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1. Costs and Benefits of Investment Treaties: Practical Considerations for States

Author:
Lisa Sachs, Lise Johnson, Brooke Güven, and Jesse Coleman
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.
Topic:
Treaties and Agreements, Law, Legal Theory, and Investment
Political Geography:
Global Focus

2. Research Spotlight: Beth A. Simmons

Author:
Meg Murphy
Publication Date:
03-2016
Content Type:
Working Paper
Institution:
Weatherhead Center for International Affairs, Harvard University
Abstract:
The International Criminal Court is saving civilian lives in multiple countries, according to research that provides the first quantitative evidence. The study by professors at Harvard University and Texas A&M, which will be featured in the summer issue of the journal International Organization, has drawn widespread attention from people on either side of a polarized debate about the ICC’s role in international justice. Vocal critics have long claimed the ICC is an ineffective obstacle to peace processes while enthusiasts believe it useful in advancing global peace and security. The underlying question: is the ICC irreparably flawed or an institution worth investing in? Now researchers Beth A. Simmons and Hyeran Jo have contributed a systematic study that can impartially inform this pressing debate in international affairs.
Topic:
United Nations, Legal Theory, Peace, and International Criminal Court (ICC)
Political Geography:
Global Focus

3. Between Evolution and Stagnation – Immunities in a Globalized World

Author:
Heike Krieger
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Immunities here have, on the one hand, been calls for the limitation or even the abolition of immunities, in particular based on the argument of a lack of responsibility for grave violations of human rights. Contrarily, opposed tendencies can be observed which raise ideas such as the extension of the scope of persons to be protected by immunities, resting upon the pluralization of actors in the globalized world. This article examines these two contradictory aspects of development of immunities in public international law and how they might interrelate with each other. It analyses how the simultaneous evolution and stagnation of immunities can be explained. For that purpose the contribution evaluates at first the current state of the legal development. Further, it takes a look at a certain stagnation of legal development and clarifies the structural parameters within public international law which have led to such a stagnation. In this context, it is critically dealt with the question, whether immunities meet the demands of a globalized world. Lastly, this article addresses the development regarding a denial of immunity in cases of grave human rights violations and asks how it could be more cautiously brought forward.
Topic:
Globalization, Human Rights, and Legal Theory
Political Geography:
Global Focus

4. Opening the Forum to the Others: Is There an Obligation to Take Non-National- Interests Into Account Within National Political and Juridical Decision-Making-Processes?

Author:
Sergio Dellavalle
Publication Date:
08-2015
Content Type:
Working Paper
Institution:
The Goettingen Journal of International Law
Abstract:
Decisions taken in a national forum affect the interests of individuals who, as non-citizens, are excluded from the decision-making-process. In the contemporary world, individuals and social groups can be severely harmed as a result of decisions taken far away from the place where they live and often even without any direct intervention. The issue of the consideration of non- national interests within national decision-making-processes is thus becoming increasingly important. The contribution begins with a brief analysis of the concept of solidarity, as the legal obligation to take into account non-national interests has been labelled in the international law scholarship. In contemporary international law, solidarity is a principle to be interpreted and further developed, rather than a right articulated in firm rules. Yet, from the epistemological point of view the legal system is always based on extra-legal concepts and reasoning. Thus, the reference in legal principles to non-legal arguments should not be regarded as a disadvantage but as a precious contribution to the inescapable link between legal and extra-legal discourses. On the basis of this assumption, the article concentrates on the main extra-legal reasons that have been brought into the debate in order either to deny both the existence of a duty of solidarity within the lex lata as well as the necessity to introduce it de lege ferenda; or, on the contrary, to maintain the paramount importance of such a duty. The analysis will end with some considerations on how the political and juridical forum could be concretely opened up, through proper legal and institutional arrangements, to a deliberation that gives access to the arguments of the others.
Topic:
International Law, National Security, and Legal Theory
Political Geography:
Global Focus

5. The Individual Sovereignty: Conceptualization and Manifestation

Author:
Nikola Lj. Ilievski
Publication Date:
09-2015
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
This paper is qualitative and theoretical research of the concept of sovereignty and the libertarian theory, particularly the concept of individual liberty. It represents a concept developing study, with a specific accent laid on the individual liberty, and the theoretically established concept of sovereignty. The research focus could be identified with the conceptualization and manifestation of the individual sovereignty, as a theoretical phenomenon that is not fully conceptualized and strictly defined. In the scope of this paper, content analysis method and comparative method are used. The analysis, comparison and synthesis refer to the theories of sovereignty and the theory of libertarianism, resulting in developing the concept of individual sovereignty and its socio-political manifestation.
Topic:
Sovereignty, Legal Theory, International Relations Theory, State, and Civil Liberties
Political Geography:
Global Focus

6. Collective Self-Action

Author:
Ananth Padmanabhan and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Collective self-defense is an express exception to the U.N. Charter’s prohibition on the use of force by states. It permits a member state to intervene in the defense of another member state when that state has been subject to an unlawful armed attack. Here we consider (1) the obligations that international law places on an intervening state and (2) the best practices for an intervening state that may be derived from past state practice.
Topic:
United Nations, Military Strategy, Legal Theory, Military Intervention, and Collective Defense
Political Geography:
Global Focus

7. Optimal Deterrence: An Evaluation of the Leaks-Regulating Regime

Author:
Ananth Padmanabhan, Tina Thomas, and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Recent high-profile leaks have led to renewed calls, especially from some members of Congress, for a more rigorous leaks-prosecuting regime. In response, others, most visibly the press and certain watchdog groups, have strongly resisted the claim that a more forceful response to unauthorized disclosures benefits the American public. This report evaluates the existing leaks-regulating regime and considers which of the current reform proposals are most likely to provide optimal deterrence. First, this report outlines the myriad and sometimes contradictory interests at stake implicated by unauthorized disclosure of classified information: protecting national security, safeguarding First Amendment rights, ensuring government accountability and transparency, promoting consistency in prosecution, and furthering efficient government functioning. Second, this report examines why it has proven difficult for the government to successfully prosecute leaks. It identifies four leading reasons. First, it can be difficult to identify a leaker, given the vast proliferation of the classification system and the expansion of national security bureaucracy. Second, the government faces significant legal burdens at trial— prosecutors often have to rely on circumstantial evidence; in the case of intangible information disclosure, the government may also have to deal with a heightened scienter requirements. Third, a trial may attract unwanted attention to an issue the government prefers to keep secret and defendants sometimes try to capitalize on this by using “graymail” defenses. Finally, the recipients of unauthorized disclosures—usually members of the press—enjoy robust constitutional protections that can restrict evidence gathering.
Topic:
Governance, Legal Theory, Deterrence, Classification, and Leaks
Political Geography:
Global Focus

8. Arms Trafficking: The International and Domestic Legal Framework

Author:
Oona A. Hathaway, Elizabeth Nielsen, Chelsea Purvis, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The conventional arms trade,2 both legal and illegal, is vast in scope. As of 2001, there were an estimated half billion documented small arms in the world, more than one for every twelve people.3 International arms sales are a booming business, and the United States is the world’s largest exporter. In 2008, worldwide arms transfer agreements reached a value of $55.2 billion, of which 76.4% involved developing nations.4 The United States accounted for $37.8 billion, or 68.4%, of these worldwide arms transfer agreements,5 and U.S. activity falls into five categories: foreign military sales agreements between foreign governments and the Department of Defense, direct commercial sales to foreign buyers negotiated by U.S. companies, leases of military equipment by U.S. entities, excess defense materials, and emergency decreases of weapons stockpiles.6 An extensive legal regime has emerged at the international and domestic levels to regulate conventional arms trafficking. This report aims to provide an overview of that framework. It surveys existing international arms trafficking agreements and provides an analytic framework for distinguishing between them. It also surveys the domestic legal framework regarding arms trafficking. Together, these overviews provide a starting point for identifying the shortcomings of existing law, identifying gaps in the legal framework as it currently operates, and considering options to begin to address these shortcomings. This report begins in Part I by briefly outlining the scope of the problem of conventional arms trafficking. It then turns in Part II to identifying three fundamental axes on which international arms trafficking agreements differ. First, each agreement targets one or more points in a conventional arms life cycle: it targets the point of production; the point of domestic ownership and transfer; or the point of interstate transfer. Second, agreements differ in the scope of weapons they cover—they may target different classes of weapons (such as major conventional weapons, small arms and light weapons, and dual-use technologies) and different legal categories of weapons (for example, some cover both legal and illicit weapons, while others only focus on illicit weapons). Third, agreements differ in terms of their enforceability: some are legally binding while others set nonbinding goals. Part III of the report examines the ways in which the United States regulates arms trafficking through its domestic laws and international agreements. It shows that the United States places strong controls on interstate transfers of arms, but it has a more mixed record when it comes to regulating earlier stages of the arms life cycle. While U.S. law places a number of marking and recordkeeping requirements on arms producers and sellers, domestic ownership laws are lax compared to those of other countries. Part IV shows that there are three major gaps in extant arms trafficking agreements. First, the international agreements that are the most enforceable either fail to target arms trafficking at multiple points in the life cycle or fail to cover a broad scope of weapons. Second, arms trafficking agreements do not adequately regulate the illicit resale of arms in the black market after they are produced and sold for the first time legally. This is because there is no binding and enforceable agreement that requires states to track all domestic weapons transfers, from their initial sale to the final sale before their export. Finally, major arms suppliers, such as the United States, are not party to several major arms trafficking agreements. To address these shortcomings, this report offers three options available to U.S. policymakers for strengthening arms trafficking laws. First, the United States could increase multilateral engagement by ratifying the leading regional arms trafficking agreement, Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunitions, Explosives, and Other Related Materials (CIFTA). Doing so would likely require no changes in U.S. domestic law but would strengthen the U.S. ability to coordinate its arms control efforts with other countries while encouraging other countries to more effectively address arms trafficking. Second, the United States could increase bilateral programmatic assistance to address arms trafficking—at the very least by taking arms trafficking into account in existing assistance programs. Finally, the United States could engage more actively in leading negotiations over a robust and comprehensive arms trade treaty. Such an agreement would ideally aim to bring the international legal standards developed in CIFTA to the global stage. In leading the way toward such a comprehensive treaty, the United States could encourage universal adoption of the high standards the United States already has in place to ensure that arms are not transferred for illegitimate purposes—purposes that may directly affect U.S. security interests.
Topic:
International Trade and Finance, Arms Trade, Trafficking, Legal Theory, and Illegal Trade
Political Geography:
Global Focus