Digital Commons Network^™

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Vanderbilt Journal of Transnational Law

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

After Action: The U.S. Drone Program's Expansion Of International Law Justification For Use Of Force Against Imminent Threats, Elodie O. Currier

Vanderbilt Law Review

Until the 2000s, the United States' attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. …

The Pivotal Role Of International Human Rights Law In Defeating Cybercrime: Amid A (Un-Backed) Global Treaty On Cybercrime, Professor Fatemah Albader

Vanderbilt Journal of Transnational Law

On May 26, 2021, the General Assembly of the United Nations adopted a resolution approving the drafting of a new global treaty on cybercrime, which commenced in February 2022. The proposed UN agreement on cybercrime regulation has garnered significant criticism among the international community, namely by state delegates, human rights advocates, and nongovernmental organizations. Fears stem from the belief that such a treaty would be used to legitimize abusive practices and undermine fundamental human rights. National cybercrime laws already unduly restrict human rights. However, at a time where the global community has moved toward a digital world, it becomes even …

The Law And Politics Of Ransomware, Asaf Lubin

Vanderbilt Journal of Transnational Law

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between twenty thousand and thirty thousand per day in the United States alone. That is a ransomware attack every eleven seconds, each of which …

Information Operations Under International Law, Tsvetelina Van Benthem, Talita Dias, Duncan B. Hollis

Vanderbilt Journal of Transnational Law

An information operation or activity (IO) can be defined as the deployment of digital resources for cognitive purposes to change or reinforce attitudes or behaviors of the targeted audience in ways that align with the authors' interests. While not a new phenomenon, these operations have become increasingly prominent and pervasive in today's digital age, a trend that the ongoing war in Ukraine and the use of the internet for terrorist purposes tragically demonstrate. Against this backdrop, this Article critically assesses the existing international legal framework applicable to IOs. It makes three overarching claims. First, IOs can cause real and tangible …

Regulating Global Stablecoins: A Model-Law Strategy, Steven L. Schwarcz

Vanderbilt Law Review

Digital currencies have the potential to improve the speed and efficiency of the payment system. The principal challenge is retail: to facilitate day-to-day payments among consumers as an alternative to cash, both domestically and across national borders. Two models of digital currencies are becoming viable: central bank digital currencies and nongovernment-issued currencies that are backed by assets having intrinsic value (stablecoins or, when widely used internationally, global stablecoins). Because they are not government issued, global stablecoins present complex and novel cross-border regulatory challenges, including managing the costs of complying with a multitude of national laws and ensuring international legal enforceability. …

Security Council Resolutions And The Double Function Of Explanation Of Votes, Mark Klamberg

Vanderbilt Journal of Transnational Law

UN Security Council resolutions are not always clear: they sometimes need to be interpreted. Members of the Security Council may make statements in connection with their votes, termed explanation of votes. Explanation of votes may have at least two functions. First, they may contribute to the formation of customary international law. Secondly, they can be used as a means for interpreting Security Council resolutions in relation to a specific situation or dispute. The present Article examines different trajectories of conversations to show how Security Council resolutions and explanation of votes may protect the status quo in some instances and act …

Challenging Some Baseline Assumptions About The Evolution Of International Commissions Of Inquiry, Michael A. Becker

Vanderbilt Journal of Transnational Law

Conventional accounts of the historical development of international commissions of inquiry reflect a progress narrative consisting of three propositions: (1) that recourse to inquiry bodies has increased dramatically in the post-Cold War era, (2) that inquiry bodies have evolved from mechanisms for "pure" fact- finding into quasi-judicial bodies that engage with international law, and (3) that the function of inquiry bodies has shifted from diplomatic dispute settlement to norm enforcement and accountability. Part I explains how this narrative simplifies and distorts the rich history of inquiry bodies in international affairs. Part II shows how the idea of a post-Cold War …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

Artificial Waterways In International Water Law: An American Perspective, Tamar Meshel

Vanderbilt Journal of Transnational Law

Freshwater is a fleeting natural resource that can never be fully harnessed or appropriated by humans. Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than flowing naturally, has been made to so flow by human intervention? Should artificial waterways be subject to the same legal principles that govern the ownership and use of waterways that are naturally occurring?

This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary waterways should …

The Status Of State And Nonstate Actors In Postwar Hostilities: Restoring The Rule Of Law To Us Targeted Killing Operations, Claire Finkelstein

Vanderbilt Journal of Transnational Law

With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived …

"Authoritarian International Law" In Action? Tribal Politics In The Human Rights Council, Yu-Jie Chen

Vanderbilt Journal of Transnational Law

The international human rights regime, a product of post- war liberalism, is increasingly falling under the shadow of authoritarian countries that try to influence the regime in favor of their illiberal agendas. This Article uses the United Nations Human Rights Council (HRC) as a prism to examine the changing dynamics among leading authoritarian and democratic actors as they contend to shape global human rights norms and institutions. This Article argues that China, the most resourceful authoritarian party-state, is engaging in what can be understood as tribal international politics, forming coalitions with authoritarian governments and developing countries that have different state …

Unilateral Cyber Sanctions: Between Questioned Legality And Normative Value, Iryna Bogdanova, Maria Vasquez Callo-Muller

Vanderbilt Journal of Transnational Law

The current legal vacuum regarding binding international norms regulating malicious conduct in cyberspace has paved the way for the emergence of a unilateral tool: cyber sanctions. They have already been introduced by the United States, the European Union, and the United Kingdom. Notwithstanding their obvious importance, their interrelations with international law- especially international economic law-have remained largely unexplored in academic research. This gap is perplexing given the fact that the existing unilateral cyber sanctions have been formulated in such a way as to be prone to misuse. In particular, they bear a significant potential to disrupt economic relations and undermine …

Competing Claims: The Developing Role Of International Law And Unilateral Challenges To Maritime Claims In The South China Sea, Kevin Leddy

Vanderbilt Journal of Transnational Law

Chinese military and economic expansion have led to a commensurate decrease in the ability of neighboring countries to object to excessive maritime claims in the South China Sea. The existing framework of international law under the United Nations Convention on the Law of the Sea provides an anchoring point for coastal states' legal claims to the region, but it does not adequately address the complicated diplomacy challenges created by unilateral military action and unique geographical issues, such as artificial islands. Gradual acquiescence to maritime claims that do not comply with international law results from these conditions. Once these boundaries are …

Intellectual Property As A Determinant Of Health, Ana S. Rutschman

Vanderbilt Journal of Transnational Law

Public health literature has long recognized the existence of determinants of health, a set of socioeconomic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

Pornography-Based Sex Trafficking: A Palermo Protocol Fit For The Internet Age, Hope Watson

Vanderbilt Journal of Transnational Law

The United Nations Palermo Protocol provides an international framework for regulating human trafficking with aims of increasing perpetrator prosecution and victim rehabilitation. Signatory nations implement this resolution through domestic legislation. Discrepancies across these statutes result in dangerous jurisdictional gaps and chaotically varied law enforcement approaches. Though legal scholarship rarely addresses the topic, pornography-based sex trafficking provides a clear example of this trend. The unique digital features of the internet compound these challenges. This Note seeks to close procedural gaps and alleviate policing frustrations through a proprietary examination of the Protocol’s “exploitation” definition and suggests an amendment to the Protocol that …

Something Is Not Always Better Than Nothing: Problematizing Emerging Forms Of Jus Ad Bellum Argument, David Hughes, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Since the adoption of the UN Charter, an unending debate concerning the permissible exceptions to the use of force prohibition has filled the pages of countless law reviews. The resulting legal regime, the jus ad bellum, has become increasingly strained as the international community faces new threats and encounters unforeseen scenarios. The post-war legal architecture is, so the debate goes, either insufficiently enabled to address contemporary challenges or consistently undermined by actors who seek exceptions to the strict limits placed upon state conduct. Debates regarding different instances when force is used exhibit a predictable pattern. Those that wish to limit …

Judging Judicial Appointment Procedures, S. I. Strong

Vanderbilt Journal of Transnational Law

Over the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.

Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic …

Traditional Knowledge In Taiwan: A Call For Greater Participation Of Indigenous Peoples In The Global Intellectual Property Marketplace, James M. Cooper

Vanderbilt Journal of Transnational Law

This Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island's government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the …

Consolidating Space: A Proposal To Establish A Central Forum For The Settlement Of Space-Related Disputes, Matthew J.P. Horton

Vanderbilt Journal of Entertainment & Technology Law

Over sixty years have passed since the Soviet Union launched Sputnik 1 into Earth's orbit. In that time, humanity's presence in space has flourished as technology advanced and new actors entered the scene. Despite this progress, the regime upon which the world relies to resolve space disputes has hardly changed in the fifty years of its existence. As private enterprise floods into the final frontier, how humanity will resolve the inevitable, extraterrestrial disputes is becoming a pressing concern.

The Outer Space Treaty establishes three fundamental principles of space law: (1) space is sovereignless, (2) space exploration and use must be …

The Charming Betsy Canon, American Legal Doctrine, And The Global Rule Of Law, Justin Hughes

Vanderbilt Journal of Transnational Law

In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate."

After exploring the traditional justifications for Charming Betsy, this Article proposes that the canon should be justified, not just by Congressional intent or separation …

Presidential Factfinding, Shalev Roisman

Vanderbilt Law Review

The modern President possesses enormous power. She can use military force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the "national interest," perhaps that it will preserve "regional stability" or protect American lives. To impose …

International Multiple Derivative Actions, King F. Tsang

Vanderbilt Journal of Transnational Law

This Article explores two choice of law issues in international multiple derivative actions: (1) the choice of substantive law that should govern multiple derivative actions and (2) the characterization of different aspects of the multiple derivative actions between substantive and procedural laws. After a comparison of choice of law approaches among various common law jurisdictions, the author advocates that the first choice of law issue--the substantive law to be applied to the action--should be governed by the law with the closest connections to the multiple derivative actions. This is the only practical choice given the complex nature of international multiple …

Climate Change Refugees In The Time Of Sinking Islands, Jane Steffens

Vanderbilt Journal of Transnational Law

While environmental migration is not a new phenomenon, the international community has been slow to react to a wildly increasing number of people displaced by climate-related factors. With the current scenario of sinking islands, rapid urbanization, and drought, the international community seems to be on the precipice of a massive humanitarian catastrophe. Even so, lawmakers appear hesitant to fill in the gaps of existing international law, leaving an entire category of people vulnerable and unprotected against the effects of climate change. Private climate-governance initiatives can achieve large-scale, prompt, and efficient solutions to climate-induced migration. While private governance initiatives lack the …

Financing Cr-Isis: The Efficacy Of Mutual Legal Assistance Treaties In The Context Of Money Laundering And Terror Finance, Michaelene K. Wright

Vanderbilt Journal of Transnational Law

Technological development throughout the past fifty years has created a world in which information can be communicated across the globe in no time at all. International law enforcement tools like mutual legal assistance (MLA), on the other hand, have not changed with nearly the same pace. Unfortunately, criminal activity rarely stops at international borders, necessitating international cooperation for any sort of effective enforcement. As this Note will discuss, the problems attendant in the current mutual legal assistance scheme, such as extensive delay and incompatibility with electronic data, have led to global tension over extraterritorial action and conflict between regulatory bodies. …

Artificial Islands And Territory In International Law, Imogen Saunders, Dr.

Vanderbilt Journal of Transnational Law

Artificially created islands are a contemporary reality, created and used for military and nonmilitary purposes. Analysis of such islands has largely been limited to their status under the United Nations Convention on the Law of the Sea (UNCLOS) regime. Their position under general international law, however, remains unclear. In particular, the question of whether artificial islands can constitute sovereign territory remains unanswered. This Article analyzes the concept of territory in international law in the context of artificial islands, and argues that neither the doctrine of territory nor the strictures of UNCLOS prevent artificial islands from constituting territory capable of sovereign …

Special Issue: The Law Of Armed Conflict, Ben Wahlhaus Major, International Law Department, Hannah Lidicker Editor In Chief

Vanderbilt Journal of Transnational Law

Few areas of international law are as consequential as the Law of Armed Conflict (LOAC). At its very core, it entails an endeavor to regulate death and destruction both for those who participate in a conflict and for those who are simply affected by the conflict.

LOAC is also of continued relevance. The number of armed conflicts around the world does not seem to be on the wane, and thus there is no shortage of situations in which LOAC remains applicable.

Just as the law retains its consequence and relevance, the study of LOAC retains its importance. Old questions warrant …

Introduction To Keynote Address: A Tribute To Yoram Dinstein, Colonel Dr. Eran Shamir-Borer

Vanderbilt Journal of Transnational Law

If one puts in “Control F” and “Search “Dinstein” in the IDF International Law Department’s database of legal opinions, the word will appear almost as often as the word “law.” And when we hear that word “Dinstein” we think firstly not of the person, but of the fundamental texts which guide many of us in our work.

As Such, Professor Yoram Dinstein has joined that small group of people for whom the mention of their names has connotations of a concept or a school more than the person themselves.

Governing Xenophobia, E. Tendayi Achiume

Vanderbilt Journal of Transnational Law

The problem of xenophobia has gained remarkable notoriety of late, and reports from around the world paint a chilling picture of its virulence, especially where refugees and other involuntary migrants are concerned. How should one understand this global picture of xenophobic contestation and its fallout, and specifically, how should one understand international law's relationship to both?

The first contribution of this Article is to introduce an emerging global framework intended by states and other international actors to improve global cooperation to combat the problem of xenophobia. This global anti-xenophobia framework (the Framework) is rooted in international human rights law and …

We're Not In Beersheba Anymore: Discussing Contemporary Challenges In The Law Of Armed Conflict With 120 International Lawyers, Sharon Afek Brigadier General

Vanderbilt Journal of Transnational Law

This first-hand account encapsulates the nature of the Battle of Beersheba. It saw uniformed soldiers fight other uniformed soldiers from an organized and hierarchical military. The battle took place in the open terrain of the desert. There was a clear frontline, entirely separate from the civilian life in the nearby town of Beersheba. The battle, and the wider war of which it was a part, was clearly delineated in its start and end. The Battle of Beersheba enabled the Allied forces to break the Ottoman line and advance northwards, eventually beating out the Ottoman Empire and permanently changing the geopolitical …