Volume 42, Issue 1

The Impact of Investment Arbitration on Investment Treaty Design: Myth Versus Reality

Written by Wolfgang Alschner

Investor-state arbitration (ISA) has become the defining feature of international investment law. ISA dominates public discussions and policy debates that accompany the negotiation of new investment agreements; it forms the lens through which investment law is analyzed and taught at universities; and it has grown to be a significant area of practice for lawyers, arbitrators, and legal service providers. Given its prominence, it is high time to ask just how influential ISA has been in shaping the rules that make up international investment law.


 

 Co-Belligerency

Written by Rebecca Ingber

This Article traces the origins and evolving narrative of the Executive’s modern co-belligerency theory to explore how the Executive shapes the boundaries of its war powers. This is also a study of how a creative legal theory—intended both to constrain and to defend presidential power—sprouted and took root within the executive branch, evolved internally into competing legal theories, became entrenched through ideologically opposed presidential administrations, judicial deference and congressional acquiescence, and ultimately became the poorly understood law of the land and a basis for perpetuating an aggressive scope of unilateral executive power and expanding war. 


 

Designing Amends for Lawful Civilian Casualties

Written by Lesley Wexler & Jennifer K. Robbennolt

In this Article, we offer some thoughts on the limitations of current practices for making solatia and condolence payments after lawful civilian deaths in satisfying the essential demands of amends for the recipient and the giver, and how those demands might inform the design of amends making processes in this context. While many have grappled with how to appropriately respond to the victims of unlawful harm, analysis of the complexities of responding to the victims of lawful harm is significantly less developed. And, while many have urged coordination and standardization of solatia and condolence payments,18 scant attention has been paid to how the absence of elements such as responsibility-taking or the promise of non-repetition might affect both those who have been injured and those who seek to make amends. 


 

Note: Securing the Borders Against Syrian Refugees: When Non-Admission Means Return

Written by Elizabeth Leiserson

Concern about threats to national security has naturally increased in the years since September 11, 2001, and increased again in the wake of attacks like those in France and Belgium. With such increased concern comes an increased will to use all legal tools available to minimize perceived security risks. This Note enters the fray to explain that the national security exception to non-refoulement is not such a tool. To the contrary, when destination countries invoke national security rationales to deny refugees entrance, they violate international law. Security-centered responses amount to what international legal scholars have described as a policy of non-entrée: “The refugee shall not access our community.”