JournalTOCs

Duke Journal of Comparative & International Law
Number of Followers: 18

This is an Open Access Journal

Open Access journal
ISSN (Print) 1053-6736
Published by Duke University Press

[23 journals]

Journal Staff
- PubDate: Thu, 25 Feb 2021 08:03:48 PST
Cutting Submarine Cables: The Legality of the Use of Force in Self-defense
- Authors: Blair Shepherd
  PubDate: Thu, 25 Feb 2021 08:03:45 PST
Foreign Interference in Elections under the Non-intervention Principle: We
Need to Talk about “Coercion”
- Authors: Steven Wheatley
  Abstract: This article looks at the problem of foreign state cyber and influence operations targeting democratic elections through the lens of the non-intervention principle. The work focuses on the meaning of “coercion” following the 1986 Nicaragua case, wherein the International Court of Justice concluded that “[i]ntervention is wrongful when it uses methods of coercion.” The analysis shows that coercion describes a situation where (1) the foreign power wants the target state to do something and wants to be certain this will happen; (2) the outside power then takes some action, either by issuing a coercive threat, using coercive force, or engaging in the coercive manipulation of the target’s decision-making process; and (3) the target then does that something. The application of this understanding to the problem of cyber and influence operations targeting elections leads to the following conclusions: the hacking of the information and communications technologies used in elections is always coercive, and therefore wrongful, because the foreign power is trying to get the target state to do something it would not otherwise do; fake news operations are coercive, and therefore prohibited, where they are designed to get the electorate to vote differently; disinformation campaigns intended to cause policy paralysis or manipulate the views of the population also constitute coercion, and, therefore, violate the non-intervention rule. By explaining the meaning of “coercion,” this article demonstrates that the long-established principle of non-intervention can regulate the new problem of cyber and influence operations targeting elections.
  PubDate: Thu, 25 Feb 2021 08:03:42 PST
Reframing Housing: Incorporating Public Law Principles into Private Law
- Authors: Kristen Barnes
  Abstract: A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry’s housing needs. Although this reorientation reflects decisions from the European Court of Justice and from the United Nations Committee on Economic, Social, and Cultural Rights, it is equally driven by an organic transformation in our understanding of housing markets and redistributive justice. Rather than receive the new paradigm with myopic trepidation, observers should herald it as the beginning of a much-needed dialogue between the public, human rights discourse, private business interests, and economic markets.
  PubDate: Thu, 25 Feb 2021 08:03:38 PST
A Step Closer: Economic Integration and the African Continental Free Trade
Area
- Authors: Nsongurua J. Udombana
  Abstract: Post-colonial Africa views economic integration as an endogenous means for attaining self-reliant, sustainable development. Working under various regional and sub-regional economic institutions, states elaborated several norms in search of legitimacy in economic competence. However, several political and economic pathogens, including weak institutions, have blighted those efforts. This paper interrogates the African Continental Free Trade Area (AfCFTA or CFTA), which is the latest attempt to reboot the integration drive and achieve sustainable development. The CFTA seeks to create a geographic zone where goods and services will move freely among member states by removing trade distortions and boosting factor mobility, competition, and investment. After a rigorous analysis of the relevant normative instruments and examining the vertical and horizontal relationship between the CFTA and regional economic communities (RECs)/member states, the paper articulates some objective criteria for measuring the CFTA’s effectiveness. It concludes that, if faithfully implemented, the CFTA could maximize utility and increase welfare. For the analysis and conclusions, the paper deploys principles of public international law as well as economic theories, with a blend of political and moral philosophy.
  PubDate: Thu, 25 Feb 2021 08:03:35 PST
Journal Staff
- PubDate: Mon, 11 May 2020 08:30:04 PDT
Steel Standing: What’s Next for Section
- Authors: Kayla Scott
  Abstract: This note considers possible legal challenges to the original Section 232 steel order and recommends different actions for alleviating the problem of broad executive power delegated by Congress in Section 232. Parts I and II provide an introduction and background to Section 232. Part III analyzes the constitutionality of Section 232 under both the Court’s current jurisprudence of the nondelegation doctrine and potential changes to the doctrine suggested by the dissent in Gundy . Part IV assesses potential challenges to the steel order under the theory that the President acted outside of the scope of his authority conferred by the statute. Part V assesses whether the action is consistent with global trade rules and what the potential effects of a WTO violation are under domestic law. Lastly, because of the weakness of the legal arguments against Section 232 and the steel order, Part VI provides recommendations for how Congress, as opposed to the courts, might deal with the problems posed by Section 232.
  PubDate: Mon, 11 May 2020 08:30:01 PDT
Responding to Election Meddling in the Cyberspace: An International Law
Case Study on the Russian Interference in the 2016 Presidential Election
- Authors: Alex Xiao
  Abstract: International law is not the most perfect legal regime, and, perhaps to no one’s surprise, it is even less perfect in cyberspace. The United States has been a victim to a series of malicious cyber operations in recent years, and the key question is how to respond to and deter them. This Article offers a detailed survey of the Russian interference in the 2016 presidential election in the context of international law. Adapting the framework created by Tallinn Manual 2.0 , the Article examines the international legal basis of the response measures employed by the United States and other possible alternative responses to the Russian operation. It concludes that none of these responses are both squarely supported by international law and desirable as a matter of national security police. This Article intends to show that international law contains considerable gray areas in the cyber realm that allow sophisticated adversaries like Russia to harm the core interest of the United States without substantial legal repercussions. The Article concludes by suggesting that a deterrence mechanism based on proactive national security policy would be more effective and practical than one based on international law.
  PubDate: Mon, 11 May 2020 08:29:58 PDT
International Humanitarian Law and the Targeting of Non-State Intelligence
Personnel and Objects
- Authors: Michael N. Schmitt
  Abstract: This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s “overall OAG,” a notion that parallel’s the characterization of a State’s various military units as its “armed forces.” Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their “direct participation in the hostilities.”
  PubDate: Mon, 11 May 2020 08:29:56 PDT
Export Controls: America’s Other National Security Threat
- Authors: Chad P. Bown
  Abstract: The Trump administtation’s allegations that some imports are a threat to America’s national security have received wide publicity during 2017–20. But the administration was undertaking a more quiet U.S. policy shift on the export side in the same time frame. Addressing the national security threat presented by exports posed different economic and institutional challenges from those associated with import policy, including the acknowledgment that export controls for legitimate national security reasons can be the first-best policy to address the problem at its source. Yet, export controls could also be misused as a beggar-thy-neighbor policy to redistribute economic well-being across countries, even from one ally to another. This paper describes how U.S. export control policy evolved over 2017–20, as well as the international institutions—first the Coordinating Committee for Multilateral Export Controls, then the Wassenaar Arrangement—historically tasked with multilateralizing U.S. export restrictions used to protect national security. With the potential for U.S. export control policy to brush up more frequently against World Trade Organization (WTO) rules designed to limit the use of export restrictions, the paper also highlights new challenges for the WTO’s system of resolving trade disputes. Overall, a U.S. failure to strike the right balance for its export control policy would result in it being ineffective at addressing national security risks, costly for the economy, and problematic for trade and diplomatic relations.
  PubDate: Mon, 11 May 2020 08:29:53 PDT
Trade and Security Among the Ruins
- Authors: J. Benton Heath
  Abstract: The collision of trade and security interests is taking place today in an increasingly fragmented landscape. Governments’ conceptions of their own vital interests are undergoing a rapid transformation as the concept of “national security” expands to encompass issues such as national industrial policy, cybersecurity, and responses to climate change and pandemic disease. At the same time, the system for settling trade disputes is being pulled apart by competing tendencies toward legalism and deformalization. Last year, a landmark decision suggested that international adjudicators could oversee this clash between security and trade, deciding which security interests can override trade rules and which ones cannot. Then the collapse of the WTO Appellate Body threw into doubt the future of a legalized trade regime, suggesting a partial return to a system driven by politics.I argue that this fragmented landscape provides an opportunity to experiment with different ways of resolving the clash between trade and security. After introducing the expansion of state security interests with reference to recent policy developments, I identify three emerging models for reconciling expanded security interests with trade obligations: structured politics, trade legalism, and judicial managerialism. Each of these models brings tradeoffs in terms of oversight and flexibility, and each is associated with an ideal institutional setting. Rather than attempting to vindicate one model for all settings and all purposes, we should embrace plurality, especially at a moment where the relationship between trade and security appears to be undergoing a historic transformation.
  PubDate: Mon, 11 May 2020 08:29:50 PDT
A Proposal for a Committee on National Security at the WTO
- Authors: Simon Lester et al.
  Abstract: World Trade Organization (WTO) committees meet regularly to monitor and oversee the implementation of the WTO agreements. It rarely makes the news, but this work is nonetheless an important supportive function of the organization. The committees cover a wide range of topics, and some have been added from time to time. In this Article, we propose a Committee on National Security to address the growing challenge to the trade regime presented by national security measures. WTO litigation has a limited ability to handle these sensitive issues, and there would be great value in a committee designated to provide oversight of these measures. This would include the following components: a forum for regular discussion and coordination of approaches on trade-related aspects of national security matters; a monitoring mechanism to increase transparency on the use and application of national security measures; a Technical Group for developing recommendations and guidelines; and a process for immediate rebalancing, either through compensation or retaliation, where such measures have been imposed and their impact on trade can be demonstrated.
  PubDate: Mon, 11 May 2020 08:29:48 PDT
An Introduction to Trade and National Security: New Concepts of National
Security in a Time of Economic uncertainty
- Authors: Elizabeth Trujillo
  Abstract: Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing global crises such as the COVID-19 pandemic. With the World Trade Organization’s recent panel decision, Russia—Measures Concerning Traffic in Transit , the international community received some guidance as to the limited use of this exception under GATT Article XXI and the need for good faith by nations invoking it, but larger questions remained as to its applicability in the context of economic insecurity and in the context of broader global challenges such as cybersecurity and climate change. Furthermore, with the current dysfunction of the Appellate Body of the WTO, there is no central adjudicatory body to address these issues in a systematic fashion, leaving it up to the nations or ad hoc adjudicatory processes to decide, rendering the multilateral trade framework an even more fragmented system. New ways of imagining the role of trade in the context of global and economic crises are needed, as well as more resilient institutional frameworks that can adapt to future forms of insecurity and allow for varied, constructive forms of dialogue among nations.
  PubDate: Mon, 11 May 2020 08:29:45 PDT
Journal Staff
- PubDate: Tue, 03 Dec 2019 08:25:49 PST
Sail We Must: Why ICSID Proceedings Should Not Lie at Anchor for
Arbitrator Challenges
- Authors: Natalie Pita
  Abstract: This Article shows that the International Centre for Settlement of Investment Disputes’ (ICSID) current rules for arbitration, which automatically suspend the arbitration proceeds, are direct contributors to the high costs and long proceedings in ICSID. The Articles also argues that failing to eliminate the automatic suspension of proceedings is simply putting off a change that will inevitably need to be made. Following complaints that investment arbitrations were too costly and too lengthy, ICSID finally began addressing the issue of arbitrator disqualifications by initiating a round of amendments in October 2016. ICSID has proposed two different remedies to this problem, which could replace the original rule: the first proposal would provide a much-needed increase in ICSID’s efficiency, but the second proposal is little more than an entrenchment of the status quo. ICSID should adopt a slightly modified version of the first proposal to continue the proceedings in the face of arbitrator challenges.
  PubDate: Tue, 03 Dec 2019 08:25:46 PST
It’s Not the Robot’s Fault! Russian and American Perspectives on
Responsibility for Robot Harms
- Authors: Bryant Walker Smith et al.
  Abstract: As automated vehicles, personal robots, and other cyberphysical systems enter our world, law must confront important questions about civil liability for harms caused by these systems. Two legal scholars—one from Russia and one from the United States—come together to tackle these questions with an integrated approach that draws on the law of both countries.
  PubDate: Tue, 03 Dec 2019 08:25:43 PST
The Rise of Nationalism in International Finance: The Perennial Lure of
Populism in International Financial Relations
- Authors: Federico Lupo-Pasini
  Abstract: Populism and nationalism are key drivers of current international economic relations, affecting almost all aspects of foreign economic policy. After almost four decades of cooperation in international financial relations, recent events suggest that we are now potentially entering a new phase of progressive disengagement. This new era would be dominated by the explicit need to safeguard domestic interests, in which regulatory barriers to cross-border finance will be more pronounced and curtailing the expansion of global financial markets will no longer be considered a policy taboo. This Article presents a brief history of financial nationalism and discusses some of its more recent phenomena around the world, from the regulatory conflicts between the European Union and the United Kingdom over the control of the European derivatives clearing market, to the attacks on central banks’ independence, or the open distrust of western regulators against the Chinese FinTech giants. In contrast to other phenomena of economic populism, like trade protectionism, it is very difficult to theorize a single explanation behind this new protectionist push. Financial nationalism is neither an economic ideology nor a structured response to the downsides of economic globalization. More simply, it is the manifestation of a multiplicity of policy needs, which invariably lead to a reconfiguration of the inherent regulatory tradeoff between the protection of national sovereignty and the expansion of global markets; this time favoring the former.
  PubDate: Tue, 03 Dec 2019 08:25:40 PST
Call It What It Is: Genocide Through Male Rape and Sexual Violence in the
Former Yugoslavia and Rwanda
- Authors: Claire Bradford Di Caro
  Abstract: Genocide and its various iterations have repeatedly been contextualized in narratives assuming that victims are female. Part of this is due to the irrefutable data that shows the overwhelming number of victims are female. The United Nations 1948 treaty known as the Convention on the Prevention and Punishment of the Crime of Genocide provided for a definition for genocide that purposefully included other forms of genocide, particularly genocidal rape and sexual violence. Yet the two most comprehensive genocidal tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), refrained from charging criminals with genocide when their victims are male. This Article will address how males, similarly to female, have been victims of genocide in the forms of genocidal rape and sexual violence, and will argue that the ICTY and ICTR should have used the 1948 Convention’s definition of genocide to achieve the goals of the United Nations.
  PubDate: Tue, 03 Dec 2019 08:25:37 PST
Oligarchs, Foreign Powers, and the Oppressed Minority: Regulating
Corporate Control in Latin America
- Authors: Carlos Berdejó
  Abstract: Corporate law and governance scholarship have traditionally focused on understanding the agency costs that result from unresolved conflicts of interest between shareholders and management. This agency problem becomes trivial when corporate ownership is concentrated, as is the case in many countries outside the United States. In this context, the more pressing agency problem results from conflicts of interest between minority shareholders and controlling shareholders seeking to divert resources at the expense of the former.When ownership is concentrated, legal rules must seek to protect minority shareholders from controlling shareholders, rather than shareholders from managers. In many countries, minority shareholders are afforded this protection via tag-along rights, i.e., the right to be bought out by any person that seeks to acquire a controlling stake in a company. The effectiveness of such a mandatory bid rule has been the subject of vigorous debate. This debate, however, has centered on comparing the approaches followed by the United States and the European Union in regulating sale of control transactions.Latin America offers an unexplored setting in which to address these long-standing issues. The Article starts with an examination of the shareholder structure of Latin American companies, which are characterized by high levels of ownership concentration. Families and foreign entities play a dominant role, a remarkable reflection of the region’s colonial past. Latin American countries have adopted unique approaches in sales of control that attempt to protect minority shareholders without deterring some of the efficient transactions that the traditional mandatory bid rule prevents. A preliminary comparison suggests these local rules outperform the U.S. market rule and the European mandatory bid rule.
  PubDate: Tue, 03 Dec 2019 08:25:34 PST
Journal Staff
- PubDate: Thu, 02 May 2019 08:45:05 PDT