trade Act of 1974. Despite significant debate regarding the political and legal challenges posed by section 201, little research exists to determine how domestic industries—the intended beneficiaries of safeguards—perform after safeguards terminate. This study examines the performance of three domestic industries that recently received safeguard protection. The Note finds that none of the three industries were restored to sustained competitiveness. The Note then introduces policy recommendations for reforming section 201 to enhance its effectiveness.
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Aaron I. Young, Deconstructing International Organization Immunity

     In the United States, public international organizations derive privileges and immunities from a variety of sources of law. In particular, the International Organizations Immunities Act of 1945 (IOIA) grants certain international organizations “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” When the IOIA was enacted, those organizations had few legal protections but foreign sovereigns generally had “absolute immunity” from civil suits in U.S. courts. Over time, the international community, including the United States, clarified exceptions to foreign sovereign immunity, allowing some suits against foreign states. This rule of “restrictive immunity” was codified in the United States by the Foreign Sovereign Immunities Act of 1976 (FSIA). However, some courts, like the D.C. Circuit, have continued to grant absolute immunity to international organizations covered by the IOIA—exceeding the level of protection enjoyed today by foreign governments—while others, such as the Third Circuit, have not.      This Note discusses what privileges and immunities public international organizations have in the United States based on the IOIA, the FSIA, and recent Supreme Court jurisprudence. It concludes that the text and the legislative history of those statutes do not demonstrate congressional intent to incorporate developments in the law of foreign sovereign immunity into the privileges and immunities of international organizations. Moreover, the Supreme Court’s recent decisions in Dole Food and Samantar help clarify which entities U.S. courts should consider covered by the FSIA, and international organizations do not appear to be included under that statute. International organizations may also benefit from other sources of law, including international agreements, other congressional or administrative action, and common-law doctrines. However, there is probably no customary international law yet that defines the boundaries of privileges and immunities of international organizations.
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