Showing papers in "Berkeley Journal of International Law in 2015"

Leniency in Chinese Criminal Law? Everyday Justice in Henan

Abstract: This article examines one-year of publicly available criminal judgments from one basic-level rural county court and one intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting state interests, harshly while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments.The evidence I present provides insight into the roles being played by the Chinese criminal justice system and the functions of courts in that system. This article also provides empirical evidence that contributes to debates on a range of other issues, including the relationship of formal law to community norms in Chinese criminal justice, the roles of witnesses and lawyers, the function of appellate review, and how system confronts and handles a range of high profile topics. My findings also contribute to literature on courts in authoritarian regimes and the evolution of authoritarian transparency. This article provides a base for discussing the future of empirical research on Chinese court judgments, demonstrating that there is much to learn from the vast volume of cases that have in recent years become publicly available in China.

The Merging of International Trade and Investment Law

Abstract: This Article presents an account of how and why international trade and international investment law are merging. It describes this phenomenon as resulting from the dynamics of the treaty-making process and the strategies employed by litigation parties at the time of the enforcement of treaty rules. The Article makes two separate, but interrelated claims: first, it argues that the combined use of trade and investment remedies allows litigants to go beyond seeking compliance and compensation, the two traditional types of relief available in international economic law. Like other areas of public law litigation, the strategic parallel, sequential or combined use of legal processes may be used to destabilize governments' regulatory activity, to shape the interpretation of rules outside an ordinary process, or to relitigate issues settled in one regime through the venue of another. Second, it argues that the merger at issue creates specific, yet not insurmountable, challenges for the development of international law and sketches the main legal tools available to address the most pressing matters. This analysis, based on four case studies, is a timely intervention given the current negotiations of the two most significant commercial agreements since the creation of the World Trade Organization. The Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership negotiations raise important questions about the design of international governance as well as the future of research in the field of international economic law.

“We Didn’t Want to Hear the Word ‘Calories’”: Rethinking Food Security, Food Power, and Food Sovereignty—Lessons from the Gaza Closure

Abstract: In the summer of 2007 Israel imposed a yet-to-be lifted closure on the Gaza Strip, restricting the movement of goods and people into and out of Gaza. Israel holds its closure policy to be legal under international law so long as it meets the humanitarian minimum standard and allows the entry of what is necessary for the subsistence of Gaza's population. Israel has repeatedly asserted that since there is no starvation in the Gaza Strip, there is no humanitarian crisis and no violation of international law. This stance disregards power relations and the broader contexts of the closure and its effects. Food power is exercised not only through direct control over food supply and food availability, but also by impacting people’s access to adequate food. The restrictions on the inflow of raw materials and construction materials, exports, and the movement of people have had a significant long-term effect. By crippling the Gaza economy, Israel’s closure policy has impoverished the civilian population and considerably diminished food security. Analyzing the situation through the framework of International Humanitarian and Human Rights Law, the article examines the relationship between food security, food power, and food sovereignty and the right to food. It argues that the concept of food power should be expanded to include situations like Israel’s closure on Gaza. It also puts "sovereignty" back into the concept of "food sovereignty" and refers to it as a framework that complements, rather than replaces, food security.

Searching for the Right to Truth: The Impact of International Human Rights Law on National Transitional Justice Policies

Abstract: This Article focuses on the right to truth and its interaction with the duty to bring perpetrators to justice following a period of gross violations of international human rights law and serious violations of international humanitarian law. It explores how truth-finding and criminal justice programs interact, and how States can most comprehensively satisfy their obligations with regard to the right to truth and the duty to bring perpetrators to justice, given the raft of practical limitations that a State may face in periods of political transition. The Article argues that even when a State is able to carry out prosecutions, it is likely obliged to look for additional strategies, including truth commissions, to more comprehensively fulfill its international human rights obligations. Additionally, where an exhaustive suite of prosecutions is not feasible in the short term, truth commissions and other transitional justice mechanisms can be employed to commence the fulfillment of the right to truth, though these should be implemented with a view to proceeding to thorough criminal justice processes as soon as the State’s political context permits.

State Responsibility for Bribe Solicitation and Extortion: Obligations, Obstacles, and Opportunities

Abstract: This Article explores how bribery and extortion in international business transactions and foreign direct investment may be prevented by holding States accountable under international law, improving the viability of investor-State arbitration for corruption claims, and making appropriate use of State-to-State dispute resolution mechanisms like diplomatic protection. It examines the content of States' obligations to prevent and eradicate corruption and considers the conditions and circumstances under which a State may be held responsible under international law for the solicitation and extortion of bribes from foreign investors and the denial of justice to foreign investors subjected to such corruption. It then assesses the opportunities and obstacles currently associated with invoking State responsibility through investor-State arbitration and State-to-State dispute resolution mechanisms such as diplomatic protection. Based on this analysis, it offers a series of suggested improvements that should better enable these international dispute resolution mechanisms to help prevent corruption by encouraging the disclosure of it, securing redress for foreign investors subjected to it, and holding States accountable for it.

The World Bank Group’s Human Rights Obligations Under the United Nations Guiding Principles on Business and Human Rights

Abstract: The United Nations Human Rights Council unanimously adopted the Guiding Principles on Business and Human Rights (the Guiding Principles) on June 16, 2011. The Guiding Principles set forth three general principles: (1) States have a duty to protect against human rights abuses; (2) business enterprises must respect human rights; and (3) both States and business enterprises have an obligation to establish access to effective remedy for those harmed by businesses. Although the Guiding Principles are broad, applying “to all States and to all business enterprises,” the State and business enterprise binary makes it difficult to apply to the World Bank Group, an international financial institution with characteristics of both a State and a business enterprise. As such, the World Bank Group’s human rights obligations under the Guiding Principles are unsettled. This paper argues that, despite its State-like features, the World Bank Group should be considered a business enterprise. Under the Guiding Principles, the World Bank Group is obligated to establish sufficient access to effective non-judicial remedies for those harmed by the projects that it funds. The World Bank Group currently offers two mechanisms—the Inspection Panel, covering the World Bank Group’s public sector lending, and the Compliance Advisor Ombudsman (CAO), covering its private sector lending. This paper evaluates both of these mechanisms under the effectiveness criteria established in Guiding Principle 31. It concludes that, although there are significant aspects of the mechanisms that do not meet the standards of Guiding Principle 31, these mechanisms provide access to an DOI: http://dx.doi.org/10.15779/Z38227C * J.D., University of California, Berkeley, School of Law (expected May 2016). Special thanks to Professor Jamie O’Connell and Sarah Singh, Director of Strategic Support at Accountability Counsel, for their encouragement and feedback on this Note. Published by Berkeley Law Scholarship Repository, 2015 Berkeley Journal of International Law, Vol. 33, Iss. 2 [2015], Art. 5 490 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 33:2 important, and in some instances the only, remedy to people harmed by one of the world’s largest international financial institutions.

Forced Sterilization and Mandatory Divorce: How a Majority of Council of Europe Member States’ Laws Regarding Gender Identity Violate the Internationally and Regionally Established Human Rights of Trans* People

Abstract: Government identification is a ubiquitous aspect of modern life, something most adults the world over take for granted. For many, the presence of gender markers on their official identification is something entirely unremarkable. Unfortunately for many trans* people, many countries make it extraordinarily difficult or even impossible to obtain official identification that correctly reflects their gender identity. Most countries still have no legal mechanism for trans* people to change their legal gender categorization. Others allow trans* people to update their official legal gender, but only after proving that they have undergone certain surgeries, up to and including irreversible sterilization, whether they want to or not. Still others only allow trans* people to update their legal gender after they have shown that they have dissolved their marriages, regardless whether they and their partner wish to remain married. As a result, many trans* people the world over may be literally risking their lives when they seek to do something as mundane as ordering a beer.This Note examines why compulsory sterilization and mandatory divorce laws violate international and regional human rights norms, and proposes ways in which the European Court of Human Rights and individual COE Member States can redress the situation to protect one of Europe’s most vulnerable populations. It also examines these failures as bellwethers of an ongoing tension within the international human rights community: whether the specificity of human rights treaties is overall a positive or a negative development, and whether the current international legal regime is equipped to protect the rights of sexual minorities generally. This Note proposes that a novel LGBTQ-specific human rights treaty should ultimately be proposed and promulgated to ensure that these minorities are protected.

Energy Investment Disputes in Latin America: The Pursuit of Stability

Abstract: Sovereign ownership of subsoil resources in Latin America raises important tensions. The State, as owner, may grant property or participation rights to private investors in the energy sector, but it may also revoke them. As contracting party, it may enter into investment contracts (directly or through a State-owned entity), but it may also breach them. And as sovereign, it may offer legal and fiscal stability, but it may also use its regulatory power to alter the economic balance of the contract or even destroy its value. In light of these tensions, the pursuit of stability in energy investments in Latin America presents important challenges. This Article provides an overview of the rise and resolution of energy disputes in Latin America. Following an Introduction, Part I sets out a brief historical overview of energy investment disputes in the region. Next, Part II addresses key substantive issues that have been the subject of litigation in connection with energy investments. Part III discusses whether there is a backlash against international arbitration by host States in the region, followed by an overview in Part IV of some techniques to infuse stability into the energy investment contract.

Review of The UNCITRAL Arbitration Rules—A Commentary (Second Edition) by David D. Caron and Lee M. Caplan

Abstract: A key driver to international arbitration’s success and popularity has been the inherent flexibility and freedom afforded to the parties on how their dispute is to be administered. On this basis, the choice of the arbitral procedural rules to be adopted is an important decision for the parties and can have severe implications on, for instance, the constitution of the arbitral tribunal and arbitrator challenges. More importantly, the choice between ad hoc rules and institutional rules (such as the International Chamber of Commerce (ICC) Rules of Arbitration or London Court of International Arbitration (LCIA) Rules) can make a substantial difference in how organized and efficient the arbitral proceedings may be. Ad hoc arbitration is driven by the parties and not administered by an institution, thus offering greater freedom for parties to determine all aspects of the arbitration process. This has its obvious setbacks, as it will require parties to cooperate in order to lift the arbitration proceedings off the ground. Ad hoc arbitration’s primary benefit is that it enables party freedom and can be cost efficient. The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, the first version of which was issued in 1976 and the most recent in 2010, provide a truly comprehensive set of procedural rules geared towards ad hoc arbitration. And thus, at their core, the Rules respect procedural freedom by allowing parties to shape and adjust the arbitral proceedings to govern their dispute as they deem fit. David D. Caron’s1 and Lee M. Caplan’s2 The UNCITRAL Arbitration Rules—A Commentary (Second Edition) provides a substantive analysis of the