Volume 43, Issue 2

Written by Joseph Blocher & Mitu Gulati

On June 11, 2017, Puerto Rico held a referendum regarding its legal status. Although the circumstances were complex and turnout was very low, ninety-seven percent of ballots favored statehood over independence or the status quo. The federal government, however, has financial and political reasons to resist such a preference. Puerto Rico would bring with it not only a massive, unpayable debt, but also the potential to swing the balance of partisan power in Congress. The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions: Could Congress expel Puerto Rico by giving it “independence” against its will? Conversely, do the people of Puerto Rico have a right of “accession” to statehood? The answers are not obvious. International law, we argue, suggests that the people of Puerto Rico have a legal right to determine their own status vis-à-vis the mainland. Whether domestic law protects the same right to self-determination is a more difficult question.

 


Written by Lea Brilmayer

International mass claims commissions (“IMCCs”), a relatively recent phenomenon, test the effective limits of international adjudication. They are large, administratively unwieldy, expensive to operate, and tasked with assignments that are extraordinarily difficult to carry out with any hope of accuracy. How successful they are—and what they are successful at—is still an open question. As ad hoc tribunals, IMCCs are simultaneously established by the parties and also dependent on the international community for support. While formation of such commissions seems motivated most immediately by claimants’ private interest in compensation, IMCCs’ functioning cannot be appreciated without reference to three additional interests of the community as a whole: deterrence, retribution, and closure. Out of these interests, the most important are likely to be compensation and closure; unfortunately, the two are often in tension with one another.

This tension is illustrated by a comparison of the enforcement of three different IMCCs’ awards. The Iran-U.S. Claims Tribunal (IUSCT), the United Nations Compensation Commission (UNCC), and the Eritrea-Ethiopia Claims Commission (EECC) have all been justly congratulated for resolving large numbers of legal claims under difficult circumstances. In one notable respect, however, the first two IMCCs were successful and the third was not: in the IUSCT and UNCC, compensation was ultimately received by the injured parties; at the EECC, the awards were never paid.

The reasons relate to differences in the way that the instruments creating the three IMCCs were drafted. Reading between the lines, the expectations of the relevant parties—that is, the defendant States as well as the injured individuals—were very different. The IUSCT and UNCC were set up in ways that ensured payment to the injured parties; the EECC was set up in a way that made such individualized payment nearly impossible.

This result is puzzling. In one case (the EECC), the parties—with the active involvement of the international community—apparently dedicated years of effort and millions of dollars to establish an adjudicative body that, after determining certain claims to be meritorious, actually left those claimants worse off than if there had been no commission at all. Moreover, the international actors that had deeply urged adjudication on the parties did not, in practice, seem to care whether the awards would ever be paid.

In retrospect, however, this result seems to have been perfectly predictable. The explanation is that compensation, paradoxically, may not be the only reason—or, for some actors, the strongest reason—for establishing a mass claims commission; the more salient purpose, from the point of view of the international community, is likely to be closure.

 


Written by Kathleen Claussen

The first commercial treaty concluded by the United States began as a diary entry by John Adams. Nearly two and a half centuries later, the United States and international trade law have come a long way, but the uniqueness of trade lawmaking persists. Then, as now and in the future, U.S. trade law has been and will be heavily influenced by the balance of power between Congress and the Executive. This Article argues that the carefully choreographed procedure for negotiating free trade agreements has contributed to a type of path dependence with respect to the text of those agreements to the detriment of U.S. interests. The recent failure of the Trans-Pacific Partnership Agreement demonstrates this point: much of the agreement language copied prior agreements that were already subject to considerable criticism. Because that language tracked congressionally prescribed negotiating objectives, negotiators felt obliged to recycle it. This single modelling, driven by the bi-branch shared-power construct unique to trade, is under challenge on the eve of the NAFTA 2.0. While standardized language may have utility in certain spheres of international contract, the efficiency gains in international trade agreements do not outweigh an interest to reconsider text and standards where possible. This Article seeks to explain through traditional international relations theories the “default modelling” that occurs in the design of trade law instruments and proposes an under-explored explanation, one that is contrary to the consensus on U.S. foreign relations law more generally: in trade, Congress has assumed a role as principal and the Executive acts as its agent.

 


Written by Adam H. Bradlow

This Note provides the first account of how private investors and domestic communities can intentionally and systematically use the Investor-State Dispute Settlement (ISDS) regime to vindicate human rights claims. It offers a strategic roadmap for social impact bondholders and domestic actors to advance human rights by rooting their ISDS claims in three legal concepts: indirect expropriation, fair and equitable treatment, and the Tokios Tokelés doctrine.