Law Commons^™

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 …

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 …

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 …

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 …

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 …

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 …

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). …

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.

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 …

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 …

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 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 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 …

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 …

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

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 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.

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 …

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 …

Democracy And Statehood, Veronika Fikfak

Chicago Journal of International Law

This Essay addresses the relationship between democracy and statehood. The two concepts have been linked since the 1990s, when new entities claiming statehood were expected to have constituted themselves on a democratic basis and to have put in place democratic government structures to be recognized by the international community. Yet, as Professor Tom Ginsburg’s book Democracies and International Law reveals, the rise of autocracies and a general backlash against democracy in the last three decades have led to changes in countries’ behavior. This Essay argues that today, the requirement of democratic process and institutions for international recognition is less stringent. …

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. …

Dark Law On The South China Sea, Stephen Cody

Chicago Journal of International Law

In Democracies and International Law, Tom Ginsburg warns of an emerging post-liberal order influenced by powerful authoritarian regimes and new illiberal laws that repurpose global rights, undermine international courts, and expand executive power. Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the …

A Mimicry Of International Law Compliance: How The Abusive Interpretation Of International Norms Serves Poland’S Illiberal Regime, Aleksandra Dzięgielewska

Chicago Journal of International Law

In recent years, the instrumental use of international norms to entrench abusive rule has been a strategy increasingly utilized by democratically regressing European states. This pattern is evident in Poland in particular, where captured democratic institutions have attempted to legitimize unconstitutional reforms of the justice system by asserting their consistency with international law. To provide an insight into this illiberal strategy, this Essay uses the concept of mimicry as a framework to study recent judgments by the Polish Constitutional Tribunal. This Essay argues that the Polish Constitutional Tribunal feigns legal compliance by abusively interpreting well-established concepts of international law. The …

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 …

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 …

Tianxia, Or Another Grossraum? U.S.–China Competition And Paradigm Change In The International Legal Order, Tokujin Matsudaira

Chicago Journal of International Law

In this Essay, I try to provide some clarification on the concept of Tianxia from the perspectives of both classical Chinese philosophy and constitutional theory, which Tom Ginsburg nominated as the source of authoritarian international law. My observation is that a paradigm shift is occurring in the international legal order. Tianxia designates the ideal relationships between states in the Chinese classics. And in the new paradigm, Tianxia is expected to integrate the international society. In that sense, I take Tianxia as a regime-neutral ideotype between democratic/Western and authoritarian/non-Western legal order. However, Chinese engagement with international law has shown a tendency …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Chicago Journal of International Law

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or antidemocratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Democratization’S Discontents: Rediscovering The Virtues Of The Non-Intervention Norm, Brad R. Roth

Chicago Journal of International Law

Post-Cold War triumphalism prompted efforts to transform international law into a tool of democratization, forsaking the international legal order’s former neutrality with respect to the foundations of political legitimacy within states. Yet after three decades, the sources of political legitimacy remain “incorrigibly plural,” and efforts to ascertain “the will of the people” remain beset by indeterminacy. It is time to rediscover international law’s role as a framework of accommodation among bearers of conflicting interests and values, with consequent limits on pro-democratic intervention in the internal affairs of states.

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 …

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 …