Current Issue

  • Volume 27,
  • Number 2 -
  • Winter 2017

Articles

A Virtual Wall of Shame: The New Way of Imposing Reputational Sanctions on Defiant States
Shai Dothan
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What happens after an international court finds a state has violated international law? Many realize today that states often fail to comply with such judgments. International courts like the European Court of Human Rights (“ECHR”) have to rely on the help of Non-Governmental Organizations (“NGOs”) to shame states into compliance. In 2011, the body charged with enforcing judgments of the ECHR launched a new website dedicated to publishing reports by NGOs that criticize states for noncompliance with ECHR judgments. This website published hundreds of reports, as well as the responses of some accused states. The Article analyzes all the reports published in the first four years since the website was created. This analysis, together with interviews with many of the NGO lawyers involved, sheds light on the way reputational sanctions work in international law. It reveals that NGOs focus most of their attention on legally important cases and on cases that address severe violations. It also shows that NGOs focus on states that usually comply with their international obligations instead of on states that regularly fail to comply with international law.

With No Deliberate Speed: The Segregation of Roma Children in Europe
Antonia Eliason
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Custom in Our Courts: Reconciling Theory with Reality in the Debate about Erie Railroad and Customary International Law
Nikki C. Gutierrez & Mitu Gulati
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One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither side of the debate has conducted an empirical analysis of what U.S. federal courts have actually done. This Article undertakes such an analysis and suggests that U.S. federal courts have, for the most part, behaved in a manner unanticipated by revisionists and modernists alike—the courts have followed themselves. After tracking the sources considered as evidence of CIL and cited in both pre-Erie and post-Erie case law, it turns out that, at all times before and after Erie in 1938, U.S. federal judges have relied primarily on domestic case law when making CIL determinations. Put starkly, the great Erie debate about CIL determinations in U.S. federal courts—and the authority the judiciary ought to attach to certain international sources—may have been occurring somewhat orthogonally to the fact that U.S. courts do not seem to pay much attention to these sources in practice.

Notes

Shareholders as Stakeholders: A Future Paradigm for Institutional Activism in Japan
Garrett L. Brodeur
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Over the last quarter century, the landscape of Japanese corporate governance has been overhauled by a combination of domestic reform, financial collapse, and foreign influence. Amidst these changes, institutional investors have claimed a growing role within Japanese listed companies, not only as monitors of management but as crucial agents for corporate governance reform. In this new role, institutional investors have adopted a diverse array of strategies and tactics for their dealings with management. This paper explores the future contours of Japanese shareholder activism against the backdrop of Japan’s twenty-first century corporate evolution. In particular, it analyzes how Japan’s modern corporate governance regime alters the behavior of institutional investors, and in turn the nature of their engagements with management of Japanese companies. Due to recent changes in Japanese law, Japan’s current governance standards limit the effectiveness of “aggressive” institutional activists. Rather than encourage contentious, highly public battles between adversarial activists and target companies, Japan’s current regime limits the opportunities for investment available to aggressive institutional investors by encouraging constructive engagement between investors and management. Although the quest for profits will continue to influence the behavior of investors and managers, Japan’s current regime invites institutions to act not only as profit-seeking shareholders, but also as stakeholders invested in the long-term financial stability of listed companies.

Captive or Criminal?: Reappraising the Legal Status of IRA Prisoners at the Height of the Troubles under International Law
Samantha Anne Caesar
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For the citizens of Ireland and Great Britain, the second half of the twentieth century represents a period of great political struggle. The historical debate concerns the constitutional status of Northern Ireland; that is, whether the six northeastern most counties on the emerald isle belong to Ireland or to the United Kingdom. The late 1960s through the early 1990s is referred to commonly as “The Troubles,” a time rife with political struggle, violence, and reactionary laws aimed at restricting civil liberties in the name of security. One topic of contention during this era relates to the political status of prisoners convicted of terrorism. These men and women—mostly suspected members of a nationalist paramilitary, the provisional Irish Republican Army—claimed a right to special treatment as prisoners of war. The British rejected the notion that an international war existed in fact, and insisted on treating the prisoners as ordinary criminals under domestic law.

The conflict in Northern Ireland is too often and too easily dismissed as a purely internal matter, regarded a domestic civil rights movement. Consequently, any potential consideration of the conflict as an international armed conflict has been disregarded. This paper will reexamine the classification of The Troubles in light of current, applicable international law to make two determinations: first, to ascertain whether the armed conflict may be classified as one of an international, rather than a non-international, character. Based on this classification, this paper will then discern whether IRA prisoners should have been entitled to prisoner of war or some other discrete legal status, separate from that of ordinary criminals.