International Law Commons^™

The Role Of Investor-State Tribunals In Determining The Scope And Content Of The Fair And Equitable Treatment Standard – Legitimate Expectations And Proportionality, Simon Bianchi

LL.M. Essays & Theses

In recent years, the legitimacy of the investor-State dispute settlement (“ISDS”) has been called into question and several initiatives, such as the UNCITRAL Working Group III, are currently looking at various ways to enhance such legitimacy and ensure the sustainability of ISDS. In this respect, certain scholars like Professors Sornarajah and van Harten claim that the interpretative process undertaken by investor-State tribunals has contributed to this legitimacy crisis among others because the application of vague standards, such as fair and equitable treatment (“FET”), involves applying subjective notions of what adjudicators perceive as desirable developments of investment law. By contrast, other …

Cooperation Without Convergence: Border Carbon Adjustment And Heterogeneity Of Climate Actions, Lucas Moreira Jiminez

LL.M. Essays & Theses

Border Carbon Adjustment measures (“BCAs”) were originally conceived to help solve a problem that arises when countries ask firms to internalize the costs of environmental depredation in an open economy. Environmental regulation raises costs to domestic producers who feel and are — both are relevant — disadvantaged vis-à-vis their foreign competitors subject to lower regulatory costs, in ways that impact economic competitiveness but also the effectiveness of the regulation itself, to the extent it is directed at a ‘global commons’ problem such as reducing greenhouse gas (“GHG”) emissions in an attempt to mitigate climate change. However, BCAs create issues of …

Conflicting Fundamental Rights Under The Indian Constitution: Analyzing The Supreme Court’S Doctrinal Gap, Nikhil Pratap

LL.M. Essays & Theses

The Constitution of India recognizes a wide variety of fundamental rights: civil and political, socio-economic, and group rights. A conflict between these rights is a common occurrence. The Supreme Court of India’s method of resolving conflicts has been ad-hoc, nebulous, and vague. The Court rarely locates the conflict at a granular level and, on the rare occasion that it does, the decision lacks comprehensive reasoning. This paper attempts to demonstrate the doctrinal, structural, and reasoning gap in the Court’s jurisprudence. The paper does so by analyzing a subset of cases where the Court has adjudicated on conflicts between the right …

The Role Of Arbitral Tribunals In Determining The Scope Of The Fair And Equitable Treatment Standard, Thomas Ferguson Whip

LL.M. Essays & Theses

Whether or not investor-State dispute settlement (“ISDS”) faces a “legitimacy crisis,” there is a “growing consensus” that it requires reform. The development of the fair and equitable treatment standard (“FET standard”) by arbitral tribunals been a salient factor in fomenting this consensus and is the subject of several reform proposals. A number of scholars, including Professors Sornarajah and Gus van Harten, claim the interpretative process undertaken by tribunals in relation to the FET standard has contributed to ISDS’ legitimacy crisis because it involves applying subjective notions of what adjudicators perceive to be desirable developments of the law. On the other …

Coming Full Circle On Human Rights In The Global Economy: International Economic Law Tools To Realize The Right To Development, Diane A. Desierto

Journal Articles

From the Article

This article argues that the discipline and profession of international economic law has undergone a significant architectural change to focus on human rights law as both the premise and promise of the international economic system. Contrary to prevailing currents that focus on the irrelevance of the global economic system to realize human rights, this article argues that international economic law tools have already been converging within the last decade to authentically realize the Right to Development of individuals, groups, and populations. The Draft Convention on the Right to Development defines the right as the enjoyment, participation, and …

Treaties In The Philippine Constitutional System, Diane A. Desierto

Journal Articles

From the Article Abstract

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal …

Three Countries, One Problem: How The United States, United Kingdom, And France Handle Sexual Assaults In Higher Education, Annia Rochester

Emory International Law Review

Thirty-five percent of women worldwide will face physical or sexual violence. Female students within the United States, United Kingdom, and France are especially vulnerable to sexual assault and harassment due to a lack of protection from their governments. Failing to address the issue of sexual assault in higher education risks disrupting the education of student victims who are disproportionately women. Despite France and the United Kingdom signing the Istanbul Convention and the United States’ implementation of Title IX, these three nations have not done enough to prevent sexual misconduct among university-age students. All three nations have varying campus cultures and …

First Impressions Of The International Tax Provisions Of Bbb: A Reasonable Compromise., Reuven S. Avi-Yonah

Articles

U.S. critics of Pillar 2 of the Organisation for Economic Co-operation and Development (OECD)/Inclusive Framework (IF) Base Erosion and Profit Shifting (BEPS) 2.0 project have focused on the impact of the Undertaxed Profits Rule (UTPR) on tax credits such as the ones included in the Inflation Reduction Act (IRA) and the Creating Helpful Incentives to Produce Semiconductors and Science (CHIPS) Act. In fact, those credits are unlikely to be affected because they are refundable. But this raises a broader question of why the line between qualifying and non-qualifying credits should be drawn at refundability. This article addresses this question and …

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

Articles

International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

Front Matter, Vol. 54 2022

Case Western Reserve Journal of International Law

No abstract provided.

Masthead, Vol. 54 2022

Case Western Reserve Journal of International Law

No abstract provided.

Foreword: The Academy And International Law: A Catalyst For Change And Innovation, Michael P. Scharf, Caroline R. Cirillo

Case Western Reserve Journal of International Law

No abstract provided.

The Arc Of Justice: From Nuremberg To The Fall Of The Berlin Wall?, Mark S. Ellis

Case Western Reserve Journal of International Law

No abstract provided.

Grotian Moments And Statehood, Milena Sterio

Case Western Reserve Journal of International Law

No abstract provided.

Why The Veto Power Is Not Unlimited: A Response To Critiques Of, And Questions About, Existing Legal Limits To The Veto Power In The Face Of Atrocity Crimes, Jennifer Trahan

Case Western Reserve Journal of International Law

No abstract provided.

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Case Western Reserve Journal of International Law

No abstract provided.

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Case Western Reserve Journal of International Law

No abstract provided.

Teaching International Law In Pursuit Of Justice, Beth Van Schaack

Case Western Reserve Journal of International Law

No abstract provided.

Immigration After The Trump Administration: Surgical Fix Or Another Band-Aid?, Aleksandar Cuic

Case Western Reserve Journal of International Law

No abstract provided.

Praxis For Peace, Darin E.W. Johnson

Case Western Reserve Journal of International Law

No abstract provided.

Little Progress In The Sixth Committee On Crimes Against Humanity, Leila Nadya Sadat

Case Western Reserve Journal of International Law

No abstract provided.

Responding To Claims Of Atrocities Against The Rohingya: Behind The Scenes Of The 2018 Rohingya Documentation Project, Andrew C. Mann, Nicole Carle

Case Western Reserve Journal of International Law

No abstract provided.

Privacy Vs. Identity Rights: A Call For The United States To Adopt The United Kingdom’S “Open Id” System For Artificial Reproductive Technology, Rachel L. Emerson

Case Western Reserve Journal of International Law

No abstract provided.

Equity Crowdfunding Economic Growth In African Countries: A Framework, Connor A. Gibbons

Case Western Reserve Journal of International Law

No abstract provided.

Climate Litigation’S Pathways To Corporate Accountability, Mackenzie Kern

Case Western Reserve Journal of International Law

No abstract provided.

Talking Foreign Policy: “Blood & Treasure” September 28, 2021 Broadcast, Michael P. Scharf, Et Al.

Case Western Reserve Journal of International Law

Talking Foreign Policy broadcast from Sept. 28, 2021, "Blood and Treasure," featuring Michael P. Scharf, Sandra Hodgkinson, Darin E.W. Johnson, Gregory P. Noone, and Milena Sterio. Interviews of international lawyers whose real-life experiences may have helped inspire the CBS TV show.

Guilty? Or Just Poor? Potential International Human Rights Violations In The U.S. Bail System, Alireza Nourani-Dargiri

Case Western Reserve Journal of International Law

No abstract provided.