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Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide

Berglind Halldórsdóttir Birkland

In 2007, the International Court of Justice defined the scope of state responsibility under the Genocide Convention for the very first time when it reached the merits in the Genocide Case, a case arising from the violent breakup of the former Yugoslavia. The opinion immediately spurred extensive academic commentary, much of which was critical of the Court’s ultimate holding that Serbia had not committed genocide despite its well-documented role in the Srebrenica massacre. While the Genocide Case can be read as a disappointment, and the Court’s analysis is vulnerable to normative critique, this Note argues that it was nonetheless an important victory in the movement toward greater state accountability for genocide, especially considering the context in which the Court acts and the limitations imposed on its independence by the practical need for legitimacy. Although the Court raised onerous evidentiary hurdles for establishing state responsibility for the direct commission of genocide, it managed simultaneously to impose upon states a clear duty to rein in non-state actors over whom they exercise influence by interpreting the state obligation to prevent genocide broadly. This broad duty to rein in non-state actors has important implications not only for the Court’s own jurisprudence but also extrajudiciously within the customary framework of state responsibility, by empowering the general international community to enforce states’ obligations to curb genocidal actors within their reach.

Tax Expenditures and Global Labor Mobility

Ruth Mason

Governments often deliver social welfare benefits through “tax expenditures,” which are provisions of the tax code (such as home mortgage deductions) designed to serve social policy objectives. This Article considers the criteria for granting tax expenditures to individuals who work outside the state where they reside. International tax norms currently assign the primary entitlement to tax labor income to the state where the taxpayer works, but they assign the obligation to confer personal tax expenditures exclusively to the state where the taxpayer resides. This Article argues that the disjunction between the entitlement to tax and the obligation to provide tax benefits affects cross-border labor mobility and has important distributive implica- tions for taxpayers and states. In constructing these arguments, this Article introduces the concepts of “labor export neutrality” and “labor residence neutrality” as tools for analyzing government policies that affect global labor mobility. A policy is labor export neutral if it does not distort taxpayers’ decisions about where to work. A policy is labor residence neutral if it does not distort taxpayers’ decisions about where to reside.

Myth of Mess? International Choice of Law in Action

Christopher A. Whytock

Choice of law is a mess—or so it is said. According to conventional wisdom, choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions. Instead, these decisions are primarily motivated by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. They are also highly unpredictable.

This Article argues that these “mess” claims do not accurately describe at least one domain of choice of law—international choice of law—and it demonstrates what is at stake in this debate for global governance. Part I provides a brief overview of choice-of-law doctrine in the United States. Part II documents the mess claims. Part III then shows how the mess claims, if correct, would be bad news for global governance. Choice-of-law doctrine can increase or decrease global economic welfare, enhance or undermine transnational rule of law, and facilitate or hinder transnational bargaining. The extent of these effects, and whether they are beneficial or harmful, depends largely on the degree to which choice-of-law doctrine actually influences judges’ international choice-of-law decisions and the extent to which those decisions are biased and unpredictable. The mess claims thus imply that if choice of law has any systematic effects on global governance they are likely to be harmful.

Part IV uses statistical analysis of an original dataset of published international choice-of-law decisions by U.S. district courts in tort cases to present evidence that choice-of-law doctrine indeed influences these decisions; that these decisions are not biased in favor of domestic law, domestic litigants, or plaintiffs; and that they are actually quite predictable. The mess claims, it turns out, may be myths—at least in transnational tort cases.

Part V explores the broader implications of my analysis. In particular, it explains why these findings are encouraging from a global-governance perspective and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions. Overall, the Article’s findings suggest that the conventional wisdom exaggerates what is wrong with choice of law and implicitly underestimates its contributions to global governance.

New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations

Margarita K. O’Donnell

A new approach to national interpretations of international law suggests that, to be successful, national courts must engage in flexible, culturally conscious translations of international norms. Transitional justice projects, however, pose a challenge to this approach. This Note proposes that when criminal prosecutions function as truth-seeking processes, the ability of domestic groups to influence how national courts interpret international law is heightened. In these instances, nonstate actors understandably attempt to capitalize on courts’ awareness of the critical role legal judgments play in engendering national reconciliation in order to secure favorable legal outcomes. Accordingly, courts have the challenge of adjudicating egregious human rights violations while also complying with the strict limitations of international criminal law. This Note suggests that the exigencies of transitional justice may lead national courts to issue interpretations that deviate from the existing body of international law. It examines this thesis through the lens of recent criminal prosecutions in Argentina for massive human rights violations during the Dirty War, in which a federal court greatly expanded the legal definition of genocide, contradicting long-standing international jurisprudence.

GI Joe? Coffee, Location, and Regulatory Accountability

Webster D. McBride

Geographical Indications (GIs)—product labels indicating places of origin when the quality of products are linked to their geographic origin—have long been a hotly-contested domain of international trade among nations in the developed West. Recently, a literature has emerged evaluating the prospects for developing countries’ use of GIs to bolster their agricultural sectors, but the empirical economics of GIs remain poorly understood. This Note approaches the issue from a different angle. The rhetoric that attends discussion of the economics of developing-nation GI implementations often makes reference to nonpecuniary, “softer” benefits of the GI phenomenon—in particular, its pro-local counterbalance to the multinational forces commonly perceived to dominate the global marketplace. This Note seeks to scrutinize this aspect of GIs’ impact on developing-world producers by assessing the political, institutional, and cultural dynamics that the international GI regime fosters. To ground my inquiry in an analytic framework, this Note employs metrics derived from the Global Administrative Law (GAL) project spearheaded by Benedict Kingsbury and Richard Stewart. Specifically, this Note asks whether the institutional dynamics that GI protection fosters among developing-world coffee farmers have the effect of promoting or obstructing regulatory accountability as measured by GAL’s three main principles: participation, transparency, and review. In theory, the implementation of a GI product specification should empower developing-world coffee producers by fostering their regulatory involvement and civic organization, facilitating collective management of their joint reputation, and offering access to mechanisms by which they might hold opportunistic actors accountable. This Note concludes, however, that the practical realities are unencouraging because states without preexisting and well-developed institutional infrastructures have difficulty corralling powerful actors seeking to exploit GIs for private benefit.

Are Tradable Carbon Emissions Credits Investments? Characterization and Ramifications Under International Investment Law

Lisa Bennett

Implementation of carbon emissions trading schemes such as the European Union’s Emissions Trading Scheme requires consideration of how to properly characterize the newly-created emissions credits under various domestic and international law frameworks. Notably absent from the literature on emissions trading is an analysis of whether emissions credits can be characterized as investments, thereby implicating international investment law protections against expropriation and discrimination and giving rise to guarantees of fair and equitable treatment. This Note analyzes the International Centre for Settlement of Investment Disputes’s objective definition of “investment” as well as treaty-specific definitions of “investment” and concludes that carbon credits are properly considered investments. Next, the Note considers the types of investor claims that could be brought against host states if carbon credits are treated as investments. Because of the potential costs to host states in defending against such claims, states’ willingness to adopt carbon trading schemes may be chilled. This risk of regulatory chill, coupled with the global importance of national measures to combat climate change, counsels in favor of limiting the scope of rights afforded to investors. This Note therefore concludes by setting out a range of proposals for enacting such limits.

The Law of Neutrality and the Conflict with Al Qaeda

Tess Bridgeman

Many aspects of the United States’s armed conflict with al Qaeda and associated forces have been intensely debated by legal scholars and policymakers, yet one important question has thus far been almost completely ignored: Where, if at all, does the law of neutrality fit into the legal framework governing the conduct of this armed conflict? I argue that neutrality is one of several principles that ensure the completeness of the modern law of armed conflict (LOAC) framework. Neutrality is particularly important in achieving geographic completeness of the legal regime. The 1949 Geneva Conventions (GCs) that form the bedrock of our LOAC framework were written against the background understanding that neutrality would operate wherever GC protections did not apply. In sharp contrast to most wars, the geographic distinction between belligerent and neutral territory is highly unstable in the conflict with al Qaeda. Ironically, at the point in modern warfare when the law of neutrality may be most important, it is being ignored.

The Obama administration has begun to apply analogous provisions of the LOAC rules developed in inter-state wars to its current conflicts—a recognition that this conflict, like all others, should be waged according to a complete legal regime. To date, however, the United States has not recognized the role of neutrality in its conflict
with al Qaeda. This Note begins to fill that gap. While arguing that the law of neutrality is more important in this conflict than many others due to the conflict’s global nature, this Note concludes that recognizing neutrality will only be a partial solution. Neutrality instructs, however, that the LOAC rules themselves may be applicable almost globally because of the asymmetrical nature of the conflict. I argue that the central purpose of recognizing neutrality in our current conflicts is to avoid selectively applying parts of a comprehensive legal system, thereby leaving legal black holes in which some individuals have no protection. What matters most is that the intended fundamental feature of the LOAC regime—its completeness—is not abandoned each time a new form of conflict is recognized.

The Trial of Alberto Fujimori: Navigating the Show Trial Dilemma in Pursuit of Transitional Justice

Christina T. Prusak

Alberto Fujimori is the first democratically elected leader to be tried and convicted of human rights violations in the domestic courts of his own country. As satisfaction with foregoing prosecution and granting amnesty in exchange for more peaceful democratic transition has fallen increasingly out of favor, Fujimori’s trial comes at an opportune time to reevaluate the role of criminal trials in national reconciliation and transitional justice. In this Note, I argue that Fujimori’s human rights trial demonstrates that head-of-state trials, particularly domestic ones, can valuably contribute to larger transitional justice projects, despite their inherent limitations and challenges. Situating my analysis within the transitional justice and show trial literature, I analyze both procedurally and substantively how effectively Fujimori’s human rights trial has navigated its “constitutive paradox,” or tension between strict adherence to the rule of law and the extrajudicial objective of delivering a coherent moral message, inherent in transitional criminal proceedings. I conclude that the trial demonstrates that courts can effectively navigate these paradoxes, even in the midst of institutional weakness and societal cleavages. Moreover, I suggest that domestic tribunals may be particularly well suited to navigate the constitutive paradox of transitional trials.

Global Institutional Choice

Frederick J. Lee

The world faces collective action problems that are global in nature and scope, rendering nation-states unable to achieve desired goods individually. Issues such as global climate change and systemic financial risk create externalities that impel the existence and intervention of a world government to avoid suboptimal market equilibria, free-riding, and moral hazards. I submit the European Union’s principle of subsidiarity as an organic, legitimizing framework for global governance that both compels and cabins a world government. Subsidiarity optimizes social welfare by enabling a world government to achieve desired goods that nation-states would be otherwise unable to obtain individually because of collective action problems. But subsidiarity also limits a world government through a presumption in favor of local regulation as a matter of national autonomy and efficiency. The efficiency concern also enables subsidiarity to be an expansive principle for global governance because it accommodates both public and private forms of collective action. Public forms of collective action include public regulations, treaties between nations, and public institutions like the World Trade Organization. Private forms of collective action include free-market Coasian bargaining between private parties and the efforts of private international institutions like Greenpeace. Because subsidiarity accounts for these diverse institutions in a large and complex world, it is an ideal balancing principle for global institutional choice.

The New Poor at Our Gates: Global Justice Implications for International Trade and Tax Law

Ilan Benshalom

This Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates in the attempt to determine whether distributive justice obligations should extend beyond the political framework of the nation-state. This results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. This Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade creates “relational-distributive” duties when domestic parties engage in transactions with foreign parties that suffer from an endowed vulnerability, such as the extreme poverty prevalent in the developing world. These relational duties differ from “traditional” distributive justice claims because they rely on actual economic relationships rather than hypothetical social-contract scenarios. In a competitive market, however, private parties cannot address these relational-distributive duties by themselves because doing so would put them at a competitive disadvantage. This Article therefore argues that the only collective action solution to this systemic problem in the current geopolitical setting is the transfer of wealth among states.

This Article then suggests some policy implications of this normative analysis in the field of international tax law. It points out that the allocation of taxing rights is a form of wealth allocation that divides globalization’s revenue proceeds among nations. As such, tax allocation arrangements should help “correct” international trade relationships that fail to meet relational-distributive standards. This discussion stresses a point frequently neglected in both the tax and political philosophy literature: Real-world attempts to promote a more just distribution of global wealth could benefit greatly from the integration of distributive considerations and tax allocation arrangements.