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.


 

Matthew Thornburg
Vol. 40 Associate Editor
Notions of fairness and common benefit ring throughout the body of international law governing outer space. Indeed, the very preamble of the Outer Space Treaty (“OST”) declares that: [T]he exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development…”[1] However, such noble, egalitarian ideas for the future use of outer space may actually create unequal outcomes down on Earth. This blog seeks to briefly highlight just one example of the unfair limits on the use of outer space for less-developed countries as a result of the Outer Space Treaty’s (“OST”) non-appropriation principle.



As the law currently stands, geostationary orbit – a constant orbital position above Earth’s equator - is governed by the OST and is therefore subject to the treaty’s attendant ban on national appropriation. Spaces, or slots, in geostationary orbit[2] are desired because they are exceedingly convenient for communicating with earth. They are highly limited and as a consequence, highly valuable. Moreover, these spaces are allotted on a first-come-first-served basis[3] making them virtually unattainable by less scientifically and economically advanced states[4], or those that are just plain late to the

Melissa Danzo
Vol. 40 Associate Editor
Since the Paris Climate Agreement was signed in 2015, power shifts among the most prominent state signatories have left spectators questioning the future of the Agreement.[1] In the midst of these political shake-ups, international attention has turned to non-state actors (NSAs)—a term used herein to mean individuals or groups “including civil society, the private sector, financial institutions, cities, and other subnational authorities, local communities and indigenous peoples”[2]—that have expressed dedications to the Agreement. One increasingly prominent and important coalition of NSAs, known as “America’s Pledge,”[3] invites an important question: To what extent does the Agreement hold non-state actors accountable? Comprised of over 3,000 American cities, states, and businesses, the group was organized in the aftermath of President Trump’s withdrawal from the Paris Agreement in 2017 to communicate the message that United States’ leaders are “still in.”[4]

The overarching goal of the Agreement is to limit the global temperature increase to 1.5°C through reductions in greenhouse gas (GHG) emissions.[5] As the signatory states prepare for the Agreement’s ratification in 2020, the international community is questioning what impacts America’s Pledge and other similar organizations will have on the world’s ability to meet that ambitious target.



The Agreement and International Trends

The

Pablo Garrido Estevez
Vol. 40 Associate Editor
In March, the Trump administration announced a 25% tariff on USD $50 billion worth of Chinese imports affecting more than 1,300 products.[1] The Beijing government responded by imposing its own tariffs and stated that it would resort to “measures of equal scale and strength.”[2] Both global superpowers have since then engaged in a tit-for-tat escalation of their trade war, with American tariffs now reaching USD $250 billion and China’s USD $110 billion.[3]

The Trump Administration justified its tariffs under section 301 of the Trade Act of 1974, which allows the Executive to respond to “unfair, unreasonable, or discriminatory trade practices”[4] and under section 232 of the Trade Expansion Act of 1962 which allows for retaliatory measures to be taken for national security reasons.[5] The unfair trade practice that led to the section 301 tariffs, according to President Trump, was China’s alleged theft of American intellectual property.

The Trump Administration’s section 301 tariffs likely violate the General Agreement on Tariffs and Trade (GATT) of 1947, the treaty which led to the creation of,[6] and which ultimately was incorporated into, the World Trade Organization (WTO)[7] and whose purpose was to reduce trade barriers. Coincidentally, the adoption of this treaty

Connor Rubin
Vol. 40 Associate Editor
After the election of Carlos Menem as President of Argentina in 1989, the country began a period of rapid economic growth.” This can partially be credited to the government’s policies that increased foreign direct investment (FDI). These included signing Bilateral Investment Treaties (BITs) with nations like the United States, and pegging the value of the Argentine Peso to the U.S. Dollar.[1] These policies lowered inflation and encouraged FDI across a variety of economic sectors, including energy. Two American companies, CMS Gas Transmission Co. and LG&E Corp., were a part of that investment boon.[2]

However, as all good things must come to an end, the country entered a crippling economic crisis in 1998 that lasted until 2002.[3] In response to the near total economic collapse and widespread disorder, the government enacted sweeping economic policy changes.[4] These changes affected the same foreign investors who had benefited from the prior policies, some of whom – including LG&E and CMS – brought complaints against the Argentine Republic saying the breached their BIT obligations.[5] In both energy companies’ arbitrations, Argentina raised a defense based on “necessity” under Article XI of the US-Argentina BIT.[6] Under identical facts, one arbitration (CMS) found that the Argentine

Alexia Jansen
Vol. 40 Executive Editor
The Norwegian Nobel Committee awarded the Nobel Peace Prize for 2018 to Nadia Murad and Dr. Denis Mukwege, “for their efforts to end the use of sexual violence as a weapon of war and armed conflict.”[1] These co-recipients have been recognized internationally for their work as witnesses and advocates of victims of sexual violence during armed conflicts. Their award can be seen as particularly apropos during the #MeToo movement, and it helps highlights the work that still needs to be done in international criminal law in the realm of sexual violence.



In the announcement, the Nobel Committee specifically noted that sexual violence is used “as a weapon of war and armed conflict,”[2] a subset of criminal law that can be prosecuted internationally. Sexual violence has been recognized in international criminal law for over two decades. In the 1990’s, the International Criminal Tribunals for the Former Yugoslavia (“ICTY”) and Rwanda (“ICTR”) actively charged and ultimately convicted many defendants with crimes of sexual violence.[3] The tribunals were “pioneers in the clarification and condemnation of sexual violence in war situation[s]” and “brought light to the truth about the frequency of rape in war and the destructive impact on victims and

Christa-Gaye L. Kerr
Vol. 40 Associate Editor
Every few years, the call for reparations for the Trans-Atlantic slave trade, colonialism, and post-colonialism enter global discourse. In 2001, leaders from around the world held the World Conference Against Racism (“WCAR”) in Durban, South Africa under authority of the United Nations General Assembly Resolution #52/111.[1] There were two noteworthy and seemingly disparate outcomes from this Conference. First, the Durban Declaration and Programme of Action (“DDPA”) acknowledged the historic and modern-day practices of slavery and the slave trade as morally disgraceful, and activities that would be listed as a crime against humanity today.[2] On the other hand, there was an outright refusal by certain countries from the European Union to apologize for slavery. This push was led by Britain and joined by Spain, Portugal, and the Netherlands who believed that formally apologizing for slavery and colonization (as requested by African, Caribbean, Latin American and Asian countries) would create legal implications that would force their countries to pay reparations. In order to appease these countries, the European Union released a draft statement noting its “regret” about the Trans-Atlantic slave trade. The statement read in part, “The European Union profoundly deplores the human suffering, individual and collective,

Shane Callaghan
Vol. 40 Associate Editor
Think only the richest people in the world can buy citizenship?  Think again.  For an investment of $100,000 plus various fees, you can become a citizen of the Caribbean country of Dominica in a matter of months.[1]  Although the practice of buying citizenship is largely confined to the rich, thousands of passports are bought and sold each year.  Hundreds of thousands of residence permits are also sold by countries each year.[2]  Although the modern practice of countries offering citizenship or residency by investment (“CRBI”) began with another Caribbean country, Saint Kitts and Nevis, in 1984, many countries have similar programs.[3]  CRBI is useful for both developed and developing countries alike because it stimulates foreign investment in a country.  This outside investment is particularly important to developing countries looking to “kick-start their economies.”[4]



Although there are many legitimate reasons for someone to try to purchase citizenship or residence in a different country, countries are concerned that their citizens are motivated by hiding from taxes or criminal prosecution when they participate in another country’s CRBI program.[5]  In an effort to prevent taxpayers from hiding their assets, the Organisation for Economic Co-Operation and Development (OECD) developed the Common Reporting Standard

Mary Rogers
Vol. 40 Associate Editor
Today we rarely think twice about having our personal lives showcased and uploaded online. Quick scrolls reveal pictures from last year’s birthday party, a picture of dinner last night, opinions and views on this candidate or that issue. We choose what to upload and how to display ourselves for a wider audience on a daily basis.

Unfortunately, for millions of people each year, most of them women,[1] the choice of what to share online is stripped from them in the most personal and intimate manner. Non-consensual pornography (NCP), also known as revenge porn, in which discontented romantic interests post explicit content online in order to demean, humiliate and harass their former partners, is a cybercrime problem without a uniform solution. Whether or not victims will receive justice is more or less a matter of chance, left to the less than ideal laws of their state and/or jurisdiction, if there are any laws applicable to the subject at all. More than enough time has passed to solidify NCP as the cybercrime it is and take global action to implement a solution. One method of achieving this goal is to incorporate NCP into the Budapest Convention on Cybercrime calling

Chris Opila
Vol. 40 Associate Editor
Since 2014, more than 17,500 refugees and economic immigrants have drowned or otherwise died of exposure in the Mediterranean Sea, including more than 2,000 this year to date.[1] While actual immigration to Europe via the Mediterranean Sea has decreased by ninety percent since its peak in 2015,[2] the chance of dying at sea has nearly quintupled.[3] Nonetheless, European Union (EU) member states have reallocated resources away from nautical search and rescue (SAR)[4] and towards border security.[5] Non-governmental organizations (NGOs) in turn have operated SAR vessels to fill the gap.[6]



Decrying these NGO operations as incentivizing unlawful immigration and facilitating smuggling,[7] EU members states are funding the Libyan Coast Guard to obstruct them.[8] The Libyan government has banned NGO-operated vessels from conducting SAR within its territorial waters[9] and its Coast Guard has fired upon,[10] boarded,[11] and threatened to kill the crew[12] of any NGO-operated vessel that violates this ban. These actions, however, violate the rights of NGO-operated vessels under the United Nations Convention on the Law of the Sea (UNCLOS) to conduct SAR missions in Libya’s territorial waters.

UNCLOS affords NGO-operated vessels the right to navigate the seas – including the territorial waters[13] of coastal states – to search

Tyler J. Owen
Vol. 40 Executive Editor
“Many people say data is the new oil—the oil of the twenty-first century. . . .
If data is the new oil, then data protection is the new pollution control.”[1]

We live in a data-centric world. From our Cyber Monday purchases to the political pages we follow on social media, nearly everything we do online may be logged by firms that have a monetary interest in our data. This generally is not a bad thing. The standard ad-based business model provides access to internet services for many people who otherwise would not (or could not) participate in subscription-based models. And most of the data collected—as well as the manner in which they are used—are often unobjectionable to even the more private Internet users; this is especially true when firms only use data for their own purposes.



Yet concerns obviously arise when these data are accessed by other firms absent users’ consent: like when Facebook’s policies led to the disclosure of nearly 87 million users’ personal data to political consultancy Cambridge Analytica ahead of the 2016 U.S. presidential election.[2] Or when Facebook data are unlawfully accessed by third parties, as the most recent Facebook breach demonstrates.[3] In these cases,

Camille Valdes Reyes
Vol. 40 Associate Editor
Since the 1980s, the European Court of Human Rights (“ECtHR” or “the Court”) has interpreted the European Convention of Human Rights (“ECHR” or “the Convention”) expansively so as to include LGBT rights.[1]  The Court has gone as far as reading discrimination on the grounds of “sexual orientation”[2] into ECHR’s Article 14 (Prohibition of Discrimination).[3]  Now, the Court could again have the opportunity to continue expanding upon LGBT rights if the recently decided case of Lee v. Ashers Baking Co. Ltd.[4] comes before them. The case pertains to a gay man, Mr. Lee, who ordered a cake with a “Support Gay Marriage” message on it and was subsequently refused due to the bakery’s owner’s religious belief.[5]  The United Kingdom Supreme Court found that there was no discrimination on the grounds of sexual orientation nor political opinion,[6] despite stating that denying a service due to their sexual orientation is “humiliating and an affront to human dignity.”[7]  Some find that this was the right decision for all parties involved as freedom of expression and conscience are the foundation of a democratic society from which we all, believers and non-believers, benefit.[8]  Although this may be true, it does not

Vivian Daniele Rocha Gabriel
Vol. 40 Guest Editor
One of the most considerable challenges for the survival of the World Trade Organization (WTO) is the requirement imposed by its charter that it have at least three Appellate Body members to analyze an appeal.[1]  The United States has been blocking new nominations to the Appellate Body, compromising the WTO’s ability to settle disputes.[2]  The situation will become critical in December 2019.[3]   At the time, there will be fewer than three members in the Appellate Body, and if no action is taken until the end of 2019, the Appellate Body of the WTO will be doomed.



Because of this, the European Union decided to propose emergency changes. On July 5, 2018, the European Commission published a position paper launching several proposals to modernize the WTO and one of those addresses solutions to the Appellate Body’s nomination crisis.[4]

The American Complaint

Since 2016 the U.S. has been making efforts to review the Appellate Body’s procedures, and it has developed a number of criticisms that it asserts must be resolved before it can support the selection of new Appellate Body members.[5]  The first criticism is related to the authorizations given to former judges finishing their dispute settlement reports even

Jason Raymond
Vol. 40 Associate Editor
A few months ago, in Jesner v. Arab Bank, the United States Supreme Court categorically foreclosed foreign corporate liability under the Alien Tort Statute (ATS). Absent further action from Congress, the Court said, foreign corporations may not be defendants in suits brought under the law.[1]

In past decades, foreign plaintiffs had relied on the ATS to sue foreign corporations or the foreign subsidiaries of U.S.-based corporations for violations of international law and human rights abuses.[2] Plaintiffs had accused corporations as varied as Unocal, IBM, Caterpillar, and Coca-Cola of aiding and abetting alleged international law violations including torture and crimes against humanity.[3]

Found in Title 28 of the U.S. Code, the ATS reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[4] It was passed by the First Congress as a part of the Judiciary Act of 1789.[5] Though its original meaning and purpose are uncertain, the ATS may have been enacted in response to a number of international incidents caused by the non-availability of remedies for foreign citizens in the United States.[6] For example,

Annemarie Smith-Morris
Vol. 40 Associate Editor
In the mid-twentieth century, the United States conducted sixty-seven nuclear tests in the Republic of the Marshall Islands.[1] The tests had an immense and lasting impact on the environmental health of the country and the physical health of its people.[2] In 2014, the Marshall Islands sued nine world powers—China, North Korea, France, India, Israel, Pakistan, Russia, the United Kingdom, and the United States—over their failures to comply with the 1968 Nuclear Nonproliferation Treaty [NPT].[3]

The Problem of Legal Inequality

The Islands’ Foreign Minister at the time, Tony deBrum, said the lawsuits were a final attempt to generate an international conversation on nuclear disarmament. “Our people have suffered the catastrophic and irreparable damages of these weapons,” he explained, “and we vow to fight so that no one else on Earth will ever again experience these atrocities.”[4] Traditional dispute resolution mechanisms had failed the Marshall Islands. Diplomacy can only be successful when there exists an outcome “both sides prefer to the status quo,” and the nine “Goliaths” sued by this island “David” didn’t see eye-to-eye with the Marshall Islands on nuclear proliferation.[5] Military action was simply never an option.[6] Thus, for the Marshall Islands, legal action seemed the best—and likely

Mostafa Al Khonaizi
Vol. 40 Executive Editor
It has been five months since the execution of the European Union’s General Data Protection Regulation (“GDPR) in May, 2018.[1] It is the most recent technology law regulation worldwide, and it pushes its predecessor aside, EU Data Protection Directive (“DPR”) enacted in 1995 before the contemporary proliferation of social media and data transfers.[2] DPR was a directive, where EU member states had wide discretion in policy making strategies and decisions.[3] GDPR, on the other hand, is highly substantive and provides Data Protection Authorities (“DPAs”) with the authority to impose hefty fines on non-compliance or violations by data controllers or processers, such as tech companies or governmental agencies.[4] The fines go up to 20 Million Euros or 4% of revenue, whichever is higher.[5] GDPR provides comprehensive guidance to EU member states on how to impose regulations, monitor entities, track complains, conduct investigations, and impose fines or warnings, and requiring justifications of deviations from such guidance.[6] It seeks to provide consistent ground and an optimal balance for private rights of EU citizens and the ability to conduct business within the EU.[7]



Yet, since EU GDPR’s implementation, not a single DPA has issued a fine against any entity, despite

Madison Kavanaugh
Vol. 40 Associate Editor
The United States and Canada endorsed the United Nations Declaration for Rights of Indigenous Peoples (“UNDRIP”) in 2010. Yet, by allowing Enbridge to replace the Line 5 tunnel in the Straits of Mackinac, both states seem to be violating their UNDRIP obligations with regard to tribal self-determination and free, prior and informed consent. The replacement of the pipeline poses severe threats to the tribal nations in Northern Michigan and the Upper Peninsula—possibly impacting their entire economy, as well as the Great Lakes.

What is Line 5?

Enbridge, a Canadian company, built the Line 5 pipeline in 1953.[1] It runs from Superior, Wisconsin through the Upper Peninsula and northern Michigan ending in Sarnia, Ontario.[2] A significant portion of the pipeline runs through the Great Lakes, including the Straits of Mackinac.[3] The purpose of the pipeline is to transport crude oil from the United States and back to Ontario.[4] When it goes back to Canada, the petroleum is refined and distributed to the Canadian market. The pipeline is 30 inches in diameter, except in the Straits of Mackinac where the pipeline divides into two 25-inch diameter pipelines.[5]

Enbridge reports that there has been no degradation, no leakage and that the pipeline

Troy Epstein
Vol. 40 Associate Editor
For decades, the people of Iraq existed under the thumb, gaze, and sword of Saddam Hussein. By the time of his toppling by U.S. forces in 2003, he had amassed a record that included genocide, chemical weapons use, torture, and the assassination of dissidents.[1] (Including, in one of his first acts as leader, a 1979 deadly purge of top members of his own party.)[2] Iraqis were denied their fundamental right to govern themselves, and if up to Saddam, this would have forever been so.[3]

In 2018’s Iraq, there is no despot. The fifth consecutive free, national electoral process has just culminated with the recent formation of a new government.[4] But while there may be democracy, the country is also marred with challenges, including violence, sectarianism, and corruption. This has naturally raised the specter of nonadherence to its international legal commitments.

The state of democracy and corruption in Iraq

In 2005, in the wake of the Hussein regime, Iraqis voted overwhelmingly to ratify a new constitution.[5] This document, while subject to perversions of meaning by opportunistic politicians,[6] has served as the basis of the democratic structure which survives to this day.[7] Its value can be seen in the country’s rising

Michael Goodyear
Vol. 40 Executive Editor
On August 20, 2018, Greece emerged from its third bailout.[1] The Greek debt crisis created over a decade of austerity measures in Greece and shook the European Union to its core.[2] However, despite having survived the third bailout package without needing a fourth, Greece still owes over 250 billion Euros to its creditors and is not scheduled to have paid this king’s ransom off until 2059.[3] While many of these creditors are from the private sector, the vast majority of Greek debt is held by the European Union. In its bailout negotiations, Greece agreed to implement a series of domestic austerity measures.[4] Greece will be beholden to its international creditors for over fifty years by the time the crisis concludes.



As in the case of Greece, issuing sovereign debt can severely compromise a country’s self-determination, putting its sovereignty at risk. International law has consistently upheld the importance of sovereignty, but sovereign debt has created a dangerous gap that, if countries are not careful, may open up serious risks to their independence.

Sanctity of Sovereignty

International law has preserved the sanctity of sovereignty. Particularly in the post-colonial context, an encroachment on a country’s sovereignty was seen as an attack on

Colleen Devine
Vol. 40 Associate Editor
The concept of the crime of genocide was developed following World War II by law professor Raphael Lemkin, who fled to the United States during the Holocaust.[1] Following World War II and the atrocities of the Holocaust, the German government has paid out more than $50 billion in the form of reparations to the State of Israel and indemnification to Holocaust survivors.[2] The German Finance Ministry estimates that it will pay out almost $20 billion more by the year 2030, when according to government calculations the last survivors will have died.[3]



However, there has been a call for the German government to admit responsibility and pay reparations for another genocide perpetrated during their colonial rule of West South Africa. Often referred to as the “Forgotten Genocide”,[4] an estimated 100,000 Hereros and Nama people died as a result of actions by the German government between 1904 and 1908. [5] Following an uprising against the harsh conditions of colonial rule by the Herero and Nama tribes, German general, Lothar von Trotha, issued a written order of extermination saying: “Within the German borders, every Herero, with or without a gun, with or without cattle, will be shot”.[6] The tribes were

Alex Theuer 
Vol. 40 Associate Editor
Environmental considerations have become an increasingly important part of international project finance in recent years. Project finance generally involves the financing of long-term infrastructure and industrial projects around the world, which comes with unique environmental challenges that are often entwined with international environmental agreements.[1] However, due to the structure of project financing, the responsibility of managing environmental risks has fallen to financial institutions. This post will discuss the environmental standards that banks impose on project borrowers, and it will suggest that while those standards seem to be effective at ensuring legal environmental compliance, the current model is lacking in transparency and accountability to the public. As a result, people living in the vicinity of projects can worry about their environmental safety. This is illustrated in Argentina v. Uruguay, an International Court of Justice case concerning Argentinian citizens’ fear for the environmental safety of a nearby project, although the project was found by multiple independent reviewing bodies to be completely innocuous.[2]



The key to any successful project is securing financing. This money typically comes in part from the equity that sponsors contribute, but it primarily takes the form of debt from various financing institutions. In evaluating whether to

Joshua Raftis
Vol. 40 Associate Editor
On July 31st, South African President Cyril Ramaphosa announced that he would support amending the South African Constitution to allow for the expropriation of land without compensation. [1] An important question that this announcement raises is whether South Africa’s international obligations require the country to provide compensation for the private property that it seizes, and if so, to whom?



History:

When Apartheid ended in 1994, 87% of South Africa’s land was owned by white citizens, who in turn made up only 10% of the nation’s total population. [2] To address this disparity, the new South African government adopted a “willing buyer, willing seller” program. In theory, the government would pay fair market value to any white landowners who were willing to sell some or all of their property, which the government would then lease out to poor black South African farmers. [3] However in practice this program has largely failed its intended purpose, and as of 2017, roughly 72% of all of agricultural land in South Africa continued to be owned by the nation’s white minority. [4]

Ramaphosa’s announcement comes after a particularly turbulent period in which wide scale protests, an economic recession, and a massive corruption scandal lifted

Mine Orer
Vol. 40 Guest Editor
For weeks now, the world media has been shaken by the news of the murder of Saudi journalist, Jamal Khashoggi. It has been reported that on October 2, 2018, he was murdered after entering the Saudi consulate in Istanbul, Turkey.[1]

While details are lacking, what we know so far is that a crime took place at a consulate with the potential involvement of consulate employees, a place and a group of people that enjoy an array of privileges and immunities according to settled rules of international law.

These sparse facts are enough to raise significant questions. The main issues that arise concern the extent of such consular immunities and the ability to exercise jurisdiction to investigate and prosecute Khashoggi’s murder.

What is the significance of the consulate being the scene of the crime?

The fact that the scene of the crime was a consulate has played a pivotal role in the revelation of events to the global media. Pursuant to Article 31(2) of the Vienna Convention on Consular Relations (VCCR)—a treaty that both Turkey and Saudi Arabia are parties to—consular premises are inviolable. This means that unless there is a disaster (like a fire) that would require “prompt protective action,”[2]

Alison Korman
Vol. 40 Associate Editor
President Rodrigo Duterte’s brutal war on drugs in the Philippines has been making headlines since the beginning of his presidency in 2016.[1] The campaign has resulted in the death of thousands,[2] but over the last year and a half, the situation in the Philippines has taken a new role on the international stage: it has become the subject of a preliminary examination by the International Criminal Court.



The ICC’s Preliminary Examination of President Rodrigo Duterte

So far, there is nothing particularly striking about how the Duterte case has proceeded in its initial stages. How the Court moves forward with the case, however, has the potential to define the future of the ICC. It could be pivotal because it is exactly the type of situation the Court was established to address,[3] and the ICC is in dire need of showing that it can be effective.[4]

The first complaint against Duterte was filed by an attorney in April 2017 on behalf of two Filipino men who claim to be his former paid assassins. The allegations include mass murder and crimes against humanity.[5] In February the ICC responded with a formal announcement that it would open a preliminary examination into the situation

Sage Wen and Hening Zhang
Vol. 40 Associate Editors
Article 51 of the U.N. Charter allows all member states to exercise the right to attack a third country if it assaults an allied nation.[1] However, Japan is not currently able to fully exercise this right of collective self-defense because it cannot be reconciled with Article 9 of the Japanese Constitution. Article 9 stipulates that “the Japanese people forever renounce war as a sovereign right of the nation,” and that “land, sea, and air forces, as well as other war potential, will never be maintained.”[2]



But Japan has had a de facto military since the 1950s known as the Self-Defense Forces (“SDF”).[3] Is this legal? Further, should Japan, as a member state of the U.N., be able to exercise self-defense when being attacked, or even collective self-defense when its ally is under attack?

The answer to this question has produced a sharp split among Japanese constitutional scholars. When the Constitution went into effect in 1947, a majority of scholars agreed that it banned any war potential, even for self-defense.[4] However, because of the US–Japan Mutual Defense Assistance Agreement, signed in 1954, Japan was obliged to strengthen its defense capabilities. When the SDF was set up

Ali Habhab
Vol. 40 Associate Editor
The Road to Basel I and Beyond
In the 1980s, a spike in the number of bank failures in the United States prompted banking regulators to turn their regulatory crosshairs to bank capital requirements.[1] Prior to what became known as the Savings and Loan crisis, banks and bank-like institutions began engaging in riskier and more complex transactions.[2] This increasing complexity coincided with a fall in capital levels across the industry.[3] Capital acts as a cushion for banks to draw upon in the event of a run on their assets: the higher the capital to asset ratio, the greater the protection in the event of a liquidity crisis.



Resolved to address bank failure risk, regulators believed that increasing capital requirements on banks could reduce the likelihood of failure.[4] The solution, however, could not be addressed solely by domestic legislation – an international coordination problem stood in the way of effective reform. Heightened capital requirements require banks to raise more equity to continue lending at the same rate as under the ex-ante capital ratio, increasing the cost of business. This makes harmonization of capital requirements across borders essential: unilaterally tightening capitalization rules would disadvantage the first mover’s financial industry. Investment

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