A Snapshot of the Status of the UK’s Bilateral Investment Treaties and Related International Arbitration After Brexit

Jose-Ignacio Saldana
Vol. 39 Notes Editor

The exit of the UK from the EU has raised concerns amongst foreign investors amid the uncertainty of the future of the UK’s investment relationships. The UK maintains one of the largest bilateral investment treaty (BIT) networks in the world[1]—the international community is interested in the UK’s position on the possible continuation, modification, suspension, or termination of these treaties. Although the UK has not stated its official position,[2] it is likely that the UK will maintain its current foreign investment relationships with the EU and other non-member states, including international arbitration as the dispute settlement mechanism. Continue reading

Withdrawals from the Rome Statute: Continuing the saga of institutional (il)legitimacy

Francis Tom Temprosa
LLM Candidate & Clyde Alton DeWitt Fellow

The recent series of expressions to withdraw from the Rome Statute, including Burundi’s successful withdrawal,[i] is not surprising to legal scholars who have closely watched events unfolding before the International Criminal Court (ICC).
Prosecutions at the ICC have raised deeper questions about complementarity, and whether the ICC is biased in its selection of situations to investigate and individuals to indict.[ii] Under a neo-colonialist critique of the court, many African leaders and intellectuals have argued that the ICC is a Western imperialist attack especially on Africans.[iii]

Yet, the ICC has operated against a backdrop of non-ratification of signatures to the treaty and looming intentions to withdraw for many years now. In 2002, U.S. President George W. Bush notified UN Secretary-General Kofi Annan that the United States had “no legal obligations arising from its signature” made during Clinton’s time.[iv] Russia, a signatory to the Statute, announced in November 2016 that it will distance itself from its signature after the court criticized it for actions in Crimea. Russia reasoned that the ICC “failed to meet the expectations to become a truly independent, authoritative international tribunal.”[v]

But this recent spate of intentions to withdraw brings concerns about the legitimacy of the court to a whole new level. First, states parties to the treaty, not mere signatories to it, had initiated steps to dissociate from the entire enterprise that is the ICC.

Continue reading

Aggression, from Cyber-Attacks to ISIS: Why International Law Struggles to Adapt

Albi Kocibelli
Vol. 39 Editor In Chief

Ius ad bellum and the notion of aggression have been a ‘yin yang’ for centuries.[1] Nevertheless, international law did not prohibit states from engaging in aggression until the conclusion of the Kellogg-Briand Pact.[2] Even then, the term was not defined.  In the aftermath of World War II, the act of aggression was equated with ‘waging of war’ by the Nuremberg Tribunal.[3] Twelve defendants were convicted of that crime.[4] The trial constitutes the fundamentals of the modern understanding of aggression. The term is used twice in the UN Charter. Paragraph 1 of Article 1 lists as one of the Charter’s purposes “the suppression of acts of aggression or other breaches of the peace.” Article 39 empowers the Security Council to determine which acts constitute aggression. However, aggression is nowhere defined in the Charter. Instead, it imposes a general prohibition on the use of force in Article 2(4)[5] and exceptions under Article 51[6] and Chapter 7.[7]  Continue reading

South Korean and Japanese Diplomatic Crisis over Comfort Women Statue

Andrew Fletcher
Vol. 39 Production Editor

In January 2017, Japan recalled its ambassador to South Korea. This latest setback in the tense relationship between Japan and South Korea centers on a dispute over a statue located in front of the Japanese consulate in Busan. The statue depicts a ‘comfort woman,’ a reference to the thousands of women, many Korean, who were forced into sexual slavery by the Japanese Imperial government to be used by the Japanese military during World War II. This historical issue has created enormous tension between Japan and South Korea. In 2015, South Korea and Japan signed an agreement that was intended to put the issue to rest. When a civic group in Busan erected a ‘comfort women’ statue next to the Japanese consulate in Busan, the Japanese government claimed that South Korea had broken its agreement and violated the Vienna Convention on Diplomatic Relations. Continue reading

Microsoft Wants a Digital Geneva Convention

Salam Sheikh-Khalil
Vol. 39 Contributing Editor

Microsoft just called for a monumental shift in international law—at a conference for coders and cryptographers. Brad Smith, Microsoft’s President and Chief Legal Officer, delivered the keynote address at February’s RSA Conference in San Francisco, urging governments to create a “Digital Geneva Convention”.[1] Continue reading

From Compulsion to Cooperation: The Importance of the Local in a Global World

Lakshmi Gopal
Vol. 39 Managing Online Content Editor

Trends in electoral politics in nations across the world have given political expression to a rhetoric of nationalism that presents itself as a “turn away” from international cooperation.[1] As the global community experiences the resurgence of nationalist and xenophobic rhetoric, public discourse on the future of international law remains increasingly focused on the tension between nationalism and the demands of international cooperation. While the international community bemoans these tragedies of the national commons, as it continues to articulate models for humanity’s shared future, it also important to contextualize these changes in the broader context of global change. Continue reading

Water, Water, Everywhere, and Not a Drop to Drink: Transboundary Freshwater Management and Climate Change

Stephanie Zable
Vol. 39 Articles Editor

Mexico City is sinking.[1] So concludes a New York Times article detailing the implications of climate change for Mexico City. But the article also notes the most severe and immediate consequence of climate change for cities all over the world: the effect on fresh water resources. In many places, climate change will cause longer and more frequent droughts, while increased heat will cause an increase in evaporation of groundwater and a decrease in river-feeding snowpack.[2] Critically, these effects will vary place-to-place, so changes will occur in not only water quantity but also water distribution. The result is that the world is about to see a massive shift in water-wealth and -poverty that will have drastic and potentially devastating effects on freshwater resources around the globe.[3] Continue reading

Trump’s Withdrawal from the Trans-Pacific Partnership: Domestic Boost or Disaster?

Jenny Elkin
Vol.  38 Associate Editor

Upon election to the highest office in the United States, President Donald Trump launched a spree of executive orders. One of these orders was the swift abandonment of the Trans-Pacific Partnership (TPP), a trade deal that his predecessor, Barack Obama, had worked for years to implement.[1] The TPP was a plan to unite twelve nations of the Pacific Rim and the United States, a partnership accounting for forty percent of the world’s GDP, in a pact of free trade.[2] The plan would cut tariffs and decimate other potential obstacles to trade, such as investment restrictions and blocked data transfers.[3] The TPP would have been especially beneficial for the American services industry, including business, finance, and information, a slice of the global economy in which the United States still maintains a semblance of supremacy.[4] The deal would have opened doors for sectors such as finance, software, and legal services by reducing domestic red tape in the partner nations.[5] Continue reading

Climate Change Refugees: Where to Look for Legal Protection

Rebecca Hughes
Volume 38 Associate Editor

The Arctic is having an unusually mild winter.  In February, the region experienced a period of unseasonably warm weather, with the temperature being twenty degrees warmer than the average.[1]  This is the third time this year that dramatically higher than average Arctic temperatures have been recorded. [2]  At the same time, on the opposite end of the globe in Antarctica, sea ice is at the lowest level ever recorded.[3]  The climate is changing, and as it does, it is exacerbating existing vulnerabilities in regions across the globe,[4] having a direct effect on the people who live in areas directly impacted by climate change.  Continue reading

Seeking Reform of the Hague Convention on the Civil Aspects of International Child Abduction

Alejandra Salmeron
Vol. 39 Managing Editor

Family law permeates many major contemporary international issues, yet it is rarely discussed alongside international law. Issues at this cross-section are full of complexities and curious combinations of international law and domestic custody law.[1] Custody disputes under The Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) are a particularly relevant and increasingly prevalent example of this intersection between family law and international law.[2] Cases brought under the Convention bring to light the difficulties that institutions face when applying laws, crafted at the international level with a broad mission to the domestic and local levels.[3] Though helpful in the fight against child abduction, the Convention is not without its limitations. A stronger scholarly movement for review and reform is necessary. Continue reading