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.

Volume 43, Issue 1

Written by Richard Albert

Some constitutional amendments are not amendments at all. They are self- conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is better understood as a constitutional dismemberment, not a constitutional amendment. A constitutional dismemberment is a deliberate effort to transform the fundamental rights, structure, or identity of the constitution without breaking legal continuity. Dismemberment is a descriptive concept, not a normative one; it can either improve or weaken liberal democratic procedures and outcomes. We can accordingly speak of the dismemberment of the Turkish Constitution from democratic to authoritarian, just as we can interpret the Civil War Amendments as dismembering the infrastructure of slavery in the United States Constitution. In this Article, I draw from three types of constitutions around the world—the codified Constitutions of Brazil, Colombia, India, Ireland, Italy, Jamaica, Japan, Saint Lucia, Taiwan, Turkey, and the United States; the uncodified Constitutions of New Zealand and the United Kingdom; the partially codified Constitution of Canada—to introduce the phenomenon, concept, doctrine, and larger theory of constitutional dismemberment. I explain how dismemberment helps address current problems in the study of constitutional change, how it clarifies our understanding of constitutional amendment, and also how it challenges our presuppositions about how constitutions do and should change.

 


Written by Suren Gomtsian, Annemarie Balvert, Branislav Hock, and Oğuz Kirman

FIFA, the world governing body of football (or soccer, as it is known in some countries), has long been associated with the World Cup and, lately, corruption scandals. Less known is FIFA’s success in building a private legal order that competes with public orders. This study explains how and why this private legal order has succeeded in governing the behavior of the involved actors and keeping them away from regular courts. We argue that the ability of the order to offer what other governance modes cannot is key: FIFA, as a transnational private authority, offers harmonized institutions that apply across national borders and, in many cases, are better accustomed to the needs of the involved parties. State-made alternatives, on the other hand, are often based on a one-size-fits-all approach and lack certainty of application. In addition, FIFA’s rules increase the gains of clubs and prominent footballers. While the interests of some other involved parties—lesser-known players in particular—might be better served by the application of formal State laws, the established equilibrium discourages deviation. This study contributes to a better understanding of alternative modes of institutional design, particularly by illustrating how private orders function in an environment where reputation plays a limited role.

 


Written by Mariana Pargendler

There is a vast literature documenting how contract laws differ across jurisdictions. However, we still know little about the reasons for, and the implications of, the observed distinctions, which are generally viewed as isolated, unrelated, and arbitrary. This Article reveals a clear, but thus far overlooked, pattern in the comparative law of contracts. The civil law places more limits on the scope of contractual obligations, whereas the common law more forcefully constrains the remedies available for breach of contract. The Article offers two interpretations for these differences. On the one hand, civil and common law systems reflect different roles of the State in contract law. In the civil law, the State plays a greater part in all respects: it goes further in providing and policing the substantive terms of the agreement, but once the contract passes muster, it is willing to sanction breaches with more severe consequences. Common law systems embrace the opposite, more restrained, approach: the State is less willing both to meddle with contract terms and to supply strong remedies for non- performance. On the other hand, the treatment of contract rights and remedies in each legal tradition can be viewed as complementary. Policing the terms of the contract and limiting the consequences of breach serve as alternative, though not equivalent, strategies to mitigate the effects of harsh bargains.

 


Written by Alexandra Perloff-Giles

The most common cyber threats today are “transnational cyber offenses”— attacks like malware, ransomware, and distributed denial of service that ripple across borders, ignoring territorial boundaries and exploiting the decentralized, networked architecture of the Internet. Regulating cyber activity and imposing effective sanctions for cyber offenses is challenging, however. The traditional system of territorial jurisdiction, tied to a system of Westphalian nation-states, is ill-adapted to cyberspace. Yet, without accountability measures, cyberspace risks becoming a Hobbesian state of nature, in which victims engage in self-help and cyber-vigilantism.

The existing literature on cyber threats focuses almost exclusively on two legal frameworks: domestic criminal law and international humanitarian law. Each of these bodies of law may be appropriate for certain cyber threats. Domestic criminal law may effectively address computer crimes like identity theft and financial fraud that target specific entities or individuals residing in the same country as the perpetrator. International humanitarian law, by contrast, may be appropriate for cyber aggressions that are carried out by one State against another and that constitute a “resort to armed force.” Neither legal framework properly applies, however, to transnational cyber aggressions.

This Note therefore urges scholars and policymakers to look to international institutions to develop new accountability mechanisms beyond domestic criminal law and the law of armed conflict. In particular, this Note sketches possible solutions based on international civil arbitration, transnational criminal law, and international criminal law. As the number of transnational cyber aggressions continues to escalate, and the nascent Internet of Things promises to raise the stakes of these threats, the future of cyberspace depends upon the elaboration of an effective global accountability regime.