Law Commons^™

Vol. 45 Masthead

University of Pennsylvania Journal of International Law

No abstract provided.

On The Exhaustion Of Local Remedies: Reconciling Sovereignty And Justice Before The European Court Of Human Rights, Alara Hanci

University of Pennsylvania Journal of International Law

Europe has a rule of law crisis. In the past decade, Turkey, Poland, and Hungary have undermined their democratic societies and compromised the independence of their institutions by affording unprecedented strength to their executive branch and imposing severe restrictions on the public sphere. As their illiberal policies spread, so does the frequency with which individuals adversely affected by these policies seek justice before the European Court of Human Rights. In these cases, Article 35(1) of the European Convention on Human Rights requires that they first exhaust the local remedies available in their national legal system.

Article 35(1) reflects the role …

Enforcing Corporate Purpose: Comparative Approaches, Alan K. Koh

University of Pennsylvania Journal of International Law

Business leaders seem to be embracing a new paradigm where the purpose of for-profit corporations is to profit but lawfully, ethically, sustainably, and in the interests of non-shareholder stakeholders. Skeptical of this Damascene conversion to stakeholderism, some corporate law scholars question how directors might be held accountable for falling short of their commitment to some corporate purpose. One suggestion raised is to concretize corporate purpose as a legally binding director’s duty to the company. As legal enforcement plays an essential role in compliance with law, the critical question is: How might a corporate purpose duty be effectively enforced? This Article …

Age-Appropriate Design Code Mandates, Stacy-Ann Elvy

University of Pennsylvania Journal of International Law

Fueled by the Internet of Things and various other technological developments, information about children’s daily activities and social interactions are progressively migrating to the digital sphere. In response to the rapid datafication of children and in accordance with the United Kingdom’s Data Protection Act of 2018, the Information Commissioner’s Office issued the Age-Appropriate Design Code (“U.K. Design Code”), which became enforceable in September 2021. Approximately one year later in September 2022, California enacted the California Age-Appropriate Design Code Act (“California Design Act”). The California Design Act is modeled after the U.K. Design Code. This Article is one of the first …

Volume 45, Issue 3 Masthead

University of Pennsylvania Journal of International Law

No abstract provided.

Self-Executing International Agreements And Private Rights Of Action: Revisiting The 4th Restatement Of Foreign Relations Law In The Context Of International Trade And Investment Agreements, Matthew P. Schaefer

University of Pennsylvania Journal of International Law

Judicial enforcement of U.S. international agreements has long puzzled courts and scholars. By building upon the Supreme Court’s 2008 Medellin opinion, the 4th Restatement of Foreign Relations Law’s Sections 310 and 311 adopted in 2018 make a significant advance in further distinguishing and clarifying how to determine whether a treaty is self-executing, whether it creates a private right of action, and the ramifications for judicial enforcement of those determinations. However, an examination of modern major international trade and investment agreements reveals that there are additional refinements and more to say on the topic than covered by the 4th Restatement.

First, …

Reassessing The Rule Of Law Legacy Of The Khmer Rouge Tribunal, Randle C. Defalco

University of Pennsylvania Journal of International Law

The focal point of transitional justice efforts in Cambodia have been recently-completed criminal prosecutions at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Like other international criminal justice institutions, the ECCC has been framed as not only a criminal court, but also as an institution capable of helping achieve various transitional justice goals such as improving the rule of law and respect for human rights domestically in Cambodia. This Article identifies troubling connections between the ECCC experience and the Cambodian government’s increasing use of rule by law tactics in recent years. The Article identifies two related ways in which …

Superpower Legal Rivalry And The Global Compliance Dilemma, Ji Li

University of Pennsylvania Journal of International Law

The intensifying rivalry between the United States and the People’s Republic of China has spawned a proliferation of contradictory laws and regulations, plunging transnational actors into a vexing compliance dilemma—conformity with U.S. law and its necessitation of contravening Chinese law, and vice versa. This Article illuminates this superpower legal rivalry and how multinational corporations (“MNCs”), as prime beneficiaries of post-Cold War economic globalization, navigate this fractured, intricate legal terrain when compelled to take sides amid the great power competition. It begins by providing the first comprehensive exposition of the major competing legal mandates imposed by the U.S. and Chinese governments …

Regulating The Data Market: The Material Scope Of American Consumer Data Privacy Law, Bryce Clayton Newell, Nadezhda Purtova, Young Eun Moon, Hugh J. Paterson Iii

University of Pennsylvania Journal of International Law

This Article compares the material scope of several comprehensive consumer data privacy (or data protection) laws enacted recently in the United States, both with each other and with the European Union’s General Data Protection Regulation (“GDPR”). Our comparative analysis covers five broad state consumer data privacy laws enacted and in effect as of the end of 2023, specifically those adopted in California, Virginia, Colorado, Utah, and Connecticut. We contrast these against each other and the GDPR. We compare how each of these laws define and scope their subject matter (e.g., what constitutes “personal data”), how they define data subjects, what …

Upholding Community Interests With Absolute Obligations: A Comparison Of The Convention On Biological Diversity And Human Rights Treaties, Paul-Angelo Dell'isola

University of Pennsylvania Journal of International Law

International law traditionally did not concern itself with States’ treatment of individuals, flora, or fauna subject to their jurisdictions. Contemporary international law does. International law recognizes the protection of human rights and the biosphere as community interests, interests that transcend States’ interests and demand international regulation. Yet, the treaty regimes that secure the protection of human rights and the biosphere operate in diametrically opposed ways. Human rights regimes rely on international institutions to define objective communitarian norms for States to abide by, whereas the Convention on Biological Diversity regime relies on private markets to internalize the cost of development and …

Defrosting Regulatory Chill, Guillermo J. Garcia Sanchez

University of Pennsylvania Journal of International Law

In Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of …

"Confucius" And America's Dangerous Myths About Chinese Law, Daniel Butler Friedman

University of Pennsylvania Journal of International Law

American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this Article will …

Sanctions, Nukes And Juche: Franchising In North Korea, Robert W. Emerson, Jason R. Parnell

University of Pennsylvania Journal of International Law

No abstract provided.

Getting Involved In The Technology Sector: The Role Of Sovereign Wealth Funds And Their Challenges To International Economic Governance, Mengjing Kong

University of Pennsylvania Journal of International Law

No abstract provided.

Climate Neutrality And Sustainability In International Trade, Rafael Leal-Arcas, Luis Ulloa Martinez, Victory Abang, Krishma Kapur, Saffron Greenwood, Konstantinos Chatzopoulos, Archana Nair, Lisa Schoettmer

University of Pennsylvania Journal of International Law

No abstract provided.

Legal Gender Recognition In Nepal And Comparative Context, Holning Lau, Mara Malagodi

University of Pennsylvania Journal of International Law

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” as opposed to medical or other criteria. At the time, no other national apex court or national government had so clearly prioritized self-determination as the guiding principle for resolving matters concerning gender identity. The decision in Pant, however, focused on people of “third gender,” in other words people who identify as neither male nor female. Now, the Supreme Court of Nepal is considering the case of a …

Economic Inequality In The Age Of Human Rights, Daniel Benoliel

University of Pennsylvania Journal of International Law

The monstrous pendulum of inequality in the twenty-first century swings sideways amid welfare economics and egalitarianism. Horizontal inequalities embodied by pro-poor policy on grounds such as gender, race, and disability, have long been core international human rights concerns. Yet, gross inequalities in economic status, nationally and globally, are still poorly conceptualized by legal scholars, policymakers, and practitioners.

In search of a policy lever, this article argues that as far as economic theory goes, neither theoretical nor empirical economic research adequately correlates economic inequalities and growth. That is, beyond horizontal inequalities concerning the extreme poor. As economic research remains inept in …

Trademark Restrictions As Instruments Of Public Health Retrenchment, Patricia L. Judd

University of Pennsylvania Journal of International Law

No abstract provided.

Post-Pandemic Constitutionalism: Covid-19 As A Game-Changer For “Common Principles”?, Arianna Vedaschi, Chiara Graziani

University of Pennsylvania Journal of International Law

No abstract provided.

International Tax Reform: Who Gets A Seat At The Table?, Assaf Harpaz

University of Pennsylvania Journal of International Law

No abstract provided.

The International Norm Against Unjust Enrichment And State Enrichment Through The Harmful Conduct Of Private Parties, Ariel Zemach

University of Pennsylvania Journal of International Law

States are often enriched by the flow to their coffers of wealth accrued to private actors through internationally harmful conduct such as overfishing, acts causing transboundary air or marine pollution, cyber attacks, and international corruption. A portion of the wealth acquired by private actors through such conduct is often passed on to the State through its tax system. This article argues that this form of income to the State triggers the application of the international norm against unjust enrichment. Under the international law of unjust enrichment, such income could give rise to a duty of restitution owed by the enriched …

Relational Human Rights Responsibility, Joyce De Coninck

University of Pennsylvania Journal of International Law

When a private corporation cooperates with States as well as international organizations, and conduct stemming from this cooperation results in international human rights violations, who can be held legally responsible?

This Article dissects systemic deficiencies in the traditionally state-centric human rights regime and challenges its inadequacies when dealing with contemporary forms of transnational cooperative governance. Transnational cooperative governance refers to modes of cooperation in which States, and different non- State actors work together in addressing transnational concerns that cannot be adequately regulated by any one of these actors alone.

Using border management cooperation between HawkEye 360, the European Union, and …

Navigating A Human Rights Roadblock: Making The Case For The Women's Equality Act, Mostafa El-Harazi

University of Pennsylvania Journal of International Law

The fight to protect women’s rights is critical now more than ever. The World Bank has noted that women throughout the world “have only three quarters of the legal rights afforded to men.”1 On the domestic front in the United States, the battleground remains fraught with blows to the women’s rights movement, especially on the heels of the COVID-19 pandemic and the rollback of reproductive rights. Statements made by the Biden Administration in support of global women’s rights, for example, have been met with inadequate action on the legislative front; the most pertinent standstill has come from the fight over …

From Global Databases To Global Norms? The Case Of Cultural Property Law, Amnon Lehavi

University of Pennsylvania Journal of International Law

No abstract provided.

Peaceful Purposes Reservations In The Law Of The Sea Convention And The Regulation Of Military Exercises Or Maneuvers In The Exclusive Economic Zone, Henrique Marcos, Eduardo Cavalcanti De Mello Filho

University of Pennsylvania Journal of International Law

No abstract provided.

War, Shelly Aviv Yeini

University of Pennsylvania Journal of International Law

No abstract provided.

Legal Systems Inside Out: American Legal Exceptionalism And China’S Dream Of Legal Cosmopolitanism, Matthew S. Erie

University of Pennsylvania Journal of International Law

No abstract provided.

The Shift In Power Distribution And Its Influence On The Law Of The Sea, Youngmin Seo

University of Pennsylvania Journal of International Law

Power and its distribution have always been the central themes of international law, yet international lawyers have paid limited attention to the correlation between power shifts and legal change. Notably, international law effectively operates when balance of power is sustained. With this qualification, this paper examines the relationship of international law with the change in power distribution, arguing that international law should proactively attend to power in order to contribute to the peaceful reconfiguration of the international system. Furthermore, this paper explores the mechanism of power shift being transmitted to law shift and specifically adduces the process and effectiveness of …

Examining The Inadequacy Of The Gatt's Rules-Exceptions Paradigm In The Fight Against Climate Change: The Case For A Wto Climate Waiver, Sarah Ahmad

University of Pennsylvania Journal of International Law

With the gradual deterioration of climate change, the World Trade Organization (“WTO”) faces a dilemma: how much leeway can the institution give its members to pursue trade-restrictive climate action while safeguarding the strength and integrity of the international trading system? The nexus between trade and climate change has become increasingly recognized, with the first-ever “trade day” to be held at this year’s COP28. This linkage gives rise to the question of how the General Agreement on Trade and Tariffs (“GATT”), laying the legal foundations for the WTO, accommodates members’ mitigatory climate action. In this regard, the GATT strictly separates the …

Exploiting Seabed Law, Stephen Cody, Jeffrey Feldmann

University of Pennsylvania Journal of International Law

Private companies and sovereign States have begun mining the deep sea for polymetallic nodules that contain precious minerals, including cobalt, nickel, copper, and magnesium. In 2021, the small island nation of Nauru triggered a procedural “two-year rule” that requires the International Seabed Authority (ISA) to finalize regulations for deep sea mining (DSM) or consider the provisional approval of commercial exploitation applications. This two-year deadline passed in July 2023 without any resolution. ISA Members States continue to debate a precautionary moratorium on deep sea mining operations in light of inadequate scientific and environmental information about deep sea ecosystems. Meanwhile, advocates argue …