Novogrodsky & Fox: Of Looting, Land and Loss: The New International Law of Takings

Noah Benjamin Novogrodsky (Univ. of Wyoming - Law) & Gregory H. Fox (Wayne State Univ. - Law) have posted Of Looting, Land and Loss: The New International Law of Takings (Harvard International Law Journal, forthcoming). Here's the abstract:

International law has traditionally protected aliens against unlawful expropriations by host states. After World War II, citizens gained protection against property being taken by their own governments. In Federal Republic of Germany v. Philipp (2021), the U.S. Supreme Court held that the Takings Exception to the Foreign Sovereign Immunities Act (28 U.S.C. §1605(a)(3)) incorporated international law’s protections against alien property deprivation but not protections for citizens. The Court did so, in part, because international law’s traditional absence in citizen takings, in its view, “survived the advent of modern human rights law.”

The U.S. Supreme Court was simply wrong. Even at the time the U.S. Congress enacted the Takings Exception in 1976, many human rights instruments addressed citizen takings. Later, similar norms would enter a variety of other areas of international law, forming a mutually reinforcing network of property protections. But Philipp not only missed an opportunity to describe property norms accurately—its more significant omission was failing to distinguish the types of property covered by the alien and citizen regimes. Using a typology developed by Margaret Jane Radin, we identify alien property as “fungible,” meaning a dispossessed owner can be made whole by acquiring equivalent property in the market or its monetary equivalent. We identify citizen property as “property constitutive of personhood” or “personal property,” meaning the owner can only be made whole through restitution.

This Article explores how these very different conceptions of property have become manifest in two paradigmatic types of takings. For alien property, we examine the practice of expropriated foreign direct investment. For citizen property, we examine property taken during forced evictions in civil wars and persecution, including ethnic cleansing. In each case, the way in which the right to property conceives of the protected interest and the remedy available to owners reflect the different nature of the property involved. While the remedy of compensation is available for both alien and citizen of property under the law of state responsibility, investors have chosen compensation in almost every reported case. By contrast, citizens with a deep connection to homes, family businesses, art, and land demand restitution. Focusing on that choice is consistent with Radin’s definition of personal property as largely a subjective concept, built on how individual owners understand specific pieces of property to constitute an essential aspect of their character.

Three consequences flow from conceiving alien and citizen property as fungible and personal, respectively. First, the distinction introduces a human-centered conception of property that has been missing from international law debates focused on identifying legally cognizable “takings” and appropriate measures of compensation. Second, the idea of personal property clarifies the ways in which international law views certain takings, such as the seizure of homes attendant to massive human rights abuses and the taking of cultural property. Third, the land of Indigenous peoples, often described as occupying its own legal category, is presented here as an extreme example of personal property. In turn, that conception may help clarify and bolster claims for restitution of other types of personal property.

Wu: Taiwan's Economic Security in the Shadow of Chips Nationalism

Chien-Huei Wu (Acadmia Sinica) has posted Taiwan's Economic Security in the Shadow of Chips Nationalism (Journal of World Trade, forthcoming). Here's the abstract:

This article addresses Taiwan's economic security in an era of chip nationalism and in light of various countries' zeal to establish semiconductor national champions through variations on the CHIPs Act. The article defines economic security and traces how it is perceived in Taiwan through an investigation of the strategic thinking of successive administrations responding to changing international economic relations, China's rise, and U.S.-China strategic competition and technological rivalry. The article explores challenges facing Taiwan in view of chip nationalism in the post-pandemic era and assesses Taiwan's role in global supply chain resilience and the impact of a potential second Trump presidency on Taiwan's economic security, in general, and semiconductor industry in particular. Taiwan plays a key role in the American strategy to outpace China in the current technological competition as elevating America's own semiconductor industry will be costly, contrary to economic logic, and impose costs injurious to American producers and consumers.

Vidigal & Claussen: The Sustainability Revolution in International Trade Agreements

Geraldo Vidigal (Univ. of Ambsterdam - Law) & Kathleen Claussen (Georgetown Univ. - Law) have published The Sustainability Revolution in International Trade Agreements (Oxford Univ. Press 2024). The table of contents is here. Here's the abstract:

Once seen as aspirational and relatively innocuous, 'sustainability' or 'sustainable development' provisions are now changing the face of international trade agreements. The Sustainability Revolution in International Trade Agreements gathers fundamental, first-hand analyses of these novel commitments across dozens of agreements, considering their legal, political, and economic aspects.

Drawing on perspectives from different parts of the world and engaging experts in the law and practice of sustainability provisions, this volume offers a comprehensive assessment of the latest developments and innovations in international trade agreements. It also evaluates the development challenges that sustainability requirements pose for countries with limited resources and capacity, for whom lower labour and environmental regulatory costs have been a competitive asset.

The present volume explores the intersectional aspects of sustainability - such as gender equality, biodiversity, animal welfare, and Indigenous rights - in addition to the more traditional dimensions of sustainability, namely economic development, environmental conservation, and improvement of labour standards.

There is little doubt that a sustainability revolution in global production patterns is needed. Considering the details of its operation - how it can come into being, who will bear the increased production costs, and how decisions on difficult trade-offs will be made - reveals the immense challenges involved in developing a new international law for sustainable trade. Read together, the chapters in this volume outline the contours this emerging legal framework, examine its practical operation, and offer important reflections upon the real extent and the foreseeable consequences of this sustainability revolution in international trade agreements.

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 58, no. 5, 2024) is out. Contents include:

• Thomas J. Schoenbaum, Bidonomics Versus Maganomics: Pick Your Poison
• Petros C. Mavroidis, Adeet Dobhal, Lucas Jimenez-Moreira, Sunayana Sasmal, Robert Wolfe, Do Private Actors Have Rights under the WTO? The Motivation for and (Inadequate) Implementation of GATT Article X
• Yicheng Ru, The US Uyghur Forced Labor Protection Act: the GATT 1994 Perspective
• Der-Chin Horng, The US CHIPS Act and Its Impacts on the WTO and China
• Manjiao Chi, Trade-Gender Alignment of International Trade Agreements: Insufficiencies and Improvements
• Frances Chisomaga Nwadike, Plurilateral Agreements and the Multilateral Trade System: Lessons from the Past and Present for the Future
• David J. Watson, Lost in Transliteration: The Role of Interpretation in Resolving Regional Trade Agreement Conflicts Relating to Geographical Indications

Inaugural Issue: Jus Mundi Arbitration Review

The inaugural issue of the Jus Mundi Arbitration Review (Vol. 1, no. 1, 2024) is out. Contents include:

• Articles
• Alain Pellet, The Seven Cardinal Sins of Investment Dispute Settlement
• Diego P. Fernández Arroyo, Investment Arbitration in the New Era: Engine or Obstacle in the Fight Against Climate Change?
• Alexis Mourre & Arianna Camillacci, The UNIDROIT Principles as a Tool for the Internationalisation of Contracts by Arbitral Tribunals
• Sectoral Focus: Artificial Intelligence & Arbitration
• Marike Paulsson & Supritha Suresh, AI: The Modern Tribunal Assistant – Impact on Enforceability of Arbitral Awards under the New York Convention
• Sara Migliorini, Automation & Augmentation: Artificial Intelligence in International Arbitration
• Global Developments in Arbitration
• Erica Stein, The IBA Guidelines on Conflicts of Interest in International Arbitration 2024
• Institutions in Focus: CIETAC
• Fei Lu, CIETAC: Overview of Dispute Resolution in the Digital Environment in China
• Case Comments
• Christopher Boog, Swiss Supreme Court rejects CJEU’s Komstroy ruling
• Cosmin Vasile, Romania’s Supreme Court Decides that Associations and Foundations Based in Romania Can Only Set Up Arbitral Institutions if Authorized by Law

Call for Papers: Increasing Avenues for International Justice and Accountability in Asia

The Asia Justice Coalition and Universitas Andalas Law Faculty have issued a call for papers for a workshop on "Increasing Avenues for International Justice and Accountability in Asia," to be held September 23-24, 2024, in Padang (and with limited participation online). The call is here.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 106, 2024) is out. Contents include:

• An International Agency for the Attribution of Malicious Cyber Operations?
• Introduced by Emanuele Cimiotta
• François Delerue, Reflections on the Opportunity of an International Attribution and Accountability Mechanism for Cyber Operations
• Nicholas Tsagourias, Cyber Attribution Agencies: A Sceptical View

New Issue: Chicago Journal of International Law

The latest issue of the Chicago Journal of International Law (Vol. 25, no. 1, Summer 2024) is out. Contents include:

• Samuel Biresaw, Mia Rahim, & Michael Adams, Corporate Creditors Protection Rights Worldwide: Towards a Convergence of Strategies
• Rosa Celorio, The New Gender Perspective: The Dawn of Intersectional Autonomy in Women's Rights
• John Gillespie, Theorizing Constitutional Change in East Asia
• Andrew D. Mitchell, Navigating State Interventions: The Pivotal Role of PTAs in Modern Trade Conflicts

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 23, no. 2, June 2024) is out. Contents include:

• Articles
• Xinjun Zhang & Xidi Chen, The 2022 ICJ Judgment in Nicaragua v. Colombia: Towards a Theory of Exclusivity in Allocating Rights and Jurisdiction between the Coastal and Other States?
• Brady Earley, Religious Freedom “with Chinese Characteristics”
• Comment
• Wumei Wei, Jurisdiction of a State Party under Article 2(1) of the ICCPR: A Comment on A.S. and Others v. Italy
• Current Developments
• Xinxiang Shi, Foreign State Immunity Law of China: A Preliminary Appraisal
• Special Section of Letters: ILC Draft Conclusions on General Principles of Law Adopted on First Reading
• Sienho Yee, Beijing Workshop on ILC Draft Conclusions on General Principles of Law Adopted on First Reading: An Editorial Note
• Xiao Mao, Comments on the Text of the Draft Conclusions on General Principles of Law Adopted by the ILC on First Reading
• Kaijun Pan, General Principles of Law as a Basis for Procedural Rules of International Organizations
• Luping Zhang, ILC Draft Conclusions on General Principles of Law Through the Lens of Air and Space Law Practices
• Tiantian He, How Simple Conclusions Carry Complex Issues: Some Thoughts on the Draft Conclusions on General Principles of Law
• Letters to the Journal
• Abhishek Trivedi, Monetary Gold Principle and the Case of Nicaragua v. Germany

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 24, no. 1, 2023) is out. Contents include:

• Jonathan Kwik, The Conceptual Roots of the Criminal Responsibility Gap in Autonomous Weapons Systems
• Charles Lawson, Fran Humphries & Michelle Rourke, Genetic Resources as Culture and Heritage: Repatriation and Benefit Sharing
• Yuliya Mik, 'More Justice, Less Truth' at the STL? Decoupling Individual Accountability from Collective Truth-Telling in International Criminal Law
• Daniel Rühmann, Conflating Trade with Policy: The Role of International Trade Frameworks in Australia-China Relations
• Laura Schuijers, Australia's Inaction on Climate Change is a Violation of Torres Straight Islanders' Human Rights: Billy v Australia

New Issue: Revista Costarricense de Derecho Internacional

The latest issue of the Revista Costarricense de Derecho Internacional (No. 12, 2024) is out. Contents include:

• Fernanda Jiménez Sauter, A New Treaty for the Biodiversity of the High Seas
• Gabriel E. Chaves Corrales, Cláusulas arbitrales asimétricas: una aproximación al (des)balance de los derechos de las partes en el arbitraje comercial internacional
• Yhasmin Monteiro, El paradigma entre la democracia y la interpretación evolutiva de los derechos humanos

Inaugural Volume: Portuguese Yearbook of the Law of the Sea

The inaugural volume of the Portuguese Yearbook of the Law of the Sea (Vol. 1, 2024) is out. Contents include:

• Alfred Soons, Some Observations on the ‘Ambulatory’ Nature of the Normal Baseline
• Robin Churchill, Portugal and the Development of the Law of the Sea in Western Europe
• Fernando Loureiro Bastos, Notes on Portuguese Publications Dedicated to International Law of the Sea in the 19th and 20th Centuries
• Yoshifumi Tanaka, Resilience of the UN Convention on the Law of the Sea: Reflections on Three Approaches
• Joanna Mossop, Dispute Settlement Provisions in the Agreement for Biodiversity beyond National Jurisdiction
• Marco Benatar & Valentin Schatz, Opting Out of UNCLOS Tribunals: The Impact of Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
• Irini Papanicolopulu, Maritime Boundaries after Delimitation
• Tullio Scovazzi, The Regime of Enclosed or Semi-Enclosed Seas with Special Regard for the Mediterranean Sea