MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


 

Amanda Swenson
Vol. 41 Associate Editor
Investor state dispute settlement (ISDS) is an international legal proceeding whereby individuals and entities that invest in foreign countries can bring suit in international tribunals in order to protect their property interests associated with their foreign investments. The institution has been widely criticized among scholars, civil society organizations and public figures for a wide variety of reasons, not least of which is the institution’s potential for interfering with the legitimate regulatory decisions of states.



In response to some of these criticisms, academics have considered application of the European Court of Human Rights’ (ECtHR) “margin of appreciation” (MoA) doctrine to ISDS decision making,[i] and some ISDS tribunals have begun to adopt the MoA into their decision making. For example, Philip Morris v. Uruguay provides one illustration of the application of the MoA doctrine in the context of ISDS. [ii] However, as Gary Born’s dissent in Uruguay indicates, the appropriateness of that doctrine in the context of arbitration under bilateral and multilateral investment treaties is contested.[iii] While I concur with Born’s contention that the “doctrine [of the MoA] is based upon the specific language of the [European Convention of Human Rights (ECHR)] and its Protocols and… [therefore] is not

Kay Li
Vol. 41 Associate Editor
This is the sixth month of the ongoing series of protests in Hong Kong, and with each passing day they get more and more violent, now involving baton beatings, water cannons, tear gas, petrol bomb attacks, and even gunfire (1)(2).

The protests started in June, when the first protest was triggered by the Hong Kong government’s proposal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which would have allowed for criminal suspects in Hong Kong to be extradited to mainland China under certain circumstances (3). Protesters worried that the Bill would give mainland China greater influence over Hong Kong. (4) The Bill was withdrawn in September, but the protests continued, and developed into a cry for full democracy in Hong Kong. (5)



Many countries have heard Hong Kong’s cry, but one country has taken a particular interest in the event because of its history with China regarding Hong Kong – the United Kingdom. July 1 of this year marks the 22nd anniversary of the handover of the former British colony Hong Kong from Britain to China, an agreement stipulated in the Sino-British Joint Declaration in 1984 (6). Speaking ahead of the

Vijaya Singh
Guest Editor
Every technological innovation is accompanied by the good and the bad.

Henry Rollins

Introduction

Technology has revolutionised the way humans live by continually fulfilling their previously unmet needs. One example of this is the advent of Artificial Intelligence (“AI”), which is capable of performing human functions and even replacing them in the distant future. One such human function that AI has the potential to disrupt is warfare. In the foreseeable future, AI may give birth to unparalleled and innovative lethal autonomous weapons which can be used as an army for the purpose of war or defense.



In recent years, a new AI arms race has begun between technologically advanced nations. For example, America has developed an autonomous defense submarine capable of attacking and collecting data.[1] Meanwhile, Russia has announced the establishment of a new “technopolis” complex called “Era”, specifically dedicated for the development of technology relating to artificial intelligence for defense purposes.[2] With these advances, modern warfare is moving a step closer to resemble the “Transformers” movies.

However, the rise in AI weapons systems raises important questions for International Law. After all, the use of weapons in an armed conflict is guided by the principles of International Humanitarian Law (“IHL”).[3] IHL forbids the

Axelle Vivien
Vol. 41 Associate Editor
For decades, the United States (“US”) was the main – and unique? – driving force behind the worldwide prosecution of corporations and individuals bribing foreign officials. While the American Foreign Corrupt Practices Act (“FCPA”) was originally enacted in an effort to restore confidence in the integrity of the American business system and economy, the US’s unique leadership position in this worldwide fight led some foreign observers to criticize the US for using FCPA enforcement partly as an economic weapon to the detriment of foreign economies.



International law largely helps in solving this problem. Today, the US is not alone in this fight anymore and international law has been instrumental in creating a more neutral framework for the international fight against corruption. International law encourages all countries to use domestic law to aggressively investigate, prosecute, and punish companies and individuals “at home.” It empowers them to do so by setting harmonized anti-corruption standards. The adoption of harmonized standards across home countries undermines the need for far-reaching enforcement actions and ultimately helps avoid the appearance of impropriety. Thus, international institutions – using their standard-setting and pressure powers – help countries solve the problem of extra-territorial enforcement of anti-corruption laws

Elisabeth Brennen
Vol. 41 Associate Editor
In September of this year, Greece announced a new series of measures aimed at dealing with the tens of thousands of refugees living in island camps. In particular, the government stated that it will return 10,000 migrants to Turkey by the end of 2020[1] and that it will redistribute migrants and refugees across 13 regional authorities in the country (superseding the 2016 EU-Turkey deal that prohibited new arrivals from leaving specific Greek islands until their asylum claims were processed)[2]. The government will also bar asylum-seekers from accessing the public health system and is considering turning some island camps into detention centers.[3] These proposed changes are unlawful with respect to refugees, who are entitled to specific rights under the 1951 Convention Relating to the Status of Refugees.[4]



The government’s proposed policy has multiple bases. In part, it is an attempt by the newly elected government to establish themselves in contrast to the prior ruling party, which returned only 1,805 migrants over 4.5 years.[5] Furthermore, it is a reaction to the growing concern that re-escalating tension in Turkey and Syria will prompt a repeat of 2015 migrant flows[6], when more than one million refugees and migrants arrived in Greece.[7]

Jamie Guanciale
Vol. 41 Associate Editor
It is widely known that the fall of the Soviet Union coincided with a wave of nationalist independence movements among former Autonomous Soviet Socialist Republics (“ASSRs”), creating the modern states of Armenia, Moldova, Estonia, Latvia, Lithuania, Georgia, Azerbaijan, Tajikistan, Kyrgyzstan, Belarus, Uzbekistan, Turkmenistan, Ukraine, Kazakhstan, and Russia.[1] The wave of independence movements not only resulted in movements away from Russia, but also in regional independence movements in many of these newly independent states which were supported, or at least endorsed by, Russia, who sought to place its military forces in these regions as arbiters.[2] These ethnic conflicts with roots in the Soviet treatment of nations within their spheres of influence are even called “Stalin’s time bombs.”[3] The Soviet Union’s, and later Russia’s, creation and inflammation of national conflicts serves Russia’s goal to keep former Soviet states from integrating more closely with the West and their institutions, and does so effectively to this day.



Moldova, in particular, has had its development since the fall of the USSR crippled by conflicts seeded by Stalin’s policies regarding the establishment of rigid national boundaries and desire to create loyalty to a unified Soviet Socialist system in Eurasia.[4] This is evidenced by

Max LeValley
Vol. 41 Associate Editor
The People’s Republic of China is exploiting the ambiguity of its international agreements to violate its citizens’ human rights. China ratified the United Nations Convention Against Torture (“the Convention") on October 4, 1988 and is thus subject to its prohibitions.[1] Its official policies toward the Xinjiang autonomous region and its inhabitants—most notably the Muslim-minority Uighurs—have recently garnered widespread condemnation, and arguably violated the Convention.



Human rights groups say China detains Uighurs without due process of law and holds them in specially built “re-education camps”[2]—primarily in Southern Xinjiang—as part of a broader plan to “eliminate Islamic extremism” in the region.[3] Journalists outside China have decried the actions of Chinese authorities in the camps as blatant human rights abuses, and some have even described them as torture.[4] But because of the Convention’s inherent ambiguity, it is unable to provide a clear answer as to whether such actions constitute torture, thus rendering it an ineffective instrument of deterrence for China or any other State willing to follow its lead.



The Current Situation in Xinjiang

The Chinese government has detained over one million Uighurs in re-education camps, according to reports received by the United Nations Human Rights Council. Chinese officials have blocked

Cameron Mullins
Vol. 41 Associate Editor
In 2016, following a contentious political process, a peace agreement ended the half-century-long conflict between the Colombian Government and the Armed Revolutionary Forces of Colombia (FARC), which claimed over 220,000 lives and displaced nearly seven million people.[1] Yet the election of Ivan Duque, a politician who was notably against the peace process—combined with residual resentment against the ex-FARC militants—is slowly starting to chip away at the peace agreement and threatens to reignite the conflict in Colombia.[2]



Throughout these rising tensions, the international community and international organizations have not been particularly vocal in ensuring the successful completion of the peace process.[3] Some groups are trying to encourage organizations such as the EU and the UN to oversee the effective implementation of the peace accords, yet their pleas have not been translated into overt action.[4] The UN general assembly has not identified any actions by the Duque administration as threats to international peace,[5] nor have there been any meaningful statements by the international community against Duque’s continued attacks on the peace process.

This is not to say that the international community has been completely silent. Almost immediately after the successful passage of the peace agreement, the UN established the Verification

Chaila Fraundorfer
 Vol. 41 Associate Editor
The Committee on Foreign Investment in the United States (CFIUS) reviews corporate transactions involving foreign nationals to determine whether they pose a national security threat.[1] One area CFIUS focuses on protecting is critical technologies.[2] If a transaction is deemed dangerous, that is to share critical technologies with foreign nationals, CFIUS will impose sanctions or in some cases, block a transaction from going through entirely.[3]



Since its inception in 1988, CFIUS’s scope has increased exponentially.[4] The most recent expansion was the Foreign Risk Review Modernization Act (FIRRMA), which became effective on November 11, 2018.[5] FIRRMA extended CFIUS’s jurisdiction, created mandatory filing for selected transactions, and allocated twenty million dollars per year to CFIUS.[6] Given the Supreme Court’s deference to agency decisions and the countries’ national security concern, the message seems clear: CFIUS is here to stay.

The question then becomes, is CFIUS even allowed to stay? After evaluating CFIUS regulations and international agreements it seems clear that CFIUS runs the risk of violating the United States’ international technology transfer commitment.

The United States has been an active member of the World Trade Organization (WTO) since 1995.[7] Under the umbrella of the WTO is the General Agreement on Tariffs and Trade

Ellen Aldin
Vol. 41 Associate Editor
Canada has a good argument that the Investor-State Dispute Settlement (ISDS) provisions present in Chapter 11 of the North American Free Trade Agreement (NAFTA) have disproportionately harmed it. As of January 1, 2018, 48 percent of all NAFTA ISDS claims were lodged against Canada, with a tripling in claims lodged against it after 2005.[1] Of the 17 cases concluded where Canada was a respondent, the government lost eight and won nine, leading to a payout of over $219 million in damage awards to investors.[2] This number doesn’t even include the over $95 million Canada had to pay in legal fees to adequately defend itself in NAFTA ISDS tribunals.[3] This number is in stark contrast to its neighbor to the south; though the United States has an economy ten times the size of the Canadian one, it has never lost a NAFTA ISDS claim and has paid $0 in damages in its 11 concluded cases.[4] The U.S. Government maintains that this is due to a transparent regulatory system,[5] while skeptics point to a bias in favor of the United States[6] or Canada’s willingness to pay arbitral awards.[7]



Canada does not universally oppose ISDS; indeed, the country signed onto

Shubhangi Agarwalla
Guest Editor, Legal Assistant to Prof. Dire Tladi at the UN International Law Commission
Traditionally, the UN Climate change regime has been premised on an intergovernmental negotiations paradigm where political actors play the dominant role in the development of norms. In this post, I argue for using international adjudication as a supplementary tool to complement international negotiations. Adjudication, which entails the participation of impartial, third-party decision makers, might help us overcome blind spots of negotiations by redistributing argumentative burdens and providing an expressive function to change norms.  However, international adjudication is unlikely to solve all challenges in the climate change regime there are certain obstacles to a successful action since it is difficult to demonstrate a causal link between specific tangible harms with actions of a state. Moreover, international adjudication lacks compulsory jurisdiction and enforcement authority. Finally, states are likely to feel a stronger sense of responsibility to norms that they have agreed to as opposed to norms imposed on them from outside.



For the purpose of this post, I make two assumptions: First that climate change is a real and pressing challenge.[1] Second, countries of the Global South deserve compensation for damages caused by climate change since they have contributed

Mitchell LaCombe
Vol. 41 Associate Editor
In recent years, Canada has received multiple complaints from WTO members regarding provincial regulations on wine. Following the United States,[1]  Australia submitted a request for consultations with Canada in January 2018, which alleged that various British Columbia (B.C.), Ontario, Quebec, and Nova Scotia regulations violate the General Agreement on Tariffs and Trade (GATT).[2] In March 2019, the Director-General composed a panel to consider the dispute, which has yet to be resolved.[3]



The complaints raised by Australia are only the most recent in a long history of controversy over provincial protectionism in the Canadian wine market,[4] While Canada is neither a major exporter nor major importer of wine,[5] the U.S. and several other countries “have very strong commercial interests in the Canadian wine market . . .  and, consequently, its deregulation.”[6] Canada, for example, is the second-largest market for U.S. wine—second, that is, behind only the E.U.[7] Interests in uninhibited access to Canadian consumers have clashed with the interests of those provinces that are significant wine producers—in particular, Ontario and British Columbia, the wine industries of which have “expanded steadily and rapidly in the past decades.”[8]

Although Australia alleges the violation of other GATT provisions, most of its complaints regarding provincial wine regulations concern

Alexis Haddock
Vol. 41 Associate Editor
Among the many international organizations lies the powerful purse of the International Monetary Fund (IMF). Founded in 1944, the IMF serves to ensure global financial stability[1] through monitoring public and private sector international payments, creating stable exchange rates that allow flexible currency conversions, resolving sovereign debt crises, expanding international trade, and assisting in developing economies by providing loans.[2] However, a seemingly inevitable change quickly approaches the organization: the move of the headquarters from its 75-year tenure in Washington D.C. to Beijing.[3] A change of this magnitude occurs only if preceded by one of greater importance, the loss of the United States’ dominance within the IMF.[4]  What remains to be seen is whether the United States will resist the relocation of one of the world’s most powerful organizations to avoid the symbolic shift in the world economy.[5]



The IMF’s authority stems from 189 countries agreeing to adopt the Articles of Agreement, the charter outlining the purpose of the organization, powers that it holds, code of conduct required of the member countries, and governance structure.[6] Upon membership, each country receives a quota reflective of their relative position in the global economy.[7] The quota determines the allotted votes the country

Gabrielle Harwell
Vol. 41 Associate Editor
Background

Transnational crime poses a significant and growing threat to national and international security. As criminal networks expand and diversify, Interpol provides an invaluable tool to combat crime: law enforcement collaboration and data sharing.[1] National Central Bureaus (NCBs) act as the main source of data collection and international collaboration among Interpol member states. Unlike national law enforcement organizations, NCBs are governed by international agreements such as Interpol’s Rules on the Processing of Data (RPD), which establishes standards on the processing and use of data in international criminal investigations.[2]



However, the authority national governments have over the NCBs, combined with the lack of uniform data processing standards, allows governments to abuse Interpol’s network to violate individuals’ human rights. While Interpol sought to update the RPD through a review in October of 2019, that review has focused mainly on abusive issuances of international extradition and arrest requests.[3] Further review should establish uniform standards on data processing that limits the broad authority of national governments to protect human rights.

Differing Standards Provide the Opportunity for Governmental Abuse of NCBs

The current RPD allows national governments to abuse the process. These rules merely state that data collection and processing must comply with Interpol’s Constitution

Katherine Boothroyd
Vol. 41 Associate Editor
On Thursday, July 25, 2019, Attorney General William Barr announced that the United States Federal Government would be resuming capital punishment after a nearly twenty-year hiatus.[1] The federal government has not carried out an execution since 2003 due to its inability to obtain the drugs for lethal injections.[2] Since then, the United Nations General Assembly has passed seven resolutions for a moratorium of the use of the death penalty.[3] After voting against one such resolution in 2007, U.S. Representative Robert Hagan reminded the international community that “international law does not prohibit capital punishment.”[4]



Indeed, this announcement, though somewhat surprising, does not violate any international agreements. However, the return of the federal death penalty can still impact U.S. obligations under both bilateral extradition treaties and multinational treaties to which the United States is a signatory.

Extradition Agreements

The death penalty on the state level already impacts many of the United States’ bilateral extradition agreements. Of the roughly 100 countries with which the United States has an extradition agreement,[5] many have abolished the death penalty.[6] Several countries have thus reserved the right to deny extradition in capital cases, some outright and some only in cases where there is adequate assurance

Jonathan Blaha
Vol. 41 Associate Editor
On October 6th, President Trump decided to remove United States military personnel and endorse Turkish operations near the Turkey-Syria border.[1] As the world waits to see the extent of Turkish operations and its effects on Syrian Kurds,[2] ISIS,[3] and the Syrian Democratic Forces,[4] calls for the expulsion of Turkey from NATO have renewed with greater fervor. These calls began with Turkey’s authoritarian slide.[5] and seemingly reached their crescendo after Turkey’s agreement to purchase Russian S-400 missiles and subsequent expulsion from the United States’ F-35 program.[6] However, they have resumed and even extended to members of the United States government, including a promise from Senator Lindsey Graham to “call for their suspension from NATO if they attack Kurdish forces who assisted the U.S. in the destruction of the ISIS Caliphate.”[7]



However, it is unclear if NATO could expel Turkey. The 1949 North Atlantic Treaty does not provide a mechanism for expulsion.[8] In addition to whether it is possible for NATO to expel Turkey, another consideration is whether NATO would be best served by expulsion.

Over its seventy years of existence, NATO has not expelled a member state.[9] Within the treaty, the only provision for a member state to leave

Benjamin Schwartz
Vol. 41 Associate Editor
State Legislatures Always Know Best

In 1955, the wise legislators of pre-state Hawaii took a valiant stand against a growing threat…eggs.  For not all eggs came from the land of the free and home of the brave; many hailed from distant, alien shores.  Who knew what sinister plots they would hatch upon hatching?

It may just have been pressure from the domestic egg industry, but regardless, Hawaii passed a law requiring sellers of imported eggs to prominently feature a sign saying “WE SELL FOREIGN EGGS.” However, the law did not stand.  The Supreme Court of Hawaii struck it down for breaching a treaty, the General Agreement on Tariffs and Trade (GATT).[1]  Specifically, the Court noted that it violated the “national treatment” provisions of the GATT, which require foreign and domestic goods to be treated equally after entering a country’s market.[2]  Nor could the law be saved by falling into one of the GATT’s exceptions.

This case serves as an introduction to the international trade regime under the GATT, which continues to exist under the World Trade Organization (WTO) framework accepted by 164 countries.[3]  The influence of the GATT and related WTO treaties is most apparent in the economic realm

Naz Khan
Guest Editor
ICC Jurisdiction

In Resolution 1564,[1] the U.N. Security Council (UNSC) requested the U.N. Secretary-General investigate reports of gross violations of humanitarian and human rights laws in the Darfur region of Sudan between 2003 and 2008.[2] The International Commission established that the Sudanese government, along with Rapid Support Forces (RSF) or Janjaweed militias,[4] carried out indiscriminate attacks on civilians including mass rapes, killings, torture, enforced disappearances and the destruction of villages on a systematic basis throughout Darfur.[5] The International Commission referred these crimes to the International Criminal Court (ICC) who issued an arrest warrant for Al-Bashir, the incumbent President of Sudan.[7]



The case raised several issues of contention: first the issue of an arrest warrant for an incumbent head of state was contentious; second the African Union (AU) requested a deferral of the case and established a High-Level Panel on Darfur, seeking to find an African solution to bring about accountability and reconciliation in the region. Charges against Al-Bashir included crimes against humanity, war crime, and genocide based upon perpetration by means, meaning that Al-Bashir had committed these crimes indirectly through the army and the militia.[8] ICC jurisdiction, in this case, is established by a UNSC referral, since Sudan is not

Matthew Thornburg
Vol. 40 Associate Editor
There is a problem on the moon, which concerns humanity’s very identity.  These high stakes will force us to answer an important question: which parts of humanity do we wish to eternalize? I’m talking about the problem of preserving mankind’s history on the moon. Right now, our international laws governing outer space, such as the Outer Space Treaty[1] (“OST”) and the “Moon Treaty,[2]” fail to guide us in solving this issue and worse may even be obstructing us from doing so. Unfortunately, there does not appear to be one clear answer; however, how we choose to preserve the origins of humanity as a space-faring species is something we must consider now, before it’s too late. This blog is intended to briefly survey relevant considerations to help start that conversation.



Here’s the issue: space, especially the moon, is getting busier.[3] In addition to sovereign states, the moon has become appealing to private and commercial entities, increasing the concern that historical sites on the moon could be disrupted.[4] This is not to suggest that any state or entity would intentionally do harm to these sites,[5] but rather that mistakes happen.  The more actors there are on the moon, the

James Schwab
Vol. 40 Associate Editor
Electronic commerce (e-commerce) is changing the global economy, creating new opportunities and challenges.  However, many of the rules governing the global economy, including the agreements of the World Trade Organization (WTO), were drafted decades before digital trade was an important part of global trade.

Many members of the WTO argue that the WTO needs to update its rules to reflect the new realities of the global economy.  With this goal in mind, 76 WTO member states, representing over 90 percent of world trade, have agreed to launch negotiations on trade-related aspects of e-commerce with the goal of creating a new WTO agreement.  While non-participating states argue that these negotiations are unnecessary and detrimental to developing country interests, the WTO e-commerce negotiations are appropriate because of the limited effectiveness of the WTO’s 1998 work programme on e-commerce and ambiguities in how existing WTO agreements apply to digital goods and services.

E-commerce negotiations are necessary in part because of the ineffectiveness of the 1998 work programme on e-commerce.  The work programme sought to update WTO rules and agreements in line with changing technologies, and it called for the examination of “all trade-related issues relating to global electronic commerce.”[1]  However, despite

Chloe Roddy
Vol. 40 Associate Editor
In the run-up to the 2016 referendum, pro-Brexit campaigners rallied supporters with assertions of the need to restore the sovereignty of the British Parliament in the face of European “tyranny.”[1] The need for such a demand aside, the UK’s position on its own sovereignty stands in stark contrast to how the former colonial power has policed the right of self-determination in the Chagos archipelago and in Ireland.



The status of the Chagos archipelago has been subject to legal dispute for decades.[2] Mauritius has argued that the agreement it entered into with the British government to detach the Chagos archipelago from its territory was a result of duress.[3] The dispute has its origins in the UK’s independence negotiations with Mauritius in the mid-1960s. In the midst of those talks, the UK entered into formal discussions with the U.S. for the latter’s acquisition of an island on the archipelago to use as a military base.[4] Soon afterward, in the Lancaster House agreement of September 1965, the UK officially split the Chagos Islands from Mauritius.[5] In exchange, Mauritius received a sum of £3 million, fishing and marine resource exploitation rights, and a promise to return the archipelago once the need

Joshua Raftis
Vol. 40 Associate Editor
In January of this year, Juan Guaido, the President of Venezuela’s opposition-dominated National Assembly, unilaterally declared himself president of Venezuela in defiance of the sitting president, Nicolas Maduro.[1] Guaido based his claim to the presidency on Articles 233, 333, and 350 of the Venezuelan Constitution, which he interpreted to render the current presidency vacant and to vest the National Assembly with the power to appoint an interim president.[2] Since his declaration, Guaido’s opposition government has been recognized by at least fifty different countries, including the United States of America (which had promised to back Guaido should he declare himself President)[3] and many other members of the Organization of American States, and the European Union.[4]

As part of its support for the opposition government the Trump administration ordered the Treasury Department to freeze the assets of the Maduro government in the United States and to transfer them to accounts that are only accessible to members of the opposition.[5] Most notable amongst these U.S.-based assets is Citgo, a subsidiary of the Venezuelan State Oil Company (PDVSA) which owns three refineries and over 5,000 gas stations across the United States and makes over $23 billion in annual sales.[6] [7] The

Thomas Zahrt
Vol. 40 Associate Editor
Nearly two years ago, the United States withdrew from the Trans-Pacific Partnership (TPP).[1] As the prospective trade deal’s largest economy,[2] the departure of the United States led many to speculate that the deal would dissolve,[3] and in many respects it did. Gone is the massive arrangement comprising nearly $28 trillion in GDP—40% of the global total[4]—and gone are a number of key provisions championed by the United States.[5] However, while the TPP may be dead, a new arrangement has emerged to fill much of the gap left in its wake.



The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP” or “TPP-11”) is comprised of the remaining eleven nations involved in the original TPP trade negotiations.[6] Following the sixth domestic ratification of the TPP-11 by Australia on October 31, the new agreement is set to enter into force later this year within the ratifying nations.[7] The agreement will enter into force for the remaining signatories sixty days after they have notified all parties of their successful domestic ratification.[8] While undoubtedly different from its larger predecessor and namesake, the TPP-11 maintains the core elements of the TPP and is expected to lead to impressive economic returns for its member

Eric Wendorf
Vol. 40 Associate Editor
Can public international law do a better job than private domestic law of adjudicating sovereign debt disputes? In Law Debenture PLC v. Ukraine, the English Court of Appeal determined that the English common law of duress could be applied to a bond contract between Ukraine’s government and Russia’s Ministry of Finance.[1] However, public international law offers another way of resolving this case: the doctrine of odious debts. Although sovereign nations like Ukraine are liable for debts their governments incur, legal theorists have suggested an exception for so-called “odious debts.”[2]  These debts are incurred by despotic rulers for purposes contrary to the general interests or needs of the state.[3] If appealed, Law Debenture v. Ukraine presents a compelling test case for an application of the doctrine of odious debts.[4] Nonetheless, there are significant impediments to application of this doctrine, including a lack of precedent and the limited institutional capacity of domestic courts.



Factual Background

In 2013, Ukraine signed a deal with Russia under which it received 3 billion dollars’ worth of bonds from the Russian Ministry of Finance.[5] This agreement sparked political unrest, and Ukraine’s then-president, Victor Yanukovych, was forced out of office. Shortly thereafter, Russia invaded

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