Volume 35, Issue 2

Private Litigation in a Public Law Sphere

Written by William W. Burke-White & Andreas von Staden

Over the last twenty years, the incidence of investor-state arbitrations, starting from a few odd cases per year, has grown to a sizable and steady flow of up to forty-some new cases annually. With a cumulative total of at least 317 pending or decided cases as of the end of 2008—most of them before International Centre for Settlement of Investment Disputes (ICSID) arbitral tribunals constituted under the ICSID Convention—international investment arbitration has become “a part of the ‘normal’ investment landscape.” The growth in investor-state arbitrations has been fostered by the explosion in the number of bilateral investment treaties (BITs) during the same time period, which numbered a staggering 2676 treaties at the end of 2008.4 Many of these treaties contain provisions not only about the settlement of traditional interstate disputes, but also about procedures through which investors claiming to have been harmed by measures allegedly in violation of an applicable BIT provision can initiate arbitrations directly against the investment host state. It is on the basis of such dispute settlement provisions contained in BITs that most investor-state arbitrations are being initiated.

The growth in investor-state arbitration has gone hand in hand with a diversification of the issues at stake in the underlying disputes. Far from being limited to merely technical questions, contemporary investment arbitrations frequently implicate the scope of the regulatory powers of the respondent states and reach well beyond the traditional concerns with simple expropriations and nationalizations. Instead, a much broader variety of regulatory and public goods disputes has come to be addressed through investment arbitration, ranging from the provision of basic public services, such as water and sanitation, to the maintenance of public order. The large number of arbitrations initiated against Argentina arising out of that country’s responses to the severe economic crisis from 2001 to 2002—forty-eight known proceedings in 20096—fittingly illustrate this point. They implicate nothing less than the host state’s freedom and ability to speedily react to an economic collapse of massive proportions.

Locating the International Interest in Intranational Cultural Property Disputes

Written by Joseph P. Fishman

It would be difficult to envision Thomas Bruce as a Greek. Bruce, the Scotsman better known as the Seventh Earl of Elgin, is now famous (to some, infamous) as the namesake of the Elgin Marbles in the British Museum. From 1799 to 1803, he served as British Ambassador to the Ottoman Empire in Constantinople. In 1801, after receiving permission from the Ottoman government, he began removing marble friezes from the Acropolis, then in danger of destruction due to the ongoing Greek War of Independence. In an effort to preserve the friezes, Lord Elgin had them shipped home to Britain, where he would eventually sell them to the British government. Two hundred years later, this “expatriation” of the Greek sculptures has provided the ideological battleground par excellence in the debate over the proper home of items of cultural property.

But imagine for a moment that Lord Elgin had been a native of Greece, equally concerned about the safety of the sculptures. What if, rather than loading the sculptures on ships bound for London, he had merely carted them off to some other region of the Greek isles? Consider what the ensuing cultural property dispute might have looked like. As the years went by, would Athenians have begun to call for “repatriation” of their cultural property as vociferously as they do now from Britain? Would Greeks from outside Athens? Would non-Greeks? Should non-Greeks?

The premise is, of course, completely fantastical. But there is a corrective purpose to this thought experiment. In thinking about cultural property, we have grown accustomed to picturing the competing interests as aligning along different sides of international borders. Concededly, that reaction is a natural one. Cultural property was first recognized as a distinct concept in the context of wartime plunder, and its earliest protection under international law was only during episodes of international armed conflict. Today, high-profile court cases usually involve allegedly looted objects from a foreign state or expropriation from an alien national. The leading multilateral treaties on ownership of cultural property envision claims by or against state actors. And to the extent that commentators have critiqued that system, they still do so within the context of international conflict. In short, the most visible milestones in the history of cultural property law suggest that repatriation is necessarily a cross-border transaction.

Free Speech and International Obligations To Protect Trademarks

Written by Lisa P. Ramsey

The Paris Convention for the Protection of Industrial Property (Paris Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) obligate parties to the Paris Convention and members of the World Trade Organization (WTO) to provide minimum standards of protection for trademarks, among other things. For example, members must protect distinctive trademarks against certain unauthorized uses “in the course of trade” that “would result in a likelihood of confusion.” Yet many states also have obligations under their constitutions or human rights treaties to protect the right to freedom of expression. States shield speech ranging from political discourse to entertainment and even commercial advertising from government restriction because freedom of expression is essential in a democratic society and a robust marketplace of ideas promotes the discovery of truth. National trademark laws are government regulations of speech that implicate the right to freedom of expression and are permissible under constitutional or international law only if the speech is categorically unprotected (like misleading commercial speech in the United States) or if the government can justify this regulation of speech under applicable legal standards.

With the recent expansion of trademark rights and the increased protection of speech—including commercial expression—there are a growing number of potential conflicts between laws prohibiting unauthorized use of another’s mark and the right to freedom of expression. In the United States, for example, federal trademark law now applies to the unauthorized use of trademarks in noncommercial speech and nonmisleading commercial speech, not just misleading commercial speech. Some courts have held that federal infringement statutes are not limited to profit-seeking uses of trademarks and may be applied to unauthorized uses of a mark by political, religious, and social organizations where such use is likely to cause confusion. Courts have applied infringement law to noncommercial and mixed commercial/noncommercial speech, including unauthorized uses of marks in domain names of Internet parody sites (for example, use of the PETA mark in the domain name peta.org linked to the “People Eating Tasty Animals” parody website); in the titles or content of books (for example, use of the marks of Dr. Seuss Enterprises in The Cat Not in the Hat parody of the O.J. Simpson trial written in the style of Dr. Seuss); in magazines (for example, use of the Michelob Dry marks in a fake “Michelob Oily” advertisement in a humor magazine commenting on water pollution); and in films (for example, use of the trademarked Dallas Cowboys Cheerleaders outfits in the pornographic film Debbie Does Dallas and of Dairy Queen’s mark in the title of the film Dairy Queens about beauty pageants in the Midwest).

With Great Power Comes Great Responsibility? The Concept of the Responsibility To Protect Within the Process of International Lawmaking

Written by Mehrdad Payandeh

State sovereignty has long been regarded as the pivotal structural paradigm of international law. Its recognition in Article 2(1) of the U.N. Charter as a fundamental, albeit qualified, principle of the United Nations is only one of many indicators that it has not forfeited its significance. At the same time, the rising importance of the protection of human rights raises the question of how to reconcile the inherent tension between these two principles. In the modern international legal order, it has become clear that the treatment of human beings within the territorial boundaries of a state does not belong to the domaine réservé that excludes interferences from the outside. Yet it is far from clear how the international community—represented through the United Nations, regional organizations, and individual states or groups of states—should act and is allowed to act when a state commits major human rights violations such as genocide, war crimes, ethnic cleansing, or crimes against humanity. When diplomatic efforts and political or economic sanctions fail, military action in the form of a humanitarian intervention is often considered as a last resort.

Following the Cold War and the revitalization of the U.N. system of collective security, the question of the legality and legitimacy of humanitarian intervention gained practical importance. In the 1990s, massive human rights violations led to fierce debate, especially in cases where the U.N. Security Council did not authorize an intervention. In 1994, the international community failed to prevent the genocide in Rwanda due to the lack of political will and determination among the main political actors. The North Atlantic Treaty Organization’s (NATO) bombing of Kosovo in 1999 to end ethnic cleansing and other mass atrocities, despite the absence of Security Council authorization, added to the controversy. By the end of the twentieth century, the world was deeply divided into proponents who regarded humanitarian intervention as often the only effective means to address massive human rights violations and critics to whom humanitarian intervention was nothing but a rhetorical and euphemistic pretext under which the great powers pursued their imperialist self-interests through coercive
measures.

Against this background, the concept of the responsibility to protect constitutes an attempt to change the prefix of the ongoing debate about the legality and legitimacy of humanitarian intervention.  At the core of the concept lies a two-dimensional understanding of responsibility: (1) the responsibility of a state to protect its citizens from atrocities, and (2) the responsibility of the international community to prevent and react to massive human rights violations. The concept moves the debate past the controversial notion of “humanitarian intervention” to a “responsibility to protect,” thereby focusing on the perspective of the victims of human rights violations. Conceptually it tries to cut the Gordian knot of the tension between sovereignty and human rights by embedding the notion of human rights in the idea of state sovereignty. Under this premise, intervention within a state that fails to protect its citizens from massive human rights violations does not constitute an intrusion into that state’s sovereignty, but rather appears as the realization of a responsibility which is shared by the state and by the international community.

Recent Development: Tyranny on Trial: Regional Courts Crack Down on Mugabe’s Land “Reform”

Written by Daniel Hemel & Andrew Schalkwyk

One night in June 2008, militants associated with Zimbabwe’s ruling ZANU-PF Party stormed a citrus farm owned by seventy-four-year-old Mike Campbell, breaking four of his ribs and his collarbone while inflicting such severe brain damage that Campbell now has difficulty in adding simple sums. In April 2009, the militants returned to seize the farm; in August, they burned down the house where Campbell and his family had lived for nearly four decades.

A much less violent—but equally dramatic—event occurred on March 30, 2010, when attorneys representing Campbell and seventy-seven other white Zimbabwean farmers attached a luxury home in Cape Town, South Africa owned by the Reserve Bank of Zimbabwe. The attachment is a far cry from full compensation for Campbell and his co-plaintiffs—and only covers the plaintiffs’ legal costs of 113,000 rand (approximately US$15,500)—but it marks a rare instance of an oppressive regime being held to account for its human rights abuses. Moreover, it shows that the Southern African Development Community (SADC) Tribunal, a court that opened for argument only three years ago, may be a much more powerful force for human rights in the region than the tribunal’s founders ever foresaw.

When Southern African leaders gathered in Windhoek, Namibia in August 1992 to sign the SADC Treaty, attendees hailed the “historic occasion” and announced the dawn of a new era of regional integration. But Article 16 of the Treaty, establishing a regional court, was an afterthought at the time; the tribunal did not come into being for nearly another decade and a half. In the meantime, SADC made modest steps toward trade liberalization but accomplished very little on the political front. Regional leaders have been unwilling to intervene in member-state affairs, and many observers have dismissed the organization as a “talking shop.”8 SADC’s weaknesses are on dramatic display in Zimbabwe: after years of inaction, the SADC Summit—the closed-door body of regional heads of state—finally brokered an accord between President Robert Mugabe and his political rivals in 2008, but it stood on the sidelines as Mugabe brazenly breached the agreement’s terms.

Recent Development: Military Commissions at a Crossroads: Defining the “Law of War” on Terrorism

Written by Sara Aronchick Solow

The meaning of “terrorism” under U.S. domestic law and under international law differs significantly. This became strikingly clear in January 2010, when the military commission system put in place by the Military Commissions Act of 2009 wrestled with its first two cases on appeal. As the government argued before the Court of Military Commissions Review, U.S. law has a relatively low bar for what constitutes terrorism. Acts of conspiracy, “material support,” and the circulation of propaganda all qualify and are punishable by harsh sentences. Under international law, meanwhile, there is a substantially higher bar for what constitutes a terrorist act. As the defendants in the proceedings of early 2010 demonstrated, conspiracy and “material support” are not terrorism under international law, and such acts would not give rise to harsh penalties under an international or domestic court applying the international law doctrines.

Given that U.S. and international law diverge on the substance of terrorism, military commissions convened in the United States for the purpose of trying alien combatants will be forced to pick among these varying legal standards. Under the Military Commissions Acts of 2006 and 2009, Congress erected a system of Article I courts for prosecuting “unprivileged enemy belligerents,” and it directed the commissions to adjudicate alleged violations of the “law of war.”   As cases before the commissions increase, the judges will be forced to resolve a yet unsettled question: what “law of war” should they apply? This Recent Development argues that in the interest of constitutional law and international comity, military commissions should draw solely from international authorities when adjudicating and defining the “law of war” on terrorism.

Recent Publications

Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice. By Daniela Piana

Humanitarian Intervention: Confronting the Contradictions. By Michael Newman

Self-Enforcing Trade: Developing Countries and WTO Dispute Settlement. By Chad P. Bown

Contracting States: Sovereign Transfers in International Relations. By Alexander Cooley & Hendrik Spruyt

Means to an End: The U.S. Interest in the International Criminal Court. By Lee Feinstein & Tod Lindberg

The Art and Craft of International Environmental Law. By Daniel Bodansky

The Justiciability of International Disputes: The Advisory Opinion on Israel’s Security Fence as a Case Study. By Solon Solomon

The Multilateralization of International Investment Law. By Stephan W. Schill