Current Issue

  • Volume 32,
  • Number 2 -
  • Fall 2022

Articles

Forced Justice: The Kosovo Specialist Chambers
Sara L. Ochs & Kirbi Walters
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The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, this Article examines how the international community has commandeered Kosovo's justice system, often at the expense of the Kosovar people's wants and needs. This Article argues that the KSC, the international community's latest attempt to prosecute these crimes, represents a new breed of overtly internationalized hybrid tribunal that subverts the goals inherent in the hybrid model of prosecution, namely the ability to provide local ownership over proceedings, facilitate legitimacy and capacity building of judicial personnel and infrastructure, and provide transitional justice measures to post-conflict communities.

An Ad Hoc Dispute Settlement Mechanism or a Harmonization Mission? A Reappraisal of Jurisprudential Fragmentation in International Investment Arbitration
Mohammad Hamdy
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Contrary to the numerous accounts of fragmentation in investment arbitration case law, this Article shows that the case law depicts a high degree of cohesion. The Article argues that jurisprudence in investment arbitration is stabilized by distinct mainstream interpretations of the key provisions of bilateral investment treaties, the main legal instrument in international investment law. The Article considers the frequently cited disagreements among arbitral tribunals in light of competing commitments to either regulatory pluralism or harmonization. It demonstrates that the vast majority of tribunals interpret bilateral investment treaties in a way that circumscribes pluralism and furthers the harmonization of the standards applicable to foreign investors. By revealing this aspect of the case law, the Article seeks to shift the debates over the legitimacy and the future of investment arbitration away from fragmentation to the main principles that have guided the harmonizing interpretations of arbitral tribunals over the past two decades.

Sovereignty in the Era of Fragmentation – EU Trade Agreements and the Notion of Statehood in International Law
Harri Kalimo & Shorena Nikoleishvili
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In this article, we explore the theme of sovereignty in the context of fragmented international law. We observe that the sovereignty of States may become relativized, not only by the political power of other States, but by its exposure to multiple, functionally separate fields of law. We analyze this theme by asking whether trade agreements as instruments of economic law offer a venue for discussing the sovereignty of sub-statal entities that lack standing on the more traditional international forums. Our analysis focuses first on a recent decision by the Court of Justice of the European Union, which concerned the status of Western Sahara in the framework of the EU-Morocco trade agreement. We then consider the implications of that case, if any, on the situation in the region of Abkhazia within Georgia in the context of the EU-Georgia Association Agreement. We show how trade agreements in some cases may (EU-Morocco), and in other cases may not (EU-Georgia), affect the integrity of States in a novel way, depending on the intricacies of the facts and the strictures of the terms of the applicable Agreement. Reflecting the fragmentation of law, trade agreements thus have the potential to grant an avenue for sub-statal entities to establish standing before a regional court (in our case, the Court of Justice of the EU), or an international tribunal. That, in turn, may allow these entities to reinforce their claims for self-determination under international law. Beyond the possible theoretical implications on the (relativity of) sovereignty, the findings seem worth considering carefully in the context of concluding and formulating regional and international agreements in different fields of law.

Notes

Fighting Words: Catalonia at the Language Instruction Crossroads
Jane Tien
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The schism between Spain and Catalonia obscures a struggle over the teaching language for non-linguistic subjects in Catalonia's public schools. The recent two decades decanted into Catalan society two Spanish Constitutional Court rulings mandating a Castilian-Catalan conjunctive instruction model—with Catalan as the "center of gravity"—and tasking the Catalan legislature with configuring that "center." Pleasing none and spurned by all, the Constitutional Court duology emboldened activist lower courts to bypass the Catalan legislature, while schools in Catalonia continued to teach almost exclusively in Catalan. With the Castilians alienated and the Catalans defiant, language instruction in Catalonia turned into a festering wound for which a radical rethinking must be prescribed.

Across the Atlantic, Quebec offers an instruction scheme where two languages co-exist in concord. Drawing from the two regions' legal and social similarities, this Note contends that Catalonia should emulate Quebec, where public schools are split into two tracks—French-medium as the default, English-medium by election.

Bankruptcy Basics: What the U.S. Can Learn From the U.K. Filing Processes
Courtney Kobren
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Although filing for bankruptcy is the primary form of economic relief for U.S. consumers in financial distress, pro se debtors lack access to the consumer bankruptcy system. An individual debtor faces many challenges when filing for bankruptcy without an attorney, since the debtor must rely on free access to the information provided by the U.S. Courts website. However, that information is vague and presented in complex legalese and dissuasive diction. On the other hand, U.K. debtors who need financial relief can file for bankruptcy through a clear and accessible bankruptcy filing process. U.K. debtors also have access to free consumer debt advice from a government-funded nonprofit organization, Citizens Advice. This paper discusses the differences in filing processes for U.S. and U.K. debtors. It ultimately concludes that the U.S. should implement similar filing processes to those in the U.K. to create a more accessible bankruptcy system, especially in the aftermath of the Covid-19 pandemic.

Tribal Sovereignty and the Right to Life
Clare Holtzman
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On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their car as a part of a larger robbery scheme. Under other circumstances, his execution may have been less controversial, yet his case exemplifies the long colonial legacy of federal overinvolvement in Tribal Nation affairs.

This paper examines the colonial legacy of federal overinvolvement in Tribal Nation criminal justice affairs and exemplifies how that history still manifests in the present through Lezmond Mitchell's case. Further, this paper explores two questions: first, whether the Constitution truly empowers the federal government to intervene in criminal law matters that involve only Tribal citizens and occur entirely on Tribal land; and second, whether such involvement in Lezmond Mitchell's case, as well as more broadly, is consistent with the United States' obligations under international law, namely the self-determination and cultural rights of Tribal Nations under the International Covenant on Civil and Political Rights and the United Nations Charter.