Law Commons^™

China's Bilateral Investment Treaties With African States In Comparative Context, Won Kidane

Faculty Articles

In the last decade, China has made significant investments all over Africa. The principal legal instruments designed to protect Chinese investment in Africa are Bilateral Investment Treaties (BITs). Traditionally, BITs were largely designed to protect Northern investment in the South. This article evaluates their adaptability to South-South relations through a comparative study of China-Africa BITs in light of China’s BITs with the North, principally the recently ratified China-Canada BIT.

China-African Investment Treaties: Old Rules, New Challenges, Won Kidane

Faculty Articles

This paper analyzes the existing China-African BITs and puts forward some suggestions for its improvement. The extraordinary rise in the last decade of Chinese investment in Africa continues to be a subject of profound curiosity. That is largely because it defies the centuries-old norm on who invests where. Traditionally, the bulk of foreign investment had flowed North-South but rarely South-South. Whenever and wherever it occurred, the means of its protection ranged from direct military intervention to a bona fide and equitable legal framework. China had experienced the full range of treatments in its long history of dealings with the West, …

The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane

Faculty Articles

The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment …

Inspection And Seizure Of Seizure Of "Armed And Equipped" Somali Pirates: Lessons From The British And American Anti-Slavery Squadrons (1808-1860), John I. Winn

Seattle University Law Review SUpra

No abstract provided.

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark A. Chinen

Faculty Articles

The article presents information on the Syrophoenician woman with respect to the international law and the international response to global crisis like climatic change. The views of scholars like Bhalakrishna Rajagopal, Amartya Sen and David Boucher are presented on the issue of modern challenges that pose a threat to international justice and international law. Information on the Syrophoenician woman is presented with reference to a passage in the Gospel of Mark.

The Global Food System, Environmental Protection, And Human Rights, Carmen G. Gonzalez

Faculty Articles

The global food system is exceeding ecological limits while failing to meet the nutritional needs of a large segment of the world’s population. While law could play an important role in facilitating the transition to a more just and ecologically sustainable food system, the current legal framework fails to regulate food and agriculture in an integrated manner. The international legal framework governing food and agriculture is fragmented into three self-contained regimes that have historically operated in isolation from one another: international human rights law, international environmental law, and international trade law. International trade law has taken precedence over human rights …

Microinvestment Disputes, Perry Bechky

Faculty Articles

Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word “investment” in the Convention establishing the International Centre for Settlement of Investment Disputes (ICSID), although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field because it shapes the nature, purpose, and volume of ICSID arbitration—and also determines who gets to decide those matters. In particular, Salini’s decision to include “a contribution to development” as an element of its objective definition of …

Lemkin’S Situation: Toward A Rhetorical Understanding Of "Genocide", Perry Bechky

Faculty Articles

Legal debate about genocide revolves around the definition set forth in the 1948 Genocide Convention, but often critically and with prescriptions for amendment. Many other definitions compete in public discourse. Often lost in all the discussion about what genocide does or should mean is the original intent of Raphael Lemkin, the man who coined the word and convinced the United Nations to denounce and outlaw the “odious scourge” of genocide. This Article contributes to genocide discourse by conceiving of Lemkin’s coinage as rhetoric – that is, as part of his strategy to persuade the nations of the world to change …

Global Intellectual Property Governance (Under Construction), Margaret Chon

Faculty Articles

Top down as well as bottom-up models of regulation are shifting to a governance paradigm characterized by the greater interaction among public, private and civil society sectors, as well as potential increased flexibility of law. As applied to intellectual property, particularly in the international context, governance literature is emerging but still episodic. This article examines the World Intellectual Property Organization’s Development Agenda, currently being implemented through its Committee on Development and Intellectual Property. WIPOs efforts to address global development goals with intellectual property can be theorized through the more participatory and dynamic legal mechanisms promised by global governance. Among the …

The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez

Faculty Articles

In May 2010, the Universidad Interamericana in Mexico City hosted an international conference on The Global Politics of Food: Sustainability and Subordination. Sponsored by Latina and Latino Critical Legal Theory, Inc. and by Seattle University School of Law, the conference took place under the auspices of the South-North Exchange on Theory, Culture and Law (SNX), a yearly gathering of scholars in the Americas that seeks to foster transnational, cross-disciplinary and inter-cultural dialogue on current issues in law, theory and culture. Published in the University of Miami Inter-American Law Review, the conference papers examine the complex ways in which the …

Colonial Cartographies, Postcolonial Borders, And Enduring Failures Of International Law: The Unending Wars Along The Afghanistan-Pakistan Frontier, Tayyab Mahmud

Faculty Articles

Many of today's pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

Is It Greek Or Déjà Vu All Over Again?: Neoliberalism And Winners And Losers Of International Debt Crises, Tayyab Mahmud

Faculty Articles

The global financial meltdown and the Great Recession of 2007-2009 have brought into sharp relief the uneven distribution of gain and pain during economic crises. The 2009-2010 debt crisis in Greece resulted in a windfall for financial institutions at the expense of taxpayers, a rollback of welfare systems, and the impoverishment of the working classes. This outcome is consistent with the pattern that has emerged in the international debt crises of the last three decades, including the Latin American crisis during the 1980s and the Asian crisis during the 1990s.

The recurrent international debt crises of the last three decades …

An Emerging Mandate For International Courts: Victim-Centered Remedies And Restorative Justice, Tom M. Antkowiak

Faculty Articles

More than ever, international attention has been directed to the needs of those who have suffered human rights violations. Nevertheless, the chasm between what victims want and what they obtain is still vast. The Inter-American Court of Human Rights, unlike most tribunals, has sought to narrow this gap by ordering remedies that respond to victims’ demands for recognition, restoration, and accountability.

In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately concerned about its institutional integrity, curtails remedies — often delivering only declaratory relief and monetary damages. Since the Inter-American …

Matters Of Preference: Tracing The Line Between Citizens, Democratic States, And International Law, Mark A. Chinen, Lana J. Ellis

Faculty Articles

In this Article, we assess the role the aggregation of citizen preferences into the foreign policy choices of a democratic country might play in the legitimization of international law. After addressing some of the theoretical and empirical issues associated with such an approach, we use an anticipated reaction model developed by Michael Bailey to show that even in large democracies there are mechanisms through which citizen preferences can be and are reflected in the policy choices of their representatives.

Incumbents and candidates for office take policy positions in hopes of maximizing their future election chances. Although policymakers each have their …

An Environmental Justice Critique Of Comparative Advantage: Indigenous Peoples, Trade Policy, And The Mexican Neoliberal Economic Reforms, Carmen G. Gonzalez

Faculty Articles

The free market reforms adopted by Mexico in the wake of the debt crisis of the 1980s and in connection with the North American Free Trade Agreement (NAFTA) have jeopardized the physical and cultural survival of Mexico’s indigenous peoples, increased migration to the United States, threatened biological diversity in Mexico, and imposed additional stress on the environment in the United States. Despite these negative impacts, NAFTA continues to serve as a template for trade agreements in the Americas. Unless this template is fundamentally restructured, future trade agreements may replicate throughout the Western hemisphere many of the economic, ecological and social …

Climate Change, Food Security, And Agrobiodiversity: Toward A Just, Resilient, And Sustainable Food System, Carmen G. Gonzalez

Faculty Articles

The global food system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring at a …

Managing Forced Displacement By Law In Africa: The Role Of The New African Union Idps Convention, Won Kidane

Faculty Articles

This article provides a critical appraisal of the newly adopted African IDPs Convention. In particular, it offers a detailed analysis of the Convention's transformation of the UN Guiding Principles into legally binding rules for the management of the phenomenon of internal displacement in Africa. By definition, internally displaced persons (IDPs) are persons who have not crossed international frontiers and are citizens of the state within which they find themselves. Although their conditions may be similar to refugees, who are necessarily aliens to the host community, their legal status is not analogous. At the most basic level, there is no doctrinal …

Law Of Geography And The Geography Of Law: A Post-Colonial Mapping, Tayyab Mahmud

Faculty Articles

This article examines the relationship between law and geography through the prisms of colonialism and neoliberal Empire. Using two novels set in nineteenth and twenty-first century India, respectively, it evaluates the so-called first law of geography, namely that "everything is related to everything else, but near things are more related than distant things." It argues that the formative and enduring relationship between global systems of domination and modern law has created a geolegal space that has a global dimension. This geolegal space creates norms and subjectivities that are intimately related to spatially distant forces and projects. Emergence and consolidation of …

The Global Food Crisis: Law, Policy And The Elusive Quest For Justice, Carmen G. Gonzalez

Faculty Articles

The food crisis of 2008, the subsequent financial crisis, and the ongoing climate crisis have created new challenges to the attainment of global food security. This essay examines the historic and current practices that have contributed to food insecurity in developing countries, and recommends several steps that the international community might take to promote the fundamental human right to food. The essay begins by outlining the trade and aid policies that laid the foundation for food insecurity in the global South from colonialism until the early twenty-first century. It then examines the impact of the financial crisis and the climate …

The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane

Faculty Articles

The contemporary threat of terrorism that the Western world faces is primarily from so-called “aliens.” As such, the laws that are meant to combat terrorism necessarily involve the regulation of the admission and exclusion of aliens. This type of regulation is traditionally the purview of immigration law. Although the link between national security and immigration is by no means contemporary, the existing level of intersection between antiterrorism laws and immigration is essentially a post- 9/11 phenomenon.

The reason for this phenomenon is that the 9/11 attacks were planned and executed by aliens. Although there has not been a terrorist attack …

Piigs, Itraxx Soyx, Neoliberalism, And Unshackled Finance Capital, Tayyab Mahmud

Faculty Articles

No abstract provided.

The Status Of Private Military Contractors Under International Humanitarian Law, Won Kidane

Faculty Articles

One of the serious problems that the new administration faces is undoubtedly the regulation and use of private military contractors in "the war on terror." The private military industry is largely unregulated at the national level. Its status under international law is also poorly understood. This article assesses the legal status of this industry, characterizes the various functions, demonstrates the difficulty of regulating the industry as a unitary entity, and identifies the appropriate set of international standards that the new administration and Congress as well as the larger international legal community could employ in evaluating regulatory options.

Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez

Faculty Articles

Post-colonial societies endowed with abundant natural resources often under-perform economically when these resources are exploited as economic enclaves lacking significant linkages to other sectors of the economy. The Panama Canal, a symbol of Panamanian identity and a reminder of Panama's lengthy colonial history, has historically functioned as an economic enclave akin to the mineral extraction and industrial agriculture enclaves prevalent throughout the developing world. Based on a case study of the contentious decision to expand the Panama Canal, this article examines the ways in which the colonial legacy distorts the development planning process, and discusses strategies that might be deployed …

Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Tom Antkowiak

Faculty Articles

A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding …

Corporations, Veils, And International Criminal Liability, Ronald Slye

Faculty Articles

This article investigates the issue of corporations and their criminal liability. Specifically, it outlines general arguments surrounding the issue. It provides more of a broad overview, identifying the key arguments that are typically made for applying criminal liability to corporations.

Reinforcing Refugee Protection In The Wake Of The War On Terror, Edwin Odhiambo Abuya

Faculty Articles

This article examines how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) can be used as a practical tool to enhance the protection of persons who have fled their home States in search of asylum in the wake of the global "war on terror." It compares and contrasts provisions of CAT to similar provisions contained in international refugee law. This article contends that, in some respects, the protection provisions of CAT are wider than those found in international refugee law, and, in other respects, narrower than those found in international refugee law. It concludes …

Civil Liability For Violations Of International Humanitarian Law: The Jurisprudence Of The Ethiopia-Eritrea Claims Tribunal In The Hague, Won Kidane

Faculty Articles

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions. In practice, the enforcement of this important provision of international humanitarian law has remained a matter …

Combating Corruption Through International Law In Africa: A Comparative Analysis, Won Kidane, Tom Snider

Faculty Articles

"Little did we suspect," remarked Nelson Mandela, "that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us." Africa is the only continent that has grown poorer over the last three decades. The causes of Africa's existing predicaments are complete; however, there is no argument that deep-rooted corruption is one of the most serious contemporary developmental challenges facing the continent. Mr. Adama Dieng, who the Secretary General of the Organization of African Unity (OAU), the precursor of the African Union (AU), entrusted with …

Past Reflections, Future Insights: African Asylum Law And Policy In Historical Perspective, Edwin Odhiambo Abuya

Faculty Articles

This article argues that an understanding of the evolution of asylum is an essential ingredient in the search for ideas and perspectives to the plight facing forced migrants. Using Kenya as a case study, the paper evaluates the extent to which procedures used to determine claims for asylum, protection outcomes and entitlements met international human rights and refugee law standards. It is contended that limited resources, porous boundaries and the mass movement of asylum seekers have compromised the level of protection offered to those who seek surrogate protection in African states like Kenya. In conclusion, critics in the area of …

Geography And International Law: Towards A Postcolonial Mapping, Tayyab Mahmud

Faculty Articles

Postcolonial theory aims at a critical interrogation of legitimizing knowledge claims put forward by proponents of the resurgent Empire. This article undertakes such an interrogation at the intersection of geography and international law. It aims to demonstrate that both modern geography and modern international law were constituted in, by, and through imperatives of Empire and unavoidably bear traces of their formative origin. The aim is to theorize the spatiality of global relations of domination and resistance under the shadow of international law. The article first identifies the vantage point of this critical engagement, namely postcolonial approach to inquiry. It then …