Law Commons^™

Reputation And The Responsibility Of International Organizations, Kristina Daugirdas

Articles

The International Law Commission’s Draft Articles on the Responsibility of International Organizations have met a sceptical response from many states, international organizations (IOs), and academics. This article explains why those Articles can nevertheless have significant practical effect. In the course of doing so, this article fills a crucial gap in the IO literature, and provides a theoretical account of why IOs comply with international law. The IO Responsibility Articles may spur IOs and their member states to prevent violations and to address violations promptly if they do occur. The key mechanism for realizing these effects is transnational discourse among both …

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …

The International Law Commission Reinvents Itself?, Kristina Daugirdas

Articles

For most of its history, the International Law Commission has been in the business of producing draft articles. Yet, Sean Murphy’s coverage of the Commission’s sixty-fifth session reveals that the Commission has decisively turned away from this format. As Jacob Katz Cogan’s earlier post observes, the Commission is demonstrating a new-found preference for outputs that are explicitly non-binding and betray no aspiration to form the basis for multilateral treaties. The Commission’s embrace of alternative formats is a promising response to some of the risks and criticisms associated with producing draft articles. But it is also an incomplete response. To ensure …

The Bond Court's Institutional Truce, Monica Hakimi

Articles

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Condemns Russia’s Use of Force in Ukraine and Attempted Annexation of Crimea • In Wake of Espionage Revelations, United States Declines to Reach Comprehensive Intelligence Agreement with Germany • United States Defends United Nations’ Immunity in Haitian Cholera Case • French Bank Pleads Guilty to Criminal Violations of U.S. Sanctions Laws • D.C. Circuit Strikes down Administrative Order Requiring Divestment by Foreign-Owned Corporation • United States Adopts New Land Mine Policy • United States Claims That Russia Has Violated the INF Treaty

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy Meyer

Faculty Scholarship

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism's retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Progress Is Made Implementing U.S.-Russia Framework for Eliminating Syrian Chemical Weapons • United States Advocates for Syrian Peace Conference • United States Extends Deadline for Signing of Bilateral Security Agreement with Afghanistan • China Announces New Air Defense Identification Zone over East China Sea, Prompting U.S. Response • United States and Six Other States Reach Interim Agreement on Iranian Nuclear Program

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

All Faculty Scholarship

This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

All Faculty Scholarship

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied …