Georgetown Journal of International Law

Publisher:: Georgetown University Law Center
Publication date:: 2022-07-01

Issue Number

No. 54-1, October 2022

Latest documents

International dispute resolution as polyphony? Amicus curiae interventions before international courts and tribunals
The proliferation of amicus curiae participation in international courts and tribunals has received considerable scholarly attention yet has remained undertheorized. The central question in relation to the phenomenon remains unanswered and undertheorized: Does the fact that there are often multiple and diverse actors now engaged with judges in the capacity of amici curiae in any way influence the character of judicial proceedings? Traditionally, international dispute resolution process has been represented as a triadic dialogue: that is, a dialogue between two parties and a judge. This Article argues that with the increasing participation of amici curiae in international litigation, the nature of dispute resolution itself has changed. This Article traces a new emerging pattern in the international courtroom dynamic. Multiple and diverse participants in courtrooms have reshaped how international dispute resolution processes take place. Drawing on the work of the Russian literary scholar Mikhail Bakhtin, the Article argues that we are witnessing a move away from the triadic dialogue model of international dispute resolution to the emergence of polyphony in international trials. Polyphony in international dispute resolution has significant normative, theoretical, and practical consequences. As a new and distinct theoretical lens, polyphony in international dispute resolution sets ground for future thinking on the changing nature of international law-making by international courts and tribunals
Informal and political agreements as sources of obligation? Sketching a theory of international political normativity
This Article argues that a particular trend is emerging whereby states and intergovernmental organisations are relying less on treaties and contracts in certain fields of regulation in favour of more flexible types of agreements. These agreements, although predicated on language suggesting non-binding (or soft law) obligations, are of a sui generis nature, which this article suggests give rise to international political normativity. That is, while its protagonists maintain that they are not bound by the terms of their pledges and undertakings, in fact the practice of participating states demonstrates a desire to set up elaborate mechanisms that encompass complex webs of commitment to and with other stakeholders. Participation in these complex mechanisms portrays a normative character that cannot be explained by reference to treaties and contracts, nor by reference to non-binding, soft law, agreements. This type of normativity is distinct from the similar term coined by political scientists, albeit many of its connotations strike a familiar chord
The urgent need for climate-related risk disclosures in India's energy industry
India's future energy trajectory is critical to global climate stability. The risks posed by climate change to infrastructure, economies, public health, and the environment continue to escalate around the world. Yet, at the UNFCCC 26th Conference of Parties in Glasgow, India pushed for a change of the wording of the Glasgow Pact from "phase out" of coal as an energy source to "phase down." Even though the nation marginally increased its climate commitments at COP26, its economic goals are not compatible with global temperature goals as established in the Paris Agreement, particularly as the country seems poised to privatize existing, nationally-owned fossil fuel assets and is investing significantly in natural gas infrastructure. India has announced a national goal to transition its economy from coal to natural gas in an effort to become a $5 trillion economy by 2025. To accomplish this goal, India has amended a variety of laws and regulations in the last two years to i) support privatization of the energy sector in the name of efficiency and increased productivity, as well as to ii) increase the inflow of foreign direct investment into the sector to boost natural gas consumption, production, and infrastructure with minimum regulatory burdens. This will lead to a rapid transformation of India's energy sector, including the development of significant natural gas assets, infrastructure, and companies, in keeping with the Government of India's national policy. India's Companies Law of 2013 ascribes a duty to directors to disclose material risks to enable stakeholders to remain informed about the risks faced by companies, but crucially omits an inclusion of risks from extreme climatic events in its definition of "material." The lack of climate-related risk disclosure requirements for companies in the energy sector undermines the reliability of information available to companies, investors, and community members at large. India's corporate governance framework needs to evolve to include stricter and more robust climate-risk disclosure requirements because a director's failure to factor climate-related risks can cause a significant decline in the value of the company as well as cause avoidable damage to consumers and community at large. Given the similarities in the legal systems and the law between India and the United Kingdom, this Note undertakes a comparison of the corporate governance structures and the Companies Acts of the two nations. Further, this Note looks at the status and future of climate-related risk disclosure requirements for companies in the United Kingdom and the United States as possible models of nations transitioning from coal to natural gas economies for India to follow in instating its own stringent disclosure guidelines and requirements
Justice for the new frontier: why the united nations should create a space court through a convention process
Recent achievements by private space companies have widened access to outer space beyond government actors. Such innovation complicates the existing legal framework for outer space, which was heavily influenced by Cold War government policies. It also raises questions about the framework's continued applicability to contemporary private sector space exploration. As a result of the framework's potential destabilization by the private space sector, calls for changes to the traditionally state-exclusive domain are being made with increasing frequency. This Article argues how and why the United Nations should, through its convention process, modify space law to incorporate private actors. Space law is currently fragmented amongst treaties, multilateral agreements, and national legislation, leaving private actors unprotected. An emerging trend of filling gaps in space law with national legislation is worrisome because it encourages post-Cold War geopolitical tensions, in direct opposition to foundational space treaty principles. Bringing private actors into the legal framework for outer space must be a priority. This article advocates for the United Nations to call a convention to comprehensively modify the outer space legal regime, to create a space court similar to the Tribunal of the Law of the Sea (ITLOS), and to include non-governmental interests through the granting of permanent observer status. Using the International Tribunal for the Law of the Sea (ITLOS) as a guide, this Article argues that an equivalent tribunal for outer space is the best chance for addressing future space disputes and for granting legal protections to private entities operating in space. It further argues that a space court expands the rule of law into outer space, furthers the mandate of the United Nations and existing space treaties, and is adaptable to a rapidly evolving area of law
A WTO agreement on electronic commerce: an inquiry into its legal substance and viability
Electronic commerce has been one of the very few areas of trade law in which one can observe a willingness shared by the international community to move forward and actively engage in new rule-making. This is reflected in the current World Trade Organization (WTO) Joint Initiative on Electronic Commerce, which aims at concluding a plurilateral agreement on this topic. The Article contextualizes and explores these developments by looking at the relevant digital trade provisions in preferential trade agreements (PTAs). It does so by highlighting the legal innovation in the most advanced templates of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA), as well as those in dedicated digital economy agreements, such as the ones between the United States and Japan, and among Chile, New Zealand, and Singapore. The Article also covers the newer EU trade deals and looks at the Regional Comprehensive Economic Partnership (RCEP), the first agreement with digital trade provisions that includes China, to give a sense of the dynamic governance environment on issues of digital trade. The Article compares the PTA ruleframeworks with the WTO negotiations on electronic commerce and seeks to identify points of convergence and divergence reflected in the latest negotiation proposals tabled by WTO Members. The analytical focus here is placed on the legal substance of the future WTO deal and its viability to adequately address the practical reality of the data-driven economy
Chinese state-owned enterprises and international investment law
Not only do Chinese SOEs play a key role in China's domestic economy, but they are also a major force in implementing the Government of China's ambitious Belt and Road Initiative, a global infrastructure development strategy adopted by the Chinese government to invest in nearly 150 countries and international organizations. The expansion of Chinese SOEs' global footprint has caused widespread concerns in host countries about their implications for national security, fair competition, transparency, and even the function of the free market at home. Since the multilateral trade and investment regimes that took shape in the post-war period did not anticipate many of the special features of Chinese SOEs, states have resorted to unilateral or bilateral measures to counteract Chinese SOEs' competitive advantages in international investment and subject them to heightened national security scrutiny. The objective of this Article is to critically examine the alleged challenges that the expansion of Chinese SOEs' outbound foreign investment has posed to the liberal international investment order and to analyze whether the current international investment regime is resilient enough to accommodate the systemic friction between heterogeneous economic systems. It argues that international investment law is poorly designed to deal with Chinese SOEs because it is premised on some untenable assumptions, and these assumptions are not applicable to Chinese SOEs. The lack of effective international rules pushes nation states to become norm entrepreneurs in international investment law. However, the new SOE norms not only risk either overshooting or undershooting the Chinese SOE problem but also result in greater fragmentation of the international investment regime
Blame to go around: treaty language and the corruption defense in investor-state arbitration
Exporting the european green deal: the wto compatibility of the EU's carbon border adjustment mechanism
While environmental protectionism and trade law are often thought to be in conflict, the EU's proposal for a climate border adjustment mechanism (CBAM) reflects a growing interest in using trade measures to combat climate change. Carbon border taxes, like CBAM, seek to address the issue of carbon leakage, which occurs when producers move to a third country with more lax emissions standards. With a planned rollout date of October 2023, CBAM would apply only to an initial five sectors and become a component of the Emissions Trading System (ETS), EU's domestic cap-and-trade scheme, which already sets a domestic price for carbon emissions. Producers would be able to deduct the cost of any carbon tax paid in the country of origin. If implemented, CBAM would be the first measure of its kind, offering a novel opportunity to assess compatibility with WTO law and international environmental law. Concerns have been raised that the mechanism could violate World Trade Organization (WTO) law, specifically Articles I, III, and XX of the General Agreement on Tariffs and Trade of 1994 (GATT). In designing a mechanism that is WTO compliant, the EU must strike a balance and ensure that it is not in violation of environmental law obligations, such as the principle of common but differentiated responsibilities (CBDR). While the EU can make changes to the proposal to ensure better compliance, it is the WTO that has meaningful authority to better align its policies with environmental obligations. As the developments at the 2021 United Nations Climate Change Conference (COP26) have shown, there is growing consensus on the need for global carbon markets. The future of trade and climate is inherently intertwined, and the WTO objective of sustainable development cannot be achieved without evolving to meet the current threat of climate change
Hostage diplomacy'-a contemporary state practice outside the reach of international law?
Hostage diplomacy" loosely describes a phenomenon where states detain foreign nationals under the guise of national law as a means to coerce the foreign policy of another state. The practice violates the human rights of the individual victim and the right of sovereign states to decide their affairs free from any coercive interference. However, "hostage diplomacy" currently seems to be operating in a legal lacuna for two reasons. First, the practice is mischaracterized as if it was a form of "diplomacy," which distracts stakeholders from recognizing its true nature: an act of stateto- state hostage-taking. Second, the convoluted design of the operation renders such determination difficult: the human pawn may have the function of a hostage; however, he or she is officially a "prisoner" convicted and sentenced according to the domestic legal system of the detaining state. Without a proper framework to "pierce the veil" and qualify the situation as state-to-state hostage-taking, states may have limited legal avenues to sanction the issue without being perceived as, ironically, trespassing on the sovereign matter of the perpetrating state. Legal rights that are based on nationality, such as consular assistance and diplomatic protection, are also perceived to be limited for victims who have dual or multiple nationalities, including that of the perpetrating states, due to the doctrine of non-responsibility. This Article aims to identify the contours of "hostage diplomacy" and search for possible legal avenues in international law to address and sanction the practice
Governance of space resources activities: in the wake of the artemis accords
This Article consists of three body Sections. Section II deals with the detailed examination of the whole picture of the Artemis Accords of 2020 in light of the existing U.N. space-related treaties and resolutions. Section III analyzes the legal issues arising from space resources activities in depth. In Section III, we focus on the interpretation of the "non-appropriation" principle as provided in Article 2 of the Outer Space Treaty and the relevant provisions of the Moon Agreement with reference to each of their drafting histories. As a result, we emphasize therein that a whole range of legal issues triggered by the space resources activities cannot be reduced to the question of whether they are legal or illegal under existing international space law, but the problem of determining whether such activities can satisfy "substantial reasonableness of their consequence." In other words, it is the prevention from adverse ramifications of such activities that counts. In Section IV, we observe the ongoing discussions at the Legal Sub-Committee of the UNCOPUOS and examine the domestic laws of the United States, Luxembourg, the U.A.E., and Japan as well as academic recommendations, including the Hague Building Blocks, the Vancouver Recommendations, and inputs from civil society, in the context of space governance. Finally, we conclude that it depends on two things to produce a multinational framework of any form, irrespective of its legally binding force: first, the values and wisdoms of the stakeholders about outer space per se, and second, the political momentum playing out at the relevant forum whether the Artemis Accords as a bottom-up approach can take hold in the international community or the debate taking place at the UNCOPUOS