Volume 47

Issue 4

ARTICLES

Matthew Milikowsky, "There Are No Enemies After Victory": The Laws Against Killing the Wounded

Louis Pictet, the influential and official commentator on the 1949 Geneva Conventions, described the principle of respect and protection for the battlefield wounded and sick as the “keystone” of the entire edifice of the Geneva Conventions. This principle is traditionally viewed as an “easy” principle for scholars to understand and for militaries to follow and consequently, despite its centrality to the law of armed conflict, scholars and practitioners have devoted little thought to it. This paper traces the slow evolution of this principle from its first enactment into international law in 1864 through three subsequent Conventions (1906, 1929, and 1949), until the Additional Protocol I of 1977 made clear that it was not the “wounded” who received protection, but only the wounded “who refrain from any act of hostility” or the “hors de combat.” This paper then looks at relevant modern American military training and doctrine, and suggests that America has adopted the most expansive definition available under the law. The impact of the law on the battlefield is then assessed by examining case studies involving the alleged or possible targeting of the hors de combat in the Iraq and Afghanistan conflicts. This shows the real world impact of the good faith standard, a standard that affords vast discretion to the soldier on the ground. Ultimately, this paper concludes there is no standard preferable to the good faith standard, but limited changes in training and court-martial process may re-emphasize the need for battlefield protection of the wounded and sick.
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Douglas W. Arner, Jànos Barberis, and Ross P Buckley, The Evolution of FinTech: A New Post-Crisis Paradigm?

“FinTech,” a contraction of “financial technology,” refers to technology-enabled financial solutions. It is often seen today as the new marriage of financial services and information technology. However, the interlinkage of finance and technology has a long history and has evolved over three distinct eras, during which finance and technology have evolved together: first in the analogue context; then with a process of digitalization of finance from the late twentieth century onwards; and since 2008, a new era of FinTech emerging in both the developed and developing world. This new era is defined not by the financial products or services delivered, but by who delivers them and the application of rapidly developing technology at the retail and wholesale levels. This latest evolution of FinTech, led by start-ups, poses challenges for regulators and market participants alike, particularly in balancing the potential benefits of innovation with the possible risks of new approaches. We analyze the evolution of FinTech over the past 150 years, and on the basis of this analysis, argue against its too-early or rigid regulation at this juncture.
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Marko Milanović, Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences

In an earlier piece, I discussed the findings of a series of public opinion surveys in the former Yugoslavia, probing the attitudes of the respondent populations regarding the mass atrocities committed during the Yugoslav wars of the 1990s, such as the Srebrenica genocide. That article concluded that the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first modern, post- Nuremberg international criminal jurisdiction, failed to persuade the target audiences in the former Yugoslavia that the findings in its judgments are true. The surveys show that denialism is widespread and governed by ethnic bias. For example, only 10% of the Serbian population accept the facts about the Srebrenica genocide, the greatest crime committed in Europe since World War II, as they were established by the ICTY. While that companion piece addressed the empirical, “what” question, this one looks at the equally, if not even more important, “why” question: why has the ICTY proven to be so ineffectual in inducing attitude change? In answering this question I proceed primarily from the theoretical standpoint of social psychology, enabling a more sophisticated understanding of how the target audiences in the former Yugoslavia have so persistently resisted internalizing the ICTY’s factual findings. I argue that the causes of the ICTY’s ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal’s own work. For example, average citizens normally lack any immediate experience of the event, which necessitates the mediation of information by third parties, e.g., the media and political and intellectual elites, while they similarly lack the time, expertise and resources to rigorously examine the information by themselves. Remoteness from the event also facilitates the avoidance of revising previously acquired beliefs about the event, for instance through discrediting certain sources of information, such as the ICTY. Crucially, ethnic nationalism continues to play a central role in the politics of the region, providing key political actors with both the opportunity and the incentive to engage in the deliberate manipulation of the (already heavily mediated) information that citizens receive about specific atrocities and the ICTY. These objective limitations then feed into the numerous cognitive biases that shape the processing of any information about mass atrocities, essentially pushing individuals (at an unconscious level) to believe what they want to believe and reason about the ICTY and its work in a way that is most protective of their own sense of identity. The Article thus argues that even had the ICTY been run perfectly—and it was not—it would not have been able to overcome the many barriers insulating the peoples of the former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral, the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. In other words, as a mechanism of transitional justice, the Tribunal was from the outset doomed to fail. Valuable lessons can, however, be learned from that failure, and not every other international criminal court and tribunal will necessarily find itself in the same unenviable position.
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Stephen Kim Park, Special Economic Zones and the Perpetual Pluralism of Global Trade and Labor Migration

When we think about the legal drivers of globalization, why does the free movement of people lag so far behind the free movement of goods and services? While agreements to lower barriers to cross-border trade are enforced by global legal rules and institutions, national governments indisputably control and limit cross-border labor migration. However, the relationship between trade and labor migration in international law is anything but clear-cut and simple. Rather, as this Article shows, it is ad hoc, decentralized, and pluralistic. This Article focuses on the use of Special Economic Zones (SEZs) as an illuminating example. SEZs enable countries to selectively open borders to higher-skilled foreign workers while maximizing economic returns and minimizing socio-political costs. While advantageous to individual countries, this Article argues that the pluralistic status quo hinders comprehensive initiatives to harmonize the liberalization of trade and labor and promote freedom of movement in international labor markets.
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NOTES

Stephen Petkis, Rethinking Proportionality in the Cyber Context

Over the past twenty years, information technology and digital communications have become indispensable components of warfare and national defense. Naturally, this has coincided with a rise in “cyber attacks” designed to alter, destroy, or disrupt those capabilities. Despite this rise, there is no unified international agreement on how the existing laws of war restrain the use of cyber force. Consequently, states have very little guidance on how to respond “proportionally” to a cyber aggression, or whether a state’s own offensive cyber measures are “proportional.” Depending on the timing and context in which force is used, the abstract notion of proportionality has two distinct aspects. Prior to engaging in armed conflict, jus ad bellum proportionality limits states to defensive or belligerent force that is proportionate to the unlawful aggression that triggered their right to respond. During an existing armed conflict, jus in bello proportionality prohibits states from launching military attacks that will lead to “excessive” civilian casualties in relation to legitimate military objectives. Contemporary legal scholarship appears to have settled on a definition of “force” that applies the existing laws of war to cyber actions only when such actions are likely to result in conventional “kinetic” harm. This approach fails to adequately address the unique concerns raised by cyber warfare and, indeed, ignores cyber attacks as a distinct component of the modern military arsenal. This Note argues that “force” in the cyber context should be interpreted based on the purpose of the attack, not its eventual effect. Any cyber attack launched for the purpose of affecting a foreign national security interest should be considered a “use of force” subject to the existing laws of war. This approach not only mitigates the practical difficulties inherent in trying to anticipate the kinetic consequences of a cyber attack, it also ensures that states cannot engage in an endless cycle of cyber aggressions unrestrained by the laws of war. This Note also makes suggestions for re-conceptualizing proportionality analysis in light of the purpose-based definition of cyber “force.” To comply with jus ad bellum proportionality, cyber responses should be limited to neutralizing aggressive attacks, only in cases of clear attribution. Furthermore, to comply with jus in bello proportionality, states should be careful to consider likely entanglements between civilian and military cyber networks.
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Jason Gerson, A Grand Bargain Among the International Telecommunication Union's Skeptics and Proponents: Building a Third Way Toward Internet Freedom

The International Telecommunication Union (ITU) is broken. Internet stakeholders fear that illiberal regimes used the WCIT-12 to displace the nonprofits that currently perform Internet governance functions in order to tamper down free expression online. Countries will always have some role in governing how people use the Internet, but the ITU will not earn a greater voice in Internet governance under its current dysfunctional structure. Rather than rejecting the place for international law in Internet governance, Internet freedom advocates should instead demand that the ITU legally codify commitments toward stakeholder engagement and transparency. The ITU will need much time before disabusing its skeptics of their concerns, but countries should not wait for that rapprochement before establishing an international legal framework for the Internet. This framework should exist to protect, not squelch, the organizations and norms that currently ensure Internet freedoms.
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Elizabeth Annis, Climate Change and Trade in the Pacific Island Countries: The PACER Plus Agreement

The Pacific Islands are engulfed in an existential crisis. Rising sea levels and other climate change effects threaten their very existence. Perhaps of more immediate concern, these islands have small, vulnerable economies, which place many residents in a tenuous position as they work to achieve a comfortable standard of living for themselves and their families. Against this backdrop of climate and economic challenges, fourteen Pacific Island countries are negotiating a free trade agreement with Australia and New Zealand known as the Pacific Agreement on Closer Economic Relations, or PACER Plus. Climate change and international trade law regimes are intrinsically linked, and at times their objectives conflict. Nevertheless, climate-friendly trade agreements are proliferating. Such agreements provide a useful template for PACER Plus negotiators to ensure the agreement is well-positioned to promote economic development in the PICs without exacerbating climate change threats.
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Issue 3

ARTICLES

Joshua Braver, Exporting U.S. Counter-Interpretation: Redeeming Constitutional Supremacy in the U.K.

To solve the democratic deficit of U.S. style judicial review, the New Commonwealth Model of Judicial Review (NCM) gives legislatures the “final word” on law by empowering them to override Supreme Court decisions. This model was recently implemented in the United Kingdom, Canada, and New Zealand. I argue that the United Kingdom has failed and the United States has succeeded in the democratization of the interpretation of rights because the U.K.’s Human Rights Act has intermediate status while the U.S. Constitution is supreme law. Constitutional supremacy is the necessary condition for the democratization of rights, which I call “counter-interpretation.” Counter-interpretation occurs when the legislature interprets the constitution independently of and sometimes in conflict with the Supreme Court. I illustrate the link between “counter-interpretation” and constitutional supremacy in the homeland of parliamentary sovereignty, the United Kingdom. I show how during a brief period of de facto constitutional supremacy in the United Kingdom, politicians independently and in opposition to the courts interpreted the meaning of the controversial “right to family life.” I conclude by arguing that the United Kingdom should abandon parliamentary sovereignty, that the United States is a viable model for countries seeking to produce counter-interpretation, and I put forth a new more democratic model of judicial review.
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Richard R. Carlson, A Child's Right to a Family versus A State's Discretion to Institutionalize the Child

International law, represented particularly by the U.N. Convention on the Rights of the Child (CRC), declares that a child has the right to be raised in a “family environment.” However, the CRC grants a state wide discretion in addressing the needs of a child without a functioning family, and the state can exercise its discretion in ways that defeat a child’s right to a family. The state can either place the child in a substitute family setting, or it can institutionalize the child. Given the CRC’s stated family-oriented goals and the consensus of child welfare professionals, substitute family placement would normally be the preferred course of action. Nevertheless, the CRC grants the state discretion to institutionalize the child even when institutionalization will be harmful and a substitute family setting is possible. The CRC has this effect because it fails to require states to arrange, facilitate, or even allow for permanent substitute family placement. In some ways, the CRC even encourages states to adopt policies that will lead to a continued preference for institutionalization as a practical matter. 

This Article describes the contradiction in international law—a child’s right to a family environment versus the state’s discretion to institutionalize the child—and explores the possible reasons for the contradiction. A chief reason for the contradiction is anxiety about intercountry adoption. This Article seeks to resolve the contradiction by encouraging wider acceptance of permanent substitute family placement, initiating a discussion about the features of an international law of substitute family placement, and by de-coupling the issue of intercountry adoption from the wider discussion about substitute family placement.
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James D. Fry and Inna Amesheva, Oil Pollution and The Dynamic Relationship between International Environmental Law and the Law of the Sea

This Article examines the relationship between international environmental law and the law of the sea in the context of trying to address the problem of oil pollution in a coherent manner. Both of these branches of international law share a common goal, yet their relationship is inherently complex. Starting with a brief synopsis of international environmental law and the law of the sea, this Article then explores the ways these two branches interact in a dynamic manner. The Article demonstrates that they do not operate in isolation, but rather help shape one another. The authors then identify the situations where international environmental law and the law of the sea conflict, primarily in the provisions contained in international and regional conventions, which leads to a multifaceted legal framework that is difficult to follow in a coherent manner. In these cases, pursuing the rules of one regime could mean breaching provisions and goals of the other. The Article concludes with a case study on oil-spill pollution, which demonstrates how the two branches of international environmental law and the law of the sea simultaneously conflict and complement each other. The main take-away point of this Article is the fact that the unity-versus-fragmentation debate regarding the law of the sea and international environmental law should serve as a reminder that coordination of these two legal regimes is needed in order to effectively adopt measures that protect the global commons.
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Jesse Kennedy, Autocatalysis in Investment Treaty Law

Despite the thousands of investment treaties, there is increasing harmonization of the legal standards applied in resolving investment disputes. After arguing that harmonization is occurring, using fair and equitable treatment and indirect expropriation as examples, this Article explores the factors behind that harmonization. The author argues that factors previously postulated as causing harmonization, such as commonality in treaty text and purpose, do not in fact explain the phenomenon. Instead, the two key factors causing harmonization are a choice of law rule, which leads tribunals to apply a common body of law, combined with an “autocatalytic process,” whereby tribunals draw from the decisions of one another to develop (or create) the legal standards within that body of law. By identifying the factors contributing to harmonization, this Article suggests we can not only better identify and predict the content of international investment law, but can more easily appreciate the implications of how this body of law is developing, whether positive (in the case of harmonization) or negative (in the case of raising rule of law concerns). At the very least, this Article should challenge traditional notions of how we understand international investment law.
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Valentina Vadi, Energy Security v. Public Health? Nuclear Energy in International Investment Law and Arbitration

Energy security, meant as the availability of energy sources at an affordable price, has become essential to the functioning of modern economies and plays a crucial role in international relations. In the accelerating global race for energy resources and security, nuclear power raises a number of questions. On the one hand, nuclear power plants are perceived as constituting a reliable source of energy and playing an important role in energy security. On the other hand, nuclear power is perceived as controversial because of the health and environmental risks associated with it. 

After briefly discussing the importance of energy security and the relative fragmentation of energy governance at the international level, this Article highlights the  potential clash between energy security (i.e. the need for states to secure energy supply) and public safety (i.e. the protection of public health and human life) in relation to foreign investments in the nuclear sector. It then illustrates this with some nuclear energy-related investment disputes, focusing on the Vattenfall II case. In Vattenfall II, a Swedish energy company has filed for arbitration against Germany at the International Center for the Settlement of Investment Disputes (ICSID) to obtain compensation for losses arising out of government decision to phase nuclear energy out. The case, still pending, raises interesting questions: Does the government decision breach international investment treaty provisions? Are arbitral tribunals a suitable forum to adjudicate this type of dispute? This Article discusses the grassroots movement, which led to widespread opposition to nuclear energy in Germany and the ICSID arbitration. It highlights that neither international law nor European Union (EU) law requires states to opt for nuclear energy; rather, both regimes leave this choice to the states. Therefore, the decision to opt for nuclear energy remains a sovereign one. Arbitrators should not question the legitimate power of states to regulate in the public interest, but should review the procedural appropriateness, good faith, and reasonableness of the adopted measures.
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NOTES

Jieying Ding, Enforcement in International Investment and Trade Law: History, Assessment, and Proposed Solutions

International investment and trade law share common roots yet have dramatically different approaches. Over the last thirty years, both areas have undergone significant changes. In trade law, the establishment of the WTO with a strong dispute settlement has made trade law a source of systemic stability. In investment law, the ICSID Convention coupled with a proliferation of second-generation BITs has given stronger protection of investment by granting investors standing to bring claims against a sovereign nation. Yet, the compliance record of investment law is not as strong as that of trade law. By comparing enforcement measures of both investment and trade law and examining a new approach that brings the two regimes together, this paper tries to look for ways to improve enforcement mechanism for investment and trade law.
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Derek I. Hunter, Nobody Likes Rejection: Protecting IP Licenses in Cross-Border Insolvency

Insolvency law is a necessary evil in any developed legal system. Despite their best intentions, corporations become insolvent and need a way to reorganize or liquidate in the most efficient way possible. To properly achieve an efficient reorganization or liquidation, insolvency law must deal with all the assets and liabilities of the debtor. This implicates a broad range of legal and policy areas. One such area is intellectual property law. Insolvency law’s goal to rehabilitate the debtor conflicts with intellectual property law’s goals of freedom of alienability and exclusivity. Unfortunately, the insolvency law in many countries has not appropriately addressed this conflict. In cross-border insolvency cases, the problem is especially acute because different legal systems conflict on the treatment of IP licenses. 

A recent U.S. case, Jaffe v. Samsung Electronics Co., exemplifies the legal conflict that exists without a harmonized law on IP license treatment in cross-border insolvency proceedings. It should serve as a lesson and impetus for private international law efforts on this issue. As a first step towards harmonizing the law on IP license treatment in cross-border insolvency proceedings, this Note reviews the domestic approach in several countries. This review shows that the legal landscape for IP licensors and licensees is complicated and uncertain. As a remedy for this uncertainty, this Note proposes two solutions for the United Nations Commission on International Trade Law to adopt: (1) A statement of principles to guide states as they attempt to modernize their treatment of IP licenses in insolvency proceedings; and (2) a model law on the treatment of IP licenses in cross-border insolvency proceedings that is patterned on 11 U.S.C. § 365(n) of the U.S. Bankruptcy Code.
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Hannelore Sklar, Choice of Law Under the Foreign Sovereign Immunities Act: Cassirer v. Thyssen-Bornemisza Collections Foundation and the Unresolved Disagreement Among the Circuits

For nearly four decades, the Foreign Sovereign Immunities Act (FSIA) has given U.S. courts jurisdiction over certain claims against foreign governments and their instrumentalities. Nonetheless, neither the Supreme Court nor Congress has ever specified how federal courts ought to address the conflict of laws questions that arise in FSIA cases. Using a recent order by the District Court for the Central District of California in Cassirer v. Thyssen-Bornemisza Collection Foundation as a lens, this Note examines the existing circuit split regarding what choice of law rules apply to FSIA claims. After comparing the two competing approaches, this Note proposes a hybrid system based on the underlying nature of the claim. State choice of law rules should govern state law claims while federal choice of law principles decide the issues that implicate more “federal” concerns and federal causes of action. Such an approach will provide courts with an administrable method that strikes a balance between Congress’ desire that FSIA defendants receive the same treatment as other private parties, and the conflict of laws tenets of uniformity and predictability.
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Issue 2

ARTICLES

Dr. Nicolas A.J. Croquet, The Special Tribunal for Lebanon's Innovative Human Rights Framework: Between Enhanced Legislative Codification and Increased Judicial Law-Making

The purpose of this Article is to show that the human rights framework of the Special Tribunal for Lebanon has been largely influenced by the coexistence of two main normative directions. First, in its legislative capacity, the Tribunal has sought to curtail the judges’ margin of judicial discretion, to increase legal certainty and to improve the accused’s procedural position by regulating a number of defense rights (i.e. the right to interlocutory appeal and the right to have evidence obtained in breach of human rights found inadmissible) and codifying certain procedural mechanisms (i.e. absolute anonymity and self-representation limitation regime) that have a bearing on defense rights. Second, the Tribunal’s Judges have multiplied instances of judicial law-making in four principal ways. The Tribunal has judicially recognized a human rights enabling clause that supplements and overcomes the defects of the statutory human rights enabling clause. The Tribunal has also identified the existence of a number of implied human rights. Moreover, the Tribunal has set implied external limits upon human rights without always specifying the content of the underlying proportionality requirements or consistently applying them. Finally, the Tribunal has increased the normativity attached to certain human rights and implicitly conceded to a hierarchy of human rights under international human rights law by making them either non-derogable or imperative in departure from certain international human rights instruments. Even though they are in tension and have contributed to a discrepancy between the Tribunal’s internal legal instruments and its judicial practice, these two normative directions are both complementary. Whilst they are each capable of adverse effect on the human rights of the suspects, accused persons, and other persons under the Tribunal’s authority, they are equally apt to improve their human rights position in proceedings before the Tribunal. When improving the human rights position of eligible right-holders, these two normative directions have often exceeded the level of human rights protection emerging from international criminal procedural law and international human rights law. In some respects, the Special Tribunal for Lebanon may have conveyed an implicit urge for a modification of international human rights instruments or of their interpretation by international human rights monitoring bodies.
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Jacob N. Foster, A Situational Approach to Prosecutorial Strategy at the International Criminal Court

The International Criminal Court (ICC) was established to help end impunity for war crimes, crimes against humanity, and genocide. However, the collapse of the ICC’s prosecution of President Uhuru Kenyatta of Kenya–its highest profile case to date–amplified concerns that the Office of the Prosecutor (OTP) has been seriously hamstrung because of limited resources, political constraints, and inadequate investigative tools. The emerging consensus of scholars and practitioners is that the ICC must change its prosecutorial strategies by encouraging states to undertake domestic prosecutions of atrocity crimes and, where states fail to act, using comprehensive investigations and a broader approach to prosecutions. This Article challenges the emerging conventional wisdom and offers a counterintuitive solution. It suggests ways to square the ICC’s global mandate with an understanding of its limited capacity by rejecting any single approach and adopting a more situational framework. This situational strategy includes simultaneously encouraging domestic prosecutions in one country while bringing cases directly to the ICC in another; conducting focused or comprehensive investigations depending on the situation; and prosecuting only senior leaders in some cases and lower-level criminals in others. This Article considers the structural constraints on the ICC, examines the historical experience of prior international criminal tribunals, offers a multipronged theoretical taxonomy to guide the practical implementation of situational prosecutorial strategies, and recommends situations in which each strategy could be invoked. Overall, this Article argues that there is no overarching one-size-fits-all approach to prosecutorial strategy that is likely to advance the court’s values and goals. Instead, the OTP will need to broaden as well as narrow its mandate in order to live up to its promise.
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John Harrison, The American Act of State Doctrine

The act of state doctrine, as the Supreme Court has enunciated it, directs American courts to decide cases on the assumption that acts of foreign governments taken in their own sovereign territory have the legal effect they purport to have. In the leading case of Banco Nacional de Cuba v. Sabbatino, the Court applied that principle to a Cuban expropriation decree concerning property located in Cuba, finding the decree effective to transfer title whether or not Cuba’s expropriation had violated international law. The act of state doctrine is not a principle of immunity or abstention, nor does it require courts to assume that foreign sovereign acts are consistent with any relevant legal duty. The doctrine is wholly about validity. Although the Court’s current statements of the doctrine are quite clear, its content is obscured by its history. The case that usually is taken as the doctrine’s source was about immunity, not validity. Later act of state cases made the doctrine a principle of validity, and immunity is now addressed under other statutory and common-law rules. Although the Court’s formulation is clear, a number of lower court decisions have seriously misapplied the doctrine, treating it as a rule of abstention or as a requirement that foreign government acts be assumed to comply with applicable duties– for example, those imposed by federal statutes. Those cases are inconsistent with the Supreme Court’s holdings and rely on a version of the act of state doctrine that conflicts with established principles of immunity, abstention, statutory construction, and public international law.
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Nathan Lee, Convert or Die: Forced Religious Conversions and the Convention on the Prevention and Punishment of the Crime of Genocide

Through violence and threats, oppressive regimes and militant groups around the world have forced people to abandon their religious beliefs and adopt new ones. To survive, many give into this coercion and convert to another religion. Most applicable penal instruments fail to adequately protect against this conduct. The Convention on the Prevention and Punishment of the Crime of Genocide, however, provides adequate protection against this crime. The Convention prohibits specific genocidal acts that are committed against a protected group, including religious groups. The Convention’s purpose is to prevent the destruction of these protected groups—the type of destruction caused by forced religious conversions. Specifically, forced conversions prevent births within a religious group and cause children from that group to be transferred to a different religious group. Both of these actions qualify as genocidal activities that the Convention prohibits. This Article carefully examines the Convention’s text, purpose, and drafting history to show that it protects individuals from having to change their religious beliefs in the face of severe threats and persecution. By including religious groups within the Convention’s protections, while excluding other groups, such as political groups, the drafters indicated that they thought religious beliefs were of paramount importance and that a person should not be required to change religious beliefs to avoid persecution. Several international courts have already recognized the broad scope of the Convention and have applied it in instances of mass rapes and severe mental trauma. Recognizing that it also applies to forced religious conversions is consistent with the Convention’s text, purpose, and drafting history and provides courts with an adequate and important legal instrument to address this crime.
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Gillian MacNaughton and Diane F. Frey, Decent Work, Human Rights and the Sustainable Development Goals

In September 2015, the United Nations General Assembly (UNGA) adopted the Sustainable Development Goals (SDGs), which will guide international development policy and practice for a fifteen-year period from 2015 to 2030. The SDGs are critically important as most international development efforts over those fifteen years including those of donors, major development institutions, national governments, and civil society—will likely be directed toward achieving these goals. The SDGs follow on the heels of the Millennium Development Goals (MDGs), which have guided international development from 2000 to 2015. An extensive global public consultation had been underway for three years leading up to the UNGA meeting in September 2015 that finalized the new SDGs and targets. Much of the SDG discussion built upon the lessons learned from the MDG experience, addressing both the achievements and the criticisms. This Article uses a human rights lens to reflect back over the successes and shortcomingsof the MDG framework generally, and then examines in particular the target and indicators on full employment and decent work for all. Against this background, the Article considers whether the decent work goal, targets, and indicators proposed for the post-2015 framework truly integrate human rights and International Labor Organization (ILO) standards into the international development agenda in a way that is consistent with the international legal obligations of the States Parties.
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Judith A. McMorrow, UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US

Alternative Business Structure (ABS) law firms in the United Kingdom allow for non-lawyer owners and investors. This Article analyzes several new U.K. ABS law firms and offers an optimistic assessment of the benefits of these new firm models. ABS firms have created systems that improve legal services for the target clients and have mitigated the negative aspects of lawyer-centric thinking that pervades many traditional firms. ABS firm structure has provided access to capital to allow for investment in employee development and creative use of technology. The ABS form has brought some unregulated activities under the control of regulators and created the possibility of linking legal services to other socially-conscious pro-consumer service providers. Risks emerging from these early entrants into the ABS form include a concern about whether the public aspects of lawyering, such as public oriented duties to improve the legal system and offer pro bono services, become lost in a dominant corporate and client-centered model. If so, a regulatory response may be required to correct this imbalance.
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NOTES

Zachary Nichols, Applying the Crime of Aggression to the First World War: Legal Liability vs. Moral Responsibility

This Article addresses two interrelated questions. First, under the crime of aggression, applied retrospectively, who is liable for starting the First World War? Second, does the law’s ascription of responsibility in this regard comport with our contemporary assessment of moral and historical responsibility for that armed conflict? The answer to the first question will satisfy many (Germany and Austria-Hungary), because it largely comports with what we have all been taught since grammar school. The answer to the second question, however, is counterintuitive to the point of consternation. Prevailing scholarly judgment among contemporary historians is that the leaders of several states were responsible for starting the First World War. Can international criminal law accommodate this empirical fact, i.e., can we interpret the law to fit the causal realities of such wars? If not, then there is only limited overlap between the class of those historically and morally responsible for events like the First World War and that class of those potentially liable for the crime of aggression, as currently defined and interpreted. This is no mere antiquarian curiosity, but has considerable relevance to a number of highly complex, multi-party wars, especially those in Africa’s Great Lakes region extending over the last generation. The Article proposes several practical solutions to the problem, which we may understand as a challenge involving the simultaneous over- and under inclusiveness of the crime of aggression in relation to the reality of causally complicated wars.
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Thomas G. Bode, Cholera in Haiti: United Nations Immunity and Accountability

United Nations peacekeepers brought cholera to Haiti in the aftermath of the 2010 earthquake and the disease quickly spread into an epidemic, killing 3,000 people and sickening many more. Advocates for Haitians filed claims against the U.N., seeking reparations. However, despite strong circumstantial and genetic evidence of the U.N.’s responsibility for introducing the disease, it has escaped liability by successfully asserting legal immunity. This Note examines the sources of and rationale for U.N. immunity and the failed attempts of Haitian advocates to nonetheless recover for their clients. Special attention is given to the lawsuit Georges v. United Nations, brought in United States federal court. The Note concludes by advancing policy proposals that hold the U.N. accountable while respecting its obligations to current and future stakeholders.
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Ena Cefo, Corporate Human Rights Violations in the Occupied Palestinian Territories: Is There Any Recourse?

This Note explores the available remedies against corporate violations of human rights within the Occupied Palestinian Territories. It considers the difficulty of recourse against corporate actors at the international level and the domestic level in the United States. It concludes with analyzing soft-law codes—namely, the U.N. “Protect, Respect and Remedy” Framework on Business and Human Rights, U.N. Global Compact, OECD Guidelines for Multinational Enterprises, and ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. The hope for victims of human rights violations in the OPT is to use these soft-law principles to pressure implicated corporations to respect human rights, and to advocate for the development of binding codes of direct corporate responsibilities.
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James Strawbridge, The Big Bluff: Obama, Cyber Economic Espionage, and the Threat of WTO Litigation

Cyber hacking conducted by foreign governments against private U.S. companies costs the U.S. economy billions of dollars each year and threatens U.S. national security. Although the Obama administration and members of the U.S. Congress argue this cyber economic espionage violates World Trade Organization (WTO) rules, no detailed academic study exists to validate or disprove that assertion. This Note provides a much-needed initial analysis by scrutinizing several possible bases for claiming that cyber economic espionage violates WTO rules. It also highlights potential challenges that would face the U.S. government (or any WTO Member) were it to pursue such a claim in court. While concluding that cyber economic espionage likely does not violate WTO rules, this Note highlights the strategic benefits of threatening legal action—especially when paired with other measures designed to discourage hacking.
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Issue 1

ARTICLES

Benjamin Blase Caryl, 2014 Court of International Trade Reviews of Post-Sale Price Adjustments, Targeted Dumping, and Zeroing in Antidumping Duty Cases

By summarizing important 2014 U.S. Court of International Trade reviews of the U.S. Department of Commerce’s analysis and calculation of two types of pricing practices—post-sale price adjustments and targeted dumping—this Article provides some useful lessons for industries involved or potentially involved in U.S. antidumping duty proceedings, as well as guidance for practitioners on the developments and evolution of the Department’s practices related to zeroing, targeted dumping, and post-sale price adjustments.
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Andrea C. Casson and Karl S. von Schriltz, A Review of the Court of International Trade's 2014 Decisions Addressing Trade Remedy Determinations of the U.S. International Trade Commission

In 2014, the U.S. Court of International Trade issued six opinions discussing the substance of antidumping and countervailing duty determinations issued by the U.S. International Trade Commission. All six of these involved decisions in original investigations. In five of these cases, the court affirmed the Commission on all challenged issues, and in one case, the court affirmed on a number of issues but remanded with respect to certain issues. These decisions typify the court’s application of the applicable standards of review over agency determinations. The court also issued three decisions addressing procedural or jurisdictional issues related to appeals of Commission determinations. In each of these, the court looked to its role in the context of the statutory scheme. This article discusses the six decisions addressing the merits of the Commission’s determinations and the three decisions concerning procedural or jurisdictional matters.
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Michael T. Cone, Three Different Standards of Review in CIT Jurisprudence: Hard Results, Practice Points, and Lessons Learned

The United States Court of International Trade (CIT) is an Article III court of limited but exclusive jurisdiction encompassing disparate areas of law united by the fabric of international commerce. Frequently the court provides a “second bite at the apple” for plaintiffs who have been unable to convince an underlying federal agency or tribunal that their harms deserve governmental redress. In such circumstances the court’s authority to exercise independent legal judgment depends on the procedural posture of the case as well as the identity of the lower agency or tribunal. The three cases discussed in this article exemplify these crucial dimensions of CIT jurisprudence and offer takeaways for effective advocacy before the court.
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Jeffrey S. Grimson and Daniel R. Wilson, 2014 in Review: Scope and Procedural Matters Before the Court of International Trade

This Article summarizes 2014 U.S. Court of International Trade (“CIT”) cases addressing questions of whether imported products fall within the scope of antidumping/countervailing duty orders, the process of obtaining a court order enjoining U.S. Customs and Border Protection from liquidating imports during the pendency of appeals before the CIT and U.S. Court of Appeals for the Federal Circuit, and the CIT’s decisions disfavoring motions to strike during the normal briefing process. An examination of the court’s opinions addressing scope matters reveals that the government’s litigation strategy in these cases often consists of repeatedly failing to comply with the court’s remand instructions, resulting in multiple rounds of unnecessary remands and redeterminations where the court finds that the agency’s initial determination was unlawful. An examination of the court’s opinions addressing procedural matters exposes the fact that litigants often require the court to address unneeded objections to routine procedural motions to maintain the status quo as well as the CIT’s jurisdiction, and ill-advised motions to strike that create obstacles to efficient resolution of appeals. These three topics taken together expose unnecessary strain upon the CIT’s orderly appeal process as a result of unsound litigation strategy that goes against the spirit, if not the letter, of the court’s rules and remand instructions.
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Alexander V. Sverdlov, Change is Coming: What to Expect from the Recent Amendments to the Trade Remedy Laws

President Obama recently signed a bill that amends several sections of U.S. domestic trade remedy laws. This Article examines the nature and significance of these amendments through the lens of the Court of International Trade’s 2014 case law—the last full year in which the prior statute was in effect. As discussed below, the amendments are a significant departure from existing rules in a few key areas. These new standards are likely to be a source of contentious litigation in the years ahead.
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Jeffrey M. Telep and Elizabeth E. Owerbach, The Court of International Trade's Application of 28 U.S.C. § 1581(I) Jurisdiction in 2014

In 2014, the United States Court of International Trade continued to selectively allow cases to proceed under its subsection 1581(i) residual jurisdiction. In cases involving jurisdictional disputes, the Court conveyed a strong preference for plaintiffs to litigate challenges against U.S. Customs and Border Protection via the traditional subsection 1581(a) route, but extended residual jurisdiction where it had rejected jurisdiction under subsection 1581(h), and allowed for a challenge against the International Trade Commission and the U.S. Department of Commerce to proceed under subsection 1581(i). In cases not involving jurisdictional challenges, the Court set a high bar for granting preliminary relief, and continued to deny challenges brought under the Continued Dumping and Subsidy Offset Act.
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Alexander Vanderweide, A Review of the Court of International Trade's 2014 Jurisprudence Arising Under 28 U.S.C.§1581(A)

This Article surveys six decisions issued by the Court of International Trade in 2014. The decisions highlight the court’s refusal to expand its jurisdiction under 28 U.S.C. §1581(a) to include untimely protests, suits, and seized merchandise. The court’s decisions on the merits routinely employed the Explanatory Notes to guide its analysis in ascertaining the proper classification of imported merchandise.
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NOTES

Matthew J. Greer, Redefining Perfidy

Perhaps all war is based on deception, but throughout history, the law of war has limited the use of certain deceptive tactics. Developed long ago with a focus on honor among belligerents, the law of war’s prohibition of perfidy has failed to adapt to modern warfare. Moreover, its lack of focus on external actors, i.e., non-combatants, allows deceptive action even where it plainly contravenes the fundamental principles of the law of war. This Note redefines perfidy using the core aims of the law of war: distinction, proportionality, and military necessity. The hope is that an updated perfidy definition will provide greater guidance to battlefield operators, lessen war’s death and destruction, and ultimately help bring about swift and peaceful ends to armed conflicts.
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Lindsay H. Kennedy, Homeward Bound: The European Union's Freedom of Movement in an Age of Transnational Terrorism

Europe faces a complex problem with foreign fighters returning after traveling to fight in Syria and Iraq. The number of foreign fighters traveling to fight in Syria and Iraq is unprecedented and cause for great concern, especially for interior EU member states whose security is dependent on the border security of the peripheral EU countries. This dependent relationship, and the vulnerabilities it exposes, has shaped the broader question of what the EU, and its member states, can lawfully do to achieve greater security in the age of transnational terrorism. Considering this complex and highly political issue, this Note suggests steps the EU and its member states can take to ensure greater security from the foreign fighter threat. This Note presents policy suggestions the EU may implement to address the foreign fighter threat and security in this age of transnational terrorism, while maintaining its integrity and value of human rights and civil liberties. These solutions include greater information sharing between member states, legislation targeted at terror-related activity, and increased de-radicalization programs within vulnerable communities.
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Michael J. Palermo, Kicking a Habit of Impunity: A Call to Prosecute in the ICC Persons Who Finance Terrorism Through the Drug Trade

Despite recent efforts to combat sources of terrorist financing, the drug trade continues to provide terrorist organizations with the means to finance their operations. International legal instruments currently in force, including the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the International Convention for the Suppression of the Financing of Terrorism, have fallen short in their attempts to curb drug trafficking and terrorist financing. These shortcomings can be attributed in large part to the unwillingness and inability of state authorities to prosecute domestically alleged drug traffickers and terrorist financiers. In light of the problems associated with prosecutions at the domestic level, as well as the seriousness of financing terrorism through the drug trade, prosecutorial solutions should be sought within international institutions. Because the International Criminal Court has jurisdiction over the most serious crimes concerning the international community and can effectively leverage the power of complementarity, persons who provide to terrorists funds raised through the drug trade should be prosecuted in the ICC.
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