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Abstract:
A state monopoly on customary international law formation was once required and acceptable, given the status states enjoyed as the sole subjects of international law. Since the drafting of the most commonly cited doctrinal sources of customary international law, legal personhood has been extended to individuals. During this same time period, individuals have come to participate in treaty-making in some key areas of international law, including human rights. The customary international law of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects protected by those provisions that have attained the status of customary law. Unlike treaty law, though, there is no space in the traditional customary international law doctrine for individuals to participate in the law-making process. As a result, there is currently a disjuncture in customary international law; individuals are its subjects but are not seen as legitimate participants in its formation.

Uncomfortable with this state of affairs, this Article seeks to investigate whether the participation of individuals in customary international law formation is desirable. First, it takes note of a prior observation of legal scholars that individuals do, through various mechanisms, already play an active role in customary international law formation despite the doctrinal insistence that only States play such a role. Second, this Article develops theoretical justifications for the inclusion of individuals in customary international law formation. Finally, calling on established legal institutions as well as on social science tools for assessing individuals' practices, beliefs and expectations, the Article proposes methods by which individuals might participate in the customary international law formation process.

custom, customary international law, CIL, international law, human rights, individuals, cosmopolitanism, cosmopolitan

Abstract:
This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the unintended consequences and externalities that would ensue if this doctrine were ever made regularly operative. The enlivened scholarly debate surrounding the odious debt doctrine assumes that debt is the sole finance vehicle for despotic governments. This is simply not the case.

Debt is not the sole finance vehicle; despots are able to raise funds through a wide variety of other methods. These include the pillaging of the nation's natural resources, property, and other valuable asset as well as the exploitation of the nation's human resources. In a world with a functional odious debt doctrine one can envision that despotic leaders, facing great difficulty in accessing private or public loans, may rely more heavily on these alternative sources of funds. Furthermore, although debt can be crippling for developing countries and merits the attention it has received, these alternative methods of despotic financing may in fact be yet more adverse than debt in both the short and long term.

This Article investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then seeks to establish that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of transnational financial obligations and financing arrangements. Finally, the Article posits that if there is, in fact, little distinction, there may be valuable lessons to be learned from the odious debt doctrine for application to other types of transnational financing arrangements, and proposes that an odious finance doctrine is the better approach. The contours of such an odious finance doctrine are presented herein.

odious debt, sovereign debt, odious finance, debt relief, expropriation, debt reduction, corruption, natural resources, natural resource exploitation, labor, corporate social responsibility, international law

Abstract:
In the wake of the Supreme Court's decision in Sosa v. Alvarez-Machain, future Alien Tort Claims Act (ATCA) litigants seemingly will be asked to demonstrate that the norms giving rise to their actions are violations of clearly established Customary International Law (CIL). Given the mutable character of CIL, especially in the area of human rights, this will surely fuel the already voluminous literature on the content of the CIL of human rights.

While debate will certainly arise over the norms that have been become CIL, significant attention must be also be devoted to the problems inherent in the CIL of human rights. Among the most significant is its focus on the statements, actions and beliefs of sovereign states to the exclusion of the individuals the human rights regime aims to protect.

This article asks whether the traditional formation and function of Customary International Law (CIL) might be outmoded, given identifiable changes in international law on the one hand and identity formation on the other. Legal scholars have often pointed to changes international law has undergone in the years since the signing of the Universal Declaration of Human Rights, due to the focus human rights has placed on the individual, both as subject and object of that law. At the same time, the literature on cosmopolitanism suggests that how individuals think of citizenship and identity has also weakened traditional notions of sovereignty. This article concludes that such changes may require a new formulation for CIL: one that takes into account the beliefs of individuals as to their human rights under CIL.

International Law, Customary International Law, human rights, Alien Tort Claims Act, Alien Tort Statute, norms, sovereignty, individual, cosmopolitan, cosmopolitanism

Abstract:
In June 2008, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, submitted the final report of his initial three-year mandate. The Report, titled Protect, Respect and Remedy: A Framework for Business and Human Rights, provides a governance-based set of findings and recommendations on the issue of business and human rights. This essay provides a concise description and brief analysis of the Report.

transnational corporations, human rights, corporate social responsibility, governance, John Ruggie

Abstract:
Human rights language is particularly attuned to setting out the goals of protecting the worlds least protected people. As human rights advocates have entered negotiations with international economic institutions and transnational corporations (TNCs), such negotiations have often resulted in an alternative language to describe the necessity of protecting and promoting human rights. After describing the progressive inclusion of human rights ideas by TNCs, the World Bank, the IMF, and the WTO, this Article argues that, while such inclusion is a benefit to the human rights movement, the creation of an alternative language to describe human rights goals is potentially detrimental. The language of human rights, in order to be understood by those it aims to protect, must, above all, be intelligible and accessible to them. At this stage of interactions between human rights advocates and international economic actors, human rights advocates should retain and advance the compelling and utopian language of rights.

human rights, transnational corporations, international economic organizations

Abstract:
While the traditional doctrinal formulation of customary international law has focused exclusively on state practice and opinio juris, in the modern age, it is undeniable that individuals and non-state collectives of individuals are increasingly becoming relevant to this process. It is thus useful to analyze individual participation based on the model of participatory democracy, and also in contrast to representative democracy. By doing so, the nuanced relationship between participatory law formation and democratic participation in law making is brought into relief. In light of larger modern trends within international law, the participation of individuals in law formation requires further examination and theorization to harness and maximize its democratic promise and minimize its potential tendencies toward elitism and secrecy.

democracy, participatory democracy, law-making, law making, participatory law-making, customary international law, CIL

Abstract:
In April, 2008, World Bank president, Robert Zoellick, called for sovereign wealth funds to invest one percent of their capital in Africa. The result will be the International Finance Corporation's Sovereign Funds Initiative and is an attempt to nurture the potential of sovereign wealth funds to contribute to economic development and improved well-being in a number of countries in Africa and elsewhere. This article explores the actual potential of the Sovereign Funds Initiative to realize its desired goals. After exploring and demonstrating the disappointing effects of natural resource wealth, development aid and foreign direct investment on some developing countries, the article proposes that the "one percent" should be used to fund a venture capital and micro/mezo-finance initiative targeted directly to entrepreneurs in partner countries. The paper proposes a Multilateral Sovereign Investment Agency to oversee this endeavor.

sovereign wealth funds, SWFs, human rights, development, Africa, venture capital, microfinance, International Finance Corporation, IFC, Sovereign Funds Initiative, corruption, rent-seeking, patronage

Abstract:
This is a book review of Janet Dine's Companies, International Trade and Human Rights (2005). While this 9-page review is quite positive, it does offer some criticisms of Dine's analysis and views.

human rights, international trade

Abstract:
Courts hearing cases under the Alien Tort Claims Act (ATCA) are asked to consider and evaluate the content of Customary International Law (CIL). These acts of incorporating non-U.S. sources of law can be framed as acts of legal pluralism. This article describes the contributions the ATCA has made toward increasing both civic and legal pluralism and argues that the robust history and tradition of instances of legal pluralism allow the introduction of CIL into the decision making process of U.S. courts without undue difficulty. It also posits that such inclusion has the desirable effect of increasing routes toward civic participation available to victims of human rights abuses.

Customary International Law, Alien Tort Claims Act, Alien Tort Statute, legal pluralism, civic pluralism, human rights

Abstract:
The essay explores the development of transnational women's networks in Guatemala and the connections of Guatemalan transnational networks to internal and international litigation aimed at reforming Guatemala’s Civil Code and modifying constitutional interpretations of Guatemalan gender equality. It argues that large numbers of Guatemalan women have been influenced by these transnational networks such that, in the immediate aftermath of Guatemala's civil war, women expressed their discontent with Guatemalan statutory law and constitutional interpretations on the subject of gender equality. When internal litigation was an unsuccessful tool for achieving reform, international law and international adjudicatory bodies served as mediators between the Guatemalan people and their state. Guatemala initially held fast to the view that gender equality provisions could, for example, include a limitation on women's work without the permission of her husband. At the same time, public sentiment on gender equality diverged significantly from the state's position. International law and international and transnational organizations provided a means by which Guatemalan women were able to circumvent their state in order to attain the legal reforms they sought. This case study provides an illustration for the argument that CIL made up of state practice and opinio juris alone will regularly misrepresent the interests of the people, especially in failing democracies or in non-democratic states. This case study - and many that may share common characteristics - serves as an example of the possibility of veiled desires of individuals within non-democratic countries that contradict and are not accounted for by state-centric CIL formation doctrine. I argue that this gives rise to significant concerns about the democratic legitimacy of CIL.

international law, transnational networks, gender equality, women's rights, human rights, CIL, customary international law, democratic deficit

Abstract:
The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimations even since Aristotle. In recent years, and particularly in recent months, legal theorists and practitioners have attempted to define the contours and details of this highly controversial and undeveloped doctrine.

This Article looks at the generally agreed characteristics of the odious debt doctrine and considers some of the spill-over effects and externalities that would ensue if this doctrine were ever made operative. Many commentators have noted the increased costs of borrowing and lending that would result from the doctrine. Some view this increased cost as detrimental to borrowers and lenders alike. Others view both the doctrine and the increased costs associated with it as mechanisms to curtail the odious practices of brutal dictators and despots. Both views depend on the underlying, though usually unstated, assumption that debt is the sole finance vehicle for states. This is simply not the case.

States, like corporations, are able to raise funds through a wide variety of other methods. This Article argues that although debt can be crippling for developing countries and merits the attention it has received, alternative methods may in fact be yet worse. Despotic leaders facing great difficulty in accessing private or public loans may rely more heavily on alternatives like land concessions, assignments and outright sales of valuable state and national property. This turn may have both short and long term detrimental consequences.

In the short term, the humanitarian law and human rights violations that have led to a characterization of a given regime as despotic or odious, which previously may have been funded by loans that would now be termed odious debt, may now be funded by the pillaging of that nation's natural resources, property and other valuable assets, all of which will be difficult or impossible to recover upon regime change given the current state of international law as it pertains to state succession.

This possibility established, the Article then investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then seeks to establish that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of financial obligations. Finally the Article posits that if this is the case, there may be valuable lessons to be garnered from the odious debt doctrine for application to other types of transnational investment.

odious debt, debt, international law, human rights, succession, international finance