Apr 11, 2024 | Issue 1, Print Journal, Volume 65
Weijia Rao
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Abstract
Policymakers and scholars have expressed concerns about growing corporate influence over government regulations, including in the context of investor-state dispute settlement (“ISDS”). Encouraged by high-profile victories and examples of “regulatory chill,” critics of ISDS have argued that it excessively serves large multinational corporate interests at the expense of government regulatory agendas. In part due to such criticisms, various proposals have been made, including the replacement of ISDS with multilateral investment courts or state-to-state arbitration.
This Article introduces a novel dataset on ISDS claimant characteristics, which reveals that most ISDS claimants are actually small- or medium-sized firms. Using this dataset, this Article empirically explores whether large firms are more successful in (1) obtaining awards of damages from governments, and (2) influencing governments to repeal or amend the challenged measures through ISDS. The data reveal no evidence that large firms are more likely to prevail in ISDS cases. However, consistent with ISDS critics’ suggestions, cases brought by large firms appear more likely to end with repeal or amendment of the challenged measure.
Through case studies, this Article proposes a plausible explanation for the greater success of large corporations in chilling government regulations. The case studies show that large corporations often employ multi-pronged approaches, combining ISDS with tactics such as lobbying, domestic litigation, international dispute settlement, and diplomacy. Consequently, this Article cautions that replacing ISDS risks denying small- or medium-sized firms the opportunity to seek redress before an international arbitral tribunal, without substantially addressing concerns of “regulatory chill,” so long as other facets of such multi-pronged approaches remain viable.
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Apr 9, 2024 | Issue 1, Print Journal, Volume 65
Naz Khatoon Modirzadeh
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Abstract
Third World Approaches to International Law (“TWAIL”) has aspirations to transform the tools and institutions of international law—which have served for centuries to construct, enact, and extend Western exploitation and domination—into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled—and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I propose that this is, at least partly, due to TWAIL’s ambivalence toward the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions toward the Global South.
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Apr 8, 2024 | Issue 1, Print Journal, Volume 65
Kathleen Claussen
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Abstract
At the core of U.S. economic governance, there is a novel and under-noticed phenomenon that challenges longstanding frameworks of international law and corporate compliance. This practice, which this Article terms the new “trade policing,” has extraordinary reach. Recent regulatory makeovers and pathbreaking statutes empower our trade agencies to target, for the first time, companies, rather than foreign governments, as used to be their purview. Trade police now pursue companies wherever they may be in the world, not just for violating U.S. law but also for violating foreign law in areas as diverse as labor rights and environmental protections. Such a regime may sound untenable, defying basic principles of jurisdictional authority. But new corporate trade policing is increasingly entrenched in international trade law. This repurposing of our trade enforcement system has the power to transform dramatically the global commercial system, the bargains it manages, the procedures applicable to it, and the rights and obligations of all involved.
Drawing on a diverse set of agency communications, new legislation, and interviews with government officials, this Article surfaces this subtle but critical pivot in our cross-border commercial governance. It maps the institutional ascent of this revealed practice and argues that the practice was the product of disillusionment with the intellectual pedigrees of conventional trade law and developed in response to calls for more effective tools to combat vast corporate wealth and economic marginalization.
The Article then evaluates trade policing in light of the progressive aims that policymakers have set for it, taking into account the many constituencies on whom the burdens fall unevenly. Through numerous examples across different regulatory policies, the Article shows not only that trade policing is happening, but also that it matters. This excavation exposes how our trade police do not operate like other forms of law enforcement or bureaucracy. Rather, trade policing occurs in considerable shadow and lacks hallmarks traditionally associated with administrative law. Still more troubling is that tactics like those in the U.S. arsenal bear close resemblance to the practices of authoritarian governments that seek to provoke acquiescence without process. The Article’s assessment prescribes lessons for the several disciplines that trade policing touches, including for the way scholars and lawmakers conceive of which bodies of law, tools, and actors are best suited to manage international corporate behavior.
Taken together, the Article makes four contributions. First, it identifies and illustrates the rise of the new trade policing. Second, it unpacks the distinct features of this novel corporate targeting and draws conclusions about its functions for the way we think about compliance with a wide range of public policies. Third, the Article offers a guarded defense of this complex work by our foreign commercial bureaucrats and analyzes the implications for trade law, administrative procedure, and governance. Finally, the Article demonstrates that, as a corporate accountability system, trade policing has leapfrogged efforts by fields with similar aims, and the policing tools we have so far are just the tip of the iceberg.
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Apr 5, 2024 | Issue 1, Print Journal, Volume 65
Gregory H. Fox & Noah B. Novogrodsky
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Abstract
International law has traditionally protected aliens against unlawful expropriations by host states. After World War II, citizens gained protection against property being taken by their own governments. In Federal Republic of Germany v. Philipp (2021), the U.S. Supreme Court held that the Takings Exception to the Foreign Sovereign Immunities Act (28 U.S.C. § 1605(a)(3)) incorporated international law’s protections against alien property deprivation but not protections for citizens. The Court did so, in part, because international law’s traditional inapplicability to citizen takings, in its view, “survived the advent of modern human rights law.”
The U.S. Supreme Court was simply wrong. Even at the time the U.S. Congress enacted the Takings Exception in 1976, many human rights instruments addressed citizen takings. Later, similar norms would enter a variety of other areas of international law, forming a mutually reinforcing network of property protections. But Philipp not only missed an opportunity to describe property norms accurately—its more significant omission was failing to distinguish the types of property covered by the alien and citizen regimes. Using a typology developed by Margaret Jane Radin, we identify alien property as “fungible,” meaning a dispossessed owner can be made whole by acquiring equivalent property in the market or its monetary equivalent. We identify citizen property as “property constitutive of personhood” or “personal property,” meaning the owner can only be made whole through restitution.
This Article explores how these very different conceptions of property have become manifest in two paradigmatic types of takings. For alien property, we examine the practice of expropriated foreign direct investment. For citizen property, we examine property taken during forced evictions in civil wars and persecution, including ethnic cleansing. In each case, the way in which the right to property conceives of the protected interest and the remedy available to owners reflect the different nature of the property involved. While the remedy of compensation is available for both alien and citizen property under the law of state responsibility, investors have chosen compensation in almost every reported case. By contrast, citizens with a deep connection to homes, family businesses, art, and land demand restitution. Focusing on that choice is consistent with Radin’s definition of personal property as a largely subjective concept, built on how individual owners understand specific pieces of property to constitute an essential aspect of their character.
Three consequences flow from conceiving alien and citizen property as fungible and personal, respectively. First, the distinction introduces a human-centered conception of property that has been missing from international law debates focused on identifying legally cognizable “takings” and appropriate measures of compensation. Second, the idea of personal property clarifies the ways in which international law views certain takings, such as the seizure of homes attendant to massive human rights abuses and the taking of cultural property. Third, the land of indigenous peoples, often described as occupying its own legal category, is presented here as an extreme example of personal property. In turn, that conception may help clarify and bolster claims for restitution of other types of personal property.
Sep 22, 2023 | Issue 2, Volume 64
From “Space Law” to “Space Governance”: A Policy-Oriented Perspective on International Law and Outer Space Activities
By Dr. Gershon Hasin
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Developing activities in outer space, many driven by private actors, coincide with the resurgence of competing systems of world public order. An authoritarian bloc, led by China and Russia, promotes a competing world order based on values, including authoritarian capitalism, that differ greatly from the liberal rules-based public order led by the United States. In the space arena, interactions are complicated by two changing circumstances: the divergence between two frameworks, the U.S.-led Artemis program and the Chinese-Russian program; and the obsolescing of applicable norms due to technological innovation, changing participants, and increasing disputes. These developments require reevaluating paths toward securing minimum and optimum orders in space.
Predominant legal scholarship for space, however, has approached emerging claims and negative externalities in space from the perspective of “law,” as a body of rules, rather than as a field of “governance.” Such an approach fails to appreciate the international lawmaking process and overestimates the authority, control, and endurance of applicable norms. This article proposes that under modern circumstances, it is preferable to detach from “space law” for a “space governance” mode of thinking based on policy-oriented jurisprudence. The article outlines six analytical components of the proposed space governance framework which is geared toward a contextual appreciation of interactions between various participants. It then utilizes the approach to confront two urgent aspects of space governance. First, it proposes a regime of coordination between the two systems of world public order which may alleviate conflicts in lunar operations. Second, it demonstrates that the correlating interests of the competing blocs generate incentives for installing a cooperation regime of non-proliferation and testing prohibition for anti-satellite weapons.
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Sep 22, 2023 | Issue 2, Volume 64
The Wild West of Company-Level Grievance Mechanisms: Drawing Normative Borders to Patrol the Privatization of Human Rights Remedies
By Lisa J. Laplante
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This Article is the first to present a normative framework that challenges the privatization of remedies established by corporations to resolve human rights violations which they contribute to or cause. The need to draw such normative borders responds to an unprecedented innovation of ordinary company complaint mechanisms to handle human rights grievances suffered by individuals and communities. This development traces back to the 2011 approval of the United Nations Guiding Principles on Business and Human Rights (“UNGPs”) which call on companies to develop operational-level grievance mechanisms (“OGMs”) to handle a range of claims which may include those involving serious harms. This Article shares empirical evidence from a six-year study that demonstrates a notable uptick in companies developing OGMs, especially as they come under increasing pressure from private and public sources to comply with the UNGPs. Surprisingly, these redress mechanisms operate with virtually no government regulation or oversight even though the right to an effective remedy and holding private actors like companies to account go to the core of protecting fundamental rights. Remarkably, there has been minimal challenge or discussion about this concerning situation, most likely due to some ambiguities in the UNGPs and the lack of guidance from the U.N. bodies in charge of their implementation regarding any normative limits on the use of these private remedies. Indeed, an opinion issued by the Office of the High Commissioner for Human Rights in 2013 concerning a high profile OGM established by the Barrick Gold Corporation even suggests that company grievance mechanisms may operate beyond the normal boundaries of the law and require greater normative flexibility, drawing an analogy to administrative reparation programs employed in post-conflict settings. This Article challenges this analogy and the resulting conclusion through three normative arguments. First, administrative reparation programs in post-conflict settings are state-led initiatives that operate within clear normative boundaries and have been subject to review by international human rights bodies. Second, this external review occurs because governments can be held liable for failing to fulfill two positive duties: the obligation to protect human rights even when violated by private actors, and the obligation to ensure the right to access an effective remedy if such protection fails. Finally, a state cannot delegate either of these positive obligations to a private entity like a company, at least not without some oversight. This Article argues that because the UNGPs also recognize these foundational principles, they should be interpreted to support more regulation of OGMs—a position supported by recent judgments issued by the Inter-American Court of Human Rights. This Article concludes by acknowledging the current reality in which OGMs may serve as the only remedy available to some communities in states with weak remedial systems, and proposes a new agenda to ensure that OGMs operate subject to oversight to ensure they are effective and thus serve the ultimate aim of victim redress and corporate accountability.
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