Recent jitcl items

China’s Modernization of International Commercial Arbitration and Transnational Legal Order

Mon, 7 Oct 2024 00:00:00 +0000

China’s interaction with international commercial arbitration (ICA) norms reveals a trajectory from initial resistance to gradual alignment and potential emergence as a rule contributor. This early resistance manifested in its unique dual-track arbitration mechanism and institutional arbitration monopoly. Reforms signal a shift towards global standards, driven by pro-arbitration judicial efforts and institutional competition in China’s vibrant arbitration market. As China’s global influence expands, it is innovating to shape the ICA landscape through initiatives like the China-Africa Joint Arbitration Centre, the China International Commercial Court’s one-stop dispute resolution platform, and the International Commercial Dispute Prevention and Settlement Organization. The role of transnational legal elites in China further facilitates this evolution.

Learning from Your Rival? A Surprising Convergence of Chinese and American Corporate and Securities Laws

Mon, 7 Oct 2024 00:00:00 +0000

Despite the increasing tension between China and the United States, a student of Chinese law will be surprised at the increasing similarity between corporate and securities laws in China and the United States. As many Chinese twists as there are, the overall trajectory of China’s corporate and securities laws appears to be evidently moving closer toward their American counterparts. I will trace the recent changes in Chinese laws, regulations, and judicial interpretations and decisions to substantiate this point. At the same time, I will also present an analytical framework to explain this legal convergence in an era of decoupling between China and the United States. My explanation is based on two key factors: legal professionalism and political populism. Understanding the convergence of Chinese corporate and securities laws to their American counterparts will enable us to make a better-informed assessment of the uniqueness...

Masthead, Mission Statement, and Table of Contents

Mon, 7 Oct 2024 00:00:00 +0000

Masthead, Mission Statement, and Table of Contents

China and the International Legal Order: Introduction to the Symposium

Mon, 7 Oct 2024 00:00:00 +0000

China’s economic growth, expanding political influence, and strategic initiatives such as the Belt and Road Initiative, challenge the existing paradigms of international law and transnational legal ordering. As China increasingly asserts its interests and perspectives in international, regional, and bilateral forums, it catalyzes debates on sovereignty, human rights, economic relations, and private law, potentially reshaping the contours of international and transnational legal discourse and practice. While the debates are still ongoing, a sizable body of literature has already emerged. Some argue that China’s growing influence will negatively impact the liberal international legal order, while others see China’s rise as a manageable challenge unlikely to undermine the foundations of the existing system. In contrast, some scholars hold a more optimistic view, emphasizing the potential positive contributions China could make through its more active participation...

China and Global Trade Order Post Ukraine War: From Value Chains to Values Chains

Mon, 7 Oct 2024 00:00:00 +0000

China has long been hailed as the biggest success story in economic development through integration into global value chains, especially since its accession to the WTO 20 years ago. However, it is much less well-known how China refitted the global value chain narrative to influence economic analysis and trade governance. At the same time, the value chains analysis also backfired when the U.S. tried to cut China out of its supply chains and pushed for decoupling with China, while China itself started to abuse its role in value chains for political gains. The process was further accelerated by the Ukraine war, which prompted efforts by the U.S. and its allies to build supply chains based on values rather than value, which will have a profound impact on China and the global trade order.

China’s Pragmatic Approach to International Human Rights Law

Mon, 7 Oct 2024 00:00:00 +0000

China has adopted a pragmatic approach to international human rights law in the early 21st century, characterized by pragmatic experimentation in the appropriation and modification of human rights norms, selective decoupling of international and domestic human rights rules, and divergent enforcement in the legislative and practical responses to various human rights issue areas. This approach permits significant gaps between “law on the books” and “law in action,” as well as between domestic rules and international law. Analysis of China’s engagement with the ICCPR and CEDAW, respectively focused on criminal procedural rights and women’s rights, reveals the complex and uneven nature of China’s human rights governance. While China has gradually reduced overt violations of human rights within criminal procedures, it has concurrently developed a more opaque and institutionalized punitive system. In comparison, despite recent...

China and Sovereignty in International Law: Across Time and Issue Areas

Mon, 7 Oct 2024 00:00:00 +0000

Sovereignty is a singularly prominent element in China’s approach to international law throughout the People’s Republic of China era, but its centrality and specific content have varied over time and across issue areas. During Mao Zedong’s era, a vulnerable China in a hostile international environment strongly embraced sovereignty. In the early Reform Era, an increasingly secure China pursuing international engagement adopted more flexible positions, especially in international economic law, while largely retaining sovereignty’s primacy. Differences across economic, human rights, and territorial sovereignty law reflect China’s power, interests, and agendas, with the most assertive stances on territorial issues implicating core interests. Under Xi, a powerful China facing a warier world and having less to gain from the international legal status quo has turned back to more uncompromising sovereignty claims, except where its expanding global interests and influence point to a...

Masthead, Mission Statement, and Table of Contents

Mon, 22 Jul 2024 00:00:00 +0000

None

The Evolving Rule of Law with Chinese Characteristics and Its Impacts on the International Legal Order

Mon, 22 Jul 2024 00:00:00 +0000

The rule of law, an abstract concept heavily debated among legal scholars and social scientists, has in the past few decades acquired a nearly universal appeal, as democracies, autocracies, and oligarchies all claim to uphold it. The Chinese government, for instance, announced in 2012 a comprehensive plan to advance law-based governance in China and has since undertaken major legal reforms. Repeatedly, Xi and the leaders of the Chinese Communist Party (“CCP”) have pledged to build a “rule of law country.” But when the ruling elites of a one-party authoritarian state allege commitment to the rule of law, what do they really mean? How is it different from the Western concepts of the rule of law, especially the “thick” version of it, that has been closely tied to liberal democratic values? What are the key features of the “rule of law with Chinese characteristics”? And how will it impact the international legal order? Applying a transnational legal ordering framework, this Article...

Colonialism, Capitalism, and Race in International Law: Introduction to Symposium Issue

Mon, 22 Jul 2024 00:00:00 +0000

None

Climate Change, WTO Law, and China

Mon, 22 Jul 2024 00:00:00 +0000

Combating climate change is one of the most important areas for international cooperation and negotiation. The urgency of the climate crisis requires countries, especially large carbon emitters such as China, to be more active in taking climate actions. This Note mainly focuses on the two most important trade-related climate policies for reducing carbon emissions: border carbon adjustment and low-carbon subsidies. Both policies have or would likely raise legal challenges under the existing WTO legal framework. This Note introduces the two policies, analyzes why they are disputed among WTO Members, discusses China’s viewpoints, and suggests the possible actions that China can take in helping to mitigate trade policy conflicts over carbon emissions under the current WTO trade system.

Regulating Disinformation in Europe: Implications for Speech and Privacy

Mon, 22 Jul 2024 00:00:00 +0000

This Article examines the ongoing dynamics in the regulation of disinformation in Europe, focusing on the intersection between the right to freedom of expression and the right to privacy. Importantly, there has been a recent wave of regulatory measures and other forms of pressure on online platforms to tackle disinformation in Europe. These measures play out in different ways at the intersection of the right to freedom of expression and the right to privacy. Crucially, as governments, journalists, and researchers seek greater transparency and access to information from online platforms to evaluate their impact on the health of their democracies, these measures raise acute issues related to user privacy. Indeed, platforms that once refused to cooperate with governments in identifying users allegedly responsible for disseminating illegal or harmful content are now expanding cooperation. However, while platforms are increasingly facilitating government access to user data, platforms...

Theorizing Intergenerational Justice in International Law: The Case of the Treaty on the Prohibition of Nuclear Weapons

Mon, 22 Jul 2024 00:00:00 +0000

On July 21, 2021, a resolution was introduced in the Chicago City Council calling on the US government to ratify the new United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW) and describing the struggle to abolish nuclear weapons as a matter of racial justice. Unlike prior nuclear disarmament treaties, the TPNW bans all nuclear weapons outright and reframes nuclear disarmament as a matter of decolonial struggle. The coming into force of the TPNW treaty raises questions about the relationship between this new treaty regime and the traditional framework of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

In this Article, we argue for understanding the novelty of the TPNW through the prism of intergenerational conflict and justice. The Nuclear Ban Treaty comes into effect at a moment when the generation that personally experienced nuclear warfare is quickly passing, and it speaks to a new generation of activists and diplomats who place less hope...

State Immunity as Applied to Colonial Racism and the Japanese Military as Purchaser and Joint Tortfeasor: Case of Korean “Comfort Women”

Mon, 22 Jul 2024 00:00:00 +0000

The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this article, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 ICJ decision in Ferrini. We find there that the concept of “armed forces” has been commandeered to bolster the strict application of state immunity and evaluate such usage of the categories such as “armed conflicts” and “armed forces.” We note that full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their findings on the elements of “armed conflicts” and “armed forces.” For subject matter relevance, the less well-known 2007 Hwang Geum Joo decision of a US court that applied similar reasoning to the “comfort women” in interpreting the American codification of the...

Rethinking Enmeshment and the Rule of Law in Authoritarian Contexts

Mon, 22 Jul 2024 00:00:00 +0000

Scholars frequently cite Turkey under Recep Tayyip Erdoğan’s rule among the leading examples of populism and authoritarianism in contemporary politics. Long an authoritarian regime, Turkey has in indeed evolved into a full-blown autocratic regime engaged in serious human rights violations and systemic rule of law violations. What makes this case particularly striking, however, is that this backsliding has occurred under the watch of European institutions. Claiming that the Turkish case speaks to broader issues concerning the ways in which transnational human rights and rule of law organizations interact with authoritarian regimes, this article puts forth theoretical insights for the rule of law scholarship. Going beyond conventional analyses which characterize interactions between international institutions and nation states as one-way relationships where norms flow (or not) from the top-down, it looks into the “enmeshment” of domestic and international law in authoritarian...

Data as Public Goods or Private Properties?: A Way Out of Conflict Between Data Protection and Free Speech

Mon, 22 Jul 2024 00:00:00 +0000

In this Article, I will review the origins of data protection laws and reestablish the concept of “data surveillance” as the primary evil that data protection laws should try to abate. From this review, I discover a transnational principle that strong data protection laws are must-haves for all jurisdictions wishing to protect privacy for their people, but that data protection laws should not be applied to data that have been made publicly available through legitimate process. I then find legislative examples embodying such principle. Next, I will look at “scientific research” exemptions from data subjects’ control on pseudonymized data, and using GDPR’s exemption as an example, will demonstrate that ownership-like control by data subjects is not absolute. Finally, I will examine the possibility and morality of data socialism whereby data (including personal data) are regulated as public goods or infrastructure like scenery, sunlight, air, etc., and whereby data silos are replaced...

Transnational Legal Ordering of Data, Disinformation, Privacy, and Speech

Mon, 22 Jul 2024 00:00:00 +0000

None

Transnational Legal Order Through Rule of Law? Appraising the United Nations Security Council, 1990-2022

Mon, 22 Jul 2024 00:00:00 +0000

Utilizing the theoretical framework of transnational legal orders (TLOs), this article treats two master questions in global governance: what are the limits to the power of the UN Security Council? Can norms of rule-of-law constrain UNSC powers? First, we outline a research design with emphasis on its documentary and unique internal empirical sources. Second, we sketch an interpretive narrative of UNSC engagement from the early 1990s to the present with ROL in three areas of UNSC action: peacekeeping, sanctions, and force. Third, we offer a new conceptual approach by proposing that ROL in the UNSC manifests itself in three dimensions: discourse; procedure (or rules); and structures. These dimensions come into play both internally, within the UNSC itself, and externally, to ROL institution-building in and between states, as well as in post-conflict zones, with a rather gray area between (e.g., when the UN peacekeeping missions are themselves subject to ROL oversight for the...

Politicizing International Human Rights: The United States’ Border Apartheid Policies and the Universality of Human Rights

Mon, 22 Jul 2024 00:00:00 +0000

This Note uses the example of the United States’ immigration policies to analyze the following questions: (1) what type of rights international human rights are; (2) where these rights come from; (3) how their content should be determined; and (4) what conditions need to exist in order for them to be enforced. The Note argues that answering these questions is an essential prerequisite to enforcing human rights in a way that is truly universal. Part I of the Note grounds these questions in human experience through the case of a refugee seeking asylum at the U.S. border in San Ysidro and discusses the various international human rights laws that are at stake. Part II discusses the meaning and content of human rights and highlights the problem of the indeterminacy of rights. Part III expands on the problem of indeterminacy, provides a critique of current discourse of universal human rights, and suggests that politicization of the concept of human rights is necessary in order for...

Misguided at Best, Malevolent at Worst: The International Impact of United States Policy on Reproductive Rights

Mon, 22 Jul 2024 00:00:00 +0000

This Note discusses the effect of U.S. foreign policies on the reproductive rights of women in developing countries. Many international human rights treaties and their progeny have consistently found that reproductive rights are intertwined with basic human rights, such as the right to privacy, the right to health, the right to education, and the right to start a family. Despite considering itself a superpower among all other countries, U.S. policies like the Helms Amendment and the Mexico City Policy fail to adhere to these basic international human rights standards. At the same time the United States recognized the constitutional right of its female citizens to have an abortion, it began restricting that right for women in countries that are dependent on the United States for health aid. U.S. foreign policies go far beyond abortion and affect almost all health services, even those tangentially related to reproductive health services. These policies reinforce the notion that...

International Organizations as Constitution-Shapers: Lawful but Sometimes Illegitimate, and Often Futile

Mon, 22 Jul 2024 00:00:00 +0000

This article analyses widespread constitution-shaping activities by a range of international organizations at different places on the globe. The principles governing the processes and substance of constitution-making—as propagated by the international organisations—have remained similar since 1989: rule of law (or its elements and emanations), human rights, and democracy (or variants and family members such as inclusion, openness, participation, and the like), the so-called constitutionalist trinity. The modalities of constitution-shaping are pre-accession-incentives, conditionalities, indicators, and benchmarking.

The article raises a dual question: First, do we see, in the current era of anti-globalisation, populism, and charges of ostensible obsoleteness of liberalism, a change in the law and practice of the organizations? Have the international organizations in fact given up on the constitutionalist trinity and have they stopped offering assistance? My answer is...

Masthead, Mission Statement, and Table of Contents

Mon, 22 Jul 2024 00:00:00 +0000

None

The Rule of Law in Transnational Context: Introduction to the Symposium

Mon, 22 Jul 2024 00:00:00 +0000

None

The Limits of International Law in Content Moderation

Mon, 22 Jul 2024 00:00:00 +0000

In remarkably short order, there has been growing convergence, especially in academia and civil society, around the idea that major social media platforms should use international human rights law (IHRL) as the basis for their content moderation rules. Even platforms themselves have begun to agree. But why have these legendarily growth-obsessed companies been so quick to voluntarily say they are jumping on this bandwagon? Afterall, advocates for incorporating IHRL into content moderation governance generally envision it operating as a constraint on social media platforms’ operations. There are both encouraging and less encouraging explanations. For the glass half-full types, there is the straightforward explanation that perhaps these companies genuinely care about human rights. But there is also a less optimistic possibility: companies are embracing the terminology so readily because they know that, in reality, it will not act as much of a constraint at all. This is the prospect...

Masthead, Mission Statement, and Table of Contents

Mon, 22 Jul 2024 00:00:00 +0000

None

George Floyd at the UN: Whiteness, International Law, and Police Violence

Mon, 22 Jul 2024 00:00:00 +0000

This article applies discursive analysis of the UN Human Rights Council debate after the killing of George Floyd in June 2020. It assesses state members’ speeches delivered during the UN session convened in June 2020, as well as the ensuing landmark report by the UN Human Commissioner for Human Rights on police violence and racism released one year later, in June 2021. Through its analysis of the current global debate on police violence against black people at the United Nations, it shows how racialized violence is and is not considered in international law. The underlying task is to unmask whiteness-coping mechanisms used in international law when issues of racism arise, as well as to light fire on the disruptive nature of black movements’ engagement with the UN to dismantle racism in a structural manner. This article is particularly interested in international law as legal imaginations shared, colliding, and contested in multiple fora, among them the United Nations. Using...

Why Sovereigns Are Entitled to (Horizontal) Benefits of the International Rule of Law

Mon, 22 Jul 2024 00:00:00 +0000

A dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This article critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule of law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law.

Representation, Inequality, Marginalization, and International Law-Making: The Case of the International Court of Justice and the International Law Commission

Mon, 22 Jul 2024 00:00:00 +0000

This Article assesses the extent of inequality and marginalization in the making of international law. It examines whether there is equal contribution, and equal opportunity for contribution, in the making of international law by and for all States. In particular, the Article ponders whether the Global South is marginalized in law-making processes, or, put another way, whether the Global North is privileged. The Article evaluates whether there is equitable representation in international law-making bodies, and it focuses on the two most prominent ones, namely the International Court of Justice and the International Law Commission. The assessment addresses both the formal requirements of representation and the actual practices within both bodies.

The Case for Reparations for the Color of COVID

Mon, 22 Jul 2024 00:00:00 +0000

This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The “color of COVID” results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups.

Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the WHO resist state responsibility or accountability for COVID.

This Article argues that since, under international law, states owe a duty to provide remedies to persons within their jurisdiction who are denied fundamental rights because of de facto or de jure discrimination,...

Sticky Floors, Springboards, Stairways & Slow Escalators: Mobility Pathways and Preferences of International Students in U.S. Law Schools