Law Commons^™

Oil, Gas, And Rhesus Monkeys: A New Framework For Natural Resources Under The Commercial Activity Exception, Madelaine J. Horn

Cornell International Law Journal

The Foreign Sovereign Immunities Act of 1976 (FSIA) constitutes an exception for sovereign states to the normal jurisdictional rules that govern when parties are subject to suit in US courts. The commercial activity provision is a carveout within that broad exception-it deprives sovereign states of their exceptional immunity when they engage in commercial conduct. Within this framework, courts have used the natural resource rule to circumvent the commercial activity carveout and restore immunity to sovereign states. This Note argues that the rule should be abandoned in favor of a much more limited test, thereby increasing the number of sovereign states …

Can Soft Regulation Prevent Financial Crises?: The Dutch Central Bank's Supervision Of Behavior And Culture, John M. Conley, Cynthia A. Williams, Lodewijk Smeehuijzen, Deborah E. Rupp

Cornell International Law Journal

Financial regulation has traditionally been "hard": national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation-new laws, stricter regulations, and often entirely new regulatory agencies.That pattern goes back at least to the 1929 market crash that precipitated the Great Depression.

But the fact that financial crises still occur is leading many observers to wonder if more hard regulation is the best way to prevent the next one. However elaborate the regulatory …

Dam(N) Displacement: Compensation, Resettlement, And Indigeneity, Stephen R. Munzer

Cornell International Law Journal

Hydroelectric dams produce electricity, provide flood control, and improve agricultural irrigation. But the building and operation of these dams frequently involve forced displacement of local communities. Displacement often has an outsized impact on indigenous persons, who are disproportionately poor, repressed, and politically marginalized. One can limit these adverse effects in various ways: (1) taking seriously the ethics of dam-induced development, (2) rooting out corruption, (3) paying compensation at or near the beginning of dam projects, (4) using land-for-land exchanges, (5) disbursing resettlement funds as needed until displaced persons are firmly established in their new locations, and (6) having entities that …

Out Of The Legal Wilderness: Peacetime Espionage, International Law And The Existence Of Customary Exceptions, Inaki Navarrete Mr, Russell Buchan

Cornell International Law Journal

This Article demonstrates that peacetime espionage does not benefit from permissive customary international law exceptions. The mainstream view contends that, though peacetime espionage may contravene international law, developments in customary international law (CIL) nevertheless undercut State responsibility for such conduct. The gist of this view is that acts of espionage benefit from permissive CIL exceptions because its practice is widespread and accepted within the international society. However, the mainstream literature has rarely-if ever-meaningfully engaged with the practice of espionage in an effort to tease out the objective and subjective elements supportive of customary espionage exceptions. This Article closes this gap …

Vol. 51, No. 4 Table Of Contents

Cornell International Law Journal

No abstract provided.

Lying About God (And Love?) To Get Laid: The Case Study Of Criminalizing Sex Under Religious False Pretense In Hong Kong, Jianlin Chen

Cornell International Law Journal

Section 120 of the Hong Kong Crimes Ordinances— which traces its origin to the U.K. and which is replicated in several other English common law jurisdictions— criminalizes procurement of sexual acts through false representation. Recently, prosecutors used this provision to indict individuals who procured sexual acts on the pretext of performing luck-improving religious rituals. Beyond presenting the first-ever systematic examination of these intriguing fraudulent sex court cases, this Article makes two arguments. First, this Article explains how the strong skepticism, and at times, instinctive rejection by the judges of the purported religious proclamations not only confirm the scholarly concerns over …

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Cornell International Law Journal

This Article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this Article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

A Christian Oasis: The Role Of Christianity And Custom In The Laws Of Ethiopia, Cyril A. Heron

Cornell International Law Journal

Part I of this Note will analyze the history of Ethiopia’s legal system.

Part II of this Note focuses on modern Ethiopia and seeks to scrutinize Ethiopia’s Civil Code, Constitution, and other legislation. Written into the new constitution of Ethiopia is a declaration of secularism, similar to the United States and South Africa. Yet, in a nation that has existed as a Christian state for at least a millennium, it is nigh on impossible for Ethiopia to fully divest itself of its cultural mores with mere constitutional edict. The question is, therefore, what is to be made of traditional beliefs …

Vol. 51, No. 3 Table Of Contents

Cornell International Law Journal

No abstract provided.

Sustainable Finance & China’S Green Credit Reforms: A Test Case For Bank Monitoring Of Environmental Risk, Virginia Harper Ho

Cornell International Law Journal

In the past few years, the focus of international organizations on sustainable finance— the integration of environmental, social, and governance (“ESG”) considerations into global financial systems— has intensified because of its potential to promote financial stability, better risk assessment, and more efficient allocation of capital. The success of these efforts depends in part on whether banks and other financial institutions can manage, price, and monitor environmental risk.

This Article offers new answers to this question from China— one of the most important global test sites for sustainable finance. Corporate governance theory suggests that creditor monitoring can promote managerial accountability and …

The Republic Of Virtue: The Republican Ideal In British And American Property Law, Maxwell M. Garnaat

Cornell International Law Journal

As the estate tax comes under increasing pressure from all sides, it is important that we determine just how rooted in American ideals such a measure truly is. On the one hand, it is true that Lockean theories of private property remain a stalwart influence on the nation, one which may be used to argue against the estate tax. On the other hand, however, the equally venerable theory of republicanism— one adopted and developed by the Framers themselves— can justify its continuation. Applying the principles of republicanism to this specific context, one can see how closely its tenets align with …

“Private” Cybersecurity Standards? Cyberspace Governance, Multistakeholderism, And The (Ir)Relevance Of The Tbt Regime, Shin-Yi Peng

Cornell International Law Journal

We are now living in a hyper-connected world, with a myriad of devices continuously linked to the Internet. Our growing dependence on such devices exposes us to a variety of cybersecurity threats. This ever-increasing connectivity means that vulnerabilities can be introduced at any phase of the software development cycle. Cybersecurity risk management, therefore, is more important than ever to governments at all developmental stages as well as to companies of all sizes and across all sectors. The awareness of cybersecurity threats affects the importance placed on the use of standards and certification as an approach.

Reasoned Verdicts: Oversold?, Kayla A. Burd, Valerie P. Hans

Cornell International Law Journal

Jurors are lay fact-finders, untrained in the complexities of law and legal rules, and yet reasoned verdicts require that their reasons conform precisely to the law. This difficulty is the impetus for additional interaction with the court, as jurors must often call on legal assistance when drafting their verdicts. This necessity undermines the independence and power of jurors and opens the door for external pressures and biases to encroach on jurors’ decisions. When judges overturn jury verdicts that they consider insufficiently reasoned, judges substitute their judgments for those of the jurors. In addition, reasoned verdicts may lead to post hoc …

Interpersonal Human Rights, Hanoch Dagan, Avihay Dorfmann

Cornell International Law Journal

Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden …

‘Rule Of Law’ In China: The Confrontation Of Formal Law With Cultural Norms, Larry A. Dimatteo

Cornell International Law Journal

This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years …

The Charitable Deduction And Looting Of Antiquities: A Comparative Approach, Sabrina Y. Hsieh

Cornell International Law Journal

The tax incentive structure for charitable giving in the United States, as in many other countries, is imperfect. The structure over-incentivizes donations from wealthy individuals, whether those donations are made up of cash or of property. This structure has negative impacts not only domestically, but abroad as well.

By providing an incentive for donations of antiquities to museums— an incentive that was perhaps largely necessitated by the state of American museums in the 19th century— the charitable deduction has not only created a market for antiquities of questionable provenance, but has also created what is potentially a get-out-of-jail free card …

The Limits Of 8 U.S.C. § 1252(G): When Do Courts Have Jurisdiction To Entertain An Alien’S Claim For Damages Against The Government?, Kimberly P. Will

Cornell International Law Journal

The objective of this Note is to identify the scope of § 1252(g). It concurs with previous scholarship, which has stated that, based on legislative intent and controlling precedents, § 1252(g) only applies to instances where the government exercises discretionary authority. That is, when the government violates statutes or its own regulations, courts may entertain the alien’s claim for damages. However, as many courts reject this argument, this Note further suggests that § 1252(g) should be interpreted narrowly so as to allow meritorious plaintiffs the possibility of recovering for the harm they suffered. This Note will also explore the international …

Silent, Spoken, Written, And Enforced: The Role Of Law In The Construction Of The Post-Colonial Queerphobic State, Chan Tov Mcnamarah

Cornell International Law Journal

Debates over the origins of queerphobia in post-colonial African nations are legion. The conversation is dominated by opinions that paint Africans as inherently more violent towards, and less tolerant of sexual minorities than their Western counterparts. Less present in the conversation is the view that colonially-imposed laws have played a significant role in the creation of queerphobic, post-colonial African states. However, as this Note contends, neither perspective fully accounts for regional variations in levels of queerphobia throughout the African continent. In response, this Note presents a model that tracks the role of law in the production of queerphobic sentiment prior …

Women’S Rights In The Dprk: Discrepancies Between International And Domestic Legal Instruments In Promoting Women’S Rights And The Reality Reflected By North Korean Defectors, Jina Yang

Cornell International Law Journal

It is commendable that the DPRK has ratified the CEDAW and has established legislative measures to protect women from violence and guarantee equal protection. However short of internationally accepted human rights standard the DPRK may fall, such actions show that the DPRK is nonetheless trying to be a responsible member of the international community. However, many findings show that women’s rights are far from reaching the international standards, because of patriarchal traditions that are entrenched to the North Korean society and the national institutions related to women’s rights, which are used to mobilize women to work for the state, rather …

E-Hailing And Employment Rights: The Case For An Employment Relationship Between Uber And Its Drivers In South Africa, Isaiah J. Marcano

Cornell International Law Journal

South Africa’s Uber dilemma has forced jurists to answer important questions about the country’s largest black-owned sector: the taxi industry. Since the days of apartheid, taxi drivers have struggled to secure their livelihoods. Lamentably, they have found themselves restricted by a legacy of oppression that, despite significant progress, lingers on. As of late, Uber has exploded onto the transportation market, and labor courts must decide whether Uber drivers fit within a system that never contemplated the emergence of gig economy companies. If future jurists continue to draw inspiration from South Africa’s highly progressive constitution, international agreements, and pro-union culture, it …

North Korean Detention Of U.S. Citizens: International Law Violations And Means For Recourse, Patricia Goedde, Andrew Wolman

Cornell International Law Journal

North Korean detention of U.S. citizens has prompted considerable attention in the U.S. media over the years, especially with the most recent case of Otto Warmbier’s death. Releases have usually been negotiated through diplomatic channels on a humanitarian basis. While detainee treatment is influenced primarily by political considerations, this Article asks what international legal implications arise from these detentions in terms of international law violations and recourse. Specifically, this Article analyzes (1) violations of consular law and international human rights law as applied to the detainees, such as standards for arrest, investigation, trial, and detention, and (2) whether viable legal …

The "Peace Treaty" As A U.S. Doctrinal Option And Its Application To The Dprk: A Historical And Analytic Review, Eric Yong-Joong Lee

Cornell International Law Journal

Wars have made great contributions to the development of the U.S. Because the U.S. has often been victorious, achieving the purpose of their war, most wars ended with a surrender of the enemy or declaration of termination. The Americans concluded peace treaties only when they wanted to fundamentally restructure the regional order after the war or to realize their strategic interest from a broader, longer perspective in some parts of the world. This research is to analyze the peace treaties that the U.S. has signed so far or has mediated upon, searching for the possibility of making a U.S.-DPRK peace …

Foreign Initial Coin Offering Issuers Beware: The Securities And Exchange Commission Is Watching, Julianna Debler

Cornell International Law Journal

No abstract provided.

Labor And Human Rights Conditions Of North Korean Workers Dispatched Overseas: A Look At The Dprk’S Exploitative Practices In Russia, Poland, And Mongolia, Teodora Gyupchanova

Cornell International Law Journal

The Database Center for North Korean Human Rights (NKDB) has so far dedicated over three years to a focused research on the human rights conditions of North Korean laborers overseas. In this amount of time NKDB researchers have only managed to uncover a small fraction of the abuses endured by the North Korean citizens dispatched overseas to earn revenue for the North Korean regime. There is a lot of work that still needs to be done, which should involve investigation of the working and living conditions of North Korean laborers residing in different countries, seeking accountability from the entities, government …

Taking Ihi, R2p And Legitimate Defense Seriously: North Korea As The Primary Consideration, Morse Tan

Cornell International Law Journal

North Korea has the worst human rights crisis in terms of the breadth and extent of its violations, and also presents the most serious security crisis in the world. A trio of doctrines— International Humanitarian Intervention, the Responsibility to Protect, and legitimate defense— provide the foundation for a range of solutions and approaches to resolve this crisis. At the same time, North Korea poses real dangers, the situation is delicate, and the resolutions may prove difficult. Strong determination is necessary to stay the course until the Koreas reunite, ideally in a peaceful manner. The situation has moved rapidly over the …

The Unstoppable Intrusion: The Unique Effect Of Online Harassment And What The United States Can Ascertain From Other Countries' Attempts To Prevent It, Dylan E. Penza

Cornell International Law Journal

The United States must provide some solution to deal with online harassment. Looking at its fellow nations may be a good way to provide a foundation for changes that need to be made

North Korean Illicit Activities And Sanctions: A National Security Dilemma, Bruce E. Bechtol Jr.

Cornell International Law Journal

North Korea is a nation-state that for many years (including the years following the Cold War) has been off of the main radar for American foreign policy. Whether it was because the United States was worried about other issues such as problems in the Balkans in the 1990s, or fighting wars in Iraq and Afghanistan in the new millennium, challenges from the DPRK never seemed to be at the top of the priorities list with American foreign policy makers. This has now changed. It has become obvious to the world that North Korea has an active nuclear weapons program, and …

Consumer Financial Protection And Human Rights, Chrystin Ondersma

Cornell International Law Journal

This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human …

Comity And International Courts And Tribunals, Thomas Schultz, Niccolo Ridi

Cornell International Law Journal

This study seeks to clarify the importance, current and potential, of the use of comity by international courts and tribunals. Our findings support the idea that comity might be an emerging principle of procedural law, though agreement on its exact meaning— or unequivocal choices among its many connotations— still tends to be uncommon. We submit that, as long as other solutions are not in place, the principle can be successfully employed to assist international courts and tribunals in mediating jurisdictional conflicts between themselves by balancing coordination efforts and the demands of justice in the individual cases.

Comity may serve as …

General Theory Of Law And Development, Yong-Shik Lee

Cornell International Law Journal

Although scholarship in law and development that explores the relationship between law and social and economic progress has evolved over the last four decades, this area of inquiry remains unfamiliar to many legal scholars, lawyers, and policy makers. Scholars have not yet been able to develop a theory that systematically explains the interrelationship between law and development, which would establish law and development as a robust and coherent academic field. This Article attempts to fill this gap by presenting a general theory that defines the disciplinary parameters of law and development, and explains the mechanisms by which law impacts development. …