The Policies of State Succession: Harmonizing Self-Determination and Global Order in the Twenty-First Century Tai-Heng Cheng, State Succession and Commercial Obligations

I differ with Cheng\u27s appraisal of certain events and think that we need a more sophisticated analysis of the twin policy goals he identifies and embraces--self-determination and global order--before they can offer real policy guidance. But State Succession and Commercial Obligations stands out as a rigorously researched, original, and insightful effort to understand this quite confused and opaque body of international law. Cheng\u27s work will both enable and encourage a more candid, reasoned, and constructive debate about the global policies at stake each time “a state fundamentally changes its structures of power and authority, and an authoritative international response is needed to manage disruptions to international arrangements that may result from that change.” Briefly, I find Cheng\u27s analysis of the dynamics of State succession relative to commercial obligations sophisticated, pragmatic, descriptively comprehensive, and, for the most part, normatively compelling. But it may be too ambitious. Defining disruptions to global commerce as the principal indicia of State succession tends to inflect, and at times to bias, the general analysis of the diverse phenomena that fall within the rubric of State succession. This commercial focus can obscure or normatively predispose our understanding and appraisal of equally vital, but non-economic, dimensions of State succession, including the core policy goals--self-determination and global order--that Cheng identifies and recommends. And to a certain extent, this compromises the work\u27s descriptive accuracy and normative appeal

Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality

The concept of nationality traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; today, its international legal functions have expanded. Yet, as in the past, it remains unclear whether and how international law limits the otherwise almost plenary competence of states to confer their nationality by their internal laws in a way entitled to international recognition. After the International Court of Justice\u27s ( ICJ ) 1955 judgment in Nottebohm, however, lawyers began to express this limit with a kind of doctrinal mantra: a state\u27s national, to be a bona fide national entitled to recognition as such at the international level, must have a genuine link to that state. This Article critiques the genuine link theory and proposes a functional account of nationality, which, it argues, is descriptively more accurate and normatively more appealing. Nottebohm is properly read as a narrow decision in which the ICJ tacitly invoked a general principle of law, viz., abuse of rights, to prevent what it saw as a manipulative effort by the claimant to evade a critical part of the law of war. But whatever the merit of this revisionist reading of Nottebohm, the genuine link theory proves anachronistic today in view of profound changes in the manifold functions that nationality serves in contemporary international law. To illustrate, the Article suggests that the abuse-of-rights principle would also be more appropriate and effective than the genuine link theory to regulate nationality in one contemporary context that has provoked debate recently: investorstate arbitration. But the abuse-of-rights principle is no panacea. An atomized conception of nationality, which has been liberated from the genuine link theory and regulated by its functions, would best serve the policies of contemporary international law in diverse subfields

The Puzzling Persistence of Curtiss-Wright-Based Theories of Executive Power

This is a brief comment on Curtiss-Wright responding to one of the Journal of the National Security Forum\u27s Ten Questions for its recently released symposium issue. It describes the origins of Justice Sutherland\u27s controversial thesis, canvasses a few of the many critiques of that thesis, and offers a few reflections on why a theory about executive power that has been vigorously criticized by scholars across the ideological spectrum continues to exert an influence out of proportion to its substantive merits

Tibetan Diaspora in the Shadow of the Self-Immolation Crisis: Consequences of Colonialism

This chapter for a book on protracted refugee crises argues that the origins of both the unresolved Tibetan refugee crisis and the tragic and unprecedented wave of some 120 self-immolations in Tibet since 2009 lie in Tibet’s unacknowledged status as a colony. China illegally invaded and annexed Tibet in 1950, and it remains under belligerent occupation to this day. Contrary to the official views of the People’s Republic of China (PRC), the United States, and (to my knowledge) every other state in the world, it is a fiction to refer to the Tibetan people as a Chinese \u27minority nationality\u27. Every credible study (excluding, that is, PRC \u27white papers\u27) of Tibet and its people’s legal and historical status so concludes. The Tibetan people’s history as a nation extends back millennia. Despite the nebulous law on self-determination in the post-Cold War era, if any people merit what international law denotes \u27external\u27 self-determination — that is, the right (afforded to virtually all other colonies since 1945) to choose among independence as a sovereign state, integration with an existing state, or free association status based on a free and fair referendum — it is the Tibetan people. Their right to external self-determination arises from several facts, each independently sufficient, but even more compelling in combination: Tibet’s status as a colonized nation; the PRC’s continuing refusal to afford Tibetans any genuine autonomy consistent with the right of peoples to \u27internal\u27 self-determination; and more than half a century of systematic and severe human rights violations inconsistent with even the PRC’s own view of Tibetans as a minority nationality. Hence the self-immolation crisis within Tibet, a drastic act of dissent and protest in a political environment that enables few other forms of dissent, arises from the same circumstances that perpetuate the unresolved refugee crisis without (i.e., outside of Tibet). Acknowledging Tibet’s colonization is a necessary but insufficient step to resolving both crises

Deuterium isotope effects on in vitro dealkylation of 1,1-dimethylhydrazine and 1,1-dimethylnitrosamine via hepatic enzymes

Boiling 1,1-dimethylnitrosamine or unsymmetrical dimethylnitrosamine several times with 25% NaOD in D2O promoted the complete exchange of the nitrosamine’s alpha protons for deuterium. The deuterated nitrosamine was reduced by LiAlH4, in anhydrous diethyl ether to the corresponding 1,1-dimethylhydrazine-d6. An in-process production of the oxalate salt was necessary due to the air sensitivity of the free base hydrazine. After recrystallization from absolute ethanol and extensive drying, the oxalate salt was evaluated for purity by mixed melting point, high performance liquid chromatography and thin layer chromatography. When protonated hydrazine-oxalate salt (mp=146 °C) was mixed with a sample of the exchanged hydrazine salt there was no melting point depression. Several chromatographic procedures were used to investigate the presence of impurities in the sample. Each process revealed only the presence of the free base hydrazine and oxalic acid. Complete deuterium exchange was characterized by mass spectrometry and 1H-nmr The mass spectum of the 1,1-dimethylhydrazine-d6 had a molecular ion peak at mass 66 relative to the protonated free base hydrazine and the protonated hydrazine-oxalate salt whose molecular ion peak was at mass 60. The subsequent 1H-nmr spectra of both the protonated and deuterated hydrazine-oxalate salts, when dissolved in D2O, exhibited peaks specific for the two protons on the oxalic acid but only the protonated form had two additional absorbance peaks due to the two sets of alpha methyl protons. Using difference absorbance spectroscopy, the interaction of both protonated and deuterated 1,1-dimethylhydrazine with microsomal cytochrome P-450 was examined. As enzyme substrates, both hydrazines exhibited identical difference absorbance spectra when added to suspensions of rat liver microsomes. Also, the resulting difference absorbance spectra were similar to many nitrogenous ligands to cytochrome P-450. With the addition of NADPH, the enzyme suspension containing the hydrazine, formed a time and oxygen dependent microsomal hemoprotein spectral-complex. Both hydrazines formed a spectral-complex that exhibited a Soret absorbance maximum at 438 nm with alpha and beta absorbance bands at 575 and 547 nm. Upon standing the suspensions were depleted of oxygen thus causing a bathochromic shift of the Soret absorbance to give a second complex with a maximum absorbance at 449 nm. Upon subsequent oxygenation of the suspension the 438 nm absorbance was re-established which is consistent for ferric to ferrous transition of the hemoprotein. Both the protonated and deuterated form of the hydrazine formed the 438 nm-complex suggesting that the presence of deuterium had little effect on the mechanism of substrate reduction. Vmax for both substrates was so great however, that kinetic evaluation of the reaction mechanism could not be done. Normally, 1,1-dimethylnitrosamine exhibits a type I difference binding spectra when added to rat liver microsomal suspensions. However, this was not observed for either the protonated or the deuterated form of the nitrosamine. Further changes in the reaction environment failed to yield the type I binding spectra or a 438 nm-complex. Inverse kinetic isotope effects on Vmax and Vmax/Km were observed when 1,1-dimethylhydrazine-d6, instead of 1,1-dimethylhydrazine, was added to o purified liver microsomal flavin-containing monoxygenase, the Zeigler enzyme. Isotope effects on VmaxH/VmaxD, DV were 0.76 without the presence of n-octylamine and 0.82 when n-octylamine was present in the reaction mixture. Isotope effects on Vmax/Km, DV/K were 0.36 without the presence of n-octylamine and 0.55 when n-octylamine was present in the reaction mixture. The inverse isotope effect was observed relative to the protonated substrate when each were added, as substrate, to the purified enzyme and in the presence of NADPH. n-Octylamine, known to increase the rate of Ziegler enzyme reaction, had little effect on the magnitude of the inverse kinetic effect. Possible explanations for this inverse kinetic effect may be due to the deuterium affecting the binding rate of substrate to enzyme. Examination of the acid quenched reaction products revealed the presence of monomethylhydrazine. The formation of the monomethylhydrazine supports the findings by Prough, (11). Prough found the enzyme promoted the formation of a 1,1-dimethyldiazene intermediate, possibly from the dehydration of an N-hydroxymetabolite. Under acid conditions, this tautomerization of the diazene via an azo-intermediate to a methylhydrazone and then on to the monomethylhydrazine is favored over a possible bimolecular reaction involving the diazene which would promote the formation of a corresponding tetramethyltetrazene

The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law

Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the indeterminate federal sentencing system criticized by Judge Marvin E. Frankel in his famous polemic, Criminal Sentences: Law Without Order (1973). This Article analyzes the extent to which the conventional goals of punishment in national law can or should be transposed to the distinct legal, moral, and institutional context of ICL. It argues that the expressive capacity of punishment best captures both the nature of international sentencing and its realistic institutional capacity to make a difference in view of the legal, political, and resource constraints that will continue, for the foreseeable future, to afflict ICL. The transposition to ICL of the standard justifications for punishment in national law proves deeply problematic in large part because ICL attempts to combine the paradigms of two very different legal fields: (i) classical international law - a profoundly consensual body of law based on broadly shareable norms among states; and (ii) national criminal law - a profoundly coercive body of law often understood to embody the most fundamental, particularistic norms and values of a local polity. ICL therefore differs from national criminal law in several respects relevant to the social institution of punishment, including the nature of (i) the community that authorizes ICL, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. These differences tend to compromise the coherence or efficacy (or both) of conventional crime-control and retributive justifications for punishment. Insofar as these justifications or penal goals remain plausible, it is largely because of the expressive dimensions of punishment. ICL\u27s ability to contribute to the lofty objectives ascribed to it depends far more on enhancing its value as authoritative expression than on ill-fated efforts to identify appropriate punishments for crimes that strain our moral intuitions. For this reason, I urge, among other potential developments in the law and practice of sentencing by international criminal tribunals: (i) the institution of sentencing hearings as an essential component of ICL; (ii) greater attention to social, psychological, and political context and the role of the defendant vis-a-vis collective entities (states, armies, and so forth) as aggravating or mitigating factors; and (iii) a focus on enhancing jurisprudential exchange between national and international criminal justice institutions

The Incident at Cavalese and Strategic Compensation

In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO\u27s operations, for, in democratic host states, popular toleration, if not support, is a political conditio sine qua non for the transnational stationing of foreign military forces. But context is important to understanding and effectively implementing any legal instrument and its jurisdictional regime. The SOFA presumes that the public within NATO states perceives the presence and training exercises of foreign military forces in its midst as serving national security. With the end of the Cold War, the popular perception in many foreign countries of the need for the long-term presence of U.S. forces and the consequent willingness to absorb some of the ineluctable collateral costs appear to have declined. Consequently, the orderly procedure for compensation established by the SOFA may no longer meet the political, as well as the legal, requirements that the SOFA regime serves. Perhaps no event in recent memory makes this point more clearly than the tragedy inadvertently caused by a U.S. aircraft at Cavalese, Italy, in February 1998. This incident and its aftermath offer a paradigm for rethinking the post-Cold War operation of the SOFA and for understanding how changes in the political context in which it operates may now counsel a more flexible - or, at least, less exclusive - application of its formal terms. These changes may periodically require the development of supplementary strategic compensation procedures for collateral damage caused by foreign military forces stationed abroad. Unquestionably, preserving the legal values of predictability, efficiency, transnational investigative cooperation, and regularity served by the SOFA\u27s compensation scheme remains critical and, from a parochial perspective, perhaps, its exclusive application may be penny wise. But in the post-Cold War global order, in which popular goodwill in the host state represents, even more than in the past, a condition sine qua non for the continued stationing of U.S. troops in geostrategic allied nations, neglecting its preconditions by focusing solely on the values served by legal formalism could well prove pound foolish

Back to Basics: A New Look at Gate-revenue Sharing and Competitive Balance

Most models with profit maximizing teams conclude that competitive balance is unchanged or reduced in response to gate sharing. We critique these models and then develop three alternatives: adding unshared post-season revenue; modelling the largest market team as a dominant firm with a rising marginal cost of talent; and a new general model that incorporates both a consumer demand for athletic talent and close competition. All three approaches can cause gate sharing to increase competitive balance.Sport, Monopsony, Monopoly Power

Human Rights for Hedgehogs?: Global Value Pluralism, International Law, and Some Reservations of the Fox

This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human rights renders answers to hard questions about those rights necessarily indeterminate, not only in practice (because of epistemic limits, for example) but conceptually. Second, every account of human rights based on avowedly objective moral foundations is inherently controversial and therefore often divisive. Dworkin’s is no exception in this regard, and in part for that reason, would be ill suited to a global order characterized, empirically at least, by pluralism at multiple levels: cultural, political, legal, and moral. Third, I believe it is a methodological mistake in general to seek to derive international human rights, as Hedgehogs does, from an antecedent conception of human dignity - rather than vice versa. Fourth, in the realm of international human rights, Dworkin’s value monism is neither persuasive nor practicable. Finally, inasmuch as Hedgehogs aspires to show that all values, properly defined, fit together in a coherent, reconcilable, unified whole, it is incongruous and anachronistic for the manuscript to describe sovereignty as a concept in conflict with human rights, such that human rights, at times, must “trump” sovereignty. Many international lawyers would argue to the contrary that the best conception of sovereignty in the modern era is not opposed to, but rather deeply rooted in, respect for international human rights. As an alternative to the account in Hedgehogs, I briefly suggest the basic contours of and justification for a more functionalist account of international human rights, which I have defended at length in a prior work. In short, it is more plausible and constructive, as Michael Igantieff has written, “to build support for human rights on the basis of what such rights actually do for human beings.