Volume 60, Issue 1

Table of Contents




Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court

By: Martha Minow


Precedent and Dialogue in Investment Treaty Arbitration

By: Richard C. Chen


Tides of Climate Change: Protecting the Natural Wealth Rights of Disappearing States

By: Ori Sharon


Hiding in Plain Sight: The Power of Public Governance in International Arbitration

By: C.J.W. Baaij



Conceptualizing the Relationship between International Human Rights Law and Private International Law

By: Mark Hirschboeck

United Nations: Rethinking the War on Drugs

United Nations: Rethinking the War on Drugs

In October, a briefing paper that the UN Office of Drugs and Crime (UNODC) HIV division head was to present at an international conference was released. The briefing paper garnered attention because it advocates decriminalization of drug use and possession for personal consumption. Other UN branches, such as the WHO and UNAIDS, have expressed support for decriminalization in the past. However, this paper came as a surprise because the UNDOC, which leads the fight against illicit drugs and international crime, has been known as the more conservative branch of the UN.

The briefing paper states that harsh drug penalties marginalize people who use drugs for personal consumption, perpetuating poverty and the HIV epidemic. It further points out that international drug control conventions allow “alternatives to conviction or punishment” for drug offenses of a “minor nature.”

In response to media coverage of the briefing paper, a spokesperson for the UNODC clarified that the paper does not reflect the office’s formal policy. However, the spokesperson added that the UNODC is “committed to the balanced approach that . . . promotes alternatives to incarceration in line with international human rights standards.” In June, the UN’s Secretary-General Ban Ki-moon also commented, “We must consider alternatives to criminalization and incarceration of people who use drugs . . . [and] should increase the focus on public health, prevention, treatment and care.”

Several countries provide evidence that decriminalization of minor drug offenses and personal drug consumption can subdue the spread of HIV. Portugal, Iran, and Germany have seen significantly less drug use-related HIV infections after adopting lenient drug laws for minor offenses.

Although the current official policy of the UNODC is to support the strict war on drugs, the UN may be leaning towards a more lenient drug policy in light of its effectiveness in fighting the battle against HIV.

A Fly in the Ointment: The TPP’s Investor-State Dispute Settlement Clause

A Fly in the Ointment: The TPP’s Investor-State Dispute Settlement Clause

By Josh Macfarlane

The Trans-Pacific Partnership (TPP) has had quite the summer. With the help of some adroit political maneuvering and an unexpected alliance between President Obama and congressional Republicans, Congress just managed to pass the necessary legislation to advance the trade deal to the next state of negotiations. The TPP, an international trade deal representing 40% of global GDP, is particularly divisive within the President’s own party. Many criticize the deal for neglecting labor rights, sacrificing American jobs, and the clandestine nature of the negotiations. But it is the Investor-State Dispute Settlement (ISDS) clause that perhaps provokes the most ire.

The ISDS provision essentially allows investors from one country to file claims against the government of another. Controversially, an international tribunal, which operates outside the confines of domestic courts and laws, adjudicates the claims. For supporters, the tribunal promotes neutrality, fairness, and predictability. For critics, it represents an unprecedented cession of power to an unaccountable body.

Critics argue that the ISDS provision allows investors, including multinational corporations, to circumvent United States law, thereby undermining national sovereignty. There is some truth to this. After all, the tribunal’s decision cannot be appealed in a nation’s courts. Making matters worse, foreign investors do not even need to file a claim to get their way. Merely threating to bring a claim has proven sufficient. Earlier this year, the Guardian reported that an American tobacco company effectively threatened the Canadian government with an ISDS claim, forcing them to withdraw a proposal that would require plain packaging on tobacco products. Critics see this as the beginning of the end: the TPP will enable foreign corporations to bring claims against the government—at the state, federal, and local levels—on the grounds that a domestic law is discriminatory. To put it another way, a Japanese corporation could bring a claim against the government of Billings, Montana on the grounds that a local ordinance gives a marginal advantage to local manufacturers.

Supporters see things differently. They argue that while trade agreements facilitate cross-border investment, foreign investors require (and even deserve) access to an impartial adjudicatory body to protect their interests. There is a long history of courts favoring the home team – it is one of the reasons we have diversity jurisdiction in the United States. This problem is only amplified when a nation’s courts are charged with adjudicating between a domestic defendant and a foreign claimant, particularly when the defendant happens to be the government. The solution? An independent tribunal. The ISDS provision is thus a means of ensuring that investors operating abroad have protection and recourse against discrimination, uncompensated expropriation of property, and denial of justice.

In response to critics’ admonition that the TPP will result in a deluge of claims against the United States, Mr. Obama’s administration regularly cites facts and figures: over 3,000 international agreements include ISDS provisions, of which the United States is party to 50. Take NAFTA as an example, where only 20 claims have been brought against the United States, none of which has been successful. (It should be noted that these figures do not address those instances in which an investor threatened to bring a claim but never did.) But, critics argue, things will be different under the TPP. Countries like Australia and Japan, two TPP members, are home to corporations with the necessary resources to aggressively pursue claims. This is debatable. The United States already has existing trade agreements, containing ISDS provisions, with six of the eleven other TPP members. This includes countries like Canada, Singapore and Mexico, which have their fair share of wealthy corporations.

Interestingly, it was not the ISDS provision that stymied negotiations between TPP members this summer. Rather, it was differences over sugar and dairy exports, among other things. What seems to matter most to the critics is not what is holding up the talks. This is largely because those seated at the negotiating table accept that an ISDS provision is critical to a final deal; they feel that critics have overblown its implications.

If negotiators cannot resolve their differences, discussions may be indefinitely postponed. The upcoming Canadian general election and the 2016 U.S. Presidential race have been identified as possible roadblocks on account of candidacy ambivalence towards the TPP. Time is of the essence, and September is likely to be a pivotal month. Perhaps that local ordinance in Billings will not be challenged after all.


Josh Macfarlane is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.

HILJ Online Symposium: Volumes 54(2) & 55(1)

HILJ Online Symposium: Volumes 54(2) & 55(1) is taking place from Monday, March 31 to Friday, April 4, 2014. The schedule for HILJ Online Symposium: Volumes 54(2) & 55(1) is as follows:

  • Monday, March 31, 2014: Response and Sur-response to Anthea Roberts, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 HARV. INT’L L.J. 1 (2014). Response authored by Martins Paparinskis.
  • Tuesday, April 1, 2014: Response and Sur-response to Monica Hakimi, Unfriendly Unilateralism, 55 HARV. INT’L L.J. 105 (2014). Response authored by Tim Meyer.
  • Wednesday, April 2, 2014: Response and Sur-response to Gregory H. Shill, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 HARV. INT’L L.J. 459 (2013). Response authored by Christopher A. Whytock.
  • Thursday, April 3, 2014: Response to János Fiala-Butora, Michael Ashley Stein & Janet E. Lord, The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 HARV. INT’L L.J. 71 (2014). Response authored by Michael Waterstone.
  • Friday, April 4, 2014: Response and Sur-response to Suzanne Katzenstein, In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century, 55 HARV. INT’L L.J. 151 (2014). Response authored by Karen J. Alter.

For more information please visit http://opiniojuris.org/2012/01/22/hilj_53_1/.