Volume 19, Issues 1 and 2 (2015)

The UCLA Journal of International Law and Foreign Affairs (JILFA) presents Volume Nineteen, Issues One and Two. The pieces in this Volume comprise of significant scholarship developed by a federal appellate judge and leading practitioners and academics. The first four pieces focus on the future of human rights litigation in US courts in light of the Supreme Court decision in Kiobel v. Royal Dutch Petroleum. The final five pieces cover a range of key issues in international law and foreign affairs, including the right to peace, the origins of international law, development after the global financial crisis, and the International Monetary Fund (IMF) and its use of capital controls. Available online at HeinOnline.

Beyond Kiobel: The Future of Human Rights Litigation in US Courts by Pierre N. Leval. 19 UCLA J. Int’l L. Foreign Aff. 1 (2015).

In March 2014, a group of international law and human rights scholars gathered at UCLA School of Law to discuss the future of human rights litigation in the United States in the wake of the US Supreme Court decision in Kiobel .v. Royal Dutch Petroleum. This Article is based on the keynote address delivered by Judge Pierre N. Leval at that symposium. The Article first reviews the historical underpinnings of the Law of Nations and applications of the Alien Tort Statute, then analyzes the Kiobel decision, and finally concludes that although the possibilities for future litigation of violations of customary international law are unclear, there are potential avenues for such claims to be heard in both federal and state courts.

ATS Lives: Al Shimari Survives Kiobel by Peter Weiss. 19 UCLA J. Int’l L. Foreign Aff. 19 (2015).

The first Part of this Essay reviews the story of Filartiga v. Pefia-Irala l , a landmark human rights case. The second Part examines the Supreme Court’s virtual obliteration of Filartiga in Kiobel v. Royal Dutch Petroleum Co.2 The third Part demonstrates that, despite Kiobel, there is still life in the Alien Tort Statute, which was the basis of Filartiga. The fourth Part contains concluding remarks and is followed by a postscript concerning John Doe I v. Exxon Mobil, a ruling made after Al Shimari v. CACI Premier Technology, Inc.

Is an International-Arbitral Tribunal the Answer to the Challenges of Litigating Transnational Human Rights Cases in a Post-Kiobel World? by Donald Earl Childress II. 19 UCLA J. Int’l L. Foreign Aff. 31 (2015).

The US Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum casts significant doubt on the ability of plaintiffs to bring claims in US federal courts seeking relief for international human rights violations against corporate defendants. In November 2014, a group of international lawyers and human rights activists proposed an International Arbitration Tribunal on Business and Human Rights, to create a new forum for international human rights litigation. This Essay analyzes the proposed Tribunal in light of case law, post-Kiobel. The Author argues that the proposal suffers from a lack of incentives for participation, clarity on applicable law and procedures for appeal and enforcement, as well as normative concerns regarding national policy determinations and barriers to court access. The Author ultimately proposes an alternative approach, encouraging the development of national law and greater regulatory cooperation between nations.

Post-Kiobel Procedure: Subject Matter Jurisdiction or Prescriptive Jurisdiction? by Anthony J. Colangelo & Christopher R. Knight. 19 UCLA J. Int’l L. Foreign Aff. 49 (2015).

This Essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question-which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are that such challenges can be raised at any time during the course of litigation, including by the court sua sponte. The doctrinal implications are that when evaluating whether Kiobel’s exception for “claims that touch and concern the territory of the United States…. with sufficient force to displace the presumption against extraterritorial application, ” courts should look not only to whether the conduct alleged touches and concerns the United States, but instead, as some lower courts have found, to “all the facts that give rise to A TS claims, including the parties’ identities and their relationship to the causes of action.”

A Peace of Her by Karima Bennoune. 19 UCLA J. Int’l L. Foreign Aff. 63 (2015).

In recent years, the right to peace has generated increased attention among international law scholars. This Article explores the contours of the right to peace, particularly in relation to pacifist perspectives and violent fundamentalist movements committed to imposing systematic discrimination against women. On the basis of fieldwork carried out among Women’s Human Rights Defenders (WHRDs) in Afghanistan, the Author asserts that any meaningful peace must include an unwavering commitment to basic human rights, including women’s equality. The Author argues that sometimes, paradoxically, in such environments any real expression of peace must include the determination to defeat, or at least effectively constrain-in accordance with international law-movements militantly opposed to women’s equality, and must go hand-in-hand with a commitment to the robust protection of women’s rights.

Development After the Global Financial Crisis: The Emerging Post Washington, Post Beijing Consensus by Randal Peerenboom & Bojan Bugaric. 19 UCLA J. Int’l Foreign Aff. 89 (2015).

Both the Washington Consensus and the Beijing Consensus have been called into question by the global financial crisis and worries that China may be caught in the “middle-income trap.” This has led to attempts to develop new theories and approaches to development, variously referred to as the new development state, state capitalism, liberal neo-developmentalism, new structural economics, and the Post Washington Consensus or the Post Washington, Post Beijing Consensus (PWBC). This Article discusses the emerging consensus, delineates the main features of the PWBC, and analyzes both its potential and limits for guiding development policies in the post global-financial crisis era.

The African Origins of International Law: Myth or Reality? by Jeremy I. Levitt. 19 UCLA J. Int’l L. Foreign Aff. 113 (2015).

This Article reconsiders the prevalent ahistorical assumption that international law began with the Treaty of Westphalia. It gathers together considerable historical evidence to conclude that the ancient world, particularly the New Kingdom period in Egypt or Kemet from 1570-1070 BCE, deployed all three of what today we would call sources of international law. African states predating the modern European nation state by nearly 6000 years engaged in treaty relations (the Treaty of Kadesh), and applied rules of custom (the M4 ‘AT) and general principles of law (as enumerated in the Egyptian Bill of Rights). While Egyptologists and a few international lawyers have acknowledged these facts, scholarly attention to the ancient origins of contemporary international law has been sporadic and at times openly hostile to the proposition that international law may have originated in Africa and not in Europe. Challenging the Eurocentric mythology of international law’s origins upends traditional verities and forces us to reconsider whether contemporary international law owes as much to Africa as it does to far more recent developments, including the colonial encounter.

The IMF’s Reassessment of Capital Controls After the 2008 Financial Crisis: Heresy or Orthodoxy? by Philip J. MacFarlance. 19 UCLA J. Int’l L. Foreign Aff. 167 (2015).

In the wake of the global financial crisis, the IMF has reconsidered its position on the control of capital flows, moving from the long-held discouragement of such restrictions to acceptance under certain circumstances. This Comment discusses this reconsideration and ultimately concludes that IMF and US policymakers should reassess the risks and benefits of globalized financial markets and return to the principles of the original Bretton Woods agreement. In Part I, the Author examines the different types of capital flows and capital controls, while Part II reviews the IMF’s historical position on capital controls. In Part III, the Author explores the IMF’s current position in light of recent financial crises, and Part IV surveys current research on the issue.

A Legal Obligation to Mitigate Greenhouse Gas Emissions From Agriculture: A Challenge to the European Union’s Emissions Trading System and the EU Member States With the Largest Agricultural Impact by Victoria Peters. 19 UCLA J. Int’l Foreign Aff. 213 (2015).

The European Union Emissions Trading System (EU ETS) is a progressive cap and trade system aimed at reducing global greenhouse gas emissions from Europe. However, despite scientific evidence and acknowledgement of emissions from agriculture in major international environmental protocols and conventions, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, the EU ETS does not address agricultural greenhouse gas emissions. States participating in the EU ETS that do not implement policy to cover the gaps left in compliance, such as mitigation of agricultural emissions, are in violation of their legal obligations under the Kyoto Protocol and decisions promulgated affecting the aims of both the UNFCCC and the Kyoto Protocol. Greenhouse gas emissions have a proven impact on climate change and contribute to the planet’s increasing lack of biodiversity. Therefore, it is necessary for the EU and its most offensive agricultural states to comply with the Kyoto Protocol and similar legal instruments by implementing policies that mitigate agriculture’s greenhouse gas effects and moving toward sustainable agriculture.

Available online at HeinOnline.

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