Law Commons^™

Expectations As Property: Histories, Contexualizations, Critiques, Freya Irani, Katharina Pistor

Faculty Scholarship

The last four decades have seen an enormous expansion in the number of international investment treaties (particularly bilateral investment treaties) and in investment treaty-based arbitrations and awards. Traditionally made between capital-exporters and capital-importing states (that is, along a North-South axis), such treaties generally assure investors of one signatory state (the "home state") protection on the basis of pre-determined standards in the other signatory state or states (the "host state"). Such treaties also provide for compensation in case of breaches of these standards, and give investors recourse to arbitration in case of disputes. Given these provisions alongside arbitral treaties themselves, in …

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this …

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

Articles

In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior

The Role And Future Of Sovereign Wealth Funds: A Trade And Investment Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Sovereign wealth funds ("SWFs") have been greeted with bothenthusiasm and suspicion. In one respect, they have been called "white knights," where they step in to inject financing to troubledentities.' In others, they have been called "Trojan horses" and"chameleons."

Reply On The Work Of International Law, Monica Hakimi

Articles

"In the Article, I distill and then criticize a prominent view about the role of international law in the global order. The view—what I call the “cooperation thesis”—is that international law serves to foster a particular kind of cooperation, specifically to help the participants achieve their common aims and curb their disputes. Lawyers who subscribe to this view of course appreciate that international law is, like all law, often contentious in operation. But they posit that, unless such conflict is overcome, it detracts from cooperation and evinces the limits of international law. That view is wrong. It incorrectly assumes that …

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

Articles

In this section: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • …

Building Prevention To Protect: The Inter-American Human Rights System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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

Articles

In this section: • Congress Overrides Obama’s Veto to Pass Justice Against Sponsors of Terrorism Act • U.S. Federal Court of Appeals Upholds United Nations’ Immunity in Case Related to Cholera in Haiti • U.S.-Russian Agreements on Syria Break Down as the Syrian Conflict Continues • Russia Suspends Bilateral Agreement with United States on Disposal of Weapons-Grade Plutonium • The United States Makes Payment to Family of Italian Killed in CIA Air Strike • United States Ratifies Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Is There A Right To Be Free From Corruption?, Anita Ramasastry

Articles

Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

All Faculty Scholarship

Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …

Treaty Exit In The United States: Insights From The United Kingdom Or South Africa?, Curtis A. Bradley, Laurence R. Helfer

Faculty Scholarship

This essay, a contribution to an AJIL Unbound symposium on “Treaty Exit at the Interface of Domestic and International Law,” compares treaty exit in the United States, the United Kingdom, and South Africa. After examining the longstanding practice of unilateral presidential withdrawals from treaties in the United States and the refusal to date of U.S. courts to review the constitutionality of that practice, the essay summarizes recent judicial decisions in the United Kingdom and South Africa holding that parliamentary approval was required before these nations could withdraw from treaties committing them, respectively, to the European Union and the International Criminal …

Encountering Settler Colonialism Through Legal Objects: A Painted Drum And Handwritten Treaty From Manitoulin Island, Ruth Buchanan, Jeffery G. Hewitt

Articles & Book Chapters

The eighteenth and nineteenth centuries generated a trove of objects documenting the encounter between the Anishinaabe of the Great Lakes region and the British. Two such objects, a drum painted with Anishinaabe imagery and a treaty, handwritten by a British treaty commissioner, were created in close proximity in both time and location. This paper explores the encounter between the Anishinaabe and the British through a parallel engagement with both drum and treaty; placing them in conversation with each other. We consider the divergent paths taken by these objects by comparing the material, legal and sensory landscapes in which they were …

Showing Them How It's Done: Justice Cromwell's International Law Jurisprudence, Robert Currie

Articles, Book Chapters, & Popular Press

This paper examines the international law judgments authored by Justice Tom Cromwell of the Supreme Court of Canada, focusing on the methodology used in applying treaty law within the Canadian legal context. It concludes that Justice Cromwell's decisions in this area are a model of solid methodology, clarity and attention to fairness to all parties.

Astroturf Activism, Melissa J. Durkee

Scholarly Works

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

How And Why International Law Binds International Organizations, Kristina Daugirdas

Articles

For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs, …

Slides: Indigenous Water Justice In The Columbia River Basin, Barbara Cosens

Indigenous Water Justice Symposium (June 6)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

17 slides

Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The "self-executing" label encompasses four …

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Book Chapters

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for "finding" CIL - that is, for determining that particular norms qualify as ClL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to be CIL …

Land Deal Dilemmas: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This report, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects.

The report considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment law, international human rights law, and investor-state contracts. Understanding the implications of this diverse range of legal obligations is particularly important in …

Land Deals And The Law: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This briefing note, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects. It accompanies a more in depth report on similar issues, entitled "Land Deal Dilemmas: Grievances, Human rights, and Investor Protections."

The briefing note considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment …

The Outsized Costs Of Investor–State Dispute Settlement, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The negotiation of several mega-treaties in 2015, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and other regional agreements, has generated substantial public discussion about the protections and privileges afforded to multinational enterprises through the investor-state dispute settlement (ISDS) mechanism in these treaties. ISDS has increasingly raised concerns among certain governments and civil society groups, particularly as a growing number of ISDS cases involve investors challenging a range of governmental measures taken in good faith and in the public interest, including measures related to environmental protection, public health …

Change Without Consent: How Customary International Law Modifies Treaties, Rebecca Crootof

Law Faculty Publications

In 1903, Panama ceded its sovereign rights over the Panama Canal to the United States in perpetuity. The 1930 London Naval Treaty required submarines to comply with the contemporary law of war, including the prohibition on neutralizing enemy merchant vessels without having first ensured the safety of their passengers and crew. In 1945, the United Nations Charter prohibited its members from threatening or using force against another state, save for two limited exceptions. And, in 1969, Spain and Morocco concluded a permanent fisheries convention, setting the limit of their territorial seas at twelve miles.

Some of these treaties were bilateral …

Full Circle? The Single Tax Principle, Beps, And The New Us Model, Reuven S. Avi-Yonah

Articles

This paper will argue that while there is some innovation in BEPS, it is in fact more of a continuation that a sharp break with the past. Like Alexis de Tocqueville’s French Revolution, BEPS represents both continuity and change. In particular, the single tax principle has formed the theoretical basis of much of the international tax regime from the beginning. And it is in fact this continuity rather than any sharp change that gives the final BEPS package its promise to, as Secretary General Gurria also promised, “put an end to double non-taxation.”

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Faculty Scholarship

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law.

Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael Kirsch

Journal Articles

It is old news that modern technological developments have strained long‐standing international tax policies and principles. Tax treaties have attempted to keep pace by fitting these new developments within the existing framework. This brief article addresses one aspect of technological developments that can directly affect individual taxpayers—the increasing ability to deliver personal services electronically across borders, without the need for the service provider to have a physical presence in the “source” country. In particular, it focuses on recent developments with the U.N. Model, which may allow source‐based taxation of at least some types of services income even in the absence …

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

Articles

In this section: • United States and France Sign Agreement to Compensate Holocaust Victims • United States Conducts Naval Operation Within Twelve Nautical Miles of Spratly Islands in the South China Sea, Prompting Protests from China • United States Pursues Bilateral and Multilateral Initiatives in and Around the Arctic

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

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

The Business Of Treaties, Melissa J. Durkee

Articles

Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state-centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies into …