Volume 18, Issue 2 (Spring 2014)

The five pieces in this Issue were written by exceptional academics and practitioners, who have presented views on a wide range of topics, including armed conflict, trade agreements, corporate liability for human rights violations, privacy rights, and due process in international tribunals. Available online at HeinOnline.

Inimical Inceptions of Imminence A New Approach to Anticipatory Self- Defense Under the Law of Armed Conflict by Alan L. Schuller. 18 UCLA J. Int’l L. Foreign Aff. 161 (2014).

The Law of Armed Conflict (LOAC) has historically incorporated the term “imminence” across the bodies of law governing resort to armed force (us ad bellum) and those which govern during an armed conflict (us in bello), as an integral part of evaluating the legality of responding to a threat. Since these areas of the LOAC have traditionally been considered separate and distinct, the meaning of imminence within them has likewise been treated as distinguishable. But the modern threat environment, especially following the terrorist attacks of September 11, 2001, has proven that this division of imminence ad bellum and in bellum is no longer tenable. Application of the concept of an imminent threat has been incoherent and inconsistent. This Article argues that imminence should be a singular concept that applies logically in any situation and given any threat of armed attack. In making this argument, the Article presents a simple and flexible framework that can be applied by any person or entity even in light of crisis and imperfect information. Finally, it proposes three principles of imminence that can be applied in evaluating the legality of actions in self-defense across the spectrum of armed conflict.

Regionalizing Multilateralism: The Effect of Russia’s Accession to the WTO on Existing Regional Integration Schemes in the Former Soviet Space by Boris N. Mamlyuk. 18 UCLA J. Int’l L. Foreign Aff. 207 (2014).

The proliferation of regional trade agreements (RTAs) calls into question the coherence and universality of the liberal World Trade Organization (WTO) multilateral trade regime. While there is growing literature on the interaction of RTAs within WTO multilateralism, most scholars and policymakers acknowledge the severe information asymmetry between the WTO, a global multilateral trade organ and RTAs. As Director-General of the World Trade Organization, Pascal Lamy, has repeatedly pointed out, it is unclear whether a number of existing RTAs violate Article XXIV of the GATT, or what the implications of a fragmented (i.e., regionalized) trade regime would mean for the stability and predictability of the WTO. This Article seeks to explore the apparent benefits (procedural, legal, tactical) that RTA membership can offer, in comparison to sole WTO membership. Viewing Russia’s recent accession to the WTO as a case study for how the WTO accommodates RTAs, scholars can further unpack the dynamics driving the development of RTAs. It is argued that Russia’s attempt to form a Customs Union with Kazakhstan and Belarus may give Russia structural protections (particularly in the domain of dispute resolution mechanisms) that can be used to delay compliance with WTO rulings or to gain stronger negotiating leverage in subsequent rounds of multilateral trade negotiations. Building on case precedent such as the Brazil-Tyres litigation before separate WTO and Mercosur tribunals, and scholarship on strategic uses of RTAs, this Article also explores the political economy’ and developmental aspects ofRTA formation in the post-Soviet space.

The Mens Rea Standard for Corporate Aiding and Abetting Liability – Conclusions from International Criminal Law by Sabine Michalowski. 18 UCLA J. Int’l L. Foreign Aff. 237 (2014).

Sometimes, corporate actors might knowingly accept that their activities will almost certainly contribute to gross human rights violations that are being carried out, but rarely do they actually act with the aim or wish to facilitate them. This is particularly pervasive in countries with poor human rights records or those in the midst of armed conflict. As a consequence, if corporate responsibility for complicity in gross human rights violations required that the corporation acted with the primary purpose of facilitating violations, they would hardly ever be subject to such liability. A mens rea standard of secondary purpose or of knowledge, on the other hand, would widen the scenarios in which corporations might face complicity charges. Determining the appropriate mens rea standard is thus crucial for the future of corporate complicity liability. This is true, in particular, for future litigation under the Alien Tort Statute (ATS), even though recently in Kiobel, the US Supreme Court significantly curtailed the scope of such litigation. Kiobel considerably diminished future A TS lawsuits against foreign corporations for violations that take place outside the United States by holding that the presumption against extraterritorial application of US laws applies to the ATS. Notwithstanding the limiting effect of this precedent on ATS litigation, in cases where the presumption is rebutted, the question of the appropriate mens rea standard remains vital. Moreover, the implications of Kiobel for future A TS litigation do not undermine the importance of the discussion of liability principles developed in ATSjurisprudence. ATS case law is highly influential for the global discussion on appropriate liability standards for corporate complicity in human rights violations. The significance of determining the proper mens rea standard in corporate complicity cases thus transcends US courts. In Talisman, the US Court of Appeals for the Second Circuit held that the mens rea standard for corporate aiding and abetting of human rights violations is primary purpose. Through a thorough analysis of the reasoning behind Talisman, case law from various international tribunals, and the Rome Statute, this Article shows that the Talisman holding rests on a misunderstanding of international criminal law jurisprudence. Lastly, this Article reflects on the application of the mens rea test of knowledge in corporate complicity cases.

Artavia Murillo v. Costa Rica: The Inter- American Court on Human Rights’ Promotion of Non-Existent Human Rights Obligations to Authorize Artificial Reproductive Technologies by Ligia M. De Jesus. 18 UCLA J. Int’l Foreign Aff. 275 (2014).

In Artavia Murillo v. Costa Rica, the Inter-American Court on Human Rights examined the question of whether Costa Rica may, under the American Convention on Human Rights, protect human embryos from destruction by banning in vitro fertilization (IVF) in its jurisdiction. The case provoked the Inter-American Court of Human Rights’ first debate on the existence of international human rights obligations to authorize and fund artificial reproductive technologies as well as its first interpretation on the right to life from conception, established in Article 4(1) of the American Convention. In the judgment, issued over one year ago, the Inter-American court held that “personal decisions” to produce biological children by in vitro fertilization (IVF) were protected under the American Convention on Human Rights, and ordered Costa Rica to authorize IVF and subsidize IVF services through its Social Security system. In addition, it gave the most restrictive interpretation possible to Article 4(1) of the American Convention on Human Rights, which protects prenatal life from conception. This Article critically analyzes the court’s creation of international human rights obligations to facilitate artificial reproduction in Artavia, according to international norms of treaty interpretation, as stated in the Vienna Convention on the Law of Treaties and the American Convention on Human Rights, article 29. Specifically, this Article focuses on the creation of state obligations to authorize and fund IVF, not on the court’s interpretation ofArticle 4(1), which merits separate analysis.

COMMENT: The ICC Versus Libya: How to End the Cycle of Impunity for Atrocity Crimes by Protecting Due Process by Angela Walker. 18 UCLA J. Int’l L. Foreign Aff. 303 (2014).

How can the International Criminal Court, whose purpose is to end impunity for perpetrators of atrocity crimes, prevent yesterday’s tortured from becoming today’s torturers? This question cannot be answered without first addressing the ICC’s role in upholding due process standards in the very nations where the blood of atrocity crimes is spilled. This Comment assesses not only whether the ICC can, but also whether it should, take into account a state’s willingness and ability to guarantee due process rights when assessing the admissibility of a case. The ICC was recently presented with this issue in the admissibility proceedings for defendants Saif Al-Islam Gaddafi, Colonel Muammar Gaddafi’s son, and Abdullah Al-Senussi, former intelligence chief both of whom are charged with crimes against humanity committed in the 2011 Libya uprising. Factored into the Pretrial Chamber’s determinations that it has jurisdiction over Saif but not Abdullah is an analysis of whether Libya is willing and able to guarantee the defendants international standards of due process. Missing from this analysis, however, is whether the ICC has the authority to weigh this factor when evaluating the admissibility of the case. I find that the ICC lacks this authority under Article 17 of the Rome Statute by offering a detailed analysis of the article’s text, object and purpose, and preparatory works. I then argue, however, that the ICC should have the authority to assess a state’s willingness and ability to protect a defendant’s due process rights. Through what I coin as the Article 20 due process thesis, I propose a model of positive complementarity based on international cooperation in order to better protect due process rights in domestic proceedings. By adopting this approach, the ICC will be better equipped to fulfill its mandate of ending impunity while also supporting local ownership over transitional justice.

Available online at HeinOnline.

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