International Law Commons^™

Submission To Opic On Revisions To Its Environmental And Social Policy Statement, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In November 2016, CCSI sent a submission to the Overseas Private Investment Corporation (OPIC) regarding its draft revised Environmental and Social Policy Statement (ESPS). CCSI’s input focused on two discrete issues that CCSI has been working on: (1) contract transparency for natural resource and infrastructure projects, and (2) redress for harms in the context of project abandonment or failure. The submission urged OPIC to add into the ESPS a requirement that Applicants involved in natural resource or infrastructure projects commit to publicly disclosing any investor-state contracts related to the underlying Project. CCSI’s submission also suggested that OPIC incorporate into the …

Theory And Theoretical Approaches To Wto Law, Chios Carmody

Law Publications

This article examines the role of theory in relation to the law of the World Trade Organization (WTO), and more broadly, international economic law. It posits that an absence of agreement about an underlying theory of WTO law can be traced to lack of clarity about what a ‘theory’ is as well as the fact that the current vogue for interdisciplinary approaches to law means that WTO law, in particular, is analyzed through non-normative frameworks that are removed from the law’s legality. The article goes on to examine three theoretic frameworks – textual, political, and economic – that have been …

220+ Law And Economics Professors Sign Letter Opposing Isds In The Tpp, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter joined by over 220 law and economics professors calling on Congress to oppose the final Trans-Pacific Partnership agreement because that treaty includes the investor-state dispute settlement (ISDS) mechanism. As the letter notes, the ISDS mechanism “threatens to dilute constitutional protections, weaken the judicial branch and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances.” Despite the Obama administration’s claims to have addressed growing concerns about the ISDS system, the final TPP would instead vastly expand the ISDS threat to the rule of law and …

The Limits Of Isomorphism: Global Investment Law And The Asean Investment Regime, Sungjoon Cho, Jurgen Kurtz

All Faculty Scholarship

This article probes the unique ontogenetic path of ASEAN’s regulation of foreign investment by juxtaposing global investment law and the ASEAN context. While the former delivers a powerful heuristic on isomorphism that ASEAN exhibits in its strong reflection of global investment norms, the latter sheds critical light on ideological and analytical blind spots by exploring distinct heterogeneities in ASEAN’s investment regulation. Those heterogeneities are not simply outliers but reflect important historical and cultural values inherent to ASEAN and its members. The insights uncovered in this article invite scholars and policymakers to define a new form of global investment law that …

Space For Local Content Policies And Strategies, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper explores both the role that local content measures can play in advancing sustainable development, and the impact that trade and investment treaties concluded over the past 20 years have had and will continue to have on the ability of governments to employ those tools. Certain local content measures had been restricted under the WTO due to wide agreement by negotiating parties that their costs outweigh their benefits. But the WTO also left a number of local content measures in governments’ policy toolboxes. As is discussed in this paper, however, that is changing, with the range of permissible actions …

A Policy Framework To Approach The Use Of Associated Petroleum Gas, Shay Banerjee, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI developed "A Policy Framework to Approach the Use of Associated Petroleum Gas."

Associated Petroleum Gas (APG) is a form of natural gas that is found associated with petroleum fields. APG is often flared or vented for regulatory, economic or technical reasons. The flaring, however, is problematic from health and environmental perspectives. Moreover, flaring and venting APG wastes a valuable non-renewable resource that could be re-injected into the oil field or used for local and regional electricity generation.

This framework aims at providing guidance for regulators, policymakers, and industry leaders seeking to develop practical approaches to unlock the economic value …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Submission To The Sec On Addressing Land Tenure Risks Through Regulation S-K, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In July 2016, CCSI sent a submission to the Securities and Exchange Commission (SEC) to provide input into how land tenure risks could be addressed through disclosure requirements for public companies. The SEC was seeking input into modernizing business and financial disclosure requirements in Regulation S-K, including whether Regulation S-K should be amended to require disclosure of public policy and sustainability information. CCSI argued that, due to the significant financial risk created by land tenure disputes in countries with weak or transitioning land governance systems, companies should be required to report on land tenure risks. Disclosure should be required for …

Mapping Mining To The Sustainable Development Goals: An Atlas, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, United Nations Development Programme, World Economic Forum

Columbia Center on Sustainable Investment Staff Publications

CCSI has been working with the World Economic Forum, United Nations Development Programme (UNDP), and the UN Sustainable Development Solutions Network (SDSN) to create a shared understanding of how the mining industry can most effectively contribute to the SDGs. The report will help mining companies navigate where their activities – from exploration, through operations and mine closure – can help the world achieve the SDGs. Governments, civil society and other stakeholders can also identify opportunities for shared action and partnership with the industry.

A draft report of Mapping Mining to the Sustainable Development Goals: A Preliminary Atlas was released for …

Employment From Mining And Agricultural Investments: How Much Myth, How Much Reality?, Kaitlin Y. Cordes, Olle Östensson, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Employment creation is often seen as a key benefit of investment in natural resources. However, this benefit sometimes falls short: job estimates may be inflated, governmental policies may fail to maximize employment generation, and, in some cases, investments may lead to net livelihood losses. A more thorough examination of employment tied to mining and agricultural investments is thus useful for assessing whether and how employment from natural resource investments contributes to sustainable economic development – a particularly timely topic as countries consider how they will achieve the Sustainable Development Goals adopted in 2015.

This report aims to clarify the processes …

Resourcecontracts.Org – A Searchable Repository For Publicly Available Mining And Petroleum Contracts, Sophie Thomashausen

Columbia Center on Sustainable Investment Staff Publications

ResourceContracts.org is an online, searchable and user-friendly repository of publicly available mining and petroleum contracts from around the world. It currently includes over 1,000 from 72 countries. In addition to PDF scans of each executed contract, the site includes: the full text of contracts in searchable format; plain language summaries of each contract’s key social, environmental, human rights, fiscal, and operational terms; and tools for searching and comparing contracts. Users can search contracts by country, natural resource, year, by type of contract, company, corporate group, or by annotation category.

Corporate Agricultural Investment And The Right To Food: Addressing Disparate Protections And Promoting Rights-Consistent Outcomes, Kaitlin Y. Cordes, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Over the past decade, the world has witnessed heightened corporate interest in large-scale land-based agricultural investment. While such investments can potentially have positive effects for local communities, they also can have wide-ranging negative impacts on human rights, including through forced displacement and the loss of livelihoods. This Article examines the impact of large-scale corporate agricultural investment on the right to food, as well as on human rights more generally. It considers the protections offered by the investment and human rights legal regimes to both corporations and individuals, including recent international developments relating to transnational corporate accountability and efforts to integrate …

Sustainable Development Goals: How Can The Mining Sector Contribute?, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2015, the heads of 193 United Nations (UN) Member States adopted 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The agenda provides a successor framework to the Millennium Development Goals, which were adopted in 2000, with a view to ending poverty in all forms and dimensions, protecting the planet, and ensuring prosperity for all.

A Silver Lining? Impact Of Commodity Price Fall On Good Governance In Sierra Leone, Herbert M'Cleod, Nicolas Maennling, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

From 2002 to 2013, resource-rich countries in Africa enjoyed the benefits of a commodity boom, using increased revenues to embark on major infrastructure projects in roads, rail, ports, and housing. But when commodity prices fell starting in 2011 (see figure below), public sector revenues took a major hit with private sector companies scaling back operations, delaying investment decisions and suspending unprofitable operations. Especially as the number and size of investments in the sector contracted, Governments felt increased pressure to collect, manage and spend those revenues more efficiently. As a result, the fall in commodity prices and mounting economic pressure actually …

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 …

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 …

Guide To Land Contracts: Agricultural Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts can be complex, with complicated provisions that are difficult to understand. This Guide provides explanations for a range of common provisions, and includes a Glossary of legal and technical terms. It assists non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository.

The Guide was prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment.

Transparency In Land-Based Investment: Key Questions And Next Steps, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry are often shrouded in secrecy. In many cases, they are negotiated without the involvement of affected communities, approved through opaque decision-making procedures, and governed by legal agreements that are difficult both to access and to understand. This systemic lack of transparency impedes accountability and exacerbates ongoing disagreements about the real costs and benefits for investors, host countries, and their citizens.

Jointly authored by CCSI and the Open Contracting Partnership, this briefing note examines why contract disclosure and a contracting process that is open, accessible, and inclusive are important; what such transparency entails; and how …

Recommending Transparency In Land-Based Investment: A Summary Of Relevant Guidelines And Principles, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

An emerging consensus on the need for greater transparency in land-based investment is increasingly evident across various forums. This document consolidates recommendations regarding transparency featured in guidelines and principles published by international organizations, government agencies, and multilateral or multi-stakeholder groups. Viewed together, these recommendations offer insight on the evolving narrative on transparency in land-based investment, assist stakeholders in addressing the issue of transparency, and provide an informed starting point for further analysis.

Periodic Review In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating …

Emerging Practices In Community Development Agreements, Jennifer Loutit, Jacqueline Mandelbaum, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should …

Emerging Practices In Community Development Agreements, Jennifer Loutit, Jacqueline Mandelbaum, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

A Community Development Agreement or CDA can be a vital mechanism for ensuring that local communities benefit from large-scale investment projects, such as mines or forestry concessions. In formalizing agreements between an investor and a project-affected community, CDAs set out how the benefits of an investment project will be shared with local communities. In some countries CDAs are required by domestic legislation; in others, they are entered into voluntarily. The most effective CDAs are also adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which …

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 …

Journal Of International And Comparative Law, Journal Of International And Comparative Law

ILSA Journal of International & Comparative Law

Annually, the American Branch of the International Law Association and the International Law Students Association (ILSA) pair up to present the International Law Weekend (ILW) conference at Fordham University School of Law, in New York City.

A Case Study: Law And Emotions Within The Kingdom Of The Netherlands, Nanneke Quik-Schuijt, Irene Broekhuijse

University of Baltimore Journal of International Law

Whether you are a Christian or not, you cannot deny the truth of the proverb “[a] brother offended is more unyielding than a strong city, and quarrelling is like the bars of a castle,”1 especially when you study the constitutional relationship between the Netherlands and its former colonies Aruba, Curacao, and St. Maarten.

The Netherlands, Aruba, Curacao and St. Maarten are four countries that together constitute the Kingdom of the Netherlands.2 These countries feel so wronged by one another that emotions often take over. In July 2014, for instance, the Prime Minister of Aruba desperately went on a hunger strike …

A Future For A Forgotten Predator: Assessment Of The Global And Regional Legal Frameworks For Protection And Recovery Of The Caribbean Sawfishes Pristis Pristis And Pristis Pectinata And Recommendations For The Course Forward, Olga Koubrak

LLM Theses

Two species of sawfish, Pristis pristis and Pristis pectinata, used to be common in the coastal waters of the Caribbean Region. However, due to direct and incidental fishing pressures, national and international trade in body parts, and habitat loss, the populations of these ecologically and culturally significant species have drastically declined. This thesis identifies and reviews global and regional, binding and non-binding legal instruments in effect in the Caribbean Region that encourage states to protect biodiversity in general or address identified threats to sawfishes specifically. Despite the presence of obligations that call upon states to adopt sawfish conservation and habitat …

From Rio To Paris: What Is Left Of The 1992 Declaration On Environment And Development, Francesca Francioni

Intercultural Human Rights Law Review

This paper has a dubitative title. And this is for a good reason. It is meant to introduce the critical perspective in which I propose to assess the legacy of the 1992 Rio Declaration after almost a quarter of a century from its adoption. This retrospective outlook, it is hoped, may help assess the progress, if any, that international law has made in this field, at a time when we are facing the challenge of implementing the 2015 Paris agreement on climate change.

A Comparative Empirical Study Of Negotiation In Criminal Proceedings Between Brazil And The United States Of America, Ricardo Gueiros Bernardes Dias

University of Baltimore Journal of International Law

The present research aims to understand the law in regards to the types of negotiations performed under the law of criminal procedure and to understand how the discursive practice of lawyers can organize social practices from a comparative empirical perspective of Brazil and the United States of America. Thus, the research comparatively investigates the institutional processes for the establishment of truth before the bodies of the judicial branch in Brazil (metropolitan region of Vitória, ES-Brazil) and in the U.S. (California, San Francisco) and focuses on their differences in their criminal negotiation in the special criminal courts and the institution of …

An Assessment Of Recent Trade Law Developments From An Animal Law Perspective: Trade Law As The Sheep In Wolf's Clothing?, Charlotte Blattner

Animal Law Review

Further development within the field of animal law seems to be at an impasse, lost among the potential paths presented by its traditional influences: international treaty law, domestic animal welfare regulations, and trade law. First, classical elements of global animal treaty law are limited to preservationist aspirations, insusceptible to the questions of how animals are treated or how they cope with their environment. Second, animal welfare regulation is understood as a matter confined to national territories. In cross-border dialogue, animal matters have been reduced to allegations of imperialism, which is not conducive to furthering animal interests. Third, animals are regarded …

International Investment Law And The Extractive Industries Sector, Lise Johnson, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Since the 1990s, international investment law has been rapidly evolving, resulting in a complex web of over 3,000 investment treaties. These treaties have been used to challenge a wide range of host state actions and inactions that have allegedly negatively affected foreign investors or investments. Those challenges, in turn, expose host states to potentially significant financial costs, and can restrict the ability of such states to maximize the benefits, and limit the environmental and social harms, that can result from the exploitation of natural resources. This briefing note provides an introduction to international investment law, with a view to assisting …