Volume 14, Issue 2 (Fall 2009)

Available online at HeinOnline, Westlaw or LexisNexis.

Responsibility Links, Fair Labeling, and Proportionality in China: Comparing China’s Criminal Law Theory and Doctrine by Dennis J. Baker & Lucy X. Zhao. 14 UCLA J. Int’l L. Foreign Aff. 275 (2009).

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especially where individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three Lecturer, Faculty of Law, King’s College, University of London; M.Phil., Ph.D., Cambridge University. We would like to thank Jane Henderson for providing detailed comments on an earlier draft of this paper and for her stimulating and helpful discussion on this topic. I also thank Alan Norrie for his very helpful discussion concerning some of the core conceptual issues. Lecturer, School of East Asian Studies, University of Sheffield; M.Phil., Ph.D., Cambridge University. 275 276 14 UCLA J. INT’L L. & FOREIGN AFF. 275 (2009) core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether its approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in Chinese and Western punishment. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.

Anthropology as Critical Legal Intervention? Instrumentalization, Co-Construction, and Critical Reformulation in the Relationship between Anthropology and International Law by Eddie Bruce-Jones. 14 UCLA J. Int’l L. Foreign Aff. 331 (2009).

This article creates a coherent way to imagine the relationship between law and anthropology. It describes an analytical separation between three overlapping and interacting branches, aiming to present the relationship in a way that is instructive and programmatic. This article first highlights relevant methods and epistemologies of law and anthropology. Then it explores three central branches of anthropological-legal interaction, framed respectively as instrumentalization, co-construction, and critical reformulation. Ultimately, the article posits that the tensions between anthropology and law, including the (mis)appropriation of anthropology by law, can be theorized and repositioned as a means of more critically understanding how power and culturally-informed perspectives coordinate the production of legal knowledge.

Contractor Tort Immunity Under the Law of Military Occupation by John F. O’Connor. 14 UCLA J. Int’l L. Foreign Aff. 367 (2009).

The United States’ invasion and subsequent military occupation of Afghanistan and Iraq have led to a number of tort suits filed against civilian contractors accompanying United States military forces on these operations. Most of the court opinions and scholarly commentary that address these tort suits have focused on applying ordinary, peacetime tort defenses to the plaintiffs’ claims. There are two viable immunity defenses that are war-specific and available to contractors in battlefield tort suits. The first such immunity, recognized initially in Coleman v. Tennessee, 97 U.S. 509 (1878), provides an immunity from the laws of an invaded or occupied territory for all persons who are not regular inhabitants of the territory. The second immunity, initially recognized in Dow v. Johnson, 100 U.S. 158 (1879), provides an immunity from tort claims based on any acts done in the prosecution of a public war.

International Law and the Expulsion of Individuals with More Than One Nationality by William Thomas Worster. 14 UCLA J. Int’l L. Foreign Aff. 423 (2009).

International law does not prohibit a state from denationalizing and expelling one of its own nationals when the individual has an additional nationality. This legal reality allows the possibility of statelessness for individuals and, therefore, creates human rights concerns. This article examines the nature and consequences of a state’s ability to denationalize and expel its own nationals who possess multiple nationalities. It begins with an analysis of both the sovereignty considerations that underpin a state’s right to expel and the substantive right of a national to remain in his own country, concluding that dual nationals do not have a human right against expulsion. The article then considers the methods and effects of expulsion of individuals with multiple nationalities, first in conjunction with denationalization, then expulsion without any coinciding denationalization. In conclusion, the article contends that there exists a state right to expel a dual national and that exercise of that right does not, in itself violate international law, although the exercise of the right may be limited by other concerns.

COMMENT: Exclusion of Evidence for Failure to Advise Suspects of the Right to Counsel and to Silence before Custodial Police Interrogation: Comparing the United States and Canadian Doctrines and the Reasons for Their Difference in Scope by Kelly Perigoe. 14 UCLA J. Int’l Foreign Aff. 503 (2009).

This comment compares the exclusion of evidence following the violation of a suspect’s right to be advised of the rights to counsel and to remain silent in the United States and Canada, governed by Miranda in the United States and Charter Sections 10(b) and 7 in Canada. Identifying the key scenarios in which the US doctrine results in less exclusion than the Canadian doctrine, this comment goes on to explore how the Canadian doctrine, based on Miranda, has diverged from the very doctrine after which it was modeled. In the United States, as the Court incrementally de-constitutionalized Miranda, it also shifted its analysis of Miranda exclusion from the fairness rationale that justifies the Fifth Amendment to the twin rationales of deterrence and trustworthiness. This shift to justifying exclusion on deterrence and trustworthiness grounds allowed the Court to decline to exclude evidence in more instances-such as evidence used for impeachment purposes and derivative evidence. In Canada, on the other hand, both the right to be advised and the corresponding exclusionary rule are expressly found in the Charter, and the exclusionary doctrine places great emphasis on a rationale of trial fairness (and in fact explicitly rejects the rationale of deterrence). Under this framework, the Canadian Supreme Court has found that both impeachment evidence and derivative evidence must be excluded. Thus, it is not simply the status of the exclusionary rule as either a judicially created prophylactic rule or a core constitutional protection, but also the rationale linked to that status, that explains the respective scopes of the exclusionary doctrines in Canada and the United States.

COMMENT: International Governance of Domestic National Security Measures: The Forgotten Role of the World Trade Organization by Carla L. Reyes. 14 UCLA J. Int’l L. Foreign Aff. 531 (2009).

The current perception of the United Nations as the only institution charged with governing international security issues was neither intended nor required. Although the historical development of the World Trade Organization (WTO) caused a significant shift in its governance .focus, the WTO is uniquely situated to remedy several of the governance failures suffered by the United Nations and to act as an effective governor of national security in the economic sphere. Need for such an alternative governance mechanism is especially acute when nation-states refuse to recognize the authority of the United Nations over a security dispute or when a veto-holding Security Council member is the subject of international concern. I first examine the historical development of the international security governance system and uncover the substantive authority of the WTO to govern the economic aspects of national security issues. I then use the parallel proceedings brought by Nicaragua before the International Court of Justice and the General Agreement on Tariffs and Trade dispute settlement system to dispel common objections to WTO governance in the national security arena. Finally, I demonstrate how U.S. imposition of unilateral economic sanctions on Iran presents a current opportunity for WTO governance in the global war on terror.

COMMENT: An Evolutionary Theory of Universal Jurisdiction by Joshua Ruby. 14 UCLA J. Int’l L. Foreign Aff. 567 (2009).

This article seeks to harmonize the legitimacy of the principle of universal jurisdiction with its seemingly contradictory historical record. Different stages of universal jurisdiction exist, each marked by different justifications for exercises of nontraditional jurisdiction. Internationally cognizable offenses evolve through these stages. First, states defend exercises of universal jurisdiction based on combining, or pooling, their sovereign jurisdiction. Then jurisdiction is based on a mixed theory relying on both pooled jurisdiction and the severity of the crime. Finally, for a select set of offenses, states base jurisdiction purely on the character of the crime. Understanding universal jurisdiction as an evolution not only saves the legitimacy of universal jurisdiction from the seemingly contradictory historical record, but it also helps explain the selection of offenses and the complementarity principle in the Rome Statute, which established the International Criminal Court. One can understand the Rome Statute as an attempt both to expand the set of international crimes subject to universal jurisdiction based on the intrinsic character of the crime and to allow states to expand and solidify the principle of universal jurisdiction.

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