Current Issue

  • Volume 28,
  • Number 1 -
  • Fall 2017

Articles

Sherlock Holmes Meets Rube Goldberg: Fixing the Entry-into-Force Provisions of the Comprehensive Nuclear Test Ban Treaty
David A. Koplow
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The Comprehensive Nuclear Test Ban Treaty (CTBT) is widely heralded as the most important international legal instrument for arresting the nuclear arms race and impeding further nuclear proliferation. Concluded in 1996, the treaty has been signed by 183 countries and ratified by 166. But it has not yet entered into force, because of its unique requirement that it not become operational for any state until it has been ratified by all forty-four countries designated in its Annex 2. Thirty-six of those Annex 2 states have ratified, but there is little prospect that all of the other eight (including the United States, China, India, Pakistan, and North Korea) will do so in the foreseeable future. In the meantime, certain parts of the CTBT are being provisionally applied, but other critical aspects are in abeyance, and the world's unrequited demand for a fully effective legal prohibition on nuclear weapons testing has jeopardized the global nuclear security architecture.

This Article proposes a novel work-around, to achieve early implementation of the CTBT. Interested states should negotiate a second treaty, styled as an Implementing Agreement, through which they could promptly effectuate the CTBT among themselves, even if some Annex 2 states remained outside the regime. This approach would free the CTBT from the tyranny of a "veto power" currently held by each of the Annex 2 states, and would allow the treaty to grow organically, building toward eventual universal acceptance by entering into force now for a sizeable coalition of the willing—as other important treaties have traditionally done.

The legal mechanism for creating such an Implementing Agreement is unusual and cumbersome, but it follows an important international law precedent. The 1982 Law of the Sea Convention achieved widespread acceptance, but it, too, required substantial modification before its entry into force. There, the participating states successfully fashioned a 1994 Implementing Agreement to revise important elements. That document provides a useful template for the CTBT to emulate.

This Article offers a draft of a CTBT Implementing Agreement, explaining how its waiver provisions would operate and how it would provide interested states a variety of alternative mechanisms for establishing a prompt, durable, and legally binding test ban regime.

Regional International Courts in Search of Relevance: Adjudicating Politically Sensitive Disputes in Central America and the Caribbean
Salvatore Caserta
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The Central American and the Caribbean Courts of Justice (CACJ and CCJ) are hybrid judicial institutions. While their Member States envisioned them as "EU-style" regional economic courts, they have explored the whole extension of their formally delegated functions and have developed peculiar expertise in matters relating to freedom of movement, human and fundamental rights, and other politically fraught issues. The article explains how two International Courts (ICs) seemingly established to build common markets have come to adjudicate high-stakes political disputes, which, ostensibly, have little to do with regional economic integration. The article posits that the scholarship on delegation to ICs is only partially able to provide an answer to this question. It, hence, suggests an alternative theoretical framework by relying on transnational field theory and reflexive sociology. The article demonstrates that, despite the rhetoric of their founding documents, both the CACJ and the CCJ were only partially established to pursue regional economic integration. Instead, both Courts were fashioned at the crossroads of several—and at times even conflicting-forms of legality, power battles, professional interests, and visions of the world that shaped the Central American and Caribbean legal fields over time. Seen through the diachronic lens of the interests, ideologies, professional practices, and visions of the world of the actors inhabiting the Central American and Caribbean legal fields, the involvement of the two Courts in politically sensitive issues becomes less surprising, and-the article argues-it constitutes part of a strategy of the judges to legitimize the two Courts vis-à-vis their peculiar institutional, political, and social environments.

Equity Extraterritoriality
S. Nathan Park
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Territoriality is a foundational principle of international order, and U.S. laws have always operated on a territorial basis. However, when U.S. jurisprudence speaks of extraterritorial application of its laws, it is usually assessing whether the legislature or the court has jurisdiction over persons, properties and conducts outside of the territorial borders of the United States. This paper argues that such a conception of the extraterritoriality doctrine only reveals half of the picture, because U.S. courts may indirectly apply U.S. law beyond U.S. borders through extraterritorial court orders without relying on extraterritorial jurisdiction. I term such exercise of extraterritorial power "Equity Extraterritoriality," because the court's power to make such extraterritorial orders stems from the equity tradition.

Under Equity Extraterritoriality, U.S. courts first obtain jurisdiction over a person, then indirectly exercise extraterritorial authority by ordering the person to take certain actions outside of the courts' territorial jurisdiction, or dispose of properties located outside of the courts' territorial jurisdiction. Importantly, to Equity Extraterritoriality—which covers everything that happens in litigation other than jurisdiction, including provisional orders, discovery orders and post-judgment orders—there is hardly any application of territoriality principles, causing problems typically associated with extraterritoriality, such as causing a diplomatic strain. This contradicts U.S. law's general respect for territoriality, as well as the application of territoriality principles to limit judicial and legislative jurisdiction. This paper provides a brief overview of Equity Extraterritoriality's historical development, explores the problems posed by Equity Extraterritoriality"s extraterritorial reach and under-development, and proposes a conflict-of-laws-based solution to apply territoriality principles so as to curb the worst excesses of Equity Extraterritoriality.

Note

Restructuring Venezuela’s Debt Using Pari Passu
Khaled Fayyad & Dimitrios Lyratzakis
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Given the depth of Venezuela's economic crisis, many fear that the government and the state-owned oil company Petroleos de Venezuela, S.A. ("PDVSA") are on the brink of insolvency. In this paper, we introduce a restructuring plan that would allow Venezuela to restructure its external debt in an orderly manner. We propose that Venezuela restructure both PDVSA debt and its own external debt via Exchange Offers. To maximize the number of participating bondholders and receive sufficient debt relief, we suggest that Venezuela primarily utilize the pari passu clauses included in the vast majority of PDVSA and Venezuelan bonds, which are modified versions of a typical pari passu clause and can be read to allow the subordination of the bonds in accordance with Venezuelan law. To minimize the number of holdout creditors, Venezuela can introduce a law that subordinates non-exchanged debt to exchanged debt, making timely or full payment of holdout debt unlikely. This tactic would minimize the need to rely solely on alternative restructuring techniques, such as exit consents and Collective Action Clauses (CACs). We argue that while these techniques might alone prove insufficient to successfully restructure Venezuela's debt, they could supplement the restructuring options we propose here. Because the parties contracted for debt subordination in the bond contracts, we predict that using a debt subordination technique would be more viable in Venezuela's case than it has been in past sovereign debt restructurings. Ironically, the pari passu clause that doomed Argentina might be what saves Venezuela.