Crisis, Continuity, and Change in International Investment Law and Arbitration

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between crisis, continuity, and change in international investment law and arbitration. It seeks to answer the following question: can international investment law successfully address the challenges posed by the coronavirus crisis? Or will the pandemic change the field of international investment law as we know it? After briefly discussing a range of procedural matters, the article focuses on substantive aspects, namely, the kinds of claims that can be filed, the kind of defences that can be raised, and how arbitral tribunals can adjudicate such matters. In this way, the article ultimately concludes that both continuity and change are necessary for ensuring the health and wealth of nations and justice among them.

A Path to Transformation: Asking “The Woman Question” in International Law

Methods matter, and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment towards our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Methods determine the ways within those limits by which we aim to assert truth claims, determine our possibilities and conclusions, and establish the grounds for legal reform. Our chosen method defines what we consider as evidence and what we accept as proof. Yet, it cannot guarantee a particular outcome or even the right one. Rather, it provides a sense of discipline in our analysis.

The Privacy Cost of Currency

Banknotes, or cash, can be used continuously by any person for nearly every transaction and provide anonymity for the parties. However, as digitization increases, the role and form of money is changing. In response to pressure produced by the increase in new forms of money and the potential for a cashless society, states are exploring potential substitutes to cash. Governments have begun to investigate the intersection of digitization and fiat currency: Central Bank Digital Currencies (“CBDC”). States have begun researching and developing CBDCs to serve in lieu of cash. Central banks are analyzing the potential for a CBDC that could be made available to the public and serve as a substitute for cash by providing an alternate, safe, and robust payment instrument. However, the greatest attribute of cash is that it protects purchaser anonymity. Fully eliminating cash, without a substitute that safeguards anonymity, would undermine privacy of individuals. The creation of a CBDC in response to the potential cashless society raises the question whether the anonymity previously provided by cash must be safeguarded by the state. This note posits that a central bank in a cashless society must opt for the token-based form of CBDC, which provides the most privacy to individuals. States that choose an account-based CBDC will be in violation of fundamental international privacy principles. This note begins by drawing the crucial distinction between account-based and token-based currencies. Then, this note argues that the broad right to privacy in the digital age is inclusive of personal financial data; this data is subject to the lawful and arbitrary standards of article 17 of the International Covenant on Civil and Political Rights (“ICCPR”). Applying the ICCPR framework, it becomes abundantly clear that the privacy of individuals must be protected, even in the rapidly changing landscape of payments in the digital age.

Can the Liberal Order be Sustained? Nations, Network Effects, and the Erosion of Global Institutions

A growing retreat from multilateralism is threatening to upend the institutions that underpin the liberal international order. This article applies network theory to this crisis in global governance, arguing that policymakers can strengthen these institutions by leveraging network effect pressures. Network effects arise when networks of actors—say language speakers or users of a social media platform—interact and the value one user derives from the network increases as other users join the network (e.g., the more people who speak your language, the more useful it is because there are more people with whom you can communicate). Crucially, network effect pressures produce what is called ‘lock-in’—a situation in which actors are unable to exit the network without incurring high costs and as a result become locked into the network. For example, because of their powerful network effect pressures, users of Facebook and the English language cannot easily exit these networks. International organizations such as the UN, the WTO, the IMF, etc., are networks of sovereign states that likewise produce network effect pressures. As such, intensifying their network effect pressure can lock countries more firmly into these institutions. To that end, this article proposes a suite of strategies policymakers may use to manipulate the network effect pressures generated by international organizations to strengthen these institutions and the multilateral treaties that establish them—an approach the article calls treaty hacking. The article offers a toolkit from which policymakers can draw to bolster the liberal order in the face of growing global instability and change.

Is Climate Change a Threat to International Peace and Security?

The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.

Ending Corporate Anonymity: Beneficial Ownership, Sanctions Evasion, and What the United Nations Should Do About It

In the vast majority of jurisdictions around the world, there is a generous array of corporate forms available to persons and companies looking to do business. These entities come with varying degrees of regulation regarding how much information about the businesses’ principal owners must be disclosed at the time of registration and how much of that information is subsequently available to the public. There is little policy harmonization around the world on this matter. Dictators and despots have long taken advantage of this unintended identity shield to evade sanctions which target them; in July of 2019, the Center for Advanced Defense Studies (C4ADS) published a comprehensive, investigative report into North Korea’s supply chain for luxury vehicles outlawed by U.N.S.C resolution 1718. C4ADS found eighty-two previously unreported shipments of 803 luxury vehicles – including two armored Mercedes limousines Kim Jong-Un was later pictured in – between 2015 and 2017 alone. At least twenty-four corporate entities, mostly based in China and Russia, participated in the process of covertly moving the cars to North Korea as guarantors, consignors, or consignees. Hugh Griffiths, Senior Researcher and Head of Countering Illicit Trafficking-Mechanism Assessment Program at the Stockholm International Peace Research Institute and coordinator for the U.N. panel convened to monitor North Korean sanctions compliance, summed up the significance of the problem succinctly. “If you can smuggle luxury limos into North Korea, which is done by shipping container,” he says, “that means you can smuggle in smaller components – dual-use items for ballistic and nuclear programs.” Deficient beneficial ownership protections around the world are not just the esoteric consequence of complicated legal systems; they present a significant threat to international peace and security as a vehicle for terrorism financing, sanctions evasion, and other forms of criminal activity. In six parts, this paper considers the development of beneficial ownership regulation since the 1990s, describes current efforts to harmonize jurisdiction-specific approaches, suggests more intensive involvement by the United Nations, establishes the legal basis for the use of the U.N. Security Council’s legislative powers on this issue, and argues that the United Nations is the international organization best-suited to drive towards universal, international compliance with the modern regulatory consensus.

Strengthening Sanctions: Solutions to Curtail the Evasion of International Economic Sanctions Through the Use of Cryptocurrency

Despite the ubiquity of cryptocurrency, no international uniform regulatory system exists. State-by-state regulation of cryptocurrencies has problematic implications for cross-border investigations and predictability in application. Moreover, this regulatory framework leaves open opportunities for actors worldwide to violate international sanctions with impunity. This Note posits that an international regulatory framework is necessary to combat the evasion of financial sanctions on practical and theoretical grounds. It further argues that the best way to structure this new framework is through the enactment of a new multilateral treaty. A formal international regulatory mechanism for cryptocurrencies would have numerous benefits, foremost among them limiting the evasion of international sanctions. An international regulatory mechanism would also promote predictability in the regulation of cryptocurrencies. This would in turn entice institutional investors to build out the field of crypto users and encourage stability in an otherwise volatile marketplace. The proposal outlined within this Note goes beyond standard legal justifications for a multilateral mechanism. It drills down into the substantive mechanisms that an effective treaty must include, such as public key cryptography; an international public key directory; prosecution guidelines; and foreign fine credits. The levels of specificity to this end are perhaps uncommon in a typical legal proposal. However, this analysis is essential to explain why a new, multilateral treaty is required. The current structures in place cannot begin to grapple with the complex underlying issues which are so crucial to the regulation of cryptocurrency. The substantive components of the proposed treaty undergird the very reason why a new multilateral treaty is necessary.

Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights

In the wake of the COVID-19 pandemic, states have been quick to adopt emergency measures aimed at curbing the spread of the virus. However, poorly constructed restrictions threaten to undermine hard won human rights protections and may in fact erode important elements of international human rights law as a result of overreaching implementation or lack of rigorous analysis in how the restrictions are put, and kept, in place. This article analyzes the International Convent on Civil and Political Rights (ICCPR) standards which apply to emergency regulation in times of public health crisis and the tangled morass of legal tests which have been used to balance human rights and emergency restrictions. We argue that in the current pandemic, human rights are best protected when states act under the Article 4 derogation mechanism to put emergency measures in place because it provides opportunities for oversight ensuring the end of emergency restrictions after the crisis subsides and provides certainty as to how states are justifying their emergency measures under the treaty regime. Given that so few states have provided notice of derogation under the ICCPR, this Article also considers what a rigorous analysis would look like when restricting freedom of movement, privacy, and freedom of assembly using the limitation language found in each article, suggesting best practices for better balancing COVID-19-related emergency measures with human rights.

Propaganda Warfare on the International Criminal Court

Propaganda warfare, while novel in nomenclature, is far from new in practice. In an era dominated by constant news, battles for public opinion complement physical attacks. In fact, “winning modern wars is as much dependent on carrying domestic and international public opinion as it is on defeating the enemy on the battlefield.” The fight for public opinion has become so valuable to military initiatives that the U.S. Department of Defense Law of War Manual specifically recognizes propaganda directed towards “civilian or neutral audiences” as a “permissible means of war.”

The Trees Speak for Themselves: Nature’s Rights Under International Law

This note argues that the United Nations should center nature’s rights in the upcoming Global Pact on the Environment, solidifying the patchwork of international environmental law and encouraging domestic protection of the environment. Part II explores the current state of international environmental law, outlining the ways in which the doctrine remains incomplete. Part III establishes that Earth jurisprudence is an effective method to fill the gaps existing within traditional international environmental law. Part IV emphasizes the importance of soft law in international law. It draws a parallel between the creation of the Universal Declaration of Human’s Rights and a potential global Declaration of Nature’s Rights, thus establishing the possibility for a path forward for the Global Pact. Part V concludes.