Paul B. Stephan, One Voice in Foreign Relations and Federal Common Law, 60 Va. J. Int’l L. 1 (2020).
“For most of the past century, those who followed foreign relations law believed that federal law, including that made by the federal courts in the absence of legislation and treaties, should govern the field. Anything else would burden political and economic ties with the rest of the world and stymie efforts to adapt the law to a rapidly changing international environment. Only in the last two decades has a revisionist perspective emerged, one that sees federal judicial lawmaking as more of a threat to, than a solvent for, successful foreign relations. Both the Supreme Court and the American Law Institute’s new Restatement (Fourth) of the Foreign Relations Law of the United States show the influence of this revisionism, but many lower courts and the majority of legal academics continue to believe that one voice requires judicial control. This Article examines the underappreciated shortcomings of a federal common law of foreign relations and defends skepticism about enhancing the power of the federal judiciary in this field.”
Read Stephan’s full Article here.
Jessica Laird & John Fabian Witt, Inventing the War Crime: An Internal Theory, 60 VA. J. INT’L L. 52 (2020).
“This Article offers a novel account of how and why the war crime arose as a legal concept in the late nineteenth and twentieth centuries. The reason was not new horrors and atrocities, though to be sure there were all too many of those. Nor was the war crime born of any special moral insight. Instead, new procedural and jurisdictional imperatives internal to the constitutional law of the United States—the most bellicose State in the Euro-American world during the mid-nineteenth century—presented the occasion for the war crime idea. Jurists and soldiers elaborated the war crime as a category separate and distinct from ordinary crime in order to manage the special constraints placed by the United States Constitution on criminal prosecutions. While navigating such constitutional obstacles to the punishment of Mexican guerrillas and Confederate soldiers, American jurists coined the phrase “war crime” and cemented the modern concept to which it is attached.”
Read Laird & Witt’s full Article here.
Charlotte Ku, William H. Henning, David P. Stewart, & Paul F. Diehl, Even Some International Law Is Local: Implementation of Treaties Through Subnational Mechanisms, 60 VA. J. INT’L L. 102 (2020).
“Multilateral treaties today increasingly touch on subjects where there is existing domestic law in the United States. In the U.S. federal system, this domestic law may not be national law, but law of the constituent U.S. States. However, in light of Article VI of the U.S. Constitution, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government reserves the authority to compel compliance in case a State adopts a rule contrary to an international agreement which would place the United States in breach of its international obligations. This Article examines the role constituent States in the U.S. system can play in treaty implementation. The subject is of interest to determine the conditions under which State authority might be considered for undertaking and implementing U.S. treaty obligations. This Article examines the processes under which subnational implementation of international treaties can be brought to fruition and when it fails; when there are Uniform Law Commission products and drafting expertise available to facilitate implementation at the State level; and whether these approaches might enhance the ability of the United States to implement treaty obligations.”
Read Ku, Henning, Stewart, & Diehl’s full Article here.
Jill I. Goldenziel, Checking Rights at the Border: Migrant Detention in International and Comparative Law, 60 VA. J. INT’L L. 156 (2020).
“Human rights laws, both international and domestic, present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental attributes of sovereignty. Under international law, however, states cannot return a migrant with a potentially valid asylum claim to a place where his life will be in danger, and cannot return any migrant to a place where he might be tortured. States often detain migrants while processing their asylum claims, and pending deportation if those claims should fail. Yet international law, and many states’ domestic laws, prohibit prolonged detention and restrict detention conditions. As migration flows and detention rates have swelled globally, high courts have increasingly decided cases involving the rights of detained migrants. On February 27, 2018, the U.S. Supreme Court handed down a critical decision on this issue in Jennings v. Rodriguez, allowing thousands of immigrants and asylum seekers to be detained indefinitely, without bail hearings, while remanding the case for consideration of their constitutional claims. This article compares court cases involving detention of migrants in the United States, Australia, and Europe to determine how states can comply with human rights law while preserving their right to protect their borders. Based on these cases, the article proposes best practices for state compliance with international law on detention. This comparison illuminates how courts strike a delicate balance between human rights and state sovereignty where national security interests are at stake.”
Read Goldenziel’s full Article here.
Mary Zhao, Transparency in International Commercial Arbitration: Adopting a Balanced Approach, 59 Va. J. Int’l L. 177 (2019).
“This Article argues that international commercial arbitration should adopt transparency standards similar to those governing investor-state arbitrations. In pressing for transparency standards in investor-state arbitration, scholars have emphasized the presence of public interests in investor-state disputes. This Article reconsiders the traditional view that public interests are limited to investor-state disputes. By analyzing specific international commercial arbitration disputes, it shows that although international commercial arbitration does not involve the state as a disputing party, international commercial arbitration nonetheless involves some of the same types of public interest issues. This Article proposes adopting a balance between transparency and confidentiality in international commercial arbitration, establishing public disclosure as the general rule while allowing exclusions for confidential information. As a concrete step toward establish higher transparency standards, this Article proposes the systematic publication of arbitral awards.”
Read Zhao’s full Article here.
King Fung Tsang & Jyn-An Lee, Unfriendly Choice of Law in FRAND, 59 Va. J. Int’l L. 221 (2019).
“Standards are technical specifications providing a common design for products or processes to function compatibly with others. Standards are pervasive in various communications and platform technologies since they facilitate interoperability between different products. These technical standards inevitably cover a large number of patented technologies standard implementers must use, which are referred to as standard-essential patents (SEPs). SEPs are normally subject to fair, reasonable, and non-discriminatory (FRAND) terms based on SEP holders’ declarations made to voluntary associations known as standard-setting organizations (SSOs) or standards-development organizations (SDOs). In recent years, the increasing use of standards and SEPs has led to an increased number of lawsuits relevant to the interpretation and enforcement of FRAND terms. As a result, legal issues surrounding FRAND have become a subject of litigation and academic debate. This Article is an endeavor to fill the gap in academic literature on the choice-of-law issues relating to FRAND. It seeks to provide readers with a deeper understanding of the choice-of-law issues as revealed by key judicial precedents around the world. Ultimately, this research attempts to suggest practical solutions that may mitigate, if not resolve, the choice-of-law issues.”
Read Tsang’s & Lee’s full Article here.
Taisu Zhang & Tom Ginsburg, China’s Turn Toward Law, 59 Va. J. Int’l L. 307 (2019).
“We argue that both top-down political considerations and bottom-up social demands are driving this recent turn towards legality: first, as a purely instrumental matter, governing China in a centralized, top-down manner requires a strong commitment to bureaucratic legalization. The sheer size of the country and its population creates severe principal-agent and resource allocation problems that force central authorities to either recognize some version of de-facto federalism, or to combat local corruption and abuse through rigorous law enforcement. With the recent political turn away from decentralized administration, the Party leadership must pursue the latter strategy of investing in legality. Second, and perhaps more interestingly, the Chinese population increasingly seems to attach significant amounts of sociopolitical legitimacy to law and legality. As a result, empowering legal institutions and positioning the Party leadership as a champion of legality against traditional bureaucratic corruption has been a major source of both personal status and populist political legitimacy.”
Read Zhang’s & Ginsburg’s full Article here.
Nadia Banteka, No Longer Immune? How Network Theory Decodes Normative Shifts in Personal Immunity for Heads of State, 59 Va. J. Int’l L. 391 (2019).
“The goal of this Article is to provide an analytical framework to apply to the shifting norm of personal immunity for Heads of State based on the relationships and connections among actors. Using the tools of network theory, this Article determines the defining properties of this network of actors, including its topology, density, centrality, and actor similarity, which explain current normative shifts and predict developments. Based on this quantitative analysis, this Article puts forward two arguments. First, non-state actors, even though not formally accepted as capable of contributing to international law, have a clear normative effect. Second, insofar as the hubs in this network continue to pursue an exception to Head of State immunity before International Criminal Courts, we are likely to see an exception crystallize as a new rule of CIL. Viewing international law through networks of actors provides lawyers and policy-makers with a descriptive tool that translates and maps the elusive global realities that lead to international law-making.”
Read Banteka’s full Article here.
Noah E. Lipkowitz, Why Countries Diverge over Extradition Treaties with China: The Executive Power to Extradite in Common and Civil Law Countries, 59 Va. J. Int’l L. 443 (2019).
“China has made a concerted effort for over a decade to conclude extradition treaties with developed countries that are popular “safe havens” for its fugitive officials and economic criminals. Chinese President Xi Jinping has placed these efforts at the forefront of Chinese foreign policy in recent years as part of his anticorruption campaign, invariably pressing the issue of extradition with these trade partners and their (largely) liberal democratic leaders. Nonetheless, China’s extradition drive has attained mixed results. A number of developed civil law states have concluded treaties with China while their common law counterparts almost universally refuse to follow suit. This Article analyzes this pattern of divergent behavior and is the first to offer a legal explanation for it. It argues that the nature of executive authority to extradite and other branches’ checks on that authority differ significantly in common and civil law systems. Differing policies regarding the extradition of nationals and evidentiary standards for extradition requests exacerbate these structural differences. These factors calibrate a state’s threshold to enter into an extradition treaty, particularly with a controversial state like China.”
Read Lipkowitz’s full Article here.
E-Commerce Transactions and Country of Origin Marking for Imported Products: A Gap Between Statutory Purpose and Legal Requirements – Christine Abely
“This Article examines whether the country of origin marking regulations administered by U.S. Customs and Border Protection should be amended to include a new requirement that a product’s country of origin be disclosed at the online point of sale. This Article also identifies further areas of research that could be explored, including those which may be useful in determining the potential effectiveness of country of origin disclosures made at online points of sale, and considers available alternatives to the implementation of additional country of origin marking rules in the context of remote sales.”
Read Abely’s full Article here.
Outsourcing of Governmental Functions in Contemporary Conflict: Rethinking the Issue of Attribution – Jennifer Maddocks
“This article first assesses the relevance of Article 5 ARSIWA in contemporary conflict. It considers the outsourcing of public functions to PMSCs and cyber operators, as well as the general features of the attribution standard. It then explores in detail the three criteria upon which attribution under Article 5 is based: delegation of governmental authority, empowerment by the internal law of the state, and action pursuant to a governmental mandate. The article seeks to develop an analytical framework within which to assess the scope of the attribution standard, concluding that it may, in practice, provide a broader basis of attribution than that indicated by the strict wording of Article 5.”
Read Maddocks’ full Article here.
Personal Jurisdiction: The Transnational Difference – Austen Parrish
“This Article engages with some of the key debates that have emerged among international law and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court’s docket. It makes three principal contributions. First, it explains how the recent decisions involving personal jurisdiction should be understood within, and partly limited to, their international contexts. Second, it details how international law imposes modest constraints on national court adjudicatory authority, and pushes back on recent attempts to reimagine public international law. Third, it describes an interplay between unilateral domestic extraterritorial regulation and international lawmaking, and aligns personal jurisdiction with the closely-related area of legislative jurisdiction. Constraints on broad jurisdictional assertions in transnational disputes may be one of the predicates necessary to spur U.S. multilateral engagement.”
Read Parrish’s full Article here.
The Constitutional Protection of Freedom of Religion in Russia and Hungary: A Comparative Analysis – Marilyn Guirguis
“This Note analyzes why Russian minority religions fared better in pushing against some of the restrictive measures the government advanced while those in Hungary failed. Russia and Hungary are both post- communist countries that have emerged from previously-repressive regimes with aspirations to become democratic countries, built on tolerance of differing values and a commitment to furthering human dignity. However, both countries use several tactics that oppress religious minorities. Some of the major ways majorities represented in government have been able to assert their own principles have been through the promotion of state interests at the cost of the individual. National security, and the health and well-being of others, are commonly asserted as valid reasons to suppress minority dissent.”
Read Guirguis’ full Note here.