This Article examines international law limitations on the ascription of citizenship in the context of U.S. taxation of non-resident citizens. U.S. citizenship practice is exceptionally generous, extending citizenship to almost all persons in its territory at the moment of birth. At the same time that it is generous at the front end, U.S. citizenship is sticky at the back. Termination of citizenship on the individual’s part involves substantial fees and tax compliance. It is difficult to shed a citizenship one may never have wanted in the first place.
This stickiness would be inconsequential if few costs were associated with the status. But the United States taxes its citizens on a worldwide basis. The 2010 enactment of the Foreign Account Tax Compliance Act has ramped up historically lax enforcement and imposes substantial administrative burdens on even middle-earner citizens abroad.
In this frame, U.S. birthright citizenship and expatriation regimes may violate international norms, especially with respect to those "accidental Americans" who departed the United States as children. Even in the context of extremely relaxed historical constraints on state nationality practice, there were acknowledged nineteenth century limitations on the extension of citizenship to individuals with insufficient connection to a state -- citizenship over-claiming, as it were. The article also describes the historical requirement that naturalization be volitional, a norm now appropriately applied in some cases in the context of birthright citizenship.
To the extent the ascription of U.S. citizenship compromises individual rights, there are tax fixes and there are citizenship fixes. Citizenship fixes include opt-in and opt-out mechanisms for birthright citizenship. The better solution may lie in frictionless exit for those with nominal ties to the national community. Though reform is more likely to be accomplished through the tax regime, the moment highlights the over-inclusiveness of U.S. citizenship and the growing salience of international law to citizenship practices.
Monday, April 24, 2017
Pollack: The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order)
Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the US and the European Union EU toward the rule of international law. Critics have argued that the US had abandoned its post-war role as the champion of the international legal order, being instead characterized by a "new sovereigntism" that seeks to protect the US from unwelcome intrusions of international law into the domestic legal order. By contrast, the EU has been seen as inherently committed to the rule of law and a strong international legal order. The aim of this paper is not to attack, much less to debunk, the conventional dichotomy between a scofflaw America one the one hand and an international law-loving Europe on the other. The more limited aim of this paper, rather, is to suggest that European attitudes towards international law may be changing, and that the EU is developing a European variant of the American new sovereigntism, in which a growing number of critics – concentrated primarily, though not only, among the pro-European left and center-left – have raised fundamental procedural and substantive objections to international rules and norms, which they depict as hostile to European laws and values, and against which they champion a defiant resistance. In a growing number of areas of international law, including international trade, economic regulation, food safety, data privacy, and national security, the European center-left has moved towards a sharply critical view of international law, alternatively resisting consent to unwelcome agreements, compliance with unwelcome international judicial decisions, and internalization of international laws perceived to be in tension with domestic EU rules and rights. These changing attitudes towards international law, in turn, have been magnified and translated into policy outcomes through the EU’s “hyper-consensus” political institutions, which have created multiple veto points empowering European critics to defy and deflect the intrusion of unwelcome international legal norms, rules, and agreements.
The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council’s agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process.
This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council’s decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions.
- April 28, 2017: Sean Aughey (11KBW), Refracting international law ideas through the prism of the common law: act of state is (almost) dead, long live act of state!
- May 5, 2017: Ola Mestad (Univ. of Oslo - Law), Global governance on the ground: the development and implementation of the OECD Guidance
- May 12, 2017: Elies van Sliedregt (Leeds Univ. - Law), The Malabo Protocol and the African Court of Justice and Human Rights: model for the future?
Sunday, April 23, 2017
Discussion: Supreme Law of the Land? Debating the Contemporary Effects of Treaties Within the United States Legal System
- The Editors, Preface
- Javad Zarif, Foreword
- Yves Daudet, Brèves remarques sur la contribution de l’Académie de droit international de la Haye au développement du droit international
- Pierre Michel Eisemann, Quelques remarques sur la place du droit au sein des organisations internationales
- Said Mahmoudi, The Iran Nuclear Deal: Some International-law Aspects
- Shinya Murase, Scientific Knowledge and the Progressive Development of International Law: with Reference to the ILC Topic on the Protection of the Atmosphere
- Sundhya Pahuja & Cait Storr, Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited
- Anicée Van Engeland, Statehood, Proto States and International Law: New Challenges, Looking at the Case of ISIS
- Mohamed Bennouna, La Cour internationale de Justice et le traitement du contentieux dans la durée : Le temps retrouvé
- James Crawford, The Place of the International Court in International Dispute Settlement
- Jean d’Aspremont, International Lawyers and the International Court of Justice: Between Cult and Contempt
- Marie-Françoise Labouz, Le règlement des différends investisseur/État (RIDE) : brève revue de doctrine avant réforme
- W. Michael Reisman & Mahnoush H. Arsanjani, Legal Decisions and Their Implementation in International Law
- Jamal Seifi, Peremptory Norms and the Jurisdiction of the International Court of Justice
- Sienho Yee, Some Comments on the Temple (Interpretation) Judgment and the Impact of Possible Mistakes on the Temple Saga
- Mohsen Abdollahi, Alleged Support of Terrorism as a Ground for Denying State Immunity
- Hirad Abtahi, Types of Injury in Inter-States Claims: Direct Injury to the State
- Lucius Caflisch, Réflexions sur l’immunité des États en matière civile
- Alain Pellet, Responsibility of States in Cases of Human-rights or Humanitarian-law Violations
- Mariano J. Aznar, Exporting Environmental Standards to Protect Underwater Cultural Heritage in the Area
- Ida Caracciolo, Migration and the Law of the Sea: Solutions and Limitations of a Fragmentary Regime
- Rafael Casado Raigón, La dimension internationale de la compétence de l’Union européenne en matière de pêche
- Emmanuel Dupont & Alexia Solomou, Provisional Measures in Maritime Delimitation Cases Pierre-
- Víctor L. Gutiérrez Castillo, The Contribution of the States of Central America to the Evolution of the New Law of the Sea
- Gerhard Hafner, Does the Freedom of the Seas Still Exist?
- Zalmaï Haquani, Les pays sans littoral et droit de la mer
- Maurice Kamto, Considérations actuelles sur la méthode de délimitation maritime devant la Cour internationale de Justice. De charybde en scylla ?
- Mariko Kawano, Compulsory Jurisdiction under the Law of the Sea Convention: Its Achievements and Limits
- Ahmed Mahiou, L'Algérie et la Méditerranée
- Bernard H. Oxman, Judicial Application of Environmental Standards under the Law of the Sea Convention
- Jean-François Pulvenis de Séligny-Maurel, The Future of the High Seas Fisheries Legal and Institutional Framework
- Natalino Ronzitti, Sunken Warships and Cultural Heritage
- Emmanuel Roucounas, Users of the Law of the Sea: Some Recent Developments
- Tullio Scovazzi ,The Relationship between Two Conventions Applicable to Underwater Cultural Heritage
- Roberto Virzo, The Dispute Concerning the Enrica Lexie Incident and the Role of International Tribunals in Provisional Measure Proceedings Instituted Pursuant to the United Nations Convention on the Law of the Sea
- Ricardo Abello-Galvis, La jurisprudence de la Cour Interaméricaine des Droits de l’Homme et le jus cogens (2013-fevrier 2016)
- Ove Bring, The Notion of Human Rights and the Issue of Cultural Relativism
- Jorge Cardona, Droit a l’éducation et diversité : le droit à une éducation inclusive et équitable de qualité
- Giuseppe Cataldi, Immunités juridictionnelles des États étrangers et droit de l’homme : quel équilibre entre les valeurs fondamentales de l’ordre national et le droit international coutumier ?
- Nasrin Mosaffa, Protecting Children in and at War: From Legally Protected Subjects to ‘Others’ in the Conflict
- Amir Hossein Ranjbarian, A propos de quelques éclaircissements jurisprudentiels dans le ciel gris de la lutte contre la torture
- Linos-Alexandre Sicilianos, Les relations entre droits de l’homme et droit international humanitaire dans la jurisprudence de la Cour européenne des droits de l’homme
- Joe Verhoeven, Brèves remarques sur la répression du génocide
- Michael Bothe, Protection of the Environment in Relation to Armed Conflicts - A Preliminary Comment on the Work of the International Law Commission
- Zakaria Daboné, Regards sur le contenu des qualifications des principaux acteurs des conflits armés
- Knut Dörmann & Tilman Rodenhäuser, Contemporary Challenges for International Humanitarian Law
- Yves Sandoz, Le droit international humanitaire à l’épreuve des conflits contemporains
- Sandra Szurek, L’espace humanitaire : un passage souhaitable de la pratique au droit ?
- Paul Tavernier, L’évolution du droit international humanitaire au XXIème siècle : une nécessité ?
- Abdelwahab Biad, Le droit international au défi de « l’exceptionnalisme nucléaire »
- Farideh Shaygan, Intervention by Invitation as a Tool of New Colonialism
- Yvenson St-Fleur, L’intervention par invitation d’un État tiers : le consentement au recours à la force contre des combattants étrangers terroristes
International organizations (IOs) play a vital role in enforcing international law. Many treaties are built on transnational enforcement, in which private actors challenge and litigate possible legal violations. Others feature international enforcement, in which only states can challenge possible violations. Some feature centralized enforcement, in which an IO has its own authority to challenge possible violations. I argue that collective action problems drive decisions about whether to enforce international law, and hence affect the optimal design of enforcement regimes. When cooperation generates concentrated benefits --- such as compensation for the expropriation of foreign investment --- transnational enforcement can work well because the cost and benefit of enforcement are both fully internalized by the litigant. However, when cooperation generates diffuse benefits --- like a cleaner environment --- individuals and even governments have incentive to free-ride on enforcement, avoiding the cost of litigation in the hopes that another actor will step up. In such circumstances, supranational enforcement is necessary to uphold international law. Finally, hybrid regimes, which contain multiple forms of enforcement, are most needed when an IO has members that vary in their ability to enforce, or regulates issue areas that vary in their diffuseness. I assess my argument by examining litigation in the European Court of Justice, and provide inductive evidence that the European Union is more likely to enforce EU laws that generate diffuse benefits, while private actors and governments are more likely to enforce EU laws that generate concentrated benefits.
Saturday, April 22, 2017
Rossi: Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood
For more than two decades, the Minsk Group, co-chaired by Russia, the United States, and France, has served as a steward over the dispute resolution process involving Nagorno-Karabakh, a tiny enclave of ethnic Armenians belonging to Azerbaijan. Although described as a frozen conflict, the conflict is fluid, dangerous, and increasingly complicated by overlapping interests and spheres of influence. This Article concentrates on the power-shifting attempts to facilitate a solution via use of the soft law forum of the Minsk Group, problematizing the perceived theoretical advantages found in the literature that instantiate soft law's superior potential for solutions. That powerful countries may utilize informal processes and forums to pursue parochial interests while forestalling peaceful settlement suggests a need to examine critically efforts to use soft law as an expedient to norm development.
Ratner: Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
When a state expropriates a foreign investment in violation of a bilateral or other treaty on investment protection and a foreign investor sues, where should a tribunal look for the standard of compensation -- to the amount specified in the treaty, to an external standard for violations of internationally law generally, or elsewhere? Investor-state tribunals have offered wildly different answers to this question, trapped in a paradigm set by the Permanent Court of International Justice ninety years ago that distinguishes between so-called lawful and unlawful expropriations. This article evaluates and criticizes the caselaw of tribunals and proposes a new framework for compensation grounded in five key purposes of a remedy in the context of contemporary investor-state relations. It also clarifies the economic and legal significance of valuing expropriated investments using information available at the date of expropriation as opposed to the date of the award. The article proposes that, instead of the current lawful/unlawful distinction, compensation take account of specific aspects of the expropriatory act, including whether the state's failure to pay was based on a bona fide disagreement with the investor and whether the state violated the procedural criteria spelled out in an investment treaty. It concludes with a consideration of the implications of this approach for violations of other provisions of investment treaties.
Friday, April 21, 2017
- April 27, 2017: Anne van Aaken (Univ. of St. Gallen), Behavioral Economics and Global Public Goods and Global Commons
- May 4, 2017: Marie Jacobsson (Legal Admiser, Ministry of Foreign Affairs, Sweden), Protecting the Environment in Relation to Armed Conflict: Are Legal Measures Possible? Some Reflections on the Work of the ILC
- May 11, 2017: Matthew Happold (Univ. of Luxembourg), Immunity from Execution of Military and Cultural Goods
- May 18, 2017: James Harrison (Univ. of Edinburgh), “Judicial Review” of Coastal State Enforcement Action by International Courts and Tribunals: The Emergence of Dynamic and Expansive Interpretations of UNCLOS Safeguards
- Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement
- Clotilde Jourdain-Fortier, Le TTIP : Fenêtre sur rue
- Hanns Ullrich, The Transatlantic Trade and Investment Partnership (TTIP) : Extending Trade Policy to Domestic Markets
- Ernst-Ulrich Petersmann, Transatlantic Free Trade Agreements : Lack of EU Leadership for Reforming Trade and Investment Law ?
- Pierre Defraigne, Trois objections fondamentales contre le TTIP (Traité commercial transatlantique)
- Vassilis Hatzopoulos, Les techniques de libéralisation de la prestation de services sous le TTIP
- Clotilde Jourdain-Fortier, Vers un marché transatlantique de la santé ou les enjeux de la coopération réglementaire du projet de Partenariat transatlantique de commerce et d’investissement (TTIP) dans le domaine pharmaceutique
Many countries have attempted to transition to democracy following conflict or repression, but the basic meaning of transitional justice remains hotly contested. In this book, Colleen Murphy analyses transitional justice - showing how it is distinguished from retributive, corrective, and distributive justice - and outlines the ethical standards which societies attempting to democratize should follow. She argues that transitional justice involves the just pursuit of societal transformation. Such transformation requires political reconciliation, which in turn has a complex set of institutional and interpersonal requirements including the rule of law. She shows how societal transformation is also influenced by the moral claims of victims and the demands of perpetrators, and how justice processes can fail to be just by failing to foster this transformation or by not treating victims and perpetrators fairly. Her book will be accessible and enlightening for philosophers, political and social scientists, policy analysts, and legal and human rights scholars and activists.
- Ramses A. Wessel, You Can Check out Any Time You like, but Can You Really Leave?
- Daniël M. Grütters, NATO, International Organizations and Functional Immunity
- Yaraslau Kryvoi, Procedural Fairness as a Precondition for Immunity of International Organizations
- Hao Duy Phan, The Association of Southeast Asian Nations: International Legal Personality and Its Treaty-Making Power
- Gloria Fernández Arribas, The Institutionalization of a Process: The Development of the Kimberley Process towards an International Organization
- Zsuzsanna Deen-Racsmány, The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ARIO
Thursday, April 20, 2017
What do equality, dignity and rights mean in a world where eight men own as much wealth as half the world's population? Contesting World Order? Socioeconomic Rights and Global Justice Movements examines how global justice movements have engaged the language of socioeconomic rights to contest global institutional structures and rules responsible for contributing to the persistence of severe poverty. Drawing upon perspectives from critical international relations studies and the activities of global justice movements, this book evaluates the 'counter-hegemonic' potential of socioeconomic rights discourse and its capacity to contribute towards an alternative to the prevailing neo-liberal 'common sense' of global governance.
International tribunals confront a “Judicial Trilemma”: specifically the states that design, and the judges that serve on, international courts face an interlocking series of trade-offs among three core values: (i) judicial independence, the freedom of judges to decide cases on the facts and the law; (ii) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (iii) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this paper unpacks the logic driving the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization’s Appellate Body. The Trilemma introduces a new set of perspectives that enables us to conceptualize the limits of judicial independence at international courts, and identify strategies to enhance this independence.
International law has played a crucial role in the construction of imperial projects. Yet within the growing field of studies about the history of international law and empire, scholars have seldom considered this complicit relationship in the Americas. The Hidden History of International Law in the Americas offers the first exploration of the deployment of international law for the legitimization of U.S. ascendancy as an informal empire in Latin America. This book explores the intellectual history of a distinctive idea of American international law in the Americas, focusing principally on the evolution of the American Institute of International Law (AIIL). This organization was created by U.S. and Chilean jurists James Brown Scott and Alejandro Alvarez in Washington D.C. for the construction, development, and codification of international law across the Americas. Juan Pablo Scarfi examines the debates sparked by the AIIL over American international law, intervention and non-intervention, Pan-Americanism, the codification of public and private international law and the nature and scope of the Monroe Doctrine, as well as the international legal thought of Scott, Alvarez, and a number of jurists, diplomats, politicians, and intellectuals from the Americas. Professor Scarfi argues that American international law, as advanced primarily by the AIIL, was driven by a U.S.-led imperial aspiration of civilizing Latin America through the promotion of the international rule of law. By providing a convincing critical account of the legal and historical foundations of the Inter-American System, this book will stimulate debate among international lawyers, IR scholars, political scientists, and intellectual historians.
Il Dipartimento di Giurisprudenza dell’Università di Ferrara organizza un seminario dal titolo Universal Civil Jurisdiction – Which Way Forward?, in cooperazione con i Gruppi di interesse sul Diritto internazionale ed europeo dei diritti umani e sul Diritto internazionale privato e processuale della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI). L’iniziativa intende proporre un’analisi a tutto tondo dei problemi legati all’esercizio della giurisdizione universale civile – una questione attualmente pendente di fronte alla Grande Camera della Corte europea dei diritti umani nell’affare Nait-Liman c. Svizzera.
The seminar aims at an all-round reassessment of the problems related to the exercise of universal civil jurisdiction. The challenge of providing appropriate venues for enforcing the right to reparation of victims of serious human rights violations raises a number of complex issues in the perspective of public and private international law. The interaction between specialists of both fields will provide the opportunity for an in-depth analysis of these open problems, which are currently under scrutiny by the Grand Chamber of the European Court of Human Rights in the case of Nait-Liman v. Switzerland.
Wednesday, April 19, 2017
- Lisa Hultman & Karin Johansson, Responding to Wartime Sexual Violence: UN Peacekeeping and the Protection Agenda
- Stacey Henderson, The Arms Trade Treaty: Responsibility to Protect in Action?
- Jawoon Kim & Alan Bloomfield, Argumentation, Impact, and Normative Change: Responsibility to Protect after the Commission of Inquiry Report into Human Rights in North Korea
- Ian Hall, Perilous Interventions and the Responsibility to Protect
- Kudrat Virk, Perilous Interventions and the Indian Debate on R2P: A Case of Limited Engagement and Missed Opportunity
- James Pattison, Perilous Noninterventions? The Counterfactual Assessment of Libya and the Need to be a Responsible Power
- Sandra Destradi, India’s Reluctant Approach to R2P: Lessons from Perilous Interventions
White: Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia
The backdrop to Bridging Divides in Transitional Justice is Cambodia’s history of radical Communist revolution (1975–1979) under the brutal Khmer Rouge regime, and the culture of impunity and silence imposed on the society by successive national governments for close to three decades. Dialogue on the suppressed past began in 2006 as key figures of the regime were brought before the in situ internationalised criminal court, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC forms part of the panoply of international criminal courts of the post-Cold War era. The book engages with the dissonance between the expressivism of idealised international criminal trials and their communicative or discursive value within the societies most affected by their operation. An alternative view of the transitional trial is posited as the author elucidates the limits of expressivism and explores the communicative dynamics of ECCC trial procedure which have precipitated unprecedented local debate and reflection on the Khmer Rouge era.
The book provides a timely and nuanced analysis of the ECCC’s politically contentious and frequently criticised proceedings by examination of the trial dialogue in the Court’s first two cases. From transcripts of the proceedings, exchanges between trial participants including witnesses, civil parties and the accused, are examined to show how, at times, the retributive proceedings assumed the character of restorative justice and encompassed significant dialogue on current social issues, such as the victim/perpetrator equation and the nature of ongoing post-traumatic stress disorder flowing from the events that took place under this violent regime The Court’s capacity for representative and discursive proceedings is attributed to the substantive inclusion of the voice of the victim in proceedings, a modified inquisitorial procedure, narrative testimony and role-sharing between national and international court actors.
What do we mean when we use the term 'failed states'? This book presents the origins of the term, how it shaped the conceptual framework for international development and security in the post-Cold War era, and why. The book also questions how specific international interventions on both aid and security fronts - greatly varied by actor - based on these outsiders' perceptions of state failure create conditions that fit their characterizations of failed states. Susan L. Woodward offers details of international interventions in peacebuilding, statebuilding, development assistance, and armed conflict by all these specific actors. The book analyzes the failure to re-order the international system after 1991 that the conceptual debate in the early 1990s sought - to the serious detriment of the countries labelled failed or fragile and the concept's packaging of the entire 'third world', despite its growing diversity since the mid-1980s, as one.
This book offers a thorough, critical, and accessible analysis of the American Convention on Human Rights which is the main human rights treaty of the Americas. The authors closely review the jurisprudence and the binding judgments of the two institutions charged with interpreting the Convention: The Inter-American Court of Human Rights and The Inter-American Commission on Human Rights.They focus on the rights most developed by the Court and Commission, namely the rights to equality, life, humane treatment, personal liberty, property, due process and judicial protection, as well as the freedom of expression and reparations. They examine the case law with a victim-centered lens while identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches.
- William Tobey, Peering down from the Summit: The Path to Nuclear Security 2010–2016 and beyond
- Christopher Kobrak, Interwar Financial Summits: The Economic Consequences and Lessons of Attempts to Repair a Broken World
- Selcuk Colakoglu & Mehmet Hecan, Turkey in Global Governance: An Evaluation of Turkey’s G20 Presidency and the Antalya Summit 2015
- Jonathan Luckhurst, The G20’s Growing Political and Economic Challenges