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Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Curtis A. Bradley
For more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between
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Rethinking Derogations from Human Rights Treaties Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Laurence R. Helfer
Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system's
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International Law and the 2020 Amendments to the Russian Constitution Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Lauri Mälksoo
This Current Development Essay discusses the international legal implications of constitutional amendments adopted in the Russian Federation by an “all-Russian vote,” a quasi-referendum from June 25 to July 1, 2020. The most important of these amendments gives the Russian Constitution priority over decisions made by international courts and treaty bodies. The amendments also address Russia's state
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Australia—Anti-Dumping Measures on A4 Copy Paper Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Weihuan Zhou, Delei Peng
The World Trade Organization (WTO) Panel Report in Australia – Anti-Dumping Measures on A4 Copy Paper (Australia – A4 Copy Paper) marks a significant development of the multilateral rules on anti-dumping. Under certain circumstances, WTO agreements permit members to impose anti-dumping measures to counteract the injurious effect of dumping on domestic industries, typically through import duties. The
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Republic of Slovenia v. Republic of Croatia Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Brian McGarry
The Judgment of the Court of Justice of the European Union (CJEU) in Slovenia v. Croatia marks the anticlimax of a long-running territorial dispute. It is also only the sixth time the CJEU has issued a judgment in a case instituted by one European Union member against another. Among these cases, it is the first to consider an arbitral award in a dispute between members, the first to consider a boundary
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Nevsun Resources Ltd. v. Araya Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Beatrice A. Walton
In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary
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Trump Administration Brokers Accords to Normalize Relations Between Israel and Six Countries Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15
In September and October 2020, Kosovo, Serbia, the United Arab Emirates (UAE), Bahrain, and Sudan normalized relations with Israel in a flurry of agreements brokered by the United States. President Donald Trump suggested that, in addition to being valuable on their own terms, the agreements were part of a broader diplomatic effort to pressure the Palestinians into negotiating a peace deal with Israel
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United States Imposes Economic Sanctions and Visa Restrictions on International Criminal Court Officials Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15
On September 2, 2020, the Trump administration announced that the United States had added the International Criminal Court (ICC) prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor's Jurisdiction, Complementarity, and Cooperation Division, Phakiso Mochochoko, to the Treasury Department's Office of Foreign Assets Control List of Specially Designated Nationals and Blocked Persons
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United States Fails to Secure Multilateral Snapback Sanctions Against Iran Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15
The United States withdrew from the Joint Comprehensive Plan of Action (JCPOA) on May 8, 2018, and subsequently reimposed a range of unilateral sanctions on Iran. Throughout mid-2020, the Trump administration sought multilateral support for renewed UN sanctions against Iran, but the Security Council rejected those efforts. In response, the administration moved to initiate snapback sanctions under the
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Congress and the Trump Administration Spar Over U.S. Arms Sales to the Saudi-Led Coalition in Yemen Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15
Longstanding tensions between Congress and the executive over U.S. support to the Saudi-led coalition in Yemen have spurred conflict between the branches over arms sales. In May 2019, U.S. Secretary of State Michael Pompeo declared an emergency under the Arms Export Control Act (AECA) to bypass congressional “freezes” on arms sales and complete $8.1 billion in sales to members of the Saudi-led coalition
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The Limits of Human Rights Limits Am. J. Int. Law (IF 2.482) Pub Date : 2021-01-15 Henry J. Richardson
Rescuing Human Rights: A Radically Moderate Approach (Rescuing) was published shortly before the outbreak in 2020 of the novel coronavirus and its myriad human rights and class issues regarding equality, discrimination, health, and labor rights of people of color. This was also prior to the concurrent public murder of George Floyd as an unarmed Black man by the Minneapolis police in late May 2020,
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Introduction to “The International Legal Order and the Global Pandemic” Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Curtis A. Bradley, Laurence R. Helfer
This introduction provides an overview of thirteen essays selected in response to a worldwide call for papers for an Agora on “The International Legal Order and the Global Pandemic.” The essays in the Agora consider some of the most pressing challenges, as well as potential opportunities, that COVID-19 is creating for the international legal order. The specific topics addressed include the role of
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The WHO in the Age of the Coronavirus Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 José E. Alvarez
The responses of states and the WHO to the COVID-19 pandemic reveal the considerable weaknesses of international organizations. Although the Trump administration has misdiagnosed the WHO's ills, the WHO has indeed failed to meet the public health threat posed by the coronavirus. The WHO's responses to the current crisis demonstrate that it shares five disorders common to other UN system expert-driven
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The WHO—Destined to Fail?: Political Cooperation and the COVID-19 Pandemic Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Eyal Benvenisti
In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between
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The Pandemic Paradox in International Law Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Peter G. Danchin, Jeremy Farrall, Shruti Rana, Imogen Saunders
This Essay examines a series of paradoxes that have rendered the international legal order's mechanisms for collective action powerless precisely when they are needed most to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding noncitizens
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Executive Underreach, in Pandemics and Otherwise Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 David E. Pozen, Kim Lane Scheppele
Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in
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The Once and Future Law of State Responsibility Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Martins Paparinskis
The current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility
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The Perils of Pandemic Exceptionalism Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Julian Arato, Kathleen Claussen, J. Benton Heath
In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic
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Trade Law and Supply Chain Regulation in a Post-COVID-19 World Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Timothy Meyer
This Essay argues that trade agreements may overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. Free trade agreements (FTAs) may exacerbate supply chain concentration, especially through loose rules of origin. And WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for
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Short Supply Conditions and the Law of International Trade: Economic Lessons from the Pandemic Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Alan O. Sykes
The COVID-19 pandemic has been accompanied by shortages and potential shortages of products critical to the public health response. Many nations have responded with export restrictions on these products, restrictions that are permitted under international trade law as a temporary response to short supply conditions generally and to public health emergencies in particular. This Essay argues that such
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A Global Leviathan Emerges: The Federal Reserve, COVID-19, and International Law Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Daniel D. Bradlow, Stephen Kim Park
The COVID-19 pandemic highlights the importance of the Federal Reserve as a leading actor in global economic governance. As a creature of U.S. domestic law with an international presence and operational independence, the Fed wields authority without a well-defined international legal status, international legal standards to guide its conduct, or accountability to those around the world affected by
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“Lest We Should Sleep”: COVID-19 and Human Rights Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Karima Bennoune
Any meaningful human rights law approach to COVID-19 must be holistic and recognize the breadth of the challenges to both economic, social, and cultural rights, and civil and political rights. It must be grounded in the threat posed by the disease but also address responses to it, and implicate a wide range of state and nonstate actors. Such an analysis should offer a positive vision of effective global
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Pandemics as Rights-Generators Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Neha Jain
While the global pandemic has exposed the fragility of human rights protections, it has also resulted in rights victories for some of the most vulnerable members of society. This Essay examines epistemic, consequentialist, and normative rights reframing efforts that have been mobilized to advocate for and secure human rights during the pandemic through the lens of prisoners’ rights. It argues that
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Modest International Law: COVID-19, International Legal Responses, and Depoliticization Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Francisco-José Quintana, Justina Uriburu
In this Essay, we analyze two sets of international legal responses to the COVID-19 pandemic: the academic discussion on state responsibility; and the deployment of international law as a tool for resistance. We argue that both approaches made significant contributions but concealed the role of the discipline in the production of the conditions that led to the pandemic and its unequal impact. These
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The Final Act: Exploring the End of Pandemics Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Federica Paddeu, Michael Waibel
This Essay considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored—creating legal uncertainty. This Essay reviews how pandemics as biological and social events end, considers how international bodies have approached the
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State of the Netherlands v. Urgenda Foundation Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Maiko Meguro
The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty. In this case, the Dutch Supreme Court upheld the lower court's opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate
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United States—Anti-dumping Measures Applying Differential Pricing Methodology to Softwood Lumber from Canada Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Niccolò Ridi
This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate
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Joined Cases C-585/18, C-624/18, C-625/18 Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Piotr Uhma
The judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) announced on November 19, 2019 in response to a preliminary reference from the Polish Supreme Court is of fundamental importance for the independence of courts and judges in EU countries, establishing a pillar on which subsequent CJEU decisions have been based. The CJEU concluded that a national court is not an independent
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R v. Reeves Taylor (Appellant). [2019] UKSC 51 Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20 Hannah Woolaver
The First Liberian Civil War (1989–1996), in which Charles Taylor's National Patriotic Front of Liberia (NPFL) waged an ultimately successful military campaign to depose President Samuel Doe, was characterized by widespread atrocities. During this period, Agnes Reeves Taylor, known as “The Mother of the Revolution” and at the time Charles Taylor's wife, allegedly committed multiple acts of torture
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U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20
On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories
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U.S. Supreme Court Rules that Victims of State-Sponsored Terrorism Can Sue Foreign States for Retroactive Punitive Damages Under the Foreign Sovereign Immunities Act Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20
In Opati v. Republic of Sudan, the Supreme Court upheld a $4.3 billion award of punitive damages against Sudan for its support of the 1998 bombings of U.S. embassies in Kenya and Tanzania. The Supreme Court held that Congress's 2008 amendments to the Foreign Sovereign Immunities Act (FSIA) authorized the plaintiffs to recover punitive damages from state sponsors of terrorism for acts committed prior
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United States-Mexico-Canada Agreement Enters into Force Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20
On November 30, 2018, Canada, Mexico, and the United States signed an agreement renegotiating the North American Free Trade Agreement (NAFTA). By the spring of 2020, all three countries had approved this agreement—known in the United States as the United States-Mexico-Canada Agreement (USMCA)—through their respective domestic ratification processes. The USMCA entered into force on July 1, 2020, amid
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President Trump Authorizes Economic Sanctions and Visa Restrictions Aimed at International Criminal Court Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20
In the spring of 2020, the Appeals Chamber of the International Criminal Court (ICC) authorized the ICC's prosecutor to investigate alleged international crimes committed in Afghanistan. The Trump administration strongly condemned this decision. In an escalation of retaliatory measures against the ICC, President Trump signed an executive order authorizing economic sanctions against foreign persons
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United States Gives Notice of Withdrawal from Treaty on Open Skies Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-20
On May 21, 2020, U.S. Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty on Open Skies. The treaty, which has been ratified by several former Soviet Republics and most North Atlantic Treaty Organization (NATO) members, allows states parties to conduct observation flights over each other's territory to build trust and transparency with respect to arms control
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The Monetary Gold Principle: Back to Basics Am. J. Int. Law (IF 2.482) Pub Date : 2020-10-23 Zachary Mollengarden, Noam Zamir
In The Case of the Monetary Gold Removed from Rome in 1943, the International Court of Justice concluded that it cannot decide a dispute in which a third party's legal interests “would form the very subject-matter of the decision.” This Article argues that what has become known as the Monetary Gold principle conflicts with the Court's obligation to decide cases submitted by consenting parties and should
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The Transformation of International Tax Am. J. Int. Law (IF 2.482) Pub Date : 2020-05-06 Ruth Mason
The recession of 2008 precipitated a political crisis that motivated an unprecedented international project to curb corporate tax dodging. This Article argues, contrary to dominant scholarly views, that this effort transformed international tax — changing its participants, agenda and institutions, norms, and even its legal forms. Perhaps most important, efforts to close corporate tax loopholes opened
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International Transformative Constitutionalism in Latin America Am. J. Int. Law (IF 2.482) Pub Date : 2020-04-16 Armin von Bogdandy, René Urueña
This Article analyzes the rise of international transformative constitutionalism in Latin America and responds to some of the challenges to its legitimacy and effectiveness. It focuses on the practice of the Inter-American Court of Human Rights (IACtHR), the decisions and procedures of which constitute a small, but vibrant and essential, part of a wider Latin American community of human rights—a diverse
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Google LLC v. Commission nationale de l'informatique et des libertés (CNIL) Am. J. Int. Law (IF 2.482) Pub Date : 2020-04-01 Monika Zalnieriute
In Google LLC v. Commission nationale de l'informatique et des libertés (CNIL), the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” de-referencing requests to be carried out by a search engine operator on search engine versions accessible in EU member states, as opposed to all versions of its search engine worldwide. While the
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Jadhav Case (India v. Pakistan) Am. J. Int. Law (IF 2.482) Pub Date : 2020-04-01 Victor Kattan
Jadhav Case (India v. Pakistan) concerned Pakistan's arrest, detention, conviction, and death sentence of Kulbhushan Sudhir Jadhav, asserted by India to be an Indian national, who had been convicted of engaging in acts of terrorism and espionage in Pakistan. This is the third dispute over the interpretation of Article 36 of the Vienna Convention on Consular Relations (VCCR) to come before the International
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Mukeshimana-Ngulinzira and Others v. Belgium and Others Am. J. Int. Law (IF 2.482) Pub Date : 2020-04-01 Tom Ruys
On April 11, 1994, approximately two thousand men, women, and children were brutally murdered by armed Hutu extremists after a group of Belgian UN peacekeepers abandoned the school facility where they had sought refuge upon the outbreak of the Rwandan genocide. Almost a quarter of a century later, the Brussels Court of Appeal (Court) on June 8, 2018 concluded the civil proceedings lodged by a number
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Interactions Between Regional and Universal Organizations: A Legal Perspective. By Laurence Boisson de Chazournes. Leiden: Brill | Nijhoff, 2017. Pp. xxv, 382. Index. Am. J. Int. Law (IF 2.482) Pub Date : 2020-04-01 Catherine Brölmann
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The Corporate Keepers of International Law Am. J. Int. Law (IF 2.482) Pub Date : 2020-01-13 Jay Butler
Abstract In transborder environmental protection, territorial disputes, internet governance, anticorruption, international human rights, and humanitarian law, private businesses are increasingly supporting the implementation and enforcement of international law. This Article analyzes the various ways that corporate decision making contributes to this phenomenon, and assesses its prospects for enhancing
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Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission Am. J. Int. Law (IF 2.482) Pub Date : 2020-01-01 Sean D. Murphy
This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Sturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading
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The Proof is in the Process: Self-Reporting under International Human Rights Treaties Am. J. Int. Law (IF 2.482) Pub Date : 2019-10-14 Cosette D. Creamer, Beth A. Simmons
Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four
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Wightman et al. v. Secretary of State for Exiting the European Union Am. J. Int. Law (IF 2.482) Pub Date : 2019-10-01 Danae Azaria
The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that the purpose
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President of the Republic et al. v. Ali Ayyoub et al. Am. J. Int. Law (IF 2.482) Pub Date : 2019-10-01 Ginevra Le Moli
On April 8, 2016, the Egyptian government announced the signing of a “Convention of Demarcation of the Maritime Border” with Saudi Arabia (Convention). Under the Convention, the Red Sea Islands of Tiran and Sanafir lay in Saudi territory. The move was perceived by foreign and domestic observers as the abandonment by Egypt of a long-held territorial and maritime claim in exchange for a loan from Saudi
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Jam v. International Finance Corp. Am. J. Int. Law (IF 2.482) Pub Date : 2019-10-01 Chimène I. Keitner, Scott Dodson
In Jam v. International Finance Corp. , the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International
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Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 Am. J. Int. Law (IF 2.482) Pub Date : 2019-10-01 Diane Marie Amann
Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was detached from Mauritius as a condition of independence, the decolonization of
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Crimes Against the Sovereign Order: Rethinking International Criminal Justice Am. J. Int. Law (IF 2.482) Pub Date : 2019-08-23 Ryan Liss
The scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state's authority to punish crime assume the existence of connections between the state and either the criminal or the crime that are not always present in the international criminal context. Recognizing this gap, this Article introduces a new theory of what distinguishes
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Case of Barrios Altos and La Cantuta v. Peru Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Jorge Contesse
On May 30, 2018, the Inter-American Court of Human Rights (Court) ordered Peru to review the presidential pardon granted to former president and dictator Alberto Fujimori, who had been convicted and imprisoned for his role in serious human rights violations. The Peruvian Supreme Court obliged and, after examining the merits of the presidential pardon through a special procedure set up to assess the
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The Economic Structure of International Investment Agreements with Implications for Treaty Interpretation and Design Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Alan O. Sykes
Abstract This Article argues that international investment agreements (IIAs) serve a dual economic function—to discipline host country policies that impose international externalities on foreign investors, and to curtail inefficient risks associated with agency costs, risk aversion, asymmetric information, and time inconsistency problems that uneconomically increase the cost of imported capital in
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María de los Ángeles González Carreño v. Ministry of Justice Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Machiko Kanetake
The ruling of the Spanish Supreme Court in Judgment No. 1263/2018, recognizing, for the first time, the binding character of the Views of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), augmented the normative authority of the Views of the human rights treaty monitoring body, not only at the domestic level, but also within the international legal sphere. In the Judgment
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Designing Border Carbon Adjustments for Enhanced Climate Action Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Michael A. Mehling, Harro van Asselt, Kasturi Das, Susanne Droege, Cleo Verkuijl
The Paris Agreement advances a heterogeneous approach to international climate cooperation. Such an approach may be undermined by carbon leakage—the displacement of emissions from states with more to less stringent climate policy constraints. Border carbon adjustments offer a promising response to leakage, but they also raise concerns about their compatibility with international trade law. This Article
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The Czar and the Slaves: Two Puzzles in the History of International Arbitration Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Bennett Ostdiek, John Fabian Witt
In 1822, the Russian czar resolved a dispute over compensation for slaves fleeing to British lines during the War of 1812. American observers have long asserted that this canonical decision favored the United States. But new debate has recently arisen among historians. Uncovering evidence from diplomatic archives, this Article concludes that the czar did indeed side with the United States. Moreover
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Case of Georgia v. Russia (I) (Just Satisfaction) Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Yulia Ioffe
In Georgia v. Russia (I) (Just Satisfaction), the Grand Chamber of the European Court of Human Rights (ECtHR or Court) ordered the Russian Federation to pay Georgia EUR 10 million as reparation for Russia's “coordinated policy of arresting, detaining and expelling Georgian nationals” in the autumn of 2006 (paras. 51, 80). In so doing, the Court reaffirmed its position from Cyprus v. Turkey (IV) (Just
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Yeo Woon Taek v. New Nippon Steel Corporation Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Seokwoo Lee, Seryon Lee
On October 30, 2018, the South Korean Supreme Court, in an 11–2 decision, upheld the judgment of the lower court, which ordered New Nippon Steel Corporation, a Japanese company, to provide KRW 100 million (approximately USD 84,000) in compensation to each of the four plaintiffs, who were forced to work at Japanese steel mills during World War II. In an earlier 2012 decision, the Supreme Court remanded
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Cortec Mining Kenya Limited, Cortec (Pty) Limited, and Stirling Capital Limited v. Republic of Kenya Am. J. Int. Law (IF 2.482) Pub Date : 2019-07-01 Lorenzo Cotula, James T. Gathii
In Cortec v. Kenya, an investor-state arbitral tribunal established under a bilateral investment treaty (BIT) held it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The award raises significant issues of public international law, including how questions of investor compliance are considered in investor-state
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Transnational Climate Litigation: The Contribution of the Global South Am. J. Int. Law (IF 2.482) Pub Date : 2019-06-26 Jacqueline Peel, Jolene Lin
Since the conclusion of the Paris Agreement, climate litigation has become a global phenomenon, casting courts as important players in multilevel climate governance. However, most climate litigation scholarship focuses on court actions in the Global North. This Article is the first to shine a light on the Global South's contribution to transnational climate litigation. Analysis of this experience is
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Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) Am. J. Int. Law (IF 2.482) Pub Date : 2019-04-01 Alonso Gurmendi Dunkelberg
More than thirteen decades after Chile annexed Bolivia's coastal regions, the International Court of Justice (ICJ) denied Bolivia's longstanding claim that Chile had undertaken a legal obligation to negotiate granting it sovereign access to the Pacific Ocean.
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Prosecutor v. Jean-Pierre Bemba Gombo Am. J. Int. Law (IF 2.482) Pub Date : 2019-04-01 Leila Nadya Sadat
On June 8, 2018, in a surprising turn, the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of Jean-Pierre Bemba Gombo and acquitted him of crimes against humanity and war crimes. The four separate opinions, raising questions about Pre-Trial and Trial Chamber procedures, the standard of Appellate Chamber review, and the scope of command responsibility, have revealed
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