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Open Access Publications from the University of California


Established in 1996, JILFA was among the first student-produced publications that bridged the historical divide between international law and foreign relations. Its subject matter, therefore, is intentionally broad, linking such disciplines as international law, politics, policy, and economics.


In the Best Interest of Children: A Proposal for Corporate Guardians Ad Litem

Children are frequently implicated in and impacted by business activities, and as such, they are corporate stakeholders. Yet children do not have a direct voice in corporate decision-making. Other stakeholders—employees, customers, and suppliers—can and do influencec orporate strategy, but children lack the organization, standing, and legal capacity to assert similar influence. Instead of treating children as a coherent stakeholder group with rights and interests to be respected and supported, firms tend to view children only as potential victimsor coveted consumers. That view is short-sighted. Recent internationa lnorm-building related to children’s rights and business point toward a more comprehensive consideration of children’s interests in the broad range of business activities. Children are community members with long-term interests in the health and vitality of the communities and environments within which businesses operate. Firms employ children’s parents, and employment practices directly impact children’s development, educational opportunities, and quality of life. Children’s best interests substantially overlap with sustainable business practicesand implicate human rights generally. Therefore, firms must develop the expertise to identify and give voice to the best interests of children, yet most firms currently lack the capacity to do so.

This Article introduces the first corporate model that can effectively advocate for children’s best interests, which is an adapted version of the long-used guardian ad litem model used in family court proceedings. Courts appoint guardians ad litem when their decisions impact children, who cannot adequately represent themselves because they lack the sophistication or capacity to advocate or state their own best interests. Guardians ad litem serve as objective and impartial officials whose duty is to protect and advocate for the best interests ofthe children—and they serve only the children. This Article therefore asserts that companies should embed “corporate guardians ad litem” within their organizations to ensure that the best interests of children are considered in the development of corporate strategy and decision-making. The Article introduces three versions of the corporate guardian ad litem, namely, director-level, officer-level, and project-level.

Exceptionality: A Typology of Covid-19 Emergency Powers

The outbreak of the Covid-19 pandemic has stretched State capacity across the globe. It has simultaneously revealed both the robustness and fragility of public health, education, transportation, economics, welfare, and security systems. In one way, the pandemic is a classic emergency challenge for States. The pandemic is a sudden and unexpected event threatening many lives, and the multifaceted physical manifestations of and recovery from Covid-19 have crippled the capacity of health systems to function. In parallel, the pandemic also presents the spectre of a new normal, as exceptionality in the experience of a health crisis may not go away and pathogen-led crises may be with us for the long haul. There is no shortage of exceptional emergency responses to the pandemic, ranging from mandatory lockdowns, limits on freedom of expression, vaccine mandates, and mandatory labour production. Assessment of the scale, impact, and long-term significances of such emergency practice is nascent, and this Article offers a preliminary assessment of the legal forms and consequences of a resort to exceptional powers and widespread emergency practice across the globe. Specifically, this Article provides a typology of emergency powers practice emerging through pandemic responses. In addition, this Article explores the new forms and variations of emergency powers that appear to be thriving in the new normal of the pandemic. And finally, this Article addresses the human rights and rule of law consequences of new exceptionalities and offers a nuanced assessment in order to better understand global, regional, and national responses to the Covid-19 pandemic.

Interdependence at the International Criminal Court: Reconceptualizing our Understanding of the Court and its Failures

The International Criminal Court is at an inflection point. The ICC remains the centerpiece of a fragile system of international justice and is needed more today than it was at the conclusion of the Rome Conference in 1998. Yet, the Court faces significant challenges and needs to step up its performance to deliver justice more effectively to communities affected by crimes under the Statute, particularly in today’s world where geopolitics are characterized more by polarization than cooperation. A 2020 Independent Expert Review (IER) made a series of recommendations to improve the Court’s functioning, however, this article suggests that the IER is looking for solutions in the wrong places because of a fundamental, yet common, misunderstanding of the way the Court is structured.

This Article argues that, rather than being a fully independent Court, the Rome Statute created a series of interdependencies between actors in the ICC system. These interdependencies manifest internally, between different branches of the Court, and externally, between the Court and states and the Court and the United Nations Security Council. Through relationships of interdependence, the Rome Statute constructs balances between different actors in the system, making one actor reliant on another fulfilling its obligations to ensure the Court can function effectively. When understood as an institution underpinned by a network of interdependencies, we need to look at and evaluate the Court in a new light. After twenty years of practice, we can now see that many of the interdependencies have failed and the carefully designed balance between actors envisaged in the Statute have been thrown out of alignment.

Many of the criticisms against the Court stem from its failure to bring cases in situations where mass atrocities are being committed, from the way in which cases are constructed and have fallen apart at trial or on appeal for lack of evidence, and from selective prosecutions. Yet, rather than these being failings of the Court as an institution, many of these criticisms actually flow from failings of the systems of interdependence and particularly the failure of states and the Security Council to satisfy their Rome Statute commitments.

This Article analyzes how these systems of interdependence were created at the Rome negotiations, further solidified by subsequent supporting architecture to the Rome Statute, and ultimately have failed in a myriad of ways. The Article concludes with a range of proposals for restoring the balance between the Court and external actors to better ensure that the Court can fight off criticism and satisfy its mandate of ending impunity for atrocity crimes.

Underutilization of ADR in ISDS: Resolving Treaty Interpretation Issues

Since the adoption of the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law Conciliation Rules, only a small number of investor-state disputes have been referred to conciliation. The common formulation of investor-state dispute settlement (ISDS) clauses, that carry advance consent to conciliation and arbitration in investment treaties, suggests that the choice between these two dispute resolution mechanisms may have conflicting interpretations. Under one interpretation, disputants have an option to choose conciliation and then proceed with arbitration; the other interpretation suggests that selection of conciliation is to the exclusion of arbitration. Incentives, such as the recent adoption of the Singapore Convention on Mediation and proposed amendments by ICSID, have been put forward to promote alternative dispute resolution mechanisms in ISDS. This Article, however, argues that recourse to investor-state conciliation will not increase unless mediation/conciliation are made mandatory before arbitration,and the source of conflicting interpretations of the choice between conciliation and arbitration is eliminated.


Treaties Unchained: Restoring Checkers and Balances to Executive Agreement-Making in the U.N. Security Council

This Comment uses the controversial Iran Nuclear Deal that was negotiated under the auspices of the United Nations Security Council (UNSC) as a case study. Specifically, it discusses the implications of unilateral Executive agreement-making in this international body for constitutional separation of powers and the legitimacy of the UNSC itself. In doing so, it analyzes the historical development ofthe UNSC, the Supreme Court decision in Medellin, and UNSC Resolutions. It finally presents three solutions that can promote checks and balances in this area, especially as it relates to executive power to enter into treaty-like agreements via the UNSC without Congressional approval.