Online

Vol. 61

Essays


Jerome A. Cohen, Was Helping China Build Its Post-1978 Legal System a Mistake?, 61 VA. J. INT’L L. ONLINE 1 (2020).

Some thoughtful observers argue that the American policy of cooperation with post-Mao China in developing its legal system has proved a failure. They claim that our engagement set out to produce a democratic, “rule of law” China, but instead enabled a Communist dictatorship to become increasingly repressive at home and a threat to both world peace and the values we cherish. At the same time, America’s post-1978 legal cooperation with China has come under attack on the grounds that we carried it out in the wrong way–that our legal efforts in China reflected a growing and misguided faith in the export of American law. According to this view, the Law and Development movement was an erroneous, missionary-style attempt to export American law that ultimately proved futile. Indeed, post-’78 American efforts in China have been deemed Exhibit A in the indictment of the modern Law and Development movement.

This Essay evaluates these claims and rejects both in qualified fashion. Given the international situation at the time and the Cultural Revolution from which the PRC was seeking to emerge, legal cooperation with China was politically and economicallywise. It helped to produce a coherent national legal system that improved the lives of the Chinese people and their country’s relations with the world through domestic economic progress and foreign business cooperation. To be sure, it did not lead to a democratic, Western-type rule of law that protects political and civil liberties, but that was not our expectation. Those of us who actively participated in this law reform effort hoped only that respect for due process values and an independent legal profession might develop as a byproduct.

We were eager to learn what three decades of Communist experience had contributed to China’s legal system, only to find that our hosts had little good to say about their own system’s accomplishments and no interest in and little knowledge of the pre-1949 Chinese legal systems. What we did learn about early PRC largely related to criminal law and confirmed the accuracy of Western indictments of Chinese Communist injustice. Sadly, our generally successful response to PRC requests for legal cooperation has not even today diminished the abiding and prominent Chinese Communist preference to pursue regime goals via arbitrary detention rather than due process. True comparatists must acknowledge this fact.

Read Cohen’s full essay here.


Vol. 60

Essays


Joe Digirolamo & Manal Cheema, Monasky v. Taglieri: The (International) Case for a “True” Hybrid Approach, 60 VA. J. INT’L L. ONLINE 1 (2020).

“This Essay argues that U.S. courts should employ a ‘true’ hybrid approach for determining the ‘habitual residence’ of a child under the Hague Convention on the Civil Aspects of International Child Abduction. In light of the Court’s consideration of Monasky v. Taglieri, this Essay argues that the Court should not follow the Sixth Circuit’s approach in determining habitual residence. It does not, however, take a position on the question of whether an application of the ‘true’ hybrid approach to the facts of Monasky would compel a reversal of the Sixth Circuit’s finding that the habitual residence of the child was Italy. Rather, this Essay focuses solely on what test for habitual residence the Supreme Court should adopt.

To do so, this Essay first considers the three standards that circuit courts use to determine ‘habitual residence’: the shared parental intent, child-centered acclimatization, and hybrid standards. It defends the ‘true’ hybrid approach the Seventh Circuit adopts. Second, this Essay uses the judicial opinions of the European Union countries and the United Kingdom, which also adopt similar ‘true’ hybrid approaches, to bolster its claim, as the U.S. Supreme Court heavily relies on, and even defers to, foreign law when interpreting the Convention.”

Read Digirolamo & Cheema’s full Essay here.


Roncevert Ganan Almond, After the Max: Rebuilding U.S. Aviation Leadership, 59 VA. J. INT’L L. ONLINE 1 (2019).

“From the inception of powered flight to the establishment of an international aviation legal regime, the United States has served as the long-time leader of the global aviation system.  The international response to the recent crashes of Boeing 737 MAX aircraft suggests that America’s leadership is now in question.  The United States’ system of regulation is currently under international scrutiny.  The accidents in Indonesia and Ethiopia have raised difficult questions concerning the Federal Aviation Administration’s oversight practices, the role and influence of industry, and the U.S. government’s handling of accidents involving U.S.-manufactured aircraft.  The Trump administration’s political response, deregulatory agenda, and disdain for international institutions have aggravated these concerns.  

This Essay argues that the United States should approach the 737 MAX accidents as an opportunity to rebuild its leadership role by conducting a thorough and transparent investigation and reforming its regulatory oversight program.  Investigators must closely examine the FAA’s system of delegation, which may not have included adequate supervision and technical control over designated organizations such as Boeing.  According to prior investigations, at the time of the 737 MAX certification, the agency’s designee oversight was not consistent with U.S. obligations under international law and best practices in aviation safety.  More recent reviews, following the 737 MAX accidents, support this conclusion.  Areas for reform include: (1) increasing supervision and control of appointed personnel at designated organizations; (2) improving the staffing methodology and training program for FAA aircraft engineers overseeing designees; (3) developing more effective guidance material and job aids to enable oversight of delegated functions; (4) escalating surveillance and enforcement in relation to designated organizations; and (5) providing the adequate political will and resources for the FAA to strengthen its oversight of industry designees.  After the 737 MAX accident, through a comprehensive investigation and robust reform, the United States can lift the baseline for aviation regulation and governance worldwide.”

Read Almond’s full Essay here.


59 Va. J. Int’l L. Online (2018)

Byron Crowe, Moseneke’s Impact on Land Restitution

“In May 2016, after over fourteen years on the bench, Deputy Chief Justice Dikgang Moseneke retired from his position on South Africa’s highest court…this review gives an overview of My Own Liberator while adding color to Moseneke’s work at the Court, particularly as it related to land restitution. Part II provides a summary of My Own Liberator, and Part III discusses the background of land restitution in South Africa and Moseneke’s impact on it. Part IV concludes by giving a brief assessment of Moseneke’s memoir and how it relates to his land restitution jurisprudence.”

58 Va. J. Int’l L. Online (2017)

René Reyes, May Britain Trump America When It Comes to Democracy?

“[F]rom its very beginnings as a nation, America has emphasized the contrasts between its approach to government and the example set by its British predecessor…So began America’s proud history of democratic exceptionalism—at least according to the traditional narrative.  But does the traditional narrative obscure more than it reveals?  Just how democratic is America relative to Britain as a matter of historical constitutional structure and contemporary political reality?  This Essay explores those questions through the lens of national elections in the United States and the United Kingdom in 2016 and 2017.”