Recent Submissions

  • Reimagining the Renewable Energy Transition: The Potential for Mandatory Corporate Due Diligence to Ensure Respect for the Right to Free, Prior, and Informed Consent

    Ewell, Christopher (2022)
    The urgency of the climate crisis demands a rapid transition away from fossil fuels and toward renewable energy. However, renewable energy infrastructure projects and mining for the minerals required for renewable energy systems have resulted in reports of human rights violations and clashes with local communities living on and adjacent to the lands where these projects are taking place. At the crux of several of the clashes with local communities are claims that renewable energy projects and land acquisitions have been initiated without meaningful community participation or respect for indigenous peoples' or local communities' right to free, prior, and informed consent (FPIC) to these projects. Indigenous peoples' - and increasingly also local communities' -right to FPIC for development projects that will affect or take place on their land is solidifying as a norm of international human rights law. Still, the implementation and enforcement of the right to FPIC have faced challenges, as indigenous peoples and local communities often lack the political power to enforce these obligations without governmental backing, particularly when confronting powerful multinational corporate interests or when operating in countries with weak rule of law. Given the inadequacies of existing voluntary corporate commitments to protect human rights, legislative enactments to ensure that companies comply with human rights standards -including respecting the right to FPIC - are necessary. Mandatory corporate human rights due diligence laws, if these laws codify robust FPIC obligations and create stringent enforcement mechanisms, present a unique opportunity to strengthen the right to FPIC for indigenous peoples and, potentially, to extend this right to other local and marginalized communities. This Note analyzes the state of legal jurisprudence on the right to FPIC in renewable energy development and the ways in which the enactment of mandatory corporate human rights due diligence laws could provide a novel mechanism to enforce the right to FPIC in the renewable energy sector. First, this Note reviews the historical development of the right to FPIC in international human rights law. Second, this Note provides a novel comparative analysis of how courts and quasi-judicial decision-making bodies have applied the right to FPIC to the renewable energy sector through four legal case studies. Third, this Note explores the current and proposed implementation and enforcement mechanisms of mandatory corporate human rights due diligence laws and the potential for these mechanisms to strengthen the right to FPIC. Finally, given identified challenges and drawing from best practices in existing and proposed laws, the Note sets out five recommendations for including the right to FPIC in mandatory corporate human rights due diligence laws in the future.
  • (Un)stable BITs

    Jones, Cree; Rao, Weijia (2022)
    Over forty percent of all foreign direct investments (FDI) in 2020, representing $640 billion, flowed between countries with either a bilateral investment treaty (BIT) or a free trade agreement (FTA) containing an investment chapter. Countries' preferences for the protections offered by these agreements have undergone a major change during the last two decades. This change has been fueled in part by the growing incidence of investor-state dispute settlement (ISDS) cases under these treaties, which has exposed countries hosting protected investments to more than $76 billion in damages. Recent and unprecedented shifts in the investment treaty network include mass treaty terminations by India (the fifth-largest recipient of FDI in 2020) and the partial removal of ISDS in the United States-Mexico-Canada Agreement. This Article explores how initial and evolving preferences over BIT provisions of each signatory to a BIT may have influenced terminations and renegotiations in the investment treaty network. One of the primary challenges of studying negotiated instruments like contracts or treaties is that the observed outcome is a convoluted reflection of each country's preferences, filtered through negotiation. A primary contribution of this Article is the method we develop to disentangle each country's preferences for its BITs. We do this by leveraging the entire treaty history of each country to identify consistent drafting patterns. We then use these patterns to infer a set of preferences for each country. This method allows us to measure negotiation input, bargaining position, and evolving preferences for each signatory in the investment treaty network. We find some evidence that a signatory's input at the negotiation stage, evolving bargaining position, and changes in preferences over BIT provisions following treaty ratification have contributed to BIT renegotiations and terminations. Our findings help explain the wide variation among and within countries with respect to BIT outcomes, which existing literature fails to do. The findings suggest that as countries become more sophisticated and update their preferences, we can expect to see more turnover in the investment treaty network. More assistance from developed countries for developing countries will aid the latter in treaty drafting and preference formation and may increase the longevity of investment protections and the overall stability of the investment treaty network.
  • World Tax Policy in the World Tax Polity? An Event History Analysis of OECD/G20 BEPS Inclusive Framework Membership

    Oei, Shu-Yi (2022)
    The last decade has seen the emergence of a new global tax order spearheaded by the OECD and G20 and characterized by increased multilateral consensus and cooperation. This new order appears to reflect the emergence of a new "world tax polity" with shared structures, practices, and norms, all of which have been shaped through the work of the OECD, G20, and other global actors. But what are the pathways by which this new world tax polity has emerged? Using event history regression methods, this Article investigates this question by studying membership in the OECD/G20 BEPS Inclusive Framework, a multilateral tax agreement among 141 member countries that is a centerpiece of the new tax order. Sociological scholarship regarding world polity emergence posits that membership in this Inclusive Framework could have been driven by normative, coercive, or mimetic processes. Of these possibilities, this Article finds that Inclusive Framework membership seems to have proliferated through a combination of normative and coercion-based pathways. Specifically, acculturation through prior involvement in certain OECD tax initiatives and inclusion in contemporaneous European Union tax haven listing processes (a form of naming and shaming) were associated with a significantly higher hazard of membership. By contrast, imitation of other countries did not appear to be a significant pathway. These findings highlight how international organizations and blocs have worked in concert to shape international tax policy and global tax consensus. More broadly, they show how world polity proliferation as a result of international organizations' leadership can be amplified by parallel pressures and processes initiated by other powerful blocs. These findings carry important implications for the substantive content of global tax policy, where such policy is made, and its chances of success.
  • Countering Complexity's Corporate Bias: Tax Simplification as a Strategy to Reduce Profit Shifting in the African Extractive Sector

    Hirschel-Burns, Tim (2022)
    Despite their immense natural resource wealth and their intense need for revenue, African governments collect little revenue from the extractive sector. One significant reason for this revenue shortfall is that multinational corporations operating in the extractive sector use profit shifting strategies to artificially reduce their tax bills. These companies can typically afford large numbers of highly skilled lawyers and accountants. In contrast, African tax authorities are often highly under-resourced and undertrained. This Note argues that legal reforms that simplify tax administration would put African tax authorities and multinational corporations on a more level playing field. Simpler tax rules that rely on easily verifiable standards and reduce administrative burdens would reduce multinational corporations’ ability to exploit complexity to shift profits, in turn providing much-needed tax revenue that could be used for poverty alleviation and economic development.
  • The Reasonable Intelligence Agency

    Lubin, Asaf (2022)
    Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces. But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence errors that resulted in calamitous civilian casualties. In this paper, I look at five such case studies, spanning various historical periods, geographical zones, and belligerent parties. Examining these cases, this Article makes the claim that faults in wartime intelligence production are not inevitable as is often presumed and that it is for a lack of specific regulation within the treatises of international humanitarian law (IHL) that they occur at the rate that they do. Tribunals and military manuals guide us to rely on the “reasonable commander” test in determining the lawfulness of a particular strike. Yet, in the process we overlook the fact that any reasonable commander will turn to her “reasonable intelligence agency”—the contours of this standard are conspicuously under- defined. This paper takes a first step at proposing such a standard, a new duty of care, based on both historical analysis and emerging best practices. In so doing the paper proposes a path forward for addressing the accountability gap that permeates contemporary IHL as it relates to state responsibility for wartime errors and mistakes.
  • The U.N. Convention on the Rights of Persons with Disabilities and the Global South

    Harpur, Paul; Ashley Stein, Michael (2022)
    Despite the many successes of the U.N. Convention on the Rights of People with Disabilities, the treaty has yet to be as influential as it ought to be for eighty percent of the world’s more than one billion disabled people living in the Global South (or, developing world) relative to those living in the Global North (or, developed world). This Article critiques the manner in which the trajectory of the drafting process tilted from Global South priorities and perspectives toward those of Global North States and Disabled Peoples’ Organizations (DPOs). This is illustrated by the pervasively developed world view that prioritized the role of deinstitutionalization over family support when construing the right to independent living in the community, while also evincing an almost total disdain for many developing world considerations, including the rights to clean water, sanitation, and hygiene and the removal of landmines. These power imbalances could have been mitigated, if not rectified, by the Committee on the Rights of Persons with Disabilities (CRPD Committee), the body tasked with monitoring the treaty. The CRPD Committee is required to be geographically representative and inclusive, and is elected and guided by the Conference of States Parties to the CRPD, which itself is comprised by a majority of developing states; consequently, the Committee’s members have been chosen predominately from the Global South. Despite opportunities for responding to concerns relevant to the developing world through Concluding Observations (COs), the CRPD Committee has made only tentative and uneven efforts to advance the rights of persons with disabilities living in the Global South. We therefore propose constructive avenues through which, in fulfilment of its institutional duty, the Committee can and should make the CRPD increasingly responsive to the Global South and thus more truly representative of the vast majority of persons with disabilities worldwide. In addition to honoring its governance mandate, doing so would help mitigate the prevailing bias in human rights discourse and practice favoring the Global North.
  • U.S. Foreign Relations Law from the Outside In

    Scoville, Ryan M. (2022)
    Arguments in the field of U.S. foreign relations law typically proceed from the inside out: Legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, assessments of institutional competency, original meaning, and historical practice thus dominate debates about treaty- making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the legitimate modalities of legal analysis and helps to ensure that the law reflects national values. Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes. This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta- knowledge—domestic knowledge of foreign knowledge—of U.S. foreign relations law. The Article then uses original empirical research to generate meta- knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms.
  • On Teaching International Law

    Higgins, Rosalyn (1983-01-01)
    INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE: THE PUBLIC ORDER OF THE WORLD COMMUNITY. By Myres S. McDougal and W. Michael Reisman. Mineola, New York- Foundation Press, 1981. Pp. lxviii, 1584. $29.00. This monumental collection of cases and materials brings to fruition many years of effort by the authors, assisted at various stages of the project by other colleagues. For those who have been exposed to the culture shock of a policy science course on international law (and survived the experience) and for those who have had the intellectual stimulation of teaching such a course, the publication of this book is an important event. It makes available a radically different approach to the teaching of international law. This difference lies not in its content: a student who has mastered these materials will emerge with an enormous knowledge of substantive international law. The authors have never selected for our instruction materials that are ephemeral or singular, nor do they do so now. The traditionalist will feel neither that vital source materials are missing, nor that undue emphasis is given to materials of no weight. This is not the sort of fashionable textbook that is full of (ill-informed) letters to the New York Times on current problems of international law, but in which the Lotus case and the Vienna Convention on Treaties are inexplicably missing. Rather, the difference between this and other texts is one of approach and structure. By breaking away from the traditional textbook headings, the authors show that the real interrelationship of the different facets of international law is a dynamic rather than a static process. This structural approach demonstrates the importance of contextual analysis, and stresses ways in which international law is directed toward the attainment of certain policy objectives and the promotion of particular values.
  • Foreign Commerce and the Antitrust Laws

    Davidow, Joel (1983-01-01)
    FOREIGN COMMERCE AND THE ANTITRUST LAWS. 3d ed. 2 Vol. Pp. xlviii, 887. By Wilbur Fugate. Boston: Little, Brown, 1982. $100. The present state of international antitrust may well breed cynicism among supporters of free competition and free trade. The new edition of Wilbur Fugate's treatise, like some other recent books on international antitrust, concentrates on tracing the expanding reach of United States antitrust law, the spread of American principles of competition to other nations, and the embodiment of these principles in international codes and declarations. These developments are surprising, in light of the odds against them. But little stressed in such surveys is the evidence that all national laws are heavily influenced by self-interest and mercantilist considerations, and that in most countries competition is honored more in the breach than in the observance, and in a substantial number rejected outright. The recent enactment in England, France, and Australia of laws aimed at counteracting United States antitrust investigations has shown that conflict and hindrance are far more common than cooperation in international antitrust enforcement.
  • Innocent Passage and Transit Passage in the United Nations Convention on the Law of the Sea

    Burke, Karin; DeLeo, Deborah (1983-01-01)
    The seas have always proved an extraordinary resource for the limited number of communities having access to them. Although in modem times the seas have been considered a resource available for the use of all nations and the exclusive property of none, the recent history of the law of the sea continues to reflect conflicts between states seeking unhampered navigation and utilization of resources and other states seeking exclusive control over adjacent seas. The international law of the sea seeks to moderate these competing interests by "establishing and maintaining a public order in the shared use of, and shared competence over, the oceans. '
  • The Public Order of the Geostationary Orbit: Blueprints for the Future

    Wiessner, Siegfried (1983-01-01)
    The use of space has grown exponentially. It is impossible today to conceive of international communications, weather forecasting, or the screening of the riches of the earth without the help of space-based devices. Full-scale industrialization of outer space is under way, and space has become a critical arena for military strategists in the global duel.
  • A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestos

    Brennan, Troyen; Lucas, Laurence (1983-01-01)
    As the United States and other industrialized countries have promulgated standards of safety and health for the workplace since the 1970s, employers have sought methods of minimizing or avoiding the cost of such controls. One method is simply to relocate hazardous production processes in developing nations that do not demand compliance with occupational health standards. This has resulted in the export of occupationally- related diseases to developing countries. The problem warrants the concern of human rights and public health advocates in the United States and other countries from which hazardous industries are exported.
  • The Evolution of the Political Offense Exception in an Age of Modem Political Violence

    Thompson, Duane (1983-01-01)
    The United States is party to ninety-six extradition treaties, each of which specifies that no obligation exists to extradite an individual for an act that constitutes a political offense. Born of the experience of the Enlightenment, this doctrine has become known as the "political offense" exception. The exception allows countries to remain neutral in foreign conflicts, at least to the extent of declining to deliver participants into the hands of their enemies.
  • The Enforcement of Arbitral Awards under Conventions and United States Law

    von Mehren, Robert (1983-01-01)
    The process of arbitration is often chosen by parties to resolve disputes arising in international commerce because it permits them to resolve differences in a neutral setting outside the domestic legal system of any particular country. As neither party to an international commercial agreement wishes to be at a disadvantage if a dispute arises with respect to that agreement, arbitration, whether on an ad hoc basis or through an international arbitration institution such as the Court of Arbitration of the International Chamber of Commerce (ICC), the International Centre for the Settlement of Investment Disputes (ICSID), or the World Arbitration Institute associated with the American Arbitration Association (AAA), offers the opportunity to resolve the controversy in a setting that the parties believe will be fair to both sides. Moreover, arbitration proceedings are often more flexible, less expensive and less time-consuming than ordinary litigation.
  • Contents

  • "Exorbitant Jurisdiction" and the Brussels Convention: Toward a Theory of Restraint

    Halpern, Joseph (1983-01-01)
    A contemporary theory of international jurisdiction must be based on a theory of legitimacy and a theory of restraint. It must establish criteria - embodying both predictable mechanisms of allocation and current state practice - to determine whether a particular national assertion of jurisdiction is acceptable.
  • Human Rights and National Security

    Bozeman, Adda (1982-01-01)
    This paper is informed by the following guidelines from the sponsors of the Lowenstein Symposium: The focus. . . will be the claim advanced by nation-states that threats to their particular security necessitate and justify the curtailment of fundamental freedoms and liberties of the individual person within the national domain. We request that panelists address their remarks specifically to questions such as: What are the contending claims made by state officials and individuals and the attendant circumstances? What are the underlying policy justifications for derogations? What, in such situations, constitutes a violation or deprivation of human rights? What, until now, has been the international community's approach to the analysis and resolution of state security and human rights claims? What ought the appropriate response to the international community be?
  • National Security And Civil Liberties

    Emerson, Thomas (1982-01-01)
    From the beginning of our nation claims of national security have been advanced as grounds for expanding governmental powers or easing restrictions on those powers. Perhaps at no time, other than during active war, have such claims been urged more insistently or on a broader front than they are now. The reasons for this development lie deep in our present political, economic, and social condition. They include the ever-growing complexities faced in the governance of a modem technological nation, the radical nature of the problems that confront us at home, the changes taking place in the world around us, the position of the United States in global affairs, the specter of nuclear warfare, the vulnerability of modern society to terrorist tactics, and many others. Whatever the causes may be, the tension between national security and traditional liberties plainly poses vital questions for our constitutional structure.
  • Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights

    Schreuer, Christoph (1982-01-01)
    Governments commonly assert that there exists a right to derogate from human rights norms to safeguard the public interest during crises. Such assertions reflect an attempt to reconcile individual and aggregate interests. This task becomes especially difficult in situations of public emergency. Crisis or emergency situations usually involve violence and the imminent or actual breakdown of minimum order. In such situations, insistence on special individual interests can have serious detrimental effects on community welfare. The need to accommodate both sets of claims is recognized in international documents dealing with the protection of human rights as well as in national instruments safeguarding basic rights and fundamental freedoms. While it is clear that individual rights are not absolute, the international community must guard against spurious invocations of community interests to excuse violations of human rights. Such invocations are typically made to facilitate the task of power elites in ruling a community or, worse, to further their special interests.
  • A Typology of National Security Policies

    Tapia-Valdes, J.A. (1982-01-01)
    Authors addressing the problem of how to assess properly human rights when derogated in the face of national security claims often point out the difficulty of determining what national security means. This ambiguity presents several problems for those who monitor human rights. Wolfers has observed that when political formulas such as "national interest" or "national security" gain popularity they need to be scrutinized with particular care. They may not mean the same thing to different people. They may not have any precise meaning at all. Thus, while appearing to offer guidance and a basis for broad consensus, such formulas may be permitting everyone to label whatever policy he favors with an attractive and possibly deceptive name.

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