2012 GJIL Symposium
Corporate Responsibility and the Alien Tort Statute
Georgetown University Law Center
Tuesday, March 27, 2012
To hear a recording of the Symposium, please click here. For it to play properly, please save the file to your computer; it may take a few minutes to download.
Volume 43, Issue 2 (Winter 2012)
Articles
(Click on the title to access the pdf file)
The Security Council as a Legal Hegemon
By: Daniel H. Joyner
Abstract: This article will examine the United Nations Security Council’s efforts to implement, preserve, and universalize the obligations of the 1968 Nuclear Nonproliferation Treaty. This discussion will lead to questions regarding the Security Council’s role and authority in the international legal system, and ultimately to a consideration of how the international legal system can better guarantee that the Security Council does not exercise an unwarranted degree of legal power at the expense of the member states of the United Nations.
Assassination & Targeted Killing – A Historical and Post-Bin Laden Legal Analysis
By: Mark V. Vlasic
Abstract: In many ways, September Eleventh ushered in a new threat, new methods of warfare, and with time, a new emphasis on targeted killing. Whereas assassination and targeted killing is nothing new in warfare, the covert hit squads of the past are slowly being replaced with technology. Today’s sophisticated belligerents can eliminate an enemy leader from thousands of miles away with little threat to friendly lives. In this article, Professor Vlasic traces the evolution of the law of assassination and targeted killing from its roots in ancient times, through the Twentieth Century and into the present. Professor Vlasic explores the complex problems of domestic law, international law, self-defense, terrorist combatant status, and drone warfare, and applies the current law to the recent targeted killings of Colonel Muammar al-Qadhafi and Osama bin Laden. The article answers an important question: in the struggles against terrorism and against tyranny, what separates an illegal assassination from a lawful targeted killing?
Justice Delayed, Not Denied: Statutory Limitations and Human Rights Crimes
By: Jan Arno Hessbruegge, Human Rights Officer for Legal Advocacy, Executive Office of the U.N. High Commissioner for Human Rights
Abstract: From the vantage point of morality and sound legal policy, time bars should not apply to the prosecution of human rights crimes or related reparation claims. Under the civil law tradition, however, even the most serious crimes have traditionally been subject to prescription. In common law systems, statutes of limitations have posed a major obstacle to reparation claims based on human rights crimes, including historical wrongs.
In the era of the Rome Statute of the International Criminal Court, customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts. Furthermore, the vast majority of states are obligated under international treaty law to also abolish statutes of limitations for other human rights crimes, in particular torture and extrajudicial killings.
This also has repercussions for crimes committed in a more distant past, as international law allows (but does not require) states to abolish domestic statutes of limitations with retroactive effect, even where the prosecution of acts amounting to international crimes had already become time-barred.
While justice delayed no longer means justice denied in respect of the prosecution of human rights crimes, not enough thought has been given to whether the same can be said for related reparation claims. This Article demonstrates that the right to an effective remedy under international human rights treaty law renders claims based on genocide, crimes against humanity, and war crimes imprescriptible. Regrettably, state practice does not follow this approach, which has so far prevented the emergence of a norm of customary international law to that effect.By: Pedro J. Martinez-Fraga
Abstract: The 2010 iteration of the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration constitutes a laudable effort, albeit organic work-in-progress, that expressly aspires to provide an “efficient, economical, and fair process” for the taking of evidence in international arbitrations. The newly introduced standards of “reasonably relevant to the case and material to its outcome,” as well as “good faith” have the potential of serving as pivotal premises in the Rules’ workings. The application of the identical standard for purposes of both the taking of evidence pre-final hearing phase and at hearings and the final hearing concerning admissibility requires sustained consideration and reconsideration. The arresting absence, however, of definition and specificity attendant to terms rudimentary to these criteria hampers the Rules’ theoretical underpinnings and practical application by inordinately enhancing the scope of inherent arbitral authority at the expense of the most critical, almost sacrosanct principles that underlie international arbitration: party-autonomy, uniformity, predictability, and transparency of standard. A suggested approach in addressing the absence of any definition for “good faith” within the Rules’ rubric is to borrow from the “transparency” requirements that now pervade the Rules as a principle susceptible to cross-cultural understanding and one that may meet the most fundamental expectations of parties from different legal traditions. Good faith in the taking of evidence is inextricably intertwined with transparency and may perhaps find theoretical support and functional application when understood through the prism of a “transparency” standard, as arbitral authority cannot be boundlessly enhanced as a consequence of uncertainty and lack of definition.
I.O. 2.0: Indian Ocean Security and the Law of the Sea
By: James Kraska
Notes
By: Luke Engan
Abstract: Investment tribunals have exhibited several distinct methods of defining “necessity” as the term appears in international investment agreements, as well as the necessity defense in customary international law. At the World Trade Organization, panels and the Appellate Body have faced the question of how to define necessity as it appears in the general exceptions to goods and services trade disciplines, and the Appellate Body has developed a framework that is applicable in the context of investment law. Reduced to its essence, the framework has three elements. First, the framework includes a means-ends nexus, or congruence, requirement by considering the challenged state action’s contribution to the state’s policy objectives. Second, panels and the Appellate Body consider the proportionality of the challenged state action, weighing the relative importance of the interests or values that the state intends to protect and the action’s detrimental impact on exports or imports. Third, the framework examines whether the state action constitutes the least restrictive means of achieving the state’s objectives by examining alternative measures to determine whether they are reasonably available and whether they would constitute a lesser deviation from the state’s obligations under trade rules. This framework should be adopted in investor-state arbitral proceedings, with appropriate deviations in its application to account for instrumental differences between the necessity defenses found in investment law and customary international law and the necessity exceptions in trade law.
Yoking the Bull: How to Make the FCPA Work for U.S. Business
By: Peter Jeydel
Abstract: The U.S. government’s harsh, discretionary and broad-reaching enforcement of the Foreign Corrupt Practices Act (FCPA) has imposed a heavy regulatory burden that puts small and mid-sized U.S. businesses with significant international activities at a competitive disadvantage vis-a-vis their foreign peers. This restraint on foreign business activity will stymie the Obama Administration’s stated goal of increasing exports from the U.S. as the way out of economic stagnation. The marginal improvements in foreign business conduct, if any, that the government achieves with its enforcement strategy are not worth the costs. The U.S. Congress should move forward with reforms to the FCPA currently under consideration by the House of Representatives that would make the law more clear and more balanced. At the same time, the government should broaden its foreign anti-corruption efforts by enlisting all of the resources at its disposal, rather than focusing almost exclusively on supply-side law enforcement.
The Limits of the Caroline Doctrine in the Nuclear Context: Anticipatory Self-Defense and Nuclear Counter-Proliferation
By: Leah Schloss
Abstract: The international law doctrine of self-defense has traditionally been defined by the United Nations Charter and the customary international law doctrine from the Caroline case. Under this standard, force cannot be used in anticipation of a pending military attack unless such use of force is necessary to combat an imminent attack. This Note argues that, in the nuclear context, this doctrine is insufficient. Once an aggressor nation has developed a nuclear program, any action taken in self-defense could result in nuclear war or other catastrophe. Requiring that states wait until this point in order to exercise their self-defense rights would effectively eliminate the right of self-defense in this context.
The last few decades have seen two military actions taken against developing nuclear programs with the Israeli military strikes on the Iraqi nuclear reactor in 1981 and the Syrian nuclear facilities in 2007. In the wake of the 1981 Iraq strike, scholars began to question whether the Caroline doctrine warrants reconsideration. The international silence following the strike on the Syrian facilities further provides support that the doctrine is ripe for change due to a shift in state practice.
Because of the insufficiency of the current doctrine, and the shifts in both state practice and the views of scholars, this Note proposes a new doctrine that is both workable and provides a reasonable limit on the use of force in line with the goals of the United Nations Charter. As exhibited through the example of Iran, this proposed doctrine would allow for a military strike in anticipatory self-defense against nuclear programs being developed by an aggressor state when the nuclear program is imminent, rather than requiring that states wait until the program has developed and an actual nuclear attack is imminent.