In recent decades, there has been a significant increase in the number of international investment arbitration cases involving disputes over taxation. As taxation measures are a core part of the State's inherent police power, there are extensive debates regarding the criteria for when an investment treaty obligation is violated and how to balance States' police power to tax with protection of foreign investors' interests. As most investment treaties do not exempt taxation-related expropriation claims, taxation cases often include a claim that the host State has indirectly expropriated the investment interest through the taxation-related measures. This Article conducts an extensive analysis and examination of investor-state dispute settlement ("ISDS") cases involving indirect expropriation claims targeting host States' taxation measures and shows that taxation-related claims generally fall within three regulatory spaces. The examination of these cases also shows that ISDS tribunals have adopted quite divergent approaches when assessing taxation-related expropriation claims, namely, the "qualified police power" approach, the "sole effects" approach, and the "fact-based, case-by-case, cumulative" approach. In order to resolve the discrepancy and uncertainty existing in current arbitral jurisprudence, this Article proposes a "Two-Prong" methodology to conduct expropriation analysis using the restructured "Balanced Effects & Police Power" approach, with the first prong using the redefined "effects" test to assess whether there is a level of interference amounting to substantial deprivation of investors' investment interests and the second prong utilizing the "qualified police power" doctrine to assess whether the interference amounts to compensable expropriation.
Once the "crown jewel" of the World Trade Organization ("WTO"), the Appellate Body wielded compulsory jurisdiction over more countries and more agreements than any other international tribunal in history. But it met its demise in 2019, after the United States ("U.S.") blocked all new judicial appointments and left the Body without a quorum. This Article conducts an autopsy of the Appellate Body, using the tools of international legal theory to better understand its demise, and the demise of the rule of law at the WTO more generally. I examine the Body's death through five different legal theories: the Rationalist theories of Realism, Liberalism, and Regime Theory; and the Constructivist theories of Managerialism and Transnational Legal Process. I find that no one theory provides a full explanation for the Appellate Body's downfall, but that by considering various theories together we can develop a more complete understanding of the U.S.'s motive and the Body's true cause of death. As this Article elaborates, Realism and Liberalism suggest that the U.S. attacked the Appellate Body because domestic, international, and legal developments made the U.S.'s compliance with the Body's decisions untenable-politically and geopolitically. Regime Theory suggests that the U.S. chose its method of attack because it judged it would suffer fewer reputational costs from destroying the Body than from defying it. And Transnational Legal Process suggests that the reason the U.S. made that remarkable judgment was that INTO members had been acculturated to value formal compliance with the rules of the game more than the cooperative diplomacy that stands behind them. This novel account of the Appellate Body's demise leads to a host insights into international law and international trade law. Above all, highlights the power and limitations of international law, the complementary nature of international legal theories, the highly formalistic culture of international trade law, and the productive and destructive force of legal formalism. I draw on those insights to offer three strategies for enhancing the resilience of our international institutions during this era of great upheaval, and for, perhaps, reviving INTO dispute settlement in the next.
Investor-State Dispute Settlement ("ISDS") is the most valuable international mechanism presently used to resolve high-value disputes between host States and foreign investors. Once thought necessary to attract Foreign Direct Investments ("FDI") and achieve sustained economic growth, the ISDS bites back at developing nations' public budgets with unprecedented rates and prevents them from changing regulations to achieve economic prosperity, without paying a hefty price. Due to a desire to attract FDI, developing States often establish an overly protective legal framework for foreign investors. That legal framework comprises municipal stabilization clauses and international bilateral investment treaties ("BITs"). Both municipal and international agreements aim to promise foreign investors full protection against any legal or economic instability the host State may induce in the future. On the international level, a BIT will typically enumerate two overly broad investment standards, among others, to protect a foreign investor against any future regulatory changes: Full Protection and Security ("FPS") and Fair and Equitable Treatment ("FET"). Unlike foreign investors who enjoy extra protections under international law, national investors do not enjoy the same level of legal and economic security under municipal laws.This Article highlights two phenomena: (1) the discrimination between foreign and national investors, and (2) the fragmentation between international investment law (as applicable by ISDS Tribunals) and the municipal law of the host State (as applicable by municipal courts). I argue that these two phenomena combined contribute to what is known as a regulatory chill in developing nations. Accordingly, reversing these two phenomena would resolve the regulatory chill of developing host States. In this regard, this Article normatively proposes multiple solutions to eliminate the asymmetrical levels of protection that favor foreign investors, as well as the fragmentation between international and municipal laws. Achieving that end on the ISDS level would also result in wide-ranging improvements in the legal and economic infrastructures of developing nations, allowing them to achieve long-term economic prosperity and sustainable economic growth.
This Comment explores the evolving intersection between diplomatic protection, international investment law, and the jurisdiction of the International Court of Justice ("ICJ"), with a particular focus on whether and how the ICJ may adjudicate inter-state claims arising from investment disputes. Against the backdrop of increasing investor-state arbitration under Bilateral Investment Treaties ("BITs") and multilateral frameworks such as the ICSID Convention, the Comment examines the legal foundations, practical tensions, and jurisdictional boundaries involved when States seek to espouse the claims of their investors before the ICJ. This Comment examines the potential role of the ICJ in investment dispute resolution, highlighting its practical significance beyond mere legal possibility. ICJ jurisdiction over investor-state claims becomes particularly relevant when arbitration is unavailable, unsuitable, or insufficient. Such circumstances include situations where investors are unable or unwilling to arbitrate, disputes involve state-owned enterprises or sovereign funds
This article adopts a spatial approach to understanding geopolitical events in the Arctic. It is sensitive to emerging securityscapes that cannot disentangle from broader global implications of Russia's aggression against Ukraine. A melting Arctic is reshaping the liner boundaries that define membership within its historically closed circumpolar polity; however, the international legal challenges to global Arctic governance, dangerously suspended due to a breakdown in Arctic governance relations with the Arctic's dominant stakeholder-Russia- must also contest crudely defined actorless threats that persist in a climate of geopolitical stalemate and rising tensions. These actorless threats form the proper crisis that challenge regional and global security.
Submarine cables form the backbone of global communications, carrying over 95% of international data traffic. Despite their critical importance, the international legal framework governing these undersea arteries remains outdated and inadequate to address modern security challenges. This article examines the evolution of submarine cable threats, from World War II-era physical sabotage to hybrid warfare tactics involving state and non-state actors in the twenty-first century. Recent events, including disruptions in Ukraine's Black Sea region, Taiwan's Matsu Islands, and the Baltic Sea, demonstrate the increasing sophistication of submarine cable attacks and their potential to destabilize global communications. This article argues for a fundamental reconceptualization of the legal and policy frameworks governing submarine cable protection. The analysis begins by tracing the historical evolution of submarine cable warfare, highlighting its transformation into a key tool for hybrid conflict. It then identifies critical deficiencies in the current legal regime,particularly the 1884 Cable Convention and the 1982 United Nations Convention on the Law of the Sea ("UNCLOS"), which fail to address modern threats such as cyberattacks, attribution challenges, and enforcement gaps. Finally, the article proposes a comprehensive set of solutions, including the adoption of a new international treaty, enhanced regional cooperation frameworks, and innovative public-private partnerships. These measures aim to address the complex interplay between national security, commercial interests, and technological advancements, ensuring the resilience of this critical infrastructure. Through its analysis, this article provides a roadmap for legal and policy reform to safeguard submarine cables against emerging threats. It emphasizes the urgent need for international cooperation and collective action to prevent the strategic exploitation of global communications networks. By bridging the gap between outdated legal frameworks and contemporary security realities, this article contributes to the ongoing discourse on the protection of critical infrastructure in an era of hybrid conflict.
Who is the government of a sovereign state in the eyes of the world? Recent crises across multiple continents have violently demonstrated that the answer to this question is sometimes contested. In these situations, one state may recognize (or not recognize) a particular individual or group as the government of another. But recognition does not have a single agreed-upon meaning. Scholars and states have described it in various ways. The result of this conceptual confusion is that when one state recognizes the government of another, it is not always clear what consequences may follow. Decision-makers-in the United States, the President-need guidance about what they can and cannot legitimately accomplish with recognition if they wish to provide a satisfactory response to disputes about who governs. In this Article, I articulate a novel conceptual framework for understanding how recognition can legitimately operate in the international system of law and power. I argue that recognition exhibits a conceptual symmetry between its inputs and its effects that implies limits on what the act may accomplish. I then argue that the recognition practice of the United States, as illustrated by its approach to crises in Libya, Venezuela, and Afghanistan, is distinctly asymmetrical. For reasons with roots in constitutional authority and domestic legislation, the United States tends to make discretionary decisions on recognition whose consequences violate international law. However, the decision-maker's task is not ended by a verdict of unlawfulness. The United States' approach to recognition must account for the national interest as well as international law's interest in promoting public order and human dignity. I argue that these interests would generally be better served by recognizing symmetrically. As evidenced by the United States' actual practice, refraining from the sorts of interventions that asymmetrical recognition entails may be politically difficult in the short term. In a complicated world of imperfect options, however, it will often be the wiser choice over the long term.
A wave of legislation preventing and limiting land ownership by foreigners is making impact across the United States. Unfortunately, restrictions on land ownership have often been vulnerable to serving special interests rather than the noble interest they are "intended" to serve. Special interests plague the suboptimal legislation that many states are adopting. Restrictions on foreign land ownership are not unique to the United States, and many jurisdictions around the world have taken unique approaches to this type of legislation and regulation. That being said, none are perfect and many fall victim to the classic bootleggers and Baptists story in which the noble intentions are overshadowed by special interests. The United States must acknowledge the vulnerability of this type of legislation and seek to avoid the common characteristics that historically limit the optimality of legislation that limits foreigners' right to purchase and own land. A failure to do so has great potential to result in the same suboptimal results already seen in state legislation and across the globe.
This Article** is broadly about the relationship between narratives and international legal behavior. It is specifically about the relationship between narratives about the nation-state, and how individuals think about sovereignty. In the main discussion, I introduce a cross-disciplinary theory which brings into view the national narrative's role in shaping sovereignty thinking. To illustrate the narrative theory, I discuss the phenomenon of Chinese diasporic sovereignty, denoting the tendency of some PRC officials to ascribe to the nation-state some measure of sovereignty authority over the overseas Chinese, including non-nationals. I argue Chinese diasporic sovereignty, constituting a departure from norms of territoriality and nationality, is informed by modern narratives of what it means to be "Chinese." The theory more broadly suggests international law can be viewed as a process driven by actors who are situated, introspective, and shaped by the stories they tell themselves. This bears theoretical and practical lessons, not least for conventional understandings of international legal behavior.
It is widely recognized that the decisions of judges are influenced to some extent by their backgrounds. In recent years this understanding gained traction in the international legal system, and there is an attempt to diversify the composition of international judicial institutions. This article explores empirically the question of whether the status of specific human rights in the home country of a judicial decision-maker influences their voting patterns in an international judicial institution. For instance, whether a decision-maker which comes from a country that promotes women's rights would be more (or less) likely to promote women's rights through his professional role in the international sphere? Or perhaps the opposite should be expected, and a decision-maker coming from a country with a problematic women's rights record would be the one more willing to promote this right in the international sphere? As a case study, I use United Nations Human Rights Committee ("HRC"). The HRC is the monitoring treaty body of the International Covenant on Civil and Political Rights, which is one of the most important and highly regarded international human rights institutions. In order to test my hypothesis, I conduct a quantitative-empirical analysis of an original hand-coded dataset of the decisions of the HRC. In general, I find no strong evidence that the status of the rights in the committee member's ("CM") countries influences his or her voting patterns on those rights. However, the most noticeable exception to this is that CMs from Organization for Economic Cooperation and Development ("OECD") countries are more likely to vote in favor of countries in immigration and asylum cases. Also, CMs from OECD countries are more likely to vote in general in favor of countries. This might indicate that at times, the votes of CMs are influenced by their own life experience and perhaps reflect their roles as agents protecting the interests of their countries.
Compounding the difficulty of war crimes prosecutions, much of the evidence available to prove these allegations implicates core national security interests of sovereign States. This article examines how the International Criminal Court ("ICC"), the Guant & aacute;namo military commissions, and U.S. courts grapple with eruptions of State sovereignty arising from national security interests, the potential effects of these national security interests on due process and the right to a fair trial, and whether these tribunals can ultimately control the destructive effects of sovereignty on the edifice of the laws of war.
The article explores the legitimacy of programmable money and the role of law in guaranteeing its legitimacy. Programmable money, with built-in payment conditions, provides a useful tool for implementing government programs such as social security and pandemic relief. The problem is that this programmable design feature may interfere with payment autonomy, especially if the programmable functions are placed into central bank digital currency ("CBDC") which is legal tender. Such legitimacy concern is essentially a struggle between public and private powers in the mobilization of resources within a society. In pursuit of financial democracy and market freedom, the expansion of central bank power with digital money should be restricted. This is consistent with the idea that the creation of CBDC is largely for welfare state purposes rather than regulatory functions. To confirm this social political understanding, law is needed to define the programmable functions of CBDC. This will help maximize the benefits of governance efficacy while minimizing payment interference to be proportionate with the societal benefit. The law is critical in the construction of CBDC to promote inclusion, freedom, public interest, and social welfare. Specifically, the law should provide explicit rules for the sourcing, distribution, and use of programmable money to fund government initiatives. Permissible programmable functions include social security and emergency financial support, whereas prudential regulation measures and unconventional monetary policy instruments require further analysis. Transparency is critical in the design and operation of programmable money because it allows the public to observe the function and target of each sum, check its effects, and make informed decisions on CBDC holding strategies.
At the core of U.S.-China tensions and the Indo-Pacific strategy, the evolving legal frameworks that govern U.S.-Taiwan relations present legal intricacies under American and international law. This Article provides the first comprehensive analysis of the groundbreaking U.S.-Taiwan Initiative on 21st-Century Trade, the only congressionally approved trade agreement during the Biden Administration. It argues that within the space of non-recognition, the United States has accorded Taiwan diverse and incremental forms of legal recognition, which culminated in the Initiative and its Implementation Act. Through an interdisciplinary lens, this Article develops a theoretical framework that bridges recognition theories under international law and international relations. It challenges the doctrinal legal understanding by demonstrating the coexistence between systematic legal recognition and non-recognition of statehood. From the Roosevelt to Trump 2.0 Administrations, U.S. statutes and agreements focusing on Taiwan reinforce this trend and reflect the pivotal shift to integrate the One-China policy into the broader Indo-Pacific strategy. Although the Initiative does not qualify as a free trade agreement under domestic or World Trade Organization law, it could be construed as a treaty leading to implied recognition. More profoundly, this Article unveils critical constitutional and foreign relations law complexities concerning congressional and executive authority over new-style trade pacts. The key elements of the agreement, ranging from trade facilitation to labor rights, also highlight priority areas of U.S. trade negotiations. Consequently, the qualitative and quantitative evaluation of these legal mechanisms within geopolitical dynamics offers valuable insights for the new "America First" policy and the future of global trade.
The rise of international commercial courts ("ICCs") intensified discussions about their "internationality." However, what "internationality" truly means-whether as a normative matter or its practical manifestation-remains unarticulated in the literature. Our Article addresses this gap by examining the concept of internationality in ICCs both theoretically and empirically, which has further prompted a reevaluation of global dispute resolution paradigms. This Article*** delivers three key contributions. First, it introduces a nuanced framework to assess an ICC's internationality. Moving beyond
Business and Human Rights' transformation into hard law is proceeding at a rapid pace. Across Europe and the United States, legislatures are adopting legal regimes to compel mandatory human rights due diligence, proscribe the importation of goods made with forced labor, and erect civil causes of action against companies that violate human rights across their global value chains. Yet, these regimes have so far failed to account for the practical challenges that rightsholders operating at the bottom of Global South value chains face in accessing remedy. These regimes neglect that in states where judicial fora are weak or inadequate, rightsholders are not equipped to travel to Global North metropoles to see their day in court-to meaningfully advance their grievances. This Comment contends that a new generation of African international investment agreements is poised to make grievance adjudication more accessible for rightsholders. The Protocol on new obligations for African investors, including provisions on environmental protection, responsible business, and labor rights. The Protocol on Investment also erects a new third-party cause of action, where injured rightsholders can sue violative investors. These forwardlooking provisions stand to inaugurate a new era of intra-African Business and Human Rights litigation. Further, this Comment offers recommendations for the African Union to integrate these provisions into bilateral investment treaties with non-AU states, to amend provisions of the forthcoming dispute resolution Annex to the Protocol to reflect a bottom-up approach, and to adopt a continent-wide Framework on Business and Human Rights. These recommendations are designed to provide African rightsholders with expanded access to effective remedy.
