Law Commons^™

Cooperative Federalism And Patent Legislation: A Study Comparing China And The United States, Taorui Guan

Chicago Journal of International Law

How should patent legislative power be allocated between central and local governments in order to construct a patent system conducive innovation? A comparative analysis of the models of the U.S. and China sheds light on this question. The early American states established their patent systems before the formation of the federal system, but the U.S. Constitution arrogated patent legislative power to the federal government, ending the era of decentralized patent systems. This centralized structure ensures uniformity in rules but might hinder the system's adaptability and ability to experiment. In contrast, as China's patent system evolved, its patent legislative power spread …

One Click From Conflict: Some Legal Considerations Related To Technology Companies Providing Digital Services In Situations Of Armed Conflict, Jonathan Horowitz

Chicago Journal of International Law

Private technology companies (tech companies) are increasingly providing their digital goods and services to clients living and working in situations of armed conflict. Tech companies may own, operate, or maintain significant portions of the digital infrastructure that allow day-to-day essentials—such as water, medical care, and electricity—to reach civilians living in places affected by armed conflict. They may own communications platforms that people use to call emergency services. They may own social media outlets that organizations rely on to inform communities in need about access to humanitarian services or that families use to maintain contact with each other. Those fighting today’s …

Brexit Backslide: How The United Kingdom’S Break From The European Union Could Erode Female Labor Rights, Katherine Ryan

Chicago Journal of International Law

Britain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain …

Enforceability Of Choice Of Court Clauses In Transnational Agreements: The 2005 Hague Convention, Its Implementation In Contracting States, And The U.S. Approach, M. Veronica Saladino

Chicago Journal of International Law

Parties involved in transnational business naturally expose themselves to peculiar international risks, including the possibility of having a foreign court resolve their future disputes. To reduce uncertainty, transnational contracts often contain a so-called “choice of court” (or “choice of forum”) clause to dictate where future disputes should be resolved.

Chosen courts, however, do not always enforce such clauses. Indeed, absent a convention or a treaty, the enforcement of a choice of court clause is purely a matter of national law and, in the case of federal systems like the United States, even of sub-national domestic law. To guarantee predictability, several …

Cocoa Crisis: Cartelizing West African Cocoa In Response To The Persistent Use Of Child Labor, Matthew Trevisani

Chicago Journal of International Law

The lack of resources that afflicts Ghanian and Ivorian enforcement of child labor prohibitions has allowed for the continued use of child labor in the cocoa industry. The current enforcement bodies not only suffer from serious coordination problems, but also fall victim to the harsh reality of cocoa farming, which pays pitiful daily wages to farmers. Child labor serves as a cheap, and perhaps even cost-free, option that allows farmers to maximize their profits. Many cocoa plantations are family-run, and thus the inclusion of children in the workforce is often a natural step, even where educational opportunities are available. To …

International Administrative Tribunals And Cross-Fertilization: Evidence Of A Nascent Common Jurisprudence?, Jason Morgan-Foster

Chicago Journal of International Law

The present work concerns International Administrative Tribunals (IATs), the dispute-resolution bodies between staff members and the administration of international organizations, existing at the cross-roads of international law, institutional law, and administrative law. It argues that, contrary to popular belief, the some twenty-five different IATs currently in existence are no longer functioning individually but rather citing to each other with increasing frequency and, in so doing, developing a common jurisprudence of international administrative law.

Over fifty years ago, when only a handful of IATs existed, M.B. Akehurst, a commentator in the field, made the observation that “[i]nternational administrative tribunals behave as …

It’S Raining Rockets: Heightening State Liability For Space Pollution, Sraavya Poonuganti

Chicago Journal of International Law

The uptick in outer space exploration activity by spacefaring nations has resulted in the increased proliferation of space debris orbiting Earth and reentering its atmosphere. The current liability regime, which was enacted as a result of the U.S.–Soviet Union space race in the 1960s and ’70s, is ill-equipped to mitigate and deter such proliferation. Without proactive measures, the space debris buildup could escalate into the Kessler Syndrome, a proposed scenario in which space exploration, and its corresponding benefits, may be rendered infeasible due to the extreme risk of high-impact space object collisions. This Comment first analyzes existing proposals for amending …

Applying Derivative United Nations Immunity To Humanitarian Ngos, Tori Keller

Chicago Journal of International Law

United Nations (U.N.) privileges and immunities, enshrined in the Convention on Privileges and Immunities, protect U.N. personnel from legal proceedings and facilitate U.N. missions in volatile contexts. Today, non-governmental organizations (NGOs) are essential providers of emergency humanitarian assistance in some of the most dangerous states. Even though some NGOs work under U.N. funding agreements, they lack the protective immunities of the U.N. This Comment assesses the bases for U.N. immunity and the similar concept of derivative sovereign immunity, whereby sovereign governments extend their immunity to quasigovernment entities and private contractors. It argues that derivative immunity from states is based on …

Discursive Constitutionalism, Ngoc Son Bui

Chicago Journal of International Law

“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive …

Hiding In Plain Sight: An Ilo Convention On Labor Standards In Global Supply Chains, James J. Brudney

Chicago Journal of International Law

This Article proposes a solution to the primary challenge currently confronting governments, employers, and workers under international labor law: how to promote and protect decent labor conditions in global supply chains (GSCs).

The Article begins by summarizing why existing public law and private law approaches have failed to meet this challenge over several decades. It describes the shortcomings of law and practice in developing countries as well as the weakness of corporate social responsibility (CSR), including the most ambitious version of CSR, the U.N. Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws …

Accounting For The Selfish State: Human Rights, Reproductive Equality, And Global Regulation Of Gestational Surrogacy, Claudia Flores

Chicago Journal of International Law

Gestational surrogacy is a relatively new method of procreation made possible by advances in assisted reproductive technology (ART). In gestational surrogacy, a woman (gestational carrier) gestates a fetus that is often biologically unrelated to her on behalf of a third party. While this form of procreation has often been celebrated for allowing infertile and fertility-challenged persons to parent biological offspring, it has also prompted a series of complex human rights-related debates. Inconsistent and extreme state responses to gestational surrogacy have led to myriad tragedies: states have arrested gestational carriers, forced carriers to raise children born through the process, denied individuals …

The Digital Services Act And The Eu As The Global Regulator Of The Internet, Ioanna Tourkochoriti

Chicago Journal of International Law

This Essay discusses the Digital Services Act (DSA), the new regulation enacted by the EU to combat hate speech and misinformation online, focusing on the major challenges its application will entail. However sophisticated the DSA might be, major technological challenges to detecting hate speech and misinformation online necessitate further research in implementing the DSA. This Essay also discusses potential conflicts with U.S. law that may arise in the application of the DSA. The gap in regulating the platforms in the U.S. has meant that the platforms adapt to the most stringent standards of regulation existing elsewhere. In 2016, the EU …

The Future Of International Law Freedom Of Journalism: A Transitional Justice Framework, Edward L. Carter

Chicago Journal of International Law

The overwhelming majority of digital and physical attacks on journalists are done with impunity. This results in lower-quality journalism, less scrutiny of government, and less healthy societies and democracies. The international human rights law concept of transitional justice could bolster collective will and inform legal mechanisms to combat such impunity. Judges and investigators in several recent cases of attacks on journalists have invoked transitional justice concepts, including truth-telling, criminal investigations and prosecutions, reparations, and institutional reforms to guarantee non-recurrence. These mechanisms should be fully implemented to protect journalism at local, national, and international levels.

International Law, Constitutions, And Electoral Content Moderation: Overcoming Supranational Failures Through Domestic Solutions, Emilio Peluso Neder Meyer, Fabrício Bertini Pasquot Polido

Chicago Journal of International Law

This Essay presents a normative structure for advocating for international soft law standards that can help domestic jurisdictions provide content moderation for election misinformation. Relying on a comparison between the cases of Brazil and the U.S. (both facing recent democratic erosion), this Essay shows how Brazilian courts responded to challenges to democracy and how, in the U.S., content moderation generally depends on private actors. The theoretical analysis presented indicates that transnational and constitutional approaches are required both in the face of the de-territorial characteristics of social media disinformation and also as a prerequisite to conceiving a legitimate approach to private …

Propaganda For War & International Human Rights Standards, Evelyn Aswad

Chicago Journal of International Law

Shortly after Russia’s illegal invasion of Ukraine in February 2022, the European Union (EU) began suspending Russian state-sponsored media outlets from broadcasting within the EU because they were spreading propaganda for war. The EU also required social media companies to remove user speech containing the banned broadcasts and prohibited search engines from displaying content from those outlets in search results. The EU’s General Court upheld the outlets’ suspension as consistent with both European human rights norms and the United Nations International Covenant on Civil and Political Rights (ICCPR), which contains a mandatory prohibition on propaganda for war in Article 20(1). …

Democracy, Social Media, And Freedom Of Expression: Hate, Lies, And The Search For The Possible Truth, Luís Roberto Barrosoa, Luna Van Brussel Barroso

Chicago Journal of International Law

This Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances …

The Right To Be Forgotten: Google Spain As A Benchmark For Free Speech Versus Privacy?, Kyu Ho Youm, Ahran Park

Chicago Journal of International Law

Since the Court of Justice of the European Union ruled in Google Spain in 2014, the global legal discourse on the “right to be forgotten” (RTBF) has accelerated the RTBF’s establishment as a right to informational privacy. But international courts have varied in their interpretations and applications of the RTBF, with some embracing it and others being wary of balancing the right with freedom of expression. While de-indexing search engine results was the primary method of facilitating the RTBF in Google Spain, this method has not necessarily informed many courts’ RTBF decisions. Instead, international and foreign courts are increasingly finding …

The Honeypot Stings Back: Entrapment In The Age Of Cybercrime And A Proposed Pathway Forward, Renée N. Girard

Chicago Journal of International Law

Cybercrime’s transnational nature has rendered conventional methods of domestic policing ineffective. The international community must cooperate to combat cross-border cybercriminals. Law enforcement efforts to respond to the threat through cyber sting operations call into question the degree to which individuals are protected by the entrapment defense. There is disagreement in the international community about the validity of the defense. The lack of consensus threatens effective law enforcement cooperation in responding to cybercrime, posing a global security risk. Furthermore, if countries with dissimilar entrapment rights cooperate to share data and carry out cyber stings, there is a heightened risk of the …

International Law And The Right To Global Internet Access: Exploring Internet Access As A Human Right Through The Lens Of Iran’S Women-Life-Freedom Movement, Pegah Banihashemi

Chicago Journal of International Law

The speed of digital transformation creates major challenges for understanding and protecting digital technology-based human rights. While the internet may once have been a nice-to-have amenity, as societies become increasingly dependent on digital infrastructure, it has become a prerequisite to access fundamental human rights. Because the protection of internet access as a human right is lacking, individuals remain vulnerable to abuses, particularly by autocratic leaders.

This Essay uses the still-unfolding Iranian Women-Life-Freedom Movement to examine the consequences of internet deprivation. The Iranian regime’s brutal treatment of its citizens sparked widespread protests which were largely coordinated through social media, highlighting the …

The Digital Services Act And The Brussels Effect On Platform Content Moderation, Dawn Carla Nunziato

Chicago Journal of International Law

The EU’s latest regulation of social media platforms—the Digital Services Act (DSA)—will create tension and conflict with the U.S. speech regime applicable to social media platforms. The DSA, like prior EU regulations of social media platforms, will further instantiate the Brussels Effect, whereby EU regulators wield powerful influence on how social media platforms moderate content on the global scale. This is because the DSA’s regulatory regime (with its huge penalties for noncompliance) will incentivize the platforms to skew their global content moderation policies toward the EU’s instead of the U.S.’s balance of speech harms versus benefits. The Act’s incentives for …

The Recent Free Expression Jurisprudence Of The Working Group On Arbitrary Detention, Arthur Traldi

Chicago Journal of International Law

The Working Group on Arbitrary Detention is one of the lesser-known United Nations Special Procedures. While its name does not indicate a focus on freedom of expression, it has defined “arbitrary” detention to encompass detention based on conduct protected under the free expression provisions of Article 19 of the International Covenant on Civil and Political Rights (for States Parties) and the corresponding text of the Universal Declaration of Human Rights. As such, the WGAD can serve as a critical forum for protecting free expression—particularly for individuals whose free expression rights may be violated by states not parties to the ICCPR …

Cracks In The Sandbox: Mobilizing Existing International Legal Tools To Fill Gaps In Sand Mining Regulations, Warren E. Yu

Chicago Journal of International Law

Sand sustains the foundations of modern economies, but almost nothing exists in the way of global sand regulation and governance. Despite the documented risks posed by rampant, unregulated extraction, a global governance regime is unlikely to emerge any time soon. This Comment argues that possible governance solutions will need to come from what we currently have in the legal toolbox. In other words, existing frameworks, principles, and lessons from case law must be drawn upon and refitted to tackle some of the most salient issues caused by sand mining. This Comment aims to illustrate that even a highly fractured legal …

The Limits Of Prodemocratic International Law In Europe, Aslı Ü. Bâli

Chicago Journal of International Law

Tom Ginsburg’s Democracies and International Law explores the ways in which regional human rights regimes have been designed to promote and protect democracy and the degree of their success in an age of democratic backsliding. In this symposium contribution, I examine the impact of the relationship between the European Union (E.U.) and Turkey on that country’s record of democratic backsliding. I argue that European countries’ difficulties in managing multi-racial democracy have limited the depth and effectiveness of the E.U.’s pro-democratic commitments in its dealings with Turkey.

The Future Of Embedded International Law: Democratic And Authoritarian Trajectories, Karen J. Alter

Chicago Journal of International Law

This short Essay explains why deeply embedding international law (IL) directly into domestic legal orders is seen as a helpful democratic legal strategy to make international law more effective. It also describes the logistics of embedding international law into national legal systems. The goal is to then query whether and how authoritarian regimes dis-embed or work around this embedded IL. The analysis raises a fundamental question about how time is important for any conversation about embedded or entrenched international or authoritarian law. The embedded IL strategy is a long-game strategy, and as such it can ultimately outlive periods of authoritarian …

The Role Of Transnational Civil Society In Shaping International Values, Policies, And Law, Mariana Olaizola Rosenblat

Chicago Journal of International Law

This Essay suggests that predictions about the character of international law in the context of rising authoritarianism may be nuanced by paying closer attention to the influence of transnational civil society (TCS) on global affairs and normative development. While acknowledging that pro-liberal civil society has faced escalating threats from authoritarian governments in recent years, the Essay highlights the resilience, adaptability, and creativity of TCS, which finds ways to remain active and harness sources of strength despite those threats. However, TCS is not always pro-liberal, and there is evidence of strong anti-liberal civil society influence as well. Whether or not authoritarian …

Violating International Law Is Contagious, Shai Dothan

Chicago Journal of International Law

Democracies have a stronger incentive to comply with international law than autocracies, but they will not comply when faced with violations by other states. International law is a mechanism of cooperation between states: it can make states vulnerable to betrayal, but also increase their chances for successful collaboration. In other words, complying with international law is like playing cooperate in a stag hunt game. Cooperating is an efficient strategy but not a strategy that is evolutionarily stable. If an autocracy emerges and starts to violate international law, democracies will violate international law in response. This makes violating international law contagious. …

International Institutions And Platform-Mediated Misinformation, Aziz Z. Huq

Chicago Journal of International Law

The Essay is part of a Symposium on Tom Ginsburg’s insightful book Democracies and International Law. It explores one particular kind of interaction between democratic nation states and international instruments and institutions: how international law and institutions either mitigate or exacerbate harms to democracy from the diffusion of misinformation and hate speech on social-media platforms. I identify three distinct pathways not covered by Ginsburg: (a) international law as an off-the-rack legal regime for content-moderation by such platforms; (b) international contouring of feasible domestic regulation; and (c) ex ante and ex post international regulation of platform-mediated misinformation. Reflection upon these pathways …

Clearview Ai, Tiktok, And The Collection Of Facial Images In International Law, Miriam Kohn

Chicago Journal of International Law

Private companies’ collection of facial images is on the rise globally, which has major implications for both economic development and privacy laws. This Comment uses the facial recognition technology company Clearview AI and the video sharing app TikTok as case studies to examine the problems raised by these practices. After summarizing the relevant legal regimes created by the United Nations (U.N.) and the European Union (E.U.), it applies the E.U. privacy regime to TikTok’s most recent Privacy Policy. The Comment concludes by proposing updates to the E.U. and U.N. privacy regimes to more effectively regulate TikTok’s data collection and analogous …

Wipo’S Proposed Treatment Of Sacred Traditional Cultural Expressions As A Distinct Form Of Intellectual Property, Alberto Vargas

Chicago Journal of International Law

For the past twenty years, the United Nations’ World Intellectual Property Organization (WIPO) has been working on what could be a major shift in international intellectual property law. WIPO’s work has uniquely focused on intellectual property protection for “traditional cultural expressions” (TCEs), a term which roughly describes a broad conception of indigenous groups’ intellectual property. Most recently, WIPO published its latest proposed Draft Provisions/Articles for the Protection of Traditional Knowledge and Traditional Cultural Expressions, and IP & Genetic Resources. These Draft Provisions propose a tiered rights system in which the owners of sacred TCEs receive more protective rights than the …

Democracies And International Law: An Update, Tom Ginsburg

Chicago Journal of International Law

Democracies have traditionally played a very important role in the construction and operation of international law, but this role has come under some pressure with the wave of democratic erosion that began around 2006. In a book published last year, the author laid out an argument that in some cases, international law could help to bolster democracy around the world, but that role was under threat from rising authoritarianism. This Essay considers relevant developments, finding cause for optimism in Latin America, some cause for pessimism in Africa, and real risks in Europe. Cyber governance is going to be a critical …