The Work of an International Lawyer

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This speech was presented by Ian Brownlie upon receiving the Wolfgang Friedmann Award for Outstanding Contributions to the Field of International Law. The speech was given at the Columbia Journal of Transnational Law Friedmann Award Dinner on February 1,...

When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas

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In both Hamdan v. Rumsfeld and Sanchez-Llamas v. Oregon, government briefs asserted that there is a “long-established presumption” that treaties do not create judicially-enforceable individual rights. In his dissent in Sanchez-Llamas, Justice Breyer challenged this claim. The debate about whether the Supreme Court should adopt such a presumption is part of a broader conflict between the “nationalist” and “transnationalist” models of treaty enforcement. The transnationalist model applies a presumption in favor of domestic judicial remedies for violations of treaty-based individual rights. In contrast, the nationalist model applies a presumption against individual remedies for treaty violations. This article analyzes the historical foundations of both models. It demonstrates that doctrines involving the domestic judicial enforcement of treaties have changed dramatically in the past thirty years. Between 1789 and 1975, there was not a single judicial decision endorsing the nationalist presumption against private enforcement of treaty rights. In contrast, there were dozens of Supreme Court decisions that applied the transnationalist presumption in favor of domestic judicial remedies. Although the nationalist presumption against individual enforcement of treaties has gained widespread acceptance in the lower courts in the past thirty years, the Supreme Court has never endorsed that presumption. The Court’s decisions in Hamdan and Sanchez-Llamas declined to endorse either the nationalist or transnationalist presumption, but the Court’s ultimate resolution of the conflict between the nationalist and transnationalist models will have significant implications for U.S. foreign relations, separation of powers, and the rule of...

Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People’s Republic of China

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The Chinese government’s rule of law campaign has created greater awareness of legal issues and generated bottom-up pressure for legal change. This dynamic was highlighted in April 2003, when Chinese media reports on the death of a young man named Sun Zhigang while in police custody sparked a public outcry. This public pressure, coupled with a groundbreaking citizen legal challenge, eventually prompted China’s State Council to dismantle a controversial form of administrative detention called “custody and repatriation.” The Sun Zhigang incident demonstrated that by leveraging a wave of media coverage and public opinion in a case of mass concern, co-opting laws and official rule of law rhetoric, formulating a technical, well-grounded legal appeal within the system, and focusing on modest legal reform goals that did not challenge fundamental state or Party interests, lawyers could successfully accelerate legal reform without triggering the type of damaging backlash directed against other, more politicized citizen actions. Although reformers failed in their secondary goal of creating a precedent for National People’s Congress annulment of an administrative regulation, their efforts had broad impacts in promoting the development of constitutionalism, generating political pressure for law enforcement reforms, creating an enhanced sense of citizen empowerment, and providing a refined model for law-based citizen rights actions. Legal activists have successfully applied similar moderate legal strategies in some subsequent cases, while more aggressive, politicized tactics have prompted negative state responses. Overall, the citizen action strategies refined in the Sun Zhigang incident have provided legal reformers with one path forward for promoting modest but meaningful legal reform in China. Recent government efforts to control the scope and potential impact of...

Reflections on US—Zeroing: A Study in Judicial Overreaching by the WTO Appellate Body

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This Essay discusses the role of the WTO Appellate Body through the lens of its decision in United States—Laws, Regulations, and Methodology for Calculating Dumping Margins. The author argues that the Appellate Body ignored textual obligations to defer to administering authorities, improperly engaged in fact-finding, and rejected a well-established doctrine of justiciability—all of which go to the heart of judicial restraint. In so doing, the Appellate Body inappropriately expanded the WTO’s authority to hear facial challenges. Ten years after the Body’s first report, we should look at the WTO mechanism for dispute resolution with some...

The Rule(s) of Trade and the Rhetos of Development: Reflections on the Functional and Aspirational Legitimacy of the WTO

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This essay critically analyzes the role of development and poverty alleviation in the legal and institutional workings of the World Trade Organization (WTO). By analogy to Joseph Weiler’s analysis of the dynamics of internal and external legitimacy in WTO dispute settlement, this essay suggests the existence of an asynchronicity in the evolution of the WTO, between the marked shift in the organizational rhetoric of “development,” and the virtual standstill in the adaptation of the WTO’s functional design to its newly trumpeted development goals. One explanation for this suspension of progressive change is an intrinsic conflict within the WTO’s legitimation needs, between the functional and aspirational dimensions of legitimacy. The rhetoric of development strays from this heritage and challenges it, to the point of depicting development as a metaright in international economic relations. The essay discusses in detail four areas in which the dissonance between function and aspiration is most acute, and in which fundamental rethinking and reform are required: (i) the unclear, changing telos of the WTO; (ii) the problem of defining development needs, interests, and policies for the purpose of implementing differential treatment; (iii) the dilemmas associated with the identification, classification, and differentiation of developing countries; and (iv) the inadequacy of reciprocity as an organizing legal principle in the development...

Enforcing International Norms in the United States After Roper v. Simmons: The Case of Juvenile Offenders Sentenced to Life Without Parole

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Dorsey & Whitney Student Writing Prize in Comparative and International Law Best Note Award Winner This Note criticizes the argument against incorporating international norms through federal common law in the context of sentencing juvenile offenders to life without parole. After discussing the relevant international norms, this Note argues that they can be enforced in U.S. courts via the Constitution. This is all the clearer given the Supreme Court’s recent pronouncement in Roper v. Simmons. In light of this conclusion, this Note contends, the argument against incorporating international norms into federal common law...

China’s Share-Structure Reform: An Opportunity to Move Beyond Practical Solutions to Practical Problems

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The “share-structure reform” currently underway in China’s stock market aims to resolve the so-called “split-equity structure,” wherein the Chinese securities regulator prohibits two-thirds of shares technically listed on the market from actually trading. This Note examines the historical roots of the split-equity structure, explains the mechanics of the share-structure reform, and assesses shareholders’ claims that the reform deprives them of their property in violation of the Chinese Constitution. It argues that Deng Xiaoping’s practical and experimental approach to economic development, which continues to shape Chinese domestic economic policy, handicaps the reform. The share-structure reform is a workable solution with short-term benefits, but it lacks the substantive legal framework necessary to instill the level of trust and certainty that is imperative to a well-functioning stock...