Law Commons^™

Whiteness As Contract In The Racial Superstate, Marissa Jackson Sow

UC Irvine Law Review

Despite the United Nations’ (UN) ongoing commemoration of the International Decade for People of African Descent and direct calls from UN member states for the body to confront systemic racism in the United States, the United States has with the support of its allies—successfully blocked measures beyond those which gently encourage mere aspiration to racial equity. Moreover, notwithstanding formal guarantees of equal access to justice and accountability for human rights violations, people of African descent and majority Black member states are systematically constructed out of international policymaking authority and legal protections at the UN—leaving them vulnerable to aggression, exploitation, and …

The Evolving Rule Of Law With Chinese Characteristics And Its Impacts On The International Legal Order, Ji Li

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Masthead, Mission Statement, And Table Of Contents

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

The Rule Of Law In Transnational Context: Introduction To The Symposium, Gregory Shaffer, Wayne Sandholtz

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

Why Sovereigns Are Entitled To (Horizontal) Benefits Of The International Rule Of Law, Brian Z. Tamanaha

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Rethinking Enmeshment And The Rule Of Law In Authoritarian Contexts, Dilek Kurban

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

International Organizations As Constitution-Shapers: Lawful But Sometimes Illegitimate, And Often Futile, Anne Peters

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Transnational Legal Order Through Rule Of Law? Appraising The United Nations Security Council, 1990-2022, Jeremy Farrall, Terence Halliday

UC Irvine Journal of International, Transnational, and Comparative Law

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: …

Representation, Inequality, Marginalization, And International Law-Making: The Case Of The International Court Of Justice And The International Law Commission, Dire Tladi

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Masthead, Mission Statement, And Table Of Contents

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

Colonialism, Capitalism, And Race In International Law: Introduction To Symposium Issue, Michele Goodwin, Gregory Shaffer

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

The Case For Reparations For The Color Of Covid, José E. Alvarez

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Climate Change, Wto Law, And China, Yiwen Zhang

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Theorizing Intergenerational Justice In International Law: The Case Of The Treaty On The Prohibition Of Nuclear Weapons, Hirokazu Miyazaki, Annelise Riles

UC Irvine Journal of International, Transnational, and Comparative Law

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). …

George Floyd At The Un: Whiteness, International Law, And Police Violence, Thiago Amparo, Andressa Vieira E Silva

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

State Immunity As Applied To Colonial Racism And The Japanese Military As Purchaser And Joint Tortfeasor: Case Of Korean “Comfort Women”, Kyung Sin Park

UC Irvine Journal of International, Transnational, and Comparative Law

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, …

Transnational Legal Ordering Of Data, Disinformation, Privacy, And Speech, David Kaye, Gregory C. Shaffer

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

Data As Public Goods Or Private Properties?: A Way Out Of Conflict Between Data Protection And Free Speech, Kyung Sin Park

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Misguided At Best, Malevolent At Worst: The International Impact Of United States Policy On Reproductive Rights, Lindsay Marum

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Politicizing International Human Rights: The United States’ Border Apartheid Policies And The Universality Of Human Rights, Ally Myers

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

The Limits Of International Law In Content Moderation, Evelyn Douek

UC Irvine Journal of International, Transnational, and Comparative Law

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 …

Regulating Disinformation In Europe: Implications For Speech And Privacy, Joris Van Hoboken, Ronan Ó Fathaigh

UC Irvine Journal of International, Transnational, and Comparative Law

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, …

Masthead, Mission Statement, And Table Of Contents

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

Privatized Cybersecurity Law, Ido Kilovaty

UC Irvine Law Review

Tech companies have gradually and informally assumed the role of international lawmakers on global cybersecurity issues. But while it might seem as if the international community and Internet users are the direct beneficiaries of private tech industries’ involvement in making law, there are many questions about this endeavor that require a thorough examination. The end goal and risks associated with such ventures are largely obscure and unexplored.

This Article provides an analysis of how tech companies are effectively becoming regulators on global cybersecurity, based on states’ inability to overcome geopolitical divides on how cyberspace ought to be regulated globally. This …

Masthead, Mission Statement, And Table Of Contents

UC Irvine Journal of International, Transnational, and Comparative Law

No abstract provided.

Theorizing Transnational Fiduciary Law, Seth Davis, Gregory Shaffer

UC Irvine Journal of International, Transnational, and Comparative Law

This symposium Article theorizes and assesses transnational legal ordering of fiduciary law. Fiduciary law imposes legally enforceable duties on those entrusted with discretionary authority over the interests of others. The fiduciary law of a state may apply to fiduciary relationships having a transnational (or even global) scope. Fiduciary norms themselves are transnational to the extent that they settle as governing legal norms in ways that transcend and permeate state boundaries. Curiously, however, fiduciary legal theory and transnational legal theory have yet to meet. This symposium takes the first steps towards a comprehensive theory of transnational fiduciary law. To assess transnational …

Transnational Fiduciary Law, Tamar Frankel

UC Irvine Journal of International, Transnational, and Comparative Law

Fiduciary law is expanding throughout the world. Fiduciary law aims at encouraging fiduciary relationships, which are beneficial to society. Increasing globalization has increased the need for fiduciary law. Consequently, fiduciary law has spread in both common law and civil law jurisdictions, leading to a need for a unified approach, which would provide many advantages. The two systems share the same goals but achieve them through different means. International fiduciary standards and self-regulation may be helpful in promoting trust to encourage use of fiduciary services. The impact of fiduciary law is predicted to increase because of the increasing importance of trust …

Shifting Contours Of Directors’ Fiduciary Duties And Norms In Comparative Corporate Governance, Jennifer G. Hill

UC Irvine Journal of International, Transnational, and Comparative Law

Corporate law and corporate governance are often called upon to address problems in international and transnational contexts. Financial markets are global and the problems in those markets are often similar, if not identical, even though the capital market structure across jurisdictions differs significantly. The beginning of the twenty-first century was marked by a spate of international corporate scandals, and the 2007–2009 global financial crisis reflected the global interconnectedness of contemporary international capital markets.

These events highlighted the issue of accountability for wrongful conduct by company directors and officers. Modern corporate governance is highly fragmented, encompassing an array of techniques to …

Transnational Fiduciary Law In Bond Markets: A Case Study, Moritz Renner

UC Irvine Journal of International, Transnational, and Comparative Law

Centering on a case study, this Article discusses the legal aspects of “net-short debt investing” on global bond markets through the lens of transnational fiduciary law. The aim of the Article is twofold. On the one hand, it is a comparative study on the potential and limitations of fiduciary law in a “hard case.” This analysis is inductive in nature. It aims at contributing to a better understanding of fiduciary law doctrines in both common and civil law jurisdictions. On the other hand, the Article focuses on the specific challenges of fiduciary law in transnational settings. In particular, it analyses …

Transnational Fiduciary Law: Spaces And Elements, Thilo Kuntz

UC Irvine Journal of International, Transnational, and Comparative Law

In recent years, fiduciary law has increasingly moved to the center of scholarly attention in the common law world. Even a cursory review shows ample evidence of the importance of fiduciary-related norms; not only both in common law and civil law jurisdictions, but also beyond the nation state. Although civil law countries have no tradition of the trust as a legal institution, courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary”. Additionally, the trust as a legal institution is gaining ground in civil law countries, either following a national recognition of the Hague …