In late October 2013, two U.N. Special Rapporteurs presented their reports on drone warfare to the U.N. General Assembly. Just days earlier, Amnesty International had published an investigation into drone strikes in Pakistan and Human Rights Watch had issued its examination of such operations in Yemen. The rapid-fire release of complementary investigations captured the attention of the media, of blogosphere aficionados, and of the international law community.Commentators seized the opportunity to either pillory the U.S. drone program or leap to its defense. The existence of this divide is unsurprising, for international law is inherently ambiguous. After all, such law is the creation of States that are often unwilling to commit themselves to bright-line rules, especially with respect to armed force, lest they limit their scope of discretion. Room for interpretive maneuver results.
In 2001, Argentina defaulted on more than ninety-five billion dollars in external debt. At the time, this constituted the largest sovereign default in history. Argentina initiated two restructurings in 2005 and 2010, allowing holders of defaulted bonds to exchange their bonds for new debt at a rate of twenty-five to twenty-nine cents on the dollar, thus restructuring more than ninety-one percent of the foreign debt on which it had defaulted in 2001. Hedge funds specializing in trading distressed sovereign debt, such as Elliott Associates, purchased large amounts of Argentinian debt at a significant discount on the secondary market, and “held out”—they refused to join the restructurings and sought full collection of their debt.
In 1986, when the then-dictator of Haiti, Jean-Claude Duvalier, finally fled, I suggested that the international community needed to learn the important lesson that great violence may occur when a tyrant resists pressure to leave office. “What happens when a dictator finds it hard to leave,” I wrote, “because he has no place to go? One result is increased repression, as ever harsher steps prove necessary to crush or harass impatient local opponents.” The solution, I suggested, was that “the world community should establish a formal machinery for facilitating the voluntary retirement of dictators.” Peaceful departures are all too rare.
In Cary Fukunaga’s 2009 film, Sin Nombre, Central American immigrants ride through the Mexican countryside on top of slow-moving railroad cars with hopes of reaching the United States undetected. Some of the film’s characters are fleeing poverty, but others are running for their lives. These migrants fear persecution from violent, armed gangs in their home countries. Sin Nombre portrays a harsh reality experienced by many asylum-seekers from Central America and Mexico.
And the threat appears to be growing. According to the United Nations High Commissioner for Refugees (UNHCR), from 2009 to 2011, the number of asylum applications from Mexico in the United States more than tripled. The number of applicants from El Salvador, Guatemala, and Honduras increased significantly as well. Despite growing drug and gang violence in the region, U.S. immigration authorities have largely rejected these claims; only 1.1% of claims from Mexico were granted refugee status in 2011. In comparison, 35% of the applications from China and 67% of the applications from Iraq were granted in the same year.
On January 30, 2012 the Appellate Body to the World Trade Organization (WTO) released a decision in China—Measures Relating to the Exportation of Various Raw Materials (Raw Materials) in which it condemned China’s refusal to freely export certain raw materials mined within its territory. Apart from the significant political implications of the decision, the Raw Materials report went a good distance towards answering a persistent question in trade law circles: when, if at all, can the savings clause contained in Article XX of the General Agreement on Tariffs and Trade (GATT) be invoked to justify a violation of another WTO agreement? Answering the question is important because if GATT Article XX is generally available as a defense against non-GATT violations, it would ensure that the specialized WTO agreements are as tolerant of public policy motivated trade restrictions as is the GATT. That, in turn, would assuage concerns that certain specialized agreements such as the Technical Barriers to Trade Agreement (TBT) or the Agreement on Subsidies and Countervailing Measures (SCM), which lack their own savings clauses, are insufficiently sensitive to non-trade concerns, such as environmental protection. Stated otherwise, permitting broad recourse to Article XX outside of the GATT would soften the perceived rigidity of the specialized agreements, thereby preventing the WTO from inappropriately encroaching upon members’ domestic regulatory space.
“[Al Qaeda] does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.”
Strengthening Judicial Independence in the New Constitutional Democracies of Central and Eastern EuropeWritten by Hon. John M. Walker, Jr. and Daniel J.T. Schuker
Last summer, chief justices and leading jurists of Central and Eastern Europe convened in Prague for a three-day Conference of Chief Justices—the first regional gathering of its kind. The participants, representing the judiciaries of fifteen countries in the area, discussed the particular challenges they face in building effective judiciaries consistent with the rule of law.
Climate change is popularly reported as a story about shifting geopolitics, new and emerging economies, and scientific intrigue. Although those characterizations are accurate, climate change is most importantly about people. The consequences of climate change—melting glaciers, ocean acidification, more frequent and intense storms, and droughts —threaten people’s daily lives, cause health crises, threaten food security, destroy industries and infrastructure, render borders unstable, and cripple economies. In Kiribati, a small island country in the South Pacific, rising seas have forced the government to prepare to resettle its entire population—and upend its ancient history, culture, and way of life.
Throughout the past months, Iran and the United States have been rattling their sabers over nuclear inspections and new sanctions. A potential flashpoint is the waterway Strait of Hormuz, which Iran is threatening to close. The Middle East region supplies 70 percent of the world’s energy needs, with about 35 percent of the world’s seaborne oil exports shipped through this tight sea passage in the Persian Gulf separating Oman and Iran. A blockade of the Strait of Hormuz would be fatal for the world economy.
As cyber-warfare rapidly evolves from a theoretical possibility into an imminent threat, scholars have rightly focused on how international law should apply to this new security concern. Of particular debate is how to define which cyber-acts would constitute an "armed attack" implicating a state’s right to forcible self-defense under Article 51 of the U.N. Charter. The leading proposal for answering this question is an effects-based inquiry that asks whether the impacts of a cyber-attack resemble those caused by military force. But this approach is as notable for what it leaves out of the "armed attacks" category as what it brings into it. Under an effects-based analysis, a broad range of damaging and disruptive cyber-actions would remain outside the scope of "armed attacks" under international law. Jus ad bellum only gets you so far on the cyber frontier.