GJIL Recent Volumes
Daniel Behn, Legitimacy, Evolution, and Growth in Investment Treaty Arbitration: Empirically Evaluating the State-Of-the-Art
The legitimacy debates surrounding investment treaty arbitration are intensifying. At the same time, the number of claims filed continues on a growth trajectory. Some commentators believe that the practice of investment treaty arbitration will evolve over time; and as the regime evolves, many—if not all—of the its claimed legitimacy deficits will be resolved. This Article will test this evolutionary thesis by empirically evaluating investment treaty arbitration cases that have been fully or partially resolved in the last three years (September 2011 through September 2014) in order to assess the extent to which the regime is—in fact—evolving and whether the empirical evidence supports or contra- dicts many of the legitimacy critiques currently lodged against the regime. Special attention will be placed on assessing issues of diversity and the fair distribution of claims.
Gerlinde Berger-Walliser And Paul Shrivastava, Beyond Compliance: Sustainable Development, Business, and Proactive Law
Scholarly work shows that the existing legal framework for sustainable development is insufficient, cautious, incremental, and incomplete. Despite public and private efforts to address sustainable development, environmental and social problems and conditions continue to worsen. This Article posits that the status quo is a direct result of the systemic failure to recognize the potential for a synergistic relationship between the private and public sectors to create a comprehensive, yet effective, regulatory framework. Based on an analysis of the current national and international legal framework and alternative regulatory approaches in the “New Governance” literature, this Article aims to engage law, science, and sustainable business to determine the best way to develop a governance regime for sustainable development based on “Proactive Law.”
David A. Koplow, Nuclear Arms Control by a Pen and a Phone: Effectuating the Comprehensive Test Ban Treaty Without Ratification
This Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-proliferation regime is in trouble, too, as the fragile consensus underpinning the world’s efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to persistent internal political discord, from exercising the leadership necessary to address these difficulties.
In that dissonant environment, President Barack Obama has heralded his willingness to proceed with his progressive agenda “with a pen and a phone”—if Congress is irreconcilably deadlocked, he will use his pen to sign executive orders and other agency actions and his telephone to convene meetings of concerned stakeholders. The president has already proceeded with those tactics in numerous areas of domestic policy. Thus, this Article proposes cognate strategies in the international realm to rescue the CTBT and the global non-proliferation order.
The three innovative options presented here are: (1) the adoption of a legally binding resolution by the United Nations Security Council to declare nuclear weapons testing a “threat to the peace”; (2) the creation of a new norm of “customary international law” prohibiting such testing; and (3) the adoption by relevant states of legally binding “unilateral undertakings” to refrain from testing. Each of these options would promote U.S. national security and global stability by legally entrenching the current voluntary moratoria against nuclear testing. Each has precedents in international arms control practice, although none has ever been exercised regarding issues of this consequence. Each is, admittedly, inferior to prompt effectuation of the CTBT via a Senate vote of advice and consent, and would institute only a portion of what would be accomplished via formal entry into force of that treaty. But each option can be effectuated by the executive branch unilaterally, not being hostage to legislative branch stasis; if current political circumstances preclude, for the foreseeable future, the favored ratification option, the United States and other key players should seriously consider these alternative mechanisms to pursue preservation of the CTBT and the non-proliferation regime.
Gabrielle Gould, Red Lines: Filling the Gaps in International Law Enforcement
Roughly two years into the conflict in Syria, President Obama’s infamous red line inspired a wave of criticism and uncertainty when he pledged U.S. military intervention if there was movement or use of chemical weapons by any actor on the ground. The Syrian conflict had borne witness to egregious violations of international law, and yet multilateral enforcement of those laws had failed to materialize. This Note examines the potential for red lines to serve as legal mechanisms to circumvent international paralysis and enforce existing international law by proposing new legal standards that may eventually become binding customary international law. This Note proposes a framework for evaluating whether a red line may legitimately be proposed to fill a gap in international law enforcement and if so, what the threat of the red line may be. Using the cases of Syria, Iran, Ukraine, and the Russian intervention in Crimea, this Note then applies the proposed framework to evaluate whether President Obama’s red lines have contributed to greater consistency and legitimacy in international law enforcement.
Rebecca Salk, Strengthening the Responsibility to Prevent: Reforming the United Nations’ Genocide and Mass Atrocity Prevention Efforts Through Emphasis on Rule of Law
Since the end of World War II, the international community has vowed to “never again” sit back while genocide unfolds. Nevertheless, the international community has struggled to respond to humanitarian conflict and genocide in a timely manner, if it responds at all. The United Nations Responsibility to Protect Doctrine (RtoP) was adopted in 2005 in an effort to strengthen the international response to genocide and mass atrocities. However, whether the doctrine has actually improved international response is questionable. As such, this Note proposes a renewed focus on the prevention of genocide and mass atrocities within the framework of RtoP. Furthermore, this Note explores why and how rule of law initiatives should be used as a mechanism for prevention in conjunction with the U.N.’s current early warning regime. Thus, this Note argues for an explicit connection between rule of law and genocide prevention in a formal and institutionalized way. By connecting the two, the U.N.’s prevention mechanisms can move beyond rhetoric and further strengthen the legitimacy of RtoP itself.
Thomas C. Weatherall, The Status of the Prohibition of Terrorism in International Law: Recent Developments
This Note examines and assesses recent developments in the jurisprudence of the prohibition of terrorism in international law. Although the lack of consensus on a definition has long inhibited the emergence of a comprehensive universal norm in international law, key decisions by the Special Tribunal for Lebanon (STL) in 2011, the French Court of Cassation that same year, and the England Court of Appeal (invoking the STL judgment in 2012) indicate the crystallization of an international crime of terrorism in customary international law. From this baseline, this Note considers whether the prohibition against terrorism satisfies the elements of a norm belonging to jus cogens as per the formal source of peremptory norms delineated in the Vienna Convention on the Law of Treaties. Finding that it does, this Note then assesses the legal effects of jus cogens arising from the prohibition against terrorism as evidence corroborating the emergence of a peremptory norm.
Cindy S. Woods, “It Isn’t a State Problem”: the Minas Conga Mine Controversy and the Need For Binding International Obligations on Corporate Actors
After years of implacable neoliberal globalization, multinational corporations have moved from the periphery to the center of the international legal agenda. Human rights advocates have long called for greater corporate accountability in the international arena. The creation of the Global Compact in 2000, while aimed at fostering greater corporate respect for human rights, did not silence these calls. After multiple unsuccessful attempts to adopt a set of norms relating to the human rights responsibilities of transnational corporations, the United Nations succeeded in 2008 with the Guiding Principles on Business and Human Rights (Guiding Principles). The Guiding Principles, praised by some within the international human rights community for their recognition of an individual corporate responsibility to respect human rights, have not escaped their share of criticism. Many view the Guiding Principles to be toothless, failing to directly impose obligations upon corporations, and call for binding international obligations on corporate entities. After decades of attempting to promulgate human rights obligations for multinational corporations, the existing legal frameworks in place fall short of protecting individuals from the human rights abuses of multinational corporations. The Global Compact and Guiding Principles are proof of the United Nations’ unwillingness to impose international legal obligations on corporate actors. In June 2014, the Human Rights Council adopted a resolution to draft international legally binding human rights norms for business entities; however, key players in the international arena have already announced they will not cooperate with such efforts. This Note, through an overview of the existing corporate accountability frameworks and a study of Newmont Mining’s Minas Conga project in Peru, argues that binding international human rights obligations on corporations are necessary to fully protect human rights. Where states refuse to or simply cannot uphold their duty to protect individuals from transnational businesses’ human rights transgressions, there must exist mechanisms to pursue justice directly against the multinational corporation.
Judge Leo M. Gordon
Michael G. Hodes and Nina C. Mohseni, Classification Determinations In The United States Court of International Trade Brought Under 28 U.S.C. § 1581(A)
This Article discusses a number of decisions by the United States Court of International Trade in 2013, where litigants invoked the court’s jurisdiction pursuant to 28 U.S.C. § 1581(a). The decisions discussed herein are intended to illustrate the judicial decision-making process and to demonstrate the diversity of imported articles that come before the court for classification under the Harmonized Tariff Schedule of the United States.
Daniel Cannistra and Adeoye O. Johnson, 2013 in Review: Scope and New Shipper Review Matters Before the Court Of International Trade
In 2013, the United States Court of International Trade (CIT) saw increased litigation involving the United States Department of Commerce’s (Commerce) interpretation of the scope of antidumping and countervailing duty (AD/CVD) orders and the initiation of new shipper reviews. Scope interpretation and new shipper initiations are fact-intensive determinations with sparse analytical frameworks. Historically, scope litigation in particular, was relatively uncommon, with the CIT granting substantial deference to Commerce in interpreting the scope of AD/CVD orders. Two factors account for the increase in scope litigation. First, Commerce’s increased emphasis on preventing the circumvention of AD/CVD orders has resulted in broader scope language, making it more difficult for importers and Customs and Border Protection (CBP) alike to interpret AD/CVD orders. Second, Commerce is aggressively amending AD/CVD orders after their initial publica- tion, resulting in a constant need for importers to evaluate and reevaluate the scope of AD/CVD orders, while CBP tries to keep pace as goods enter the country. The 2013 CIT scope decisions reflect a less intensive focus on Commerce’s analytical framework in scope determination and more on Commerce’s ability to factually support its determinations. This framework will reverse in 2014, with the Court of Appeals’ decision in Mid Continent Nail Corp. v. U.S. mandating a focus on providing coherent and consistent guidance to regulated parties in scope determinations.
Jordan C. Kahn, 2013 In Review: CIT Opinions Resolving Challenges to Commerce AD/CVD Decisions on Products Imported from NMEs Jordan C. Kahn
The United States Court of International Trade (CIT) in 2013 affirmed countervailing duty liability for products imported from non-market economy countries, finding legislation constitutional and Commerce Department discretion to assess such duties. The antidumpting duty cases recognized limited Commerce latitude in responding to the uptick in import fraud through means including consideration of adverse facts available (AFA), while expressing skepticism over AFA rates in the non-fraud context. Judicial concerns as Commerce stopped using India as the surrogate for China will guide the agency with its surrogate selection for Vietnam. While Commerce was afforded wide discretion for surrogate valuation, remands involved labor and market economy inputs. Commerce further experienced setbacks in evaluating independence from government control, countering targeted dumping, and assigning separate rates. When the issues that the CIT confronted in 2013 are appealed, the United States Court of Appeals for the Federal Circuit should give Commerce flexibility to induce cooperation and deter import fraud—means critical to ensuring antidumping duty/countervailing duty (AD/CVD) rate accuracy and preserving administrative integrity.
Joshua E. Kurland, Emerging Trends in the Court of International Trade’s 2013 Market Economy Jurisprudence
The Court of International Trade’s 2013 jurisprudence in antidumping and countervailing duty cases involving goods from market economy countries reflects emerging trends in international trade litigation in the United States. This Article summarizes significant decisions, while analyzing their impact on and relationship with broader issues that have been the focus of intense litigation. The Article also highlights issue areas that are likely to be sources of future litigation.
Adams Lee, CIT 2013: A Review of Appeals from the International Trade Commission
In 2013, the United States Court of International Trade (CIT) issued six decisions involving the antidumping (AD) and countervailing duty (CVD) determinations of the U.S. International Trade Commission (ITC) in original investigations or sunset reviews. Although most of these decisions involved a remand order for further consideration by the ITC, all of the decisions highlight how a properly deferential review by the CIT can result in improved ITC determinations by establishing a more consistent and transparent standard for what constitutes substantial evidence in support of the ITC’s findings.
Elon A. Pollack, Developments in Customs-Related Litigation in the Court of International Trade in 2013
Looking back at cases decided by the United States Court of International Trade in 2013, an overwhelming number of them concern antidumping and countervailing duties. Yet, select cases in 2013 addressed the imposition of civil penalties against importers, an exporter, and a customs broker. The court also affirmed a decision by the Secretary of Labor to deny worker benefits and efforts by the United States to collect liquidated damages and duties under surety bonds. These non-trade cases are surveyed in this Article.
Daniel L. Porter and Claudia D. Hartleben, Court of International Trade Decisions Rendered in 2013 Under 28 U.S.C. § 1581(I) Residual Jurisdiction
In 2013, the United States Court of International Trade rendered 159 decisions. Of those decisions, the Court exercised jurisdiction under 28 U.S.C. § 1581(i), the so-called “residual jurisdiction provision,” over some or all claims in twenty-one decisions. This Article discusses the more substantive decisions rendered in 2013 under § 1581(i). Before addressing the 2013 decisions, the Article first provides a brief background of § 1581(i).
Genevieve Fox, A Future For International Investment? Modifying BITs to Drive Economic Development
Since the conception of Bilateral Investment Treaties (BITs) in the late 1950s, developed (home) and developing (host) states have signed on to BITs with two distinct desires: home states seek to establish BITs in order to protect their investors and their investments from deleterious host state action, while host states sign BITs pursuant to the notion that such action brings increased inflows of foreign direct investment (FDI) and related economic development. This Note intends to demonstrate that while current BITs do protect home state investors and their investments, BITs do not necessarily bring increased inflows of FDI to host states, nor do they effectively promote host state economic development. With this framework in mind, this Note asserts that BITs can, if re-imagined, be used as a vehicle for simultaneously fostering investor protection and economic development. Finally, this Note proposes a model BIT series, which consists of three different BITs and their respective proposed provisions, aimed at achieving this end.
Margie-Lys Jaime, Relying Upon Parties’ Interpretation in Treaty-Based Investor-State Dispute Settlement: Filling the Gaps in International Investment Agreements
International Investment Agreements (IIAs) were designed for the promotion and protection of foreign investors and their investments. The whole idea of negotiating IIAs was to attract foreign investors by enhancing security and creating a depoliticized environment, which includes the establishment of an impartial dispute settlement mechanism. Although IIAs focus primarily on investors’ rights and expectations, host countries also have legitimate expecta- tions when subscribing to an investment treaty, such as stimulating economic development within the limits of their public policy. Those expectations might be substantially diminished by the lack of clarity and/or gaps in the treaty text. Moreover, experience has shown the necessity of preserving host states’ regulatory space for taking public policy measures, which might not have been foreseen in the investment treaties. This situation generates unsteadiness in the investors’ and host states’ rights, appealing for the rebalance of the status quo. As IIAs are the applicable law in treaty-based investor-state dispute settlement (ISDS), arbitral tribunals have turned to the task of interpreting the text. Such interpreta- tion accomplished by arbitral tribunals might in fact surpass the tribunals’ legitimate power to settle the disputes, creating inconsistent and conflicting decisions. This Note advocates for states taking an active role in interpreting IIAs and filling the gaps during an ISDS, even in the absence of specific rules governing the intervention of non-disputing parties to the ISDS. In this sense, treaty parties’ intervention would be addressed from different perspectives as a mechanism to be used by arbitral tribunals during an ISDS. This Note concludes that the recourse to treaty parties’ interpretation by arbitral tribunals is essential for rebalancing investors’ and host states’ rights and preserving the legitimacy and credibility of the ISDS system.
Abraham Shanedling, Removing Weapons of Mass Destruction from the World’s Most Volatile Region: How to Achieve a WMD-Free Zone in the Middle East
Eliminating weapons of mass destruction (WMD) from the Middle East continues to be a pressing issue of both regional and global security concern. Several other regional state groups have already expanded on the Nuclear Non-Proliferation Treaty by establishing nuclear weapons free zone (NWFZ) treaties, however the proposal to establish a NWFZ or an expanded WMD free zone (WMDFZ) in the Middle East has long remained merely an aspirational goal. This Note examines the historical and present challenges facing the creation of a Middle East WMDFZ treaty and outlines various steps that regional parties should take to achieve such a zone. Drawing from the experiences of other regions in establishing NWFZs, the obligations of those regional treaties, and global non-proliferation treaties and resolutions, this Note recommends a series of short-term confidence-building measures to break the impasse in negotiat- ing a Middle East WMDFZ and presents a set of core components for a future zone treaty.