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Universal Jurisdiction and the Crime of Aggression

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In June 2010 in Kampala, Uganda, the states that are party to the Statute of the International Criminal Court agreed to amend the ICC Statute to add the crime of aggression to the Court’s jurisdiction. One of the key compromises that made this possible was the adoption of a U.S.-proposed “understanding” which provided that the aggression amendment should not be interpreted as creating a right for national courts to prosecute the crime of aggression under universal jurisdiction. If, however, national courts already possess the right to do so under customary international law, stemming from the Nuremberg precedent, then the understanding will end up failing to protect U.S. officials from the specter of potential prosecution for the crime of aggression in foreign courts around the globe. To answer that question, this Article re-examines the historic sources and analyzes the subsequent developments to discern whether Nuremberg established aggression as a universal jurisdiction crime under customary international law.

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The Democratic Coup d’Etat

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This Article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’´etat.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing
view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This Article, which draws on fieldwork that I conducted in Egypt and Turkey in 2011, challenges that conventional view and its underlying assumptions. The Article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and
facilitate free and fair elections.
Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. Constitutional entrenchment may occur in three ways: procedural, substantive, and institutional. The Article uses three comparative case studies to illustrate the democratic coup phenomenon and the constitutional entrenchment thesis: (1) the 1960 military coup in Turkey, (2) the
1974 military coup in Portugal, and (3) the 2011 military coup in Egypt.

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Variable Multipolarity and U.N. Security Council Reform

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One of the fundamental international law questions over the past two decades has been the structure of the United Nations Security Council. In a world of variable multipolarity, whereby changing crises demand different combinations of actors with relevant resources and shared interests, the Council’s reform should be based not on expanded permanent membership—as mistakenly held by conventional wisdom—but on inclusive contextual participation in decisionmaking. The Council’s five permanent members continue to have collective resources relative to the rest of the world that are not significantly different than at the founding of the United Nations, but are nonetheless insufficient due to the shifting crises. Thus, the Council needs to ensure flexibility of response and, depending on the context, engage with specific regional and local actors. In contrast, increased permanent representativeness (except for limited expansion to include India and Japan) would have little, if any, benefit in enabling the Council to better fulfill its responsibility across all crises and would merely risk increased deadlock. Moreover, the key issue for the international community is clarifying what common purpose the Council should serve. There is both a consensus within the international community that the Council’s responsibility under Article 24 of the U.N. Charter should continue to be the maintenance of international peace and security, and a persistent lack of clarity as to the meaning of this obligation in specific crises. Due to the decentralized nature of the international community, without a single Sovereign, this uncertainty cannot be resolved by a purely political decision. Under international law, interpretation of the Council’s purpose based on legal analysis of the text, context, and practice of Article 24 can be supplemented by recourse to norms of legitimacy emerging within the international community. If further agreement is reached on the Council’s purpose—a process that gives primacy to persuasion and can be improved through certain reforms—the U.N. Charter already provides sufficient legal mechanisms to enable the Council to meet the contemporary expectations of the international community.

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Basel III: Dynamics of State Implementation

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In December 2010, the Basel Committee on Banking Supervision issued the text of the Basel III Framework, a series of global financial regulations that respond to the Great Recession, the financial crisis of 2007–2009. Basel III is the third iteration of the Basel Accords, which, along with the Basel Committee and its negotiation process, have been hailed as an exemplar of international regulation and law-making, but also critiqued as deeply flawed and subject to influence by the banks regulated by the agreement, among other issues.

Although not formally binding, Basel I and II were widely adopted by member countries of the Basel Committee, as well as by many non-member countries. However, implementation of the Accords has always been contentious, with variations in state-level adoption, and efforts to implement Basel III have been similarly problematic. The Framework has been met with protests from banks about the burden of the new regulatory requirements, as well as calls for even more rigorous requirements by the national financial authorities of a number of countries, including Sweden, Switzerland, the United Kingdom, and Austria. Sweden’s central bank has announced its intention to unilaterally implement stricter regulations. Many states plan to implement the new regulations on an accelerated timeframe. Other countries’ financial authorities, including the Reserve Bank of New Zealand, do not intend to implement certain core parts of the regulations.

This Article uses scholarship on international financial regulation and the first two Basel Accords to establish a theoretical and historical context for understanding Basel III and the mixed response it has received from the international community. It suggests that national-level implementation of Basel III has been contentious and difficult for a number of reasons. First, the changes to the Basel Framework are costly and may have negative implications for the global competitiveness and profitability of some states’ regulated financial institutions.11 This has created political pressures at the national level, affecting state implementation. Second, the current depressed global economic environment and related financial uncertainty has exacerbated resistance to the new standards, which are expensive in both the short and long term. Finally, doubt in the efficacy of the Basel Accords in the wake of the Great Recession may be a contributing factor to international community’s ambivalent response to Basel III.

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Sovereign Debt Restructuring and Mass Claims Arbitration before the ICSID, The Abaclat Case

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On August 4, 2011, an arbitral tribunal at the International Centre for Settlement of Investment Disputes (“the ICSID”) set new precedent for the arbitration world. In Abaclat (and others) v. The Argentine Republic, the Tribunal held that it had jurisdiction to hear claims brought by some 60,000 Italian nationals against the Republic of Argentina following Argentina’s default and later partial restructuring of its sovereign debt. This decision is unprecedented in at least two respects. It is the first decision to hold that an arbitral tribunal has the legal authority to hear claims that a sovereign’s default and debt restructuring may have breached a bilateral investment treaty (“BIT”). Second, Abaclat is the first arbitral decision to hold that 60,000 Claimants may join in one mass claims arbitration under the institutional rules of the ICSID. If the Abaclat decision is followed in the future, it will likely have significant impact on sovereign debt restructuring, the drafting of arbitration clauses, and the scope of ICSID jurisdiction over mass claims arbitrations.

This commentary begins with a brief sketch of the circumstances leading to the Abaclat arbitration and then discusses the claims at issue in the most recent stage of the arbitration, the jurisdictional phase. The third section discusses the Abaclat tribunal’s (“The Tribunal”) rulings on the jurisdictional issues. Finally, the fourth section discusses the potential impact of the case.

 

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Antidumping in Asia’s Emerging Giants

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Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet, this behavior has triggered little concern in the United States and Europe. Why? Two leading theories suggest that the recent spike in Indian and Chinese antidumping measures is temporary. Moreover, the balance of benefits under existing international legal rules continues to favor American and European producers. As a result, the United States and European Union have viewed attempts to reform global antidumping laws as against their interests.

This Article challenges this conventional wisdom. It argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off. Instead, as more industries discover the benefits of antidumping laws and as China takes a more aggressive retaliatory stance against its trading partners, both countries’ use of antidumping sanctions will likely continue to increase. To guard against this increased protectionism, this Article argues that World Trade Organization members should reverse their opposition to reforming global antidumping rules and instead enact proposals that place greater restrictions on antidumping laws. It highlights why the present moment is an opportune time for reform, but notes that the window for reform is likely to close as China and India acquire increased economic strength.

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