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Cornell International Law Journal
Journal Prestige (SJR): 0.202

Citation Impact (citeScore): 1
Number of Followers: 5

This is an Open Access Journal

Open Access journal
ISSN (Print) 0010-8812
Published by Cornell University

[4 journals]

Oil, Gas, and Rhesus Monkeys: A New Framework for Natural Resources Under
the Commercial Activity Exception
- Authors: Madelaine J. Horn
  Abstract: The Foreign Sovereign Immunities Act of 1976 (FSIA) constitutes an exception for sovereign states to the normal jurisdictional rules that govern when parties are subject to suit in US courts. The commercial activity provision is a carveout within that broad exception-it deprives sovereign states of their exceptional immunity when they engage in commercial conduct. Within this framework, courts have used the natural resource rule to circumvent the commercial activity carveout and restore immunity to sovereign states. This Note argues that the rule should be abandoned in favor of a much more limited test, thereby increasing the number of sovereign states that would be subject to suit in US courts. Part I addresses the MOL case, its doctrinal foundations, and its progeny. Part II analyzes In re Complaint of Sedco, extrapolating a new test from the case for when transactions involving natural resources count as commercial and applying the test to existing case law. Part II also addresses and rejects alternative rules for situating natural resource-related cases within the commercial activity exception.
  PubDate: Fri, 11 Oct 2019 10:22:13 PDT
Out of the Legal Wilderness: Peacetime Espionage, International Law and
the Existence of Customary Exceptions
- Authors: Inaki Navarrete Mr et al.
  Abstract: This Article demonstrates that peacetime espionage does not benefit from permissive customary international law exceptions. The mainstream view contends that, though peacetime espionage may contravene international law, developments in customary international law (CIL) nevertheless undercut State responsibility for such conduct. The gist of this view is that acts of espionage benefit from permissive CIL exceptions because its practice is widespread and accepted within the international society. However, the mainstream literature has rarely-if ever-meaningfully engaged with the practice of espionage in an effort to tease out the objective and subjective elements supportive of customary espionage exceptions. This Article closes this gap and debunks the mainstream view. We show that, although widespread, most acts of espionage are committed in secret and, as such, they cannot qualify as State practice for the purpose of CIL formation. We further demonstrate that States have failed to issue expressions of the subjective element in support of customary espionage exceptions. We conclude by suggesting that, while States are entitled to develop customary espionage exceptions in the future, for now they have yet to come out of the legal wilderness.
  PubDate: Fri, 11 Oct 2019 10:21:58 PDT
Dam(n) Displacement: Compensation, Resettlement, and Indigeneity
- Authors: Stephen R. Munzer
  Abstract: Hydroelectric dams produce electricity, provide flood control, and improve agricultural irrigation. But the building and operation of these dams frequently involve forced displacement of local communities. Displacement often has an outsized impact on indigenous persons, who are disproportionately poor, repressed, and politically marginalized. One can limit these adverse effects in various ways: (1) taking seriously the ethics of dam-induced development, (2) rooting out corruption, (3) paying compensation at or near the beginning of dam projects, (4) using land-for-land exchanges, (5) disbursing resettlement funds as needed until displaced persons are firmly established in their new locations, and (6) having entities that loan money to foreign governments for power dams insist that a percentage of the loan be sequestered to cover compensation and resettlement costs.This sextet of sensible measures must, however, be applied to highly different countries and indigenous persons. This application will be unsuccessful unless these measures fit the local situations on the ground. This Article shows how one can succeed in two quite different countries- China and Guatemala-in which past efforts have proved inadequate.Maya Achi displaced by the Chixoy Dam in Guatemala are an "indigenous people" under any traditional definition. Ethnic minorities displaced by dams in China are not traditional indigenous peoples because historical narratives of outsider conquest and colonization do not apply to them. They are, however, indigenous ethnic minorities. The Han Chinese supermajority dominates, represses, and discriminates against them. China ought to treat them in basically the same way that other countries ought to treat their indigenous peoples.
  PubDate: Fri, 11 Oct 2019 10:21:45 PDT
Can Soft Regulation Prevent Financial Crises': The Dutch Central
Bank's Supervision of Behavior and Culture
- Authors: John M. Conley et al.
  Abstract: Financial regulation has traditionally been "hard": national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation-new laws, stricter regulations, and often entirely new regulatory agencies.That pattern goes back at least to the 1929 market crash that precipitated the Great Depression.But the fact that financial crises still occur is leading many observers to wonder if more hard regulation is the best way to prevent the next one. However elaborate the regulatory structure, there always seem to be people in the industry willing to take the risk of getting caught to benefit themselves and their institutions. There is a growing body of opinion that what the financial world needs is a way to identify those pathological risktakers in advance and, perhaps more importantly, to make sure that the financial institutions that employ them discover and control them. Such an approach to financial governance might be characterized as "soft" supervision: rather than relying on prescribing, proscribing, and punishing specific actions, it would focus on education and persuasion (still backed up by the threat of sanctions) to encourage financial institutions to head off excessive risk-taking before it occurs.In this Article, we report on an in-depth study of the first major effort to put this theory into practice: De Nederlansche Bank's (DNB; the central bank of the Netherlands) novel initiative to promote a healthy corporate culture in the large banks that it supervises. Despite its radical originality, this initiative has been almost entirely unreported in the U.S. legal and business literatures. As with all central banks, DNB's traditional mandate has been to ensure the stability and integrity of the national financial system by promulgating and enforcing regulations and supervising individual banks. The financial crisis of 2007-2008 prompted DNB to reassess the adequacy of that model. In response, it has expanded its supervision to include the evaluation of both individual behavior and group-level culture-"Behaviour & Culture" (B&C) -supervision. We have investigated the history and theoretical roots of B&C supervision; interviewed a large number of participants, both regulators and regulated, to understand their practical perspectives; explored the connections between B&C supervision and relevant themes in law and the social sciences; and considered the implications of B&C supervision for banking regulation elsewhere. We conclude that, while the response to B&C supervision has been generally positive, the tangible effect of its supervision remains unproven. Moreover, its relative positive reception may depend on the specific business culture of the Netherlands, which casts doubt on whether it can be exported to larger banking systems.
  PubDate: Fri, 11 Oct 2019 10:21:29 PDT
Vol. 51, no. 4 Table of Contents
- PubDate: Fri, 11 Oct 2019 10:21:18 PDT
A Christian Oasis: The Role of Christianity and Custom in the Laws of
Ethiopia
- Authors: Cyril A. Heron
  Abstract: Part I of this Note will analyze the history of Ethiopia’s legal system.Part II of this Note focuses on modern Ethiopia and seeks to scrutinize Ethiopia’s Civil Code, Constitution, and other legislation. Written into the new constitution of Ethiopia is a declaration of secularism, similar to the United States and South Africa. Yet, in a nation that has existed as a Christian state for at least a millennium, it is nigh on impossible for Ethiopia to fully divest itself of its cultural mores with mere constitutional edict. The question is, therefore, what is to be made of traditional beliefs that are religious in nature but enter the governmental realm'This Note hopes to shed light on the fact that religion and customs are embedded in the cultural mindset of people. Simply wishing to create a secular legal system with the aim of inclusion, while a noble endeavor, shall not result in the changes a legal system needs to divest itself of centuries of cultural and religious domination. By contrasting the religious influence on past and present legislation, there is hope that certain peculiarities will become apparent. The effect of a lengthy adherence to Christianity versus the effect of de jure secularization on a people holds promise of interesting revelations.
  PubDate: Mon, 18 Feb 2019 09:25:55 PST
The Republic of Virtue: The Republican Ideal in British and American
Property Law
- Authors: Maxwell M. Garnaat
  Abstract: As the estate tax comes under increasing pressure from all sides, it is important that we determine just how rooted in American ideals such a measure truly is. On the one hand, it is true that Lockean theories of private property remain a stalwart influence on the nation, one which may be used to argue against the estate tax. On the other hand, however, the equally venerable theory of republicanism— one adopted and developed by the Framers themselves— can justify its continuation. Applying the principles of republicanism to this specific context, one can see how closely its tenets align with the goals of the estate tax, acting as a method of preventing aristocratic wealth accumulation and defending against gross inequalities that can harm a republic.
  PubDate: Mon, 18 Feb 2019 09:25:47 PST
Against Populist Isolationism: New Asian Regionalism and Global South
Powers in International Economic Law
- Authors: Pasha L. Hsieh
  Abstract: This Article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this Article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of global trade liberalization.By analyzing the converging policies of the Association of Southeast Asian Nations (ASEAN), China and India, the Article first demonstrates the status of the RCEP in Asian powers’ contemporary FTA practice. In light of the ASEAN Economic Community, the new 11-member Trans-Pacific Partnership and EU FTAs with Singapore and Vietnam, caution should be given to the utilization of tariff preferences, services liberalization and investorstate dispute settlement. Finally, the Article assesses the RCEP’s systemic impact on the legal fragmentation due to jurisdictional conflicts under trade and investment agreements. The consolidation of divergent trade rules and the pro-development operative mechanism will arguably fortify the RCEP as a pathway to the Free Trade Area of the Asia-Pacific region and reinvigorate the multilateral trading system.
  PubDate: Mon, 18 Feb 2019 09:25:39 PST
Sustainable Finance & China’s Green Credit Reforms: A Test Case for Bank
Monitoring of Environmental Risk
- Authors: Virginia Harper Ho
  Abstract: In the past few years, the focus of international organizations on sustainable finance— the integration of environmental, social, and governance (“ESG”) considerations into global financial systems— has intensified because of its potential to promote financial stability, better risk assessment, and more efficient allocation of capital. The success of these efforts depends in part on whether banks and other financial institutions can manage, price, and monitor environmental risk.This Article offers new answers to this question from China— one of the most important global test sites for sustainable finance. Corporate governance theory suggests that creditor monitoring can promote managerial accountability and lower agency costs, a role that is critical in economies like China, Europe, and much of the developing world, where companies depend heavily on bank financing. China’s recent green credit reforms offer an opportunity to re-examine these theories and assess banks’ potential to drive sustainable finance across global capital markets.To examine banks’ monitoring potential, this Article uses data for 2012– 2017 from the annual reports and sustainability reports of the twenty-one Chinese banks that are at the forefront of China’s green finance initiatives, as well as insights from fieldwork conducted in 2016 and 2017. This investigation shows that leading Chinese banks are strengthening their ability to integrate environmental criteria into credit risk assessment in response to regulatory priorities but that barriers to efficient pricing and monitoring of environmental credit risk remain. This Article identifies key lessons from the Chinese context for sustainable finance reform elsewhere.
  PubDate: Mon, 18 Feb 2019 09:25:30 PST
Lying about God (and Love') to Get Laid: The Case Study of
Criminalizing Sex Under Religious False Pretense in Hong Kong
- Authors: Jianlin Chen
  Abstract: Section 120 of the Hong Kong Crimes Ordinances— which traces its origin to the U.K. and which is replicated in several other English common law jurisdictions— criminalizes procurement of sexual acts through false representation. Recently, prosecutors used this provision to indict individuals who procured sexual acts on the pretext of performing luck-improving religious rituals. Beyond presenting the first-ever systematic examination of these intriguing fraudulent sex court cases, this Article makes two arguments. First, this Article explains how the strong skepticism, and at times, instinctive rejection by the judges of the purported religious proclamations not only confirm the scholarly concerns over the sincerity test in U.S. v. Ballard, but also demonstrates how the often-proposed solution of bench trials and other procedural safeguards is of limited efficacy to restrain religious bias. Second, by situating religious fraud with romantic fraud— both being frauds that raise serious conceptual difficulties in terms of objectively proving falsehood— this Article highlights that fraudulent sex criminalization is as much a regulation of fraud as it is a sexual offence. Thus, the inquiry should not only be sensitive to the different normative considerations that vary with the subject matter of the representations, but should also incorporate the economic literature regarding the impact of fraud on market dynamics in appreciating the unintended effects of the law and prosecutorial decisions.
  PubDate: Mon, 18 Feb 2019 09:25:21 PST
Vol. 51, no. 3 Table of Contents
- PubDate: Mon, 18 Feb 2019 09:25:13 PST
The Limits of 8 U.S.C. § 1252(g): When Do Courts Have Jurisdiction to
Entertain an Alien’s Claim for Damages Against the Government'
- Authors: Kimberly P. Will
  Abstract: The objective of this Note is to identify the scope of § 1252(g). It concurs with previous scholarship, which has stated that, based on legislative intent and controlling precedents, § 1252(g) only applies to instances where the government exercises discretionary authority. That is, when the government violates statutes or its own regulations, courts may entertain the alien’s claim for damages. However, as many courts reject this argument, this Note further suggests that § 1252(g) should be interpreted narrowly so as to allow meritorious plaintiffs the possibility of recovering for the harm they suffered. This Note will also explore the international implications of America’s refusal to compensate victims.
  PubDate: Mon, 05 Nov 2018 08:58:05 PST
Silent, Spoken, Written, and Enforced: The Role of Law in the Construction
of the Post-Colonial Queerphobic State
- Authors: Chan Tov McNamarah
  Abstract: Debates over the origins of queerphobia in post-colonial African nations are legion. The conversation is dominated by opinions that paint Africans as inherently more violent towards, and less tolerant of sexual minorities than their Western counterparts. Less present in the conversation is the view that colonially-imposed laws have played a significant role in the creation of queerphobic, post-colonial African states. However, as this Note contends, neither perspective fully accounts for regional variations in levels of queerphobia throughout the African continent. In response, this Note presents a model that tracks the role of law in the production of queerphobic sentiment prior to, during, and after colonialism. In doing so, the model accounts for regional variations and elucidates the role of colonial-era laws in creating legacies of intolerance.The model is rooted in scholarship that documents the effects of unenforced, codified sodomy laws. From there, the model branches out dyadically, explaining the role, power, and effects of unwritten laws (oral customary laws) and written laws that are enforced. This Note then applies the model to four post-colonial African societies, Uganda, South Africa, Nigeria, and Zimbabwe. It demonstrates that prior to colonial contact, several African societies did not condemn sexual minorities. With the establishment of colonially-imposed laws, indigenous attitudes shifted from tolerance of queer sexualities, to intolerance. This Note concludes that in societies where colonially-imposed anti-queer laws were routinely enforced, modern post-colonial societies experience high levels of queerphobia. In contrast, where such laws were not routinely enforced, postcolonial societies more readily accept LGBTQ persons as equal citizens.
  PubDate: Mon, 05 Nov 2018 08:57:58 PST
The Charitable Deduction and Looting of Antiquities: A Comparative
Approach
- Authors: Sabrina Y. Hsieh
  Abstract: The tax incentive structure for charitable giving in the United States, as in many other countries, is imperfect. The structure over-incentivizes donations from wealthy individuals, whether those donations are made up of cash or of property. This structure has negative impacts not only domestically, but abroad as well.By providing an incentive for donations of antiquities to museums— an incentive that was perhaps largely necessitated by the state of American museums in the 19th century— the charitable deduction has not only created a market for antiquities of questionable provenance, but has also created what is potentially a get-out-of-jail free card for those who knowingly purchase antiquities of questionable provenance or fail to conduct their due diligence in determining whether an antiquity’s provenance is genuine.The international community has largely condemned the looting of archaeological sites and the sale of unprovenanced antiquities. Regardless of whether one subscribes to cultural property nationalism or internationalism, incentivizing the looting of these sites through the tax system is a problem that must be remedied.
  PubDate: Mon, 05 Nov 2018 08:57:47 PST
“Private” Cybersecurity Standards' Cyberspace Governance,
Multistakeholderism, and the (Ir)relevance of the TBT Regime
- Authors: Shin-yi Peng
  Abstract: We are now living in a hyper-connected world, with a myriad of devices continuously linked to the Internet. Our growing dependence on such devices exposes us to a variety of cybersecurity threats. This ever-increasing connectivity means that vulnerabilities can be introduced at any phase of the software development cycle. Cybersecurity risk management, therefore, is more important than ever to governments at all developmental stages as well as to companies of all sizes and across all sectors. The awareness of cybersecurity threats affects the importance placed on the use of standards and certification as an approach.
  PubDate: Mon, 05 Nov 2018 08:57:38 PST
‘Rule of Law’ in China: The Confrontation of Formal Law with
Cultural Norms
- Authors: Larry A. DiMatteo
  Abstract: This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years to create a European-style civil code. There are multiple, interlocking themes to this Article. First it focuses on the general principles of contract law, comparing the current Chinese Contract Law of 1999 with the General Rules of 2017. This analysis of general principles is not merely confined to contract law but reflects the values and goals of Chinese society. A second theme explores the effectiveness and inherent problems of legal transplantation from one legal system to another. China is a unique example given the great mass of laws adopted in its transition to a socialist-market economy.The review of general principles and analysis of the effectiveness of China’s transplantation of Western-style laws provides the basis for examination of the status of the “rule of law” in present day China. The rule of law is generally associated with public law, such as criminal and constitutional law, and concepts such as due process. This Article demonstrates the importance of the rule of law in the more mundane area of private law, in this case, the law of contracts. The examination of the rule of law in Chinese private law also has different dimensions. First, the Article examines the pivotal role that Chinese cultural norms— Confucian and socialist principles— has had in diminishing the rule of law in China. Second, the continued influence of government agencies and the low quality of the Chinese judiciary has also held back the implementation of a rule of law system in the private law realm. The Article concludes with the use of a hard-soft law paradigm to best understand the interaction of formal law and cultural norms in modern China.
  PubDate: Mon, 05 Nov 2018 08:57:30 PST
Interpersonal Human Rights
- Authors: Hanoch Dagan et al.
  Abstract: Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden of plaintiffs’ vertical rights on putative defendants. In this Article, we argue that the moral underpinnings of private law provide the relational key to this missing link. We claim that private law’s normative DNA is premised on a profound commitment to reciprocal respect to self-determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a manifestation of our interpersonal human rights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-a-vis those who wronged them.
  PubDate: Mon, 05 Nov 2018 08:57:23 PST
Reasoned Verdicts: Oversold'
- Authors: Kayla A. Burd et al.
  Abstract: Jurors are lay fact-finders, untrained in the complexities of law and legal rules, and yet reasoned verdicts require that their reasons conform precisely to the law. This difficulty is the impetus for additional interaction with the court, as jurors must often call on legal assistance when drafting their verdicts. This necessity undermines the independence and power of jurors and opens the door for external pressures and biases to encroach on jurors’ decisions. When judges overturn jury verdicts that they consider insufficiently reasoned, judges substitute their judgments for those of the jurors. In addition, reasoned verdicts may lead to post hoc rationalizing rather than predecisional reasoning, and can be subject to poor framing and question construction.Ultimately, it seems a worthy goal to maximize jurors’ decision making while insulating such decisions from external influences. Requiring reasons of jurors may well change how jurors make decisions, but without empirical research, we cannot know if these changes are for the better. Requiring reasons of jurors may not be the panacea we desire, but it seems clear that it will undermine the independence of jurors and juries.
  PubDate: Mon, 05 Nov 2018 08:57:13 PST
The Unstoppable Intrusion: The Unique Effect of Online Harassment and What
the United States Can Ascertain from Other Countries' Attempts to
Prevent It
- Authors: Dylan E. Penza
  Abstract: The United States must provide some solution to deal with online harassment. Looking at its fellow nations may be a good way to provide a foundation for changes that need to be made
  PubDate: Fri, 26 Oct 2018 14:07:06 PDT
E-hailing and Employment Rights: The Case for an Employment Relationship
Between Uber and its Drivers in South Africa
- Authors: Isaiah J. Marcano
  Abstract: South Africa’s Uber dilemma has forced jurists to answer important questions about the country’s largest black-owned sector: the taxi industry. Since the days of apartheid, taxi drivers have struggled to secure their livelihoods. Lamentably, they have found themselves restricted by a legacy of oppression that, despite significant progress, lingers on. As of late, Uber has exploded onto the transportation market, and labor courts must decide whether Uber drivers fit within a system that never contemplated the emergence of gig economy companies. If future jurists continue to draw inspiration from South Africa’s highly progressive constitution, international agreements, and pro-union culture, it is likely that Uber drivers will soon see the day that a labor court classifies them as employees.Accordingly, a hybrid or new labor classification for drivers is not a viable solution for the Uber dilemma. These classifications give equal weight to corporate interests and disadvantaged workers’ needs, and they fail to recognize the importance of protecting workers from businesses with far more capital and power. Moreover, although Uber claims that its business model has provided drivers with an avenue for entrepreneurship, these success stories ignore most drivers’ realities, which are characterized by long, grueling workdays and unsustainable wages. Hence, it is crucial for jurists to understand that hybrid or new classifications unfairly compromise the rights and needs of historically oppressed groups.Ultimately, the struggle for labor and employment rights in the gig economy does not end here. Not all Uber drivers are vehicle-owners, and some vehicle-owners function as middle-persons between Uber BV and hired drivers. This situation raises questions about the existence of coemployment relationships and whether an employee classification only extends to some Uber drivers. An employee classification also complicates the situation for many foreign nationals who cannot find employment elsewhere. At some point, lawmakers will have to reconsider immigration and naturalization laws that have made it difficult for foreign workers to make a living in South Africa. Finally, there are countless issues related to driver and commuter safety that the State has yet to resolve. Recognizing drivers’ rights as Uber employees, however, is a step in the right direction.
  PubDate: Fri, 26 Oct 2018 14:06:59 PDT