Washington International Law Journal

This article argues that carbon-related border tax adjustments (“CRBTAs”) can be used effectively to complement the compliance mechanisms of the Paris Agreement against a truly recalcitrant party. The soft enforcement mechanisms envisioned by the Paris Agreement—facilitative assistance and political or moral suasion—are unlikely to provide a sufficient response to a party that becomes truly recalcitrant. CRBTAs provide parties to the Paris Agreement with a hard-edged economic tool able to respond to a party that disavows the Paris regime. This article outlines the features of a CRBTA regime that would be lawful under the General Agreement on Tariffs and Trade and argues that the international political economy of the Paris Agreement supports the development of complementary CRBTA measures. By situating a proposed CRBTA regime in the multilateral context of the Paris Agreement, this article argues that it is possible to overcome the political hurdles that have restrained states from unilaterally adopting these measures. Finally, the Article posits that the Trump Administration has set the United States on a course of recalcitrance that has increased the likelihood that CRBTA measures may be deployed against the United States by other parties to the Paris Agreement.

This Article investigates the political and military conditions under which national governments decide to invite judicial scrutiny from the International Criminal Court (“ICC”). The cross-case analysis of seven countries either examined or officially investigated by the ICC Prosecutor’s Office (“OTP”) lends support to the conclusion that governments solicit external judicial scrutiny due to two main independent variables: namely, a military’s inability to defeat a rebellion and a short-term preference for continuing war over negotiating its conclusion. This Article contends that the values placed on these variables combine to persuade national governments in conflict-ridden countries that, against predictions to the contrary, inviting ICC scrutiny is in fact in their best interest. This Article also makes a threefold contribution to the lasting debate on peace versus jus-tice. First, it emphasizes state agency in the processes of norm exploitation and subversion. Second, it sheds new light on the tactical use of international laws in the pursuit of broader state strategies. Third, it identifies political and military conditions for the optimal tactical use of international laws. In all, this Article highlights the instrumentality of international laws in prolonging, rather than bringing to an end, internal conflict. In so doing, it urges scholars and practitioners to rethink the relationship between the concepts of “justice” and “peace,” for the former can be used to undercut the latter.

In an important recent work, Rosalind Dixon and Tom Ginsburg noted that constitution writers regularly choose to defer to the future important questions of constitutional design. They argue that an “optimal” level of constitutional deferral might contribute to constitutional stability and help constitutions live longer. This Article argues that although constitution makers might choose to defer on many important questions of constitutional design to promote agreement, certain types of deferral might turn out to be counterproductive, and thus constitution writers’ choice to defer should be limited. The Article highlights that it is risky to defer to future legislatures the powers of institutions (such as apex courts) that are empowered under the constitution to answer other implicit deferrals. Deferring the powers of apex courts is extremely dangerous because such deferrals can potentially politicize the courts’ relationship with the political branches of the government. In response, the political branches of government might choose to resolve deferrals on the powers of apex courts in a retaliatory fashion that could limit the powers of apex courts and undermine the legitimacy and independence. Deferrals on the powers of the judiciary may simply give downstream legislatures a tool to hold apex courts hostage by threatening to amend their laws and strip them of their powers. To highlight this problem, this Article explores the decision of the makers of the 2004 Constitution of Afghanistan to defer on the powers of the Supreme Court and the Independent Commission for the Supervision of the Implementation of the Constitution to interpret the Constitution and exercise all types of judicial review. Afghanistan’s experience operating under the 2004 Constitution gives an important example of the limits of constitutional deferral.

Language policies that mandate a government use a single language may seem controversial and unconstitutional. English-only policies are often seen as xenophobic and discriminatory. However, that may not be the case for South Korea’s Framework Act on Korean Language, which mandates the use of the Korean alphabet, Hangeul, for official documents by government institutions. Despite the resemblance between the Framework Act on Korean Language and English-only policies, the Framework Act should be understood differently than English-only policies because the Hangeul-only movement has an inverse history to English-only movements. English-only movements have a history of using English as a tool to force assimilation. In contrast, Hangeul has a history of being a tool of resistance against forced assimilation perpetrated by the Japanese colonial government. Japanese colonizers attempted to eliminate the Korean language by forcing Japanese as the national language of Korea, removing Korean language arts as a subject from school curricula, and punishing those who still retained Korean. As an act of independence and autonomy, Korean scholars continued to study and develop Hangeul and the Korean language. This historical context of Hangeul demonstrates one perspective in understanding the Framework Act on Korean Language and its constitutionality differently than English-only policies in the United States. However, the dangers of discrimination arising from the Framework Act on Korean Language cannot be ignored. Thus, this Comment also examines the law’s discriminatory effect as Korea’s foreign population continues to grow.

Mexico introduced its first unipersonal limited liability entity in 2016, the Sociedad por Acciones Simplificada (“SAS”). The introduction of Mexico’s SAS is in line with legal development in Latin America as a whole, where there has been a recent trend towards introducing new unipersonal limited liability entities that are specially designed to reduce barriers to entry for burgeoning business owners and ease the requirements of owning a business entity. However, the Mexican SAS as it currently exists is uniquely overly restrictive. To remedy this, some of the current restrictions on the entity should be lifted to facilitate the functionality of the entity. Particularly considered for further reform are the five-million-peso total annual income cap, bar on SAS entities having juridical person shareholders, and bar on SAS entities having shareholders who are controlling shareholders in another Mexican entity. The excessive restrictiveness of the Mexican SAS entity is illustrated from three perspectives: legislative intent, rule of law, and comparative law.