Harvard International Law Journal

Published by Harvard University, Harvard Law School
This article argues that the WTO’s ambiguous non-violation provisions, which allow a Member to bring a nullification or impairment proceeding against another Member despite the lack of any explicit breach, are a relic of the formation of the GATT, and that their incorporation into the WTO’s dispute settlement mechanism represents an anachronistic and potentially problematic over-expansion of the WTO’s jurisdiction. The inherent ambiguity and resultant over-expansion of jurisdiction stemming directly from the non-violation provisions may very well result in an over-burdening of the dispute settlement mechanism’s panels or Appellate Bodies, as well as the proliferation of harmful cases where Members have yet to establish substantive norms upon which panels can decide cases. To remedy the situation, the WTO should focus on 'violationizing' issues that could be adjudicated under the non-violation provisions. That is, a panel should transform non-violation issues into violation cases.
Abstract: This article examines the response of Europe’s courts – and in particular of the EU’s Court of Justice (ECJ) - to the dramatic challenges recently brought before them against the UN Security Council’s anti-terrorist sanctions regime. The ECJ in Kadi annulled the EC’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Although Kadi is a remarkable judgment in many ways and has been warmly greeted by most observers, I argue that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. Resonating in certain striking ways with the language of the US Supreme Court in the Medellin case, the approach of the ECJ in Kadi carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Security Council resolutions. More importantly, the ECJ’s approach risks undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.
This article resolves a long-standing controversy about the definition of “investment” in the core provisions of international investment law's keystone treaty, the ICSID Convention. Commentators and tribunals have often acted as though the Convention, by omitting any specific definition of “investment,” delegated that question to arbitral tribunals for case-by-case lawmaking. This assumption has spun off increasingly complex (and incoherent) doctrinal frameworks for separating valid investments from invalid ones. The enclosed article demonstrates that this effort to impose order from above is completely mistaken. The historical record shows instead that modern investment law was structured to guarantee that states could extend ICSID protection to any form of economic activity they deemed useful. This was the crucial element of a historic compromise that settled a raging dispute about the very identity of the regime. That compromise has since been forgotten and is recovered for the first time in this article. The resulting test requires near-total deference to state choices about how to define “investment” in contracts, investment laws, and international agreements: if an activity or asset is plausibly economic in nature, it qualifies as an investment that is subject to ICSID's grand bargain. The article goes on to explain that both the Vienna Convention on the Law of Treaties and customary international law require tribunals to adopt this understanding of the term. Far better than any of the competing definitions of "investment," the actual historical understanding coheres beautifully with the object and purpose of the Convention and aligns with considered state practice on these questions.
In response to reports of frequent criminal misconduct, aggressive behavior, and human rights abuses committed with impunity by private contractors in Iraq and Afghanistan, some have argued that private military and security companies (¿PMSCs¿) are no more than modern mercenaries, and that they should therefore be banned under the standing international prohibition on mercenarism. However, the existing instruments prohibiting mercenarism would be difficult to apply to most PMSCs, making it easy for states that want to continue to use these companies to evade such a ban. In contrast, given market forces pushing PMSCs to be more compliant and emerging state practices that favor regulation, coordinated international regulation of PMSCs might feasibly be enforced. This article proposes that many of the issues with private military and security companies could be addressed by creating an international humanitarian law (¿IHL¿) principle that recognizes state use of PMSCs as a means of warfare. The availability of advanced, independent security and military capabilities-for-hire enables states or nonstate actors to get around political or resource constraints that otherwise might limit the use of force, and may undermine IHL enforcement. These threats might be addressed if IHL established a stronger state responsibility link between states and the PMSCs they hire. International humanitarian law should provide that states who outsource government security or military functions in support of any combat or humanitarian operations that would otherwise trigger IHL must establish internal oversight, accountability, and liability mechanisms to ensure that these actors comply with international and domestic legal norms and regulations.
After Sosa v. Alvarez-Machain, lawsuits against corporations under the Alien Tort Statute (ATS) have become the focus of human rights litigation. One of the most important legal issues in this area is how corporate aiding and abetting liability operates in lawsuits alleging violations of customary international law. Federal courts and legal commentators are split over whether federal common law can and should define the relevant standard for aiding and abetting liability. When recently confronted with the issue, the Supreme Court failed to muster a quorum. In the academic debate, Professor Steinhardt argues for the Modern position that federal common law is the appropriate source for secondary liability standards under the ATS. On the other side, Professors Bradley, Goldsmith, and Moore argue for the Revisionist position that established federal common law principles bar the creation of a corporate aiding and abetting liability. This Article evaluates the Revisionists� principles of federal common law. The Article argues that instead of barring the creation of corporate aiding and abetting liability, the Revisionists� limitations actually enable and encourage the creation and application of federal common law for ancillary issues, such as secondary liability, under the ATS.
The international debate over how to balance access to medicines with the intellectual property protection demanded by their developers divides the economically developed countries from the developing countries. Economically developed countries have pushed for an interpretation of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) that would confer on large pharmaceutical companies price-inflating monopolies over drugs that are neither patented nor patentable, through guarantees of exclusive rights to clinical testing data necessary to obtain marketing approval. The purpose of data exclusivity is to ensure that the initial registrant of a new drug can recover the considerable costs of testing the drug for efficacy and safety. Many developing countries see little point in granting exclusive marketing privileges to wealthy foreign drug companies so that they may sell much-needed drugs at a premium price to an impecunious population. Allowing later registrants to free ride on the data submitted by the drug's initial registrant prevents wasteful repetition of testing and facilitates rapid development of competition in drug markets. The Article analyzes the contentions of both sides of the debate and proposes a resolution that strikes the right balance between maximizing drug developers' incentives to obtain new drug marketing approvals in developing countries and fostering free and fair competition in drug markets. The time has come to propose an alternative approach that is consistent with the requirements of the TRIPs Agreement and satisfies the reasonable policy needs of both the pharmaceutical industry and developing countries.
This article examines 223 recent defamation cases in China. Empirical analysis of claims and outcomes reveals that defamation litigation is developing on two tracks. Track-one cases are brought by public officials, government and Communist Party entities, and corporations to restrict and silence the increasingly autonomous Chinese media. Track-two cases are brought by ordinary persons against the media - which remain an arm of the Party-state. Conventional wisdom takes track-one suits as the paradigm and perceives defamation litigation in Chinese courts as yet another lever of state control over the media. Such developments correspond to the use of defamation law in other contemporary single-party states, and to the use of defamation litigation to preserve state authority in western legal history. Yet by ignoring track-two cases, this popular view shortchanges the extent to which defamation litigation also facilitates ordinary persons challenging state authority. The conventional wisdom also overlooks the degree to which defamation litigation reflects growing use of the formal legal system by local authorities to resist central Party-state control. The empirical findings in this article suggest that use of defamation litigation by track-one plaintiffs for repressive purposes is encouraging ordinary persons to use such cases to protect their own interests, and courts to become increasingly important arbiters of individual rights. Instrumental use of the courts by local elites is legitimizing the role of courts in Chinese society. Defamation litigation serves to intimidate and restrain the Chinese media, but such cases may also increase official accountability. Defamation litigation in China does not fit easily into western frameworks. Understanding the roles defamation litigation is playing in China thus adds significant insight into the nature of legal innovation and institutional development, both in China and in other developing legal systems.
When United Nations peacekeepers violate human rights, they do immeasurable damage to their victims, their missions, and themselves. Reparation for these wrongs is essential for both rebuilding the trust that is needed for effective peacekeeping and affirming the human dignity of those who suffer the abuse. However, because of the unique status of peacekeepers as both troops in their respective national services and members of an international U.N. force, the question of which entity is liable for reparation is particularly complicated. This Article provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of U.N. peacekeepers and advances a new interpretation of how the “effective control” standard of liability attribution should be applied in this context. Specifically, this Article finds that both the United Nations and troop-contributing states are subject to human rights law under certain circumstances. It also finds that both the United Nations and the troop-contributors are subject to the fundamental duty to remedy human rights violations for which they are responsible. The key question is how to determine, for a given situation, which international person is responsible for the human rights abuses of peacekeepers. Effective control is the correct governing principle. However, rather than “overall operational control” as advocated by a number of jurists and as applied in some courts, effective control must be understood to mean “control most likely to be effective in preventing the wrong in question.” Applying this revised principle to the peacekeeping context, this Article proposes a five-category framework through which to assess the appropriate locus of responsibility for peacekeepers’ human rights violations. Emphasizing the importance of considering the full complexity of the command and control relationships between states, the United Nations and peacekeepers, this framework significantly expands the liability of troop-contributing states from what remains de facto immunity under existing interpretations in the vast majority of situations. Finally, by implementing joint and several liability wherever feasible within the confines of effective control, the proposed framework seeks to maximize the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible.
The critical issue examined in this Article is whether a group of monitors explicitly created to hold governments to account, can themselves be subjected to a strong accountability regime controlled by those same governments, without thereby destroying the independence that is considered to be the system’s hallmark. In 2007, a group of powerful governments pushed through a Code of Conduct to regulate the activities of Special Rapporteurs - the UN’s main system of human rights monitoring by independent experts. The same group has now proposed the establishment of a Legal Committee to enforce compliance with the Code through sanctions. Other governments, the SRs, and civil society groups are highly critical of the way in which the Code has been used so far to stifle the work of the monitors and strongly oppose the creation of any compliance mechanism. The Article notes the powerful pressures which have succeeded in insisting that almost all international actors should be accountable to their principals, and explores the strongest case that can be made for exempting SRs from this general trend. It concludes that existing forms of accountability are weak, and probably inadequate, but that serious concerns about the undermining of the SRs independence are also warranted. It calls for a new approach which recognizes the multifaceted nature of the notions of independence and accountability and ends with a specific proposal for a legal committee designed to strengthen both values and enhance the legitimacy of the system as a whole.
In recent years foreign investors have used a rapidly expanding network of bilateral and multilateral investment treaties to directly sue states before international tribunals for violations of international law. There have now been hundreds of such lawsuits, with tribunals occasionally granting investors massive damage awards. In the process of resolving these disputes, tribunals announce and apply new rules of law. This brave new world of international investment law (IIL) has emerged as one of the most dynamic and controversial areas of international law today. In this Article I argue that the IIL system can be usefully analogized to a domestic-law administrative agency, where significant regulatory power is transferred to expert decision-makers acting on behalf of political principals. Viewing IIL as an agency highlights the IIL system’s major weakness: the lack of sufficient mechanisms of political control by states. Drawing on domestic administrative practice, I suggest reforms designed to enhance control by adapting domestic-law systems of notice-and-comment and the legislative veto. Doing so promises to ensure states an adequate degree of control over IIL outputs.
The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court's first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins to forecast prosecutorial challenges created by alternative formulations. It concludes by identifying the main prosecutorial challenges common to all formulations to see how a case against a political or military leader for the crime of aggression will look.
This article analyzes the Americanization thesis in criminal procedure. According to the strong version of this thesis, the U.S. legal system has become the most influential system in the world and, as a consequence, a substantial number of legal systems may gradually come to resemble or mimic the American one and thus become Americanized. This article cautions against the strong version of the Americanization thesis through an examination of the introduction of American-style plea bargaining in four civil law countries - Argentina, France, Germany and Italy. It shows that even if each of these countries has introduced a form of plea bargaining, there are two main series of reasons that explain why these jurisdictions will probably not be Americanized. First, there are important features of civil law countries' inquisitorial system that may neutralize the Americanization effect of the imported practice. Second, these four civil law jurisdictions have introduced plea bargains that present differences - even substantial differences - not only from the American model but also among themselves. As a consequence of these differences between the Argentine, French, German and Italian plea bargains, the article shows that a paradoxical consequence of the American influence on civil law jurisdictions may be the production of fragmentation and divergence, rather than the Americanization of criminal procedures of the civil law tradition. In order to demonstrate these points, this article redesigns two conceptual frameworks. First, it reconceptualizes the adversarial and inquisitorial systems as theoretical categories. The article shows that these systems should be conceived not only as two different techniques to handle criminal cases, but also as two different procedural cultures and as two different ways to distribute powers and responsibilities between the main actors and institutions of the criminal justice system. Second, the article also challenges the framework of the legal transplant as a way to think of the circulation of legal ideas and institutions between legal systems. It shows that the metaphor of the legal transplant is too rigid to account for the transformations that legal ideas and institutions undergo when they are moved into new legal systems. Instead, the article proposes the metaphor of the legal translation as an alternative heuristic device when analyzing the transfer of legal ideas and institutions between legal systems. The adversarial and inquisitorial systems, understood as two different procedural cultures, can be understood as two different systems of productions of meaning. Thus, the transfer of legal institutions from one system to the other can be understood as translations from one system of meaning to the other.
The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.To provide a cogent answer to domestic implementation questions, courts must analyze domestic constitutional and statutory provisions to determine which government officials have the domestic legal authority and/or duty to implement the treaty. The inquiry necessarily begins with treaty interpretation: courts cannot properly resolve domestic implementation issues without first ascertaining the nature and scope of the international obligation. Having determined the content of the international obligation, though, the treaty interpretation inquiry is complete. The second step of the analysis necessarily moves beyond treaty interpretation to consider domestic laws delineating the powers and duties of various government officials and institutions. This two-step approach provides the best explanation of Marshall’s opinion in Foster. The intent-based doctrine is founded on the mistaken view that self-execution is a single question to be answered by treaty interpretation analysis. In contrast, the two-step approach recognizes that the question whether a treaty is self-executing is actually two very different questions masquerading as a single question. The two-step approach directs courts to address domestic treaty implementation issues by abandoning their quest for a fictitious intent of the treaty makers, and considering a variety of domestic constitutional and statutory provisions that actually address the allocation of domestic authority over treaty implementation.
One of the most contentious issues in the debate over trade liberalization concerns whether, and how, labor rights provisions should be incorporated into free trade agreements (FTAs). The predominant approach to crafting these provisions has been what might be termed a State Action-State Sanctions Model, in which sanctions are threatened if domestic labor law is poor, or inadequately enforced. Yet in light of the fact that developing countries often have highly dysfunctional labor regulatory systems, and in light of the insights provided by recent scholarship on regulatory theory and international governance, such a state-centric focus is misguided. This article therefore argues for a new approach to the design of labor rights provisions in trade agreements called Integrative Linkage (IL). An IL approach simultaneously recognizes the increasingly important role of private regulatory regimes in the enforcement of workers' rights, and at the same time seeks to develop well-functioning, democratically accountable public labor regulation regimes. Using an ILO led labor rights experiment in Cambodia as an instructive case study, the article develops a set of principles and mechanisms that might guide policymakers in crafting specific IL regimes to achieve these goals.
This article highlights the efforts of the administration of U.S. President Bush in deploying international legal rhetoric and process to protect women's rights and its support of international efforts to end sex trafficking. It includes views of Bush on the role of women in societies; United Nation Protocols on sex trafficking signed by the U.S.; diversity of liberals and feminists over issues of trafficking.
Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be recognized and then enforced. Standards on recognition differ widely from state to state, but under current law once plaintiffs have secured a recognition judgment all American courts must enforce it irrespective of their own recognition laws. This rigid system, which exceeds the constitutional requirement of full faith and credit, enables plaintiffs to effectively launder a foreign judgment by getting it recognized in one state and then enforcing it in another state that would have rejected it in the first place.This brand of forum shopping, which I call “judgment arbitrage,” creates a fundamental structural problem that has thus far escaped scholarly attention: it undermines the power of individual American states to determine whether foreign-country judgments are enforced in their territory and against their citizens. It also creates a powerful, if implied, conflict of recognition laws among sister U.S. states that precedes and often determines the outcome of what scholars currently consider the primary conflict, between American and foreign law. Finally, this system impedes the development of state law and weakens practical constraints on the application of foreign nations’ laws in the United States.This Article contends that statutorily liberating states from the current conception of full faith and credit in domestication would sharpen jurisdictional competition, encouraging the development of better law (however defined) and, eventually, greater uniformity in an area where scholars agree uniformity is desirable. It begins by constructing a novel framework for conceptualizing these problems, and addresses them by proposing a federal statute that would allow states to capture the benefits — and require them to internalize the costs — of their own recognition laws. Rather than scrap the current state-law system in favor of a single federal rule, as the American Law Institute and some leading scholars call for, or institute a national regime of centrally-designed uniform state laws, as the National Conference of Commissioners on Uniform State Laws and other commentators urge, the statute proposed in this Article would provide incentives for competition among states for recognition law. The proposal may also suggest ways to manage other sister-state conflicts of law in an age when horizontal conflicts are proliferating.
The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this Article explores the role of development status in arbitration outcomes. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The Article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects�namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances�suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.
This paper studies the different roles, impact, and operation of bilateral treaties and multilateral treaties as structures within the architecture of international law. I observe that the preference for bilateralism or multilateralism in international lawmaking is often determined not by an informed choice but by an instinctive association of political schools or bureaucratic affiliations with different forms of international regulation. This association, however, is not always founded on a just appreciation of the workings of either form in various contexts or of the way in which the two interact with each other. I set out to offer a framework for such an appreciation and assess the workings of multilateral treaties and bilateral treaties along three dimensions: the contribution of the respective instruments to the advancement of an international rule of law; the operation of the regime in terms of its effectiveness, efficiency, and compliance; and the democratic legitimacy of the making of each regime. I demonstrate that ideologies and values that seem to be almost blindly associated with one type of regulation may be actually better served, in some cases, by using the other type. Ultimately, this paper attempts to chart a course for more theoretical and empirical forays into the questions of why states join particular types of treaties and how these different types of treaties, or a combination of them, promote or obstruct the attainment of various goals within the architecture of international law.
Justice Scalia's dissenting opinion in Hartford Fire Insurance Co. v. California called for a "conflict of laws" approach in determining the extraterritorial reach of regulatory statutes like the Sherman Act, which Justice Scalia equated with comparative interest balancing. This article traces the influence of conflicts theory on extraterritoriality and demonstrates that each of the three basic approaches to extraterritoriality -- territorial, effects, and balancing -- is rooted in a different conflicts theory. Borrowing from conflicts terminology, the article further distinguishes between multilateral approaches that attempt to assign legislative jurisdiction exclusively to one state and unilateral approaches that permit concurrent jurisdiction. Finally, the article makes two process-based arguments for a unilateral, effects approach to extraterritoriality (like that adopted by the Hartford majority). First, such an approach corrects for failures in the legislative process that result in underregulation in areas like antitrust. Second, the "conflict" with foreign law created by such an approach promotes negotiation by the political branches, which are better equiped to resolve such conflicts than courts.
The Arrangement on Officially Supported Export Credits (the Arrangement) is an informal, "gentlemen's agreement" among industrialized countries' export credit agencies (ECAs). ECAs are officially supported governmental institutions that provide financing in support of nationals' exports. The Arrangement sets specific, highly technical parameters on the type of financing packages that ECAs may offer to promote national exports, with the goal of eliminating competition among ECAs and thereby "leveling the playing field" for exporters. Although the Arrangement is a non-binding, international agreement, it nonetheless engenders unswerving compliance. This Article unfolds by empirically establishing sustained and pervasive compliance among industrialized ECAs. Having documented compliance, the Article then explores why the Arrangement breeds such compliance, focusing on three categories of compliance factors: state interests, international systemic linkages, and the Arrangement's architecture. While all factors are undoubtedly part of the compliance puzzle, the Arrangement itself - the nitty gritty of its substantive and procedural rules - emerges as the integral piece. The Arrangement is elastic (its soft form permits experimentation and easy revision), pragmatic (its processes redefine compliance in a way that accommodates ECA practice within the Arrangement's rubric), measured (it embraces consensus decision-making without diluting its rules with generalities and platitudes), and dialogic (the camaraderie of the Participants group and the Arrangement's unique processes assure that the Arrangement remains a vibrant and progressive discussion). In short, the Arrangement must be considered at a detailed and technical level to explain documented ECA compliance. By design, this Article is an empirical portrait of compliance that links compliance to the Arrangement's rules, form and history. Yet the example of the Arrangement also touches upon some of the most current, and heated, debates in international compliance theory. Thus, the Article also examines how the Arrangement fits into existing compliance theory, focusing on institutionalism and managerialism, and concludes that neither of these theories is sufficiently robust to explain the Arrangement's entire compliance story. Thus, this Article uses the Arrangement as a vehicle to raise some of the questions that must be asked and answered in contemplation of a newer, more inclusive theory of compliance.
Parties to international art disputes often race to the jurisdiction most likely to apply the law favorable to their position in hopes that other jurisdictions will give res judicata effect to the resulting judgment. Courts use myriad doctrines to try to reduce the risk of competing claims of jurisdiction and incongruent results, but this risk permeates jurisprudence relating to artwork and other chattels.Scholars in the field often argue in favor of universal adoption of specific rules, such as the lex loci rei sitae doctrine, through multilateral treaties. This Article, written on the verge of possible change resulting from discussions at the Hague Conference on Private International Law and the ALI, posits a simple, common sense theory: courts should defer to the forum exercising in rem jurisdiction over an action for ownership of a chattel. The forum with in rem jurisdiction will have the most control over the ultimate disposition of the chattel. This practice would decrease the likelihood of embarrassing jurisdictional power struggles, diplomatic confrontations, and conflicting judgments. This is particularly important where art and cultural antiquities are at issue, as both are a common source of diplomatic tension and emotionally charged litigation.
This article proposes a new, functional explanation of the different roles of non-shareholder groups (particularly labor) in different corporate governance systems. The argument depends on the analysis of a factor that has so far received relatively little attention in corporate governance research: the level of shareholder influence on managerial decision making. Pro-employee laws mitigate holdup problems�opportunism from which shareholders benefit ex post, but which will deter firm-specific investment in human capital ex ante. Since holdup takes place within what is considered legitimate managerial business judgment and all shareholders (both majority and minority) are its financial beneficiaries, the degree of managerial autonomy from shareholders is an important factor. In the United States, proponents of a stakeholder view of corporate law have argued that the insulation that U.S. boards of directors have from shareholders mitigates the risk of holdup of nonshareholder constituencies by shareholders, thus encouraging firm-specific investment such as investment in human capital. However, the large degree of autonomy of U.S. boards is unusual. This autonomy is eliminated, for example, by concentrated ownership, which prevails in Continental Europe. This article therefore suggests that, given their costs, laws aiming at the protection of stakeholders�such as codetermination and restrictive employment laws�may be normatively more desirable in the presence of stronger shareholder influence, particularly under concentrated ownership. The theory is corroborated by the observation that such laws tend to be more strongly developed in corporate governance systems with stronger shareholder influence. The United Kingdom, which has both stronger shareholder influence and stronger employment law than the United States, is classified as an intermediate case.
The odious debt doctrine, which holds that in some cases, successor governments should not be responsible for the debts incurred by previous despotic rule, has limped along in the legal imagination for over a hundred years. Recently, however, legal theorists and practitioners have attempted to define the contours of this controversial concept. This article investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then argues that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of transnational financial obligations and financing arrangements that despots may adopt. Finally, the article posits that if there is, in fact, little distinction, there may be valuable lessons to be learned from the odious debt doctrine for application to other types of transnational financing arrangements, and proposes that a broader ¿odious finance¿ doctrine is the better approach.
Long cherished by liberal political philosophers, today the rule of law is increasingly viewed as a necessary requirement, or even silver bullet, for economic development. The past decade has seen the rise of a veritable industry — multilateral development banks, government development agencies, and nongovernmental aid organizations — committed to promoting the rule of law through legal and judicial reform in developing countries. This Article considers the emergence of a new rule of law orthodoxy within contemporary development theory and, in particular, the World Bank’s development model. It asks how and why the Bank has embraced the rule of law discourse, and offers a brief genealogy of the rule of law within the Bank’s theorizing. It argues that the Bank’s interest in law was primarily a response to the critique and failure of its neoliberal policies and identifies the new discourse’s affinities with the rise of New Institutional Economics and “good governance” in the 1990s. Under the Bank’s view, the law’s value for economic development lies in its ability to provide a stable investment environment and the predictability necessary for markets to operate. The role of law is reduced to the facilitation of utility maximizing exchange and optimal market allocation, a view that informs many of the Bank’s specific law reform projects. More a rhetorical shift than a fundamental break in development theorizing, the Bank’s turn to law actually undergirds many continued neoliberal assumptions and masks a continuation of neoliberalism’s core tenets. The new discourse is attractive precisely because it provides strong ideological support for the neoliberal agenda.
This article attempts to reconcile legal and institutional tensions between regionalism, in the form of regional trading agreements (RTAs), and multilateralism represented by the WTO. It observes that GATT Article XXIV alone cannot fully resolve such tensions and thus calls for a new paradigm to deal with RTAs and their interaction with the GATT/WTO system. A weak mandate from working groups and an impotent dispute settlement mechanism largely incapacitated the old GATT in its attempt to synchronize RTAs’ simultaneously protectionist and trade-generating effects, thereby rendering RTAs to have thrived in this lenient environment up until the creation of the WTO, which developed legal discipline, in both a legislative and jurisprudential context, to strengthen normative effects of Article XXIV. Yet this article further suggests that an entirely new vision is necessary to cope with those RTA-issues left untouched by Article XXIV, namely the unique problem of services (as distinguished from goods) and the operation (as opposed to formation) of RTAs in the WTO system. Premised upon the notion of convergence, the new paradigm proposed in this article focuses on the interdependent interactions between/among diverse trading units, such as RTAs and the WTO, in a pluralistic yet federalistic fashion. Convergence of this type would promote “open regionalism,” the assimilation by some trading units of the important features of others, and the alliance of differing trading units. Emerging from these converging interactions would be a common hermeneutical and institutional terrain necessary to rectify the current deficiencies of Article XXIV through the development of a jus gentium of international trade.
The goal of this article is to tease out factors that have contributed to the nascent regime change in the Nile Basin. The article's most controversial argument is that evolving legal norms have influenced this change; but not through the creation of predictable rules and institutional structures, as IR scholars often posit. Throughout the meandering evolution of the Nile Basin regime, legal norms have been influential and have both hindered and promoted cooperation. Building upon a previous description of "contextual regimes," this article will suggest that the evolving normative framework for shared freshwater has helped to redefine both the identities and interests of key state actors in the Nile Basin, moving them more recently toward more cooperative behavior. The article's approach is framed around the interactional legal theory of Lon Fuller. Fuller understood law not as hierarchical ordering but as an ongoing generative activity, oriented toward the construction of relatively stable patterns of practices and normative expectations. Rules are persuasive and legal systems are seen as legitimate to the extent that they are consistent with this background of practices and expectations. Some of the central insights regarding the role of law in the Nile Basin are gleaned from extending the analysis of constructivists such as Kratochwil, Onuf, Ruggie, and Wendt, into the discipline of international law. Part II of the article briefly reviews the linkages between constructivism and the "interactional theory of international law" that we set out. Part III provides an overview of the hydrological and geographic context of the Nile Basin. Part IV details the social and political context, including the weak legal framework that has fostered the historical evolution of a purely competitive regime of freshwater in the Nile Basin. Part V extends the empirical examination to highlight recent moves toward greater cooperation and canvasses various factors promoting regime change. Part VI connects the empirical investigation of Parts III through V to the theoretical framework of Part II, and posits findings concerning the role of international legal norms in helping to explain significant political change. In so doing, the article assesses the contributions of the historic treaties governing the Nile Basin, of international water law, including the new UN Convention on the Law of Non-Navigational Uses of International Watercourses, and of various informal institutions designed to promote cooperation among Nile riparians.
The concept of nationality traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; today, its international legal functions have expanded. Yet, as in the past, it remains unclear whether and how international law limits the otherwise almost plenary competence of states to confer their nationality by their internal laws in a way entitled to international recognition. After the International Court of Justice�s (�ICJ�) 1955 judgment in Nottebohm, however, lawyers began to express this limit with a kind of doctrinal mantra: a state�s national, to be a bona fide national entitled to recognition as such at the international level, must have a �genuine link� to that state. This Article critiques the genuine link theory and proposes a functional account of nationality, which, it argues, is descriptively more accurate and normatively more appealing. Nottebohm is properly read as a narrow decision in which the ICJ tacitly invoked a general principle of law, viz., abuse of rights, to prevent what it saw as a manipulative effort by the claimant to evade a critical part of the law of war. But whatever the merit of this revisionist reading of Nottebohm, the genuine link theory proves anachronistic today in view of profound changes in the manifold functions that nationality serves in contemporary international law. To illustrate, the Article suggests that the abuse-of-rights principle would also be more appropriate and effective than the genuine link theory to regulate nationality in one contemporary context that has provoked debate recently: investor-state arbitration. But the abuse-of-rights principle is no panacea. An atomized conception of nationality, which has been liberated from the genuine link theory and regulated by its functions, would best serve the policies of contemporary international law in diverse subfields.
Printout. Caption title. "Supervisor: Prof. Nicholas C. Howson." Thesis (LL. M.)--Harvard Law School, 2004. Includes bibliographical references.
Parliamentary democracy is the dominant paradigm in the European Community's democratic deficit debate.
This Article provides the first in-depth analysis of the use of foreign authorities to resolve issues related to domestic statutes, particularly focusing on intellectual property (IP) statutes. The study of IP statutes provides a fertile area of research because of the increased pressures for international protection of IP. The Article criticizes the current approach U.S. courts have taken to using foreign authorities in this area, which can best be described as ad hoc. The Article then sets forth a framework by which U.S. courts can decide, more systematically, when to rely on foreign authorities in IP cases. The Article fills a major gap in the current debate over the use of foreign authorities in domestic cases. Most of the recent contributions on this controversial subject from legal scholars, lawmakers, and Supreme Court justices have been fixated on constitutional law. It is at least as important, however, to ask whether U.S. courts may rely on foreign authorities in resolving claims arising under domestic statutes. This Article aims to answer that question for the field of intellectual property, where citations to foreign authorities are becoming more frequent.
The 1948 Genocide Convention, Article 2(e) declares that the forcible transfer of children from a protected group to another group is an act that amounts to genocide when it is conducted �with intent to destroy� the group, �as such,� at least �in part.� Although listed co-equally with mass killing and forced sterilizations, and despite what appear to be repeated violations, this provision has received little attention. This Article lays out the prima facie elements that must be satisfied to bring a claim of genocidal forcible child transfer. It asserts that a perpetrator�s mixed intents or benevolent motivations toward the individual children involved will not absolve the perpetrator when forcible child transfers amount to genocide. This Article also places Article 2(e) in historical context by considering the factors that led to its inclusion in the Genocide Convention, and contextualizes 2(e) within the emerging international case law on genocide. In addition, by fully developing the arguments around Article 2(e), this Article broadens current conceptions of genocide. In particular, it challenges current doctrine, which limits culpability to purely physical and biological destruction, by exploring the manner in which forcible child transfer has cultural effects that destroy protected groups. Finally, this Article highlights several programs, including the American Indian boarding school program and Australia�s Aboriginal removal programs, and argues that these could be considered genocide.
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Maximo Langer
  • University of California, Los Angeles
Grainne De Burca
  • New York University
Robert Keohane
  • Princeton University
Olivier De Schutter
  • Université Catholique de Louvain - UCLouvain
David Landau
  • Florida State University