Volume 15, Issue 2 (Fall 2010)

This issue focuses largely on two critical areas of international affairs: international criminal tribunals and international arbitral regimes. These topics address how to improve the functioning of both international criminal law and international arbitration law, both of which play a crucial role in the larger transnational legal framework. Available online at HeinOnline.

Hybrid International Criminal Tribunals: Political Interference and Judicial Independence by Elizabeth Nielson. 15 UCLA J. Int’l L. Foreign Aff. 289 (2010).

This Comment argues that political interference represents a serious threat to judicial independence in hybrid international criminal courts. Political interference has been largely overlooked in courts such as the Special Panels for Serious Crimes, the Extraordinary Chambers in the Courts of Cambodia, the Supreme Iraqi Criminal Tribunal, and the Special Court for Sierra Leone. This threat should be addressed by focusing on key factors including the involvement and commitment of the international community, the competency of the Registrar and the court’s administrative structure, the appointment of national judges, and the security environment.

“The Grass That Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women? by Beth Van Schaack, 15 UCLA J. Int’l L. Foreign Aff. 327 (2010).

This article analyzes the outcome of the International Criminal Court Review Conference in Kampala, Uganda, with an eye toward the rarely considered gender aspects of the crime of aggression. In particular, it considers whether or not the provisions adopted represent an advancement for women and how aspects of feminist theory might interpret the proposed regime. The Article concludes that any impact of the provisions will inevitably be limited by gaps and ambiguities in the definition of the crime and the jurisdictional regime, which is premised on state consent and exempts non-states parties altogether. At the same time, the insertion of the crime of aggression in the Rome Statute enables the prosecution of a wider range of acts, and actors, that cause harm to women by making actionable harm that may not rise to the level of war crimes or crimes against humanity and that has historically been rendered juridically invisible by the collateral damage construct. Extending the reach of international criminal law to the jus ad bellum may, however, undermine incentives to comply with key doctrines within international humanitarian law that serve to protect civilians and other vulnerable groups. In addition, the ICC has yet to demonstrate that it can fulfill its current mandate. Operationalizing the crime of aggression without allocating additional resources to enable the Court to prosecute this controversial, largely unprecedented, and qualitatively different crime may distract the Court from responding more effectively to the “atrocity crimes” that now finally address gender-based violence. The new provisions may also encourage the Court to focus on leaders in capital cities rather than on the warlords next door, whom victims more directly associate with atrocities and without whose prosecution it may be impossible to achieve complete justice for women. At this early stage in the life of the Court and in the absence of any concrete experience investigating or prosecuting the new crime of aggression, these bases for criticism and praise are inherently speculative. Applying a feminist perspective to the codification of the crime of aggression yields no easy conclusions. Rather, reasoning through the central question of whether the codification of the crime in the ICC Statute will be good for women produces a dizzying spiral of dialectical reasoning. As such, this article approaches the crime with a profound ambivalence.

An MFN Clause and BIT Dispute Settlement: A Host State’s Implied Consent to Arbitration by Reference by Nartnirun Junngam. 15 UCLA J. Int’l L. Foreign Aff. 399 (2010).

As a dynamic policy instrument, a Most Favored Nation (MFN) clause will discharge its function properly and not be regarded as an anachronism in international investment law if it is interpreted and applied in accordance with the nature of international investment, as distinct from that of international trade. While discrimination in procedural protection is usually not common in international trade law, it can be, and has been, common in international investment law. The mere fact that the conventional application of the clause is aimed at substantive protection does not justify the denial of its application to the procedural dimension of international investment law. Unless states apply a brake on the clause by drafting it carefully or subsequently expressing their preferred interpretation, this Article argues that the clause can per se apply to end discrimination caused by any single provision, including a provision on a dispute settlement mechanism, in the treaty, as long as the nature and subject-matter of that provision allow itself to be governed by the clause. The clause can be considered as constituting a state’s implied consent to arbitration. Therefore, it should be applied to allow investors to bypass less favorable procedural requirements. More fundamentally, this Article advocates for applying the MFN clause to serve as a basis of an arbitral tribunal’s jurisdiction. Theoretically, the clause allows investors to cherry-pick from the arbitral rules available and mix and match them to benefit from the most favorable rules. Practically, doing so should not be prohibited unless it jeopardizes the validity and enforceability of an award to be rendered. As far as their rights to impartial adjudicating bodies are concerned, there should be no room for differential treatment. With respect to substantive rights, it is understandable and reasonable for a developed host state to give such treatment to investors from a less developed or developing country based upon the ground that they have different levels of economic development. However, when procedural rights of investors are at stake, they all should be treated the same regardless of the difference in the levels of economic development of their home states.

Prospects for ICSID Arbitration in Post-Denunciation Countries: An ‘Updated’ Approach by Nicolle E. Kownacki. 15 UCLA J. Int’l L. Foreign Aff. 529 (2010).

International arbitration in ICSID, the World Bank’s arbitration forum, has seen significant growth over the last few decades, particularly for disputes involving Latin American countries. But with a wave of leftist leaders gaining prominence in the region, some countries’ continued participation in ICSID-a visible symbol of western economic policies-has been called into doubt. Though Bolivia was the first country to formally denounce the ICSID Convention, it remained, like so many other countries, tied to the arbitration regime based on forum selection clauses in numerous bilateral investment treaties (BITs). These BIT clauses often serve as a country’s consent to arbitration, and a country’s BIT commitments would endure regardless of a denunciation of the [CSID Convention. A question thus arises: would a denunciation of the Convention fully extinguish a country’s consent to ICSID arbitration? Looking at the language, history, and purpose of the ICSID Convention, along with some recent developments, this Note examines whether an ICSID tribunal would continue to assert jurisdiction over a country facing a BIT dispute that has denounced the ICSID Convention.

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