Mar 4, 2025 | Issue 1, Print Journal, Volume 66
Lloyd Lyall
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Abstract
Enforcing international labor law is a perennial problem. One popular perspective asserts that tying compliance to trade incentives is the solution: several OECD countries have recently promised to ramp up enforcement of the labor rights commitments in their international trade deals. However, little empirical work is available to explain why trade-based enforcement of international labor rights norms works in some cases but not in others—or even if it works at all.
This Note assembles a novel dataset to investigate these questions by matching 53 trade-based labor rights enforcement cases under one of the world’s largest and oldest conditional trade programs, the U.S. Generalized System of Preferences, to information on the changes in labor conditions in each defendant country during litigation. The data reveal that labor rights enforcement cases are associated with improvements in independent union participation, freedom from forced labor, and employment equality in defendant countries about half the time. Using a generalized synthetic control design, this Note finds evidence that the cases may have caused these improvements.
This Note then explores why trade-based labor enforcement works better against certain countries. It uses a multivariate regression approach. The results suggest that the best predictor of whether a labor enforcement case will improve labor conditions in a defendant country is not, as many scholars assumed, how much the defendant country depends on the trade benefits at stake. Instead, the best predictor of success is whether the defendant country is a political ally of the United States, as proxied by similarity in U.N. General Assembly voting records. These results suggest that trade-based labor rights enforcement works more through reputational and game-theoretic mechanisms than outright coercion.
This Note is the largest quantitative study of the effect of trade conditionality on labor rights outcomes to date, and the first to apply causal empirical analysis to explain why trade-based enforcement works better against certain countries. The results suggest that trade-based human rights enforcement can work, especially against allies. This finding has implications for countries seeking to enforce international human rights law with trade incentives, and for broader debates over when and why states comply with international law.
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Mar 4, 2025 | Issue 1, Print Journal, Volume 66
Péter D. Szigeti
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Abstract
Erwin Schrödinger held Austrian, German, and Irish nationalities, at different times in his life. This Article, however, is not about the famed physicist’s nationalities, but a paradox along the lines of “Schrödinger’s cat:” Can a person both be a citizen of one or even several states, and stateless at the same time? Perhaps it is possible: refugees, alleged terrorists, and stateless persons sometimes find themselves in this situation, where two states both claim that the other state is responsible for them. Determining foreign nationality is harder than it seems, because nationality is determined by a slew of contradictory legal norms. Some of these are based on birth, others on desert, others on pure discretion. Some international law stresses the freedom of each state to determine its nationals, while other norms accent the limits based on human rights, public policy, national security, or simply what is considered usual and acceptable in most states. This Article1 argues that the contradictory norms for creating and determining nationality are the results of two fundamentally opposed visions of nationality. The constitutive vision of nationality considers it purely a matter of state will and positive law. The declarative vision connects it to the “natural facts” of inheritance, lifestyle, and lived experience. The opposition between declarative and constitutive visions of nationality create three citizenship gaps from which Schrödinger’s Citizenship emerges: the time gap (whether nationality exists from the time of determination or retroactively to birth); the foreign interpretation gap (whether the establishment of nationality is exclusively up to the state in question, or whether it can be established by foreign legal actors as well); and the administrative gap (whether statutory rights to citizenship are in fact easy to access, or made hard or even impossible through administrative (in)action). Neither the constitutive nor the declarative vision can be eliminated from the law, at least not without grotesque results for some states and persons. However, the application of a foreign state’s nationality laws without that state’s approval and acceptance cannot be legal.
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Mar 4, 2025 | Issue 1, Print Journal, Volume 66
Catharine A. MacKinnon & Max Waltman
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Abstract
Not far from the Labor Court, a woman in a snake-skin dress sits next to a wooden outhouse. The city has set up these so-called labor boxes for prostitutes. There, they are supposed to work and do their business simultaneously. It smells like feces and urine. She had just given a john a blowjob for twenty euros, the prostituted woman says—the drug addicts would do it for five euros. The woman says she’s saving for a house for herself and her six-year-old son. “At some point, the time will come when we in Germany will be ashamed of what we have done to these young women from Eastern Europe,” says Leni Breymaier, Bundestag MP for the Social Democratic Party (SPD). She has been campaigning for a sex purchasing ban in Germany for years. “To me, this is the slave trade of our time.” — Der Spiegel, June 23, 2023.
[B]ecause crimes against humanity occur in peacetime, as well as during armed conflict, addressing them through prevention and punishment can play a key role in staunching . . . an “atrocity cascade” before it descends into unstoppable conflict and overwhelming criminality. — Leila Nadya Sadat (2022).
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Mar 4, 2025 | Issue 1, Print Journal, Volume 66
Craig Martin & Scott Moore
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Abstract
The increasingly harsh and unevenly distributed heat-related harms caused by climate change, together with frustration over the collective inability to respond to the crisis, are likely to make unilateral geoengineering efforts increasingly attractive. Stratospheric aerosol injection (“SAI”) is a form of solar radiation modification that is effective, technically feasible, and within the financial means of many states and even non-state actors. Yet, there are virtually no global governance structures in place to specifically regulate such activity, and existing international law would provide only weak constraints on unilateral SAI efforts. These features create incentives for unilateral action in what is known as a “free driver” problem: few constraints on a unilateral action that has low direct cost combined with immediate direct individual benefit despite widely distributed risks and indirect costs.
There would be significant collateral environmental and climatic harms associated with SAI. That, coupled with the high risk of unilateral action, is reason enough for both caution and stronger governance. But another risk posed by any unilateral SAI effort—one that is underappreciated and under-theorized—is that of armed conflict. We explore how and why states would likely perceive the potential risks associated with unilateral SAI effort as constituting a threat to national security, and in the absence of adequate legal and institutional mechanisms to constrain such unilateral action, might well contemplate the use of force to defend against the perceived threat. The Article explores and explains how and why the jus ad bellum regime is unlikely to prevent states from engaging in unauthorized use of force against unilateral SAI actors.
In sum, there are strong incentives for unilateral SAI deployment, there is little in the way of global governance to constrain it, states will view it as a threat to national security, and the jus ad bellum regime is in turn unlikely to constrain any use of force in response—which creates a distinct risk that unilateral SAI deployment could result in armed conflict.
We argue that this underappreciated risk, combined with the growing pressure and incentive for unilateral action, provides further grounds for the urgent development of more robust governance for SAI—specifically, apart from other forms of geoengineering. We argue that a traditional multilateral treaty structure with an accompanying institutional apparatus is required, and we provide some preliminary ideas on the objects and purposes of such a governance structure. We explain that either the United Nations Framework Convention on Climate Change (“UNFCCC”) or the Montreal Protocol would provide an ideal forum within which to commence the work of developing such a governance structure.
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Mar 4, 2025 | Issue 1, Print Journal, Volume 66
Jay Butler
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Abstract
Corporate social responsibility (“CSR”) has a tax problem. The field encourages companies to do more for society than the minimum that is legally required. But, when it comes to companies avoiding tax, CSR has very little to say. Activists even allege that CSR merely distracts from companies’ much costlier tax minimization strategies that deprive the state of needed revenue and thereby undercut the state’s capacity to perform these very same functions.
Though CSR has historically sidestepped questions of tax, this is beginning to change. Some major companies now discuss tax as a part of their corporate sustainability reporting. And CSR standard setters have started to consider including tax as a factor in their evaluation of corporate behavior. At the same time, countries around the world are starting to implement the Organization for Economic Cooperation and Development (“OECD”) and G20 plan for a Global Minimum Tax. This program aims to enforce a minimum tax rate for large multinational corporations, thereby reducing incentives for tax arbitrage. Though this focus on tightening the rules regarding how much tax business entities owe is significant, companies will still retain much discretion as to where they pay tax.
This Article argues that corporate discretion regarding where to pay tax is a pressing issue about which a more robust version of CSR may provide important guidance. It proposes that future dialogue between tax and CSR should focus not just on how much companies pay but also on where companies pay tax. The Article articulates how considerations of economic development, human rights, and environmental protection may inform the exercise of corporate tax discretion, and it examines the important ramifications of these decisions for global inequality.
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