About
Established in 1996, JILFA was among the first student-produced publications that bridged the historical divide between international law and foreign relations. Its subject matter, therefore, is intentionally broad, linking such disciplines as international law, politics, policy, and economics.
Volume 25, Issue 2, 2021
UCLA Journal of International Law and Foreign Affairs
Front Matter
Table of Contents
Preface
Articles
Historicizing Anthropomorphic Rationalizations as System Justification Practices in International Law: A Critical Account of Vitoria’s Jus Gentium
International law and scholarship tend to ascribe certain perceived human attributes to States and to call upon those attributes as a basis for rationalizing how States conduct themselves in the international system and—particularly—to justify international norms and distributive outcomes. Specifically, like humans, States are presumed to be (1) choice-driven, (2) rational, and (3) predominantly autonomous. These, and other anthropomorphic attributions, pervade social science and, as Professor Jean d’Aspremont confirms, are particularly commonplace in international legal scholarship.[1]
However, this anthropomorphic conception of the State actor is empirically unsubstantiated and is an incomplete model for understanding why and how States do what they do and for justifying the international legal order. Because much of the international legal order relies on these empirically unsubstantiated ideas, a theoretical discrepancy exists between what international lawyers believe is happening and the actual reality of global law and governance.
These attributions are congenital. They played a key role in how modern international law originated, which explains why they are still operative in how contemporary international law functions. To demonstrate this, I propose a historical account of one of the processes through which international law came to incorporate and depend on these attributions. I start with the explicit assertion often made by the early theorists of international law, in this instance Francisco de Vitoria, that international legal actors must—and in fact do—possess reason. I argue that because these assertions were often made in a throwaway manner, mainstream historical works in international law tend to either miss or underappreciate their significance.
I show that Vitoria’s belief that the legal actor is a rational being is not peripheral but rather central to his account of international law for three main reasons. First, Vitoria suggests that possession of reason or rationality is the sole basis of legal subjectivity in the law of nations. Relatedly, because they possess reason, international legal actors are necessarily autonomous. Second, by arguing that all legal actors are similar because they reason, Vitoria suggests that international law can properly apply to them in a fair and neutral fashion. In effect, the attribution of rationality allows Vitoria to legitimize an overarching normative framework within which relations between the legal actors may be assessed from an objective standpoint. Third—and finally—to reinforce this framework, Vitoria characterizes any opposition to the common normative framework as emanating from the actors’ self-interest or bad faith and, accordingly, as inherently inimical to the common interest of all subjects of jus gentium.Hacked and Leaked: Legal Issues Arising From the Use of Unlawfully Obtained Digital Evidence in International Criminal Cases
Digital open source investigations—the use of publicly available information on the internet for intelligence, leads, or evidence—are becoming an increasingly critical part of international criminal investigations. While the definition of open source information is simple, there are several categories of information that fall into a gray area between private and public—in particular, the growing amount of illegally hacked and leaked information on the web. Online leaks, whether the result of hacking or whistleblowing, fit the definition of open source information. Yet, there is something inherently different about information in the public domain that was not intended to be public. The dissemination of incriminating information unlawfully obtained by a third party creates a complex situation in which, on one hand, the illegal method of acquisition should not be rewarded, while at the same time, the illegal acts that are exposed in the documents should not go unpunished. The public interest can cut both ways. what are the rules and practical implications of using this information in criminal investigations or, more importantly, criminal trials? By examining specific hacks and leaks, describing their relevance to international criminal cases, and identifying the applicable evidentiary rules, this Article explores the challenges to admitting hacked and leaked digital documents into evidence.
From USHKPA to HKHRDA and HKAA: The Turnings of U.S.–China Policy and the End of Hong Kong’s Full Autonomy
This Article traces the evolution of U.S. law and policy toward Hong Kong—from the United States–Hong Kong Policy Act of 1992 (USHKPA) to the Hong Kong Human Rights and Democracy Act of 2019 (HKHRDA) and Hong Kong Autonomy Act of 2020 (HKAA). The USHKPA, enacted under the Clinton administration after the Tiananmen massacre but before the handover of Hong Kong, is a product of the United States’ China policy, based on engagement. The USHKPA represented a compromise between Congress and the executive branch and reflected the nature of soft law, implementation of which is largely dependent on Executive discretion. After three decades of a policy of engagement and more than twenty years after China’s resumption of control over Hong Kong, the United States’ China policy has gradually changed, and it saw a significant turn under the Trump administration. In the midst of U.S.–China tension and with bipartisan support from Congress, the HKHRDA and the HKAA strengthen the review, reporting, and sanctions mechanisms for human rights, democracy, and autonomy in Hong Kong. Nonetheless, the Trump administration’s decision to suspend Hong Kong’s preferential treatment under U.S. law, due to the erosion of the high degree of autonomy guaranteed by the Sino-British Joint Declaration and the Hong Kong Basic Law, poses questions about its legality and legitimacy under public international law and World Trade Organization (WTO) law.
This Article argues that U.S. sanctions against individuals and entities who undermine Hong Kong’s human rights, democracy, and autonomy can be justified based on international human rights law given the sanctions’ limited scope, special designation, effectiveness, and proportionality. We also argue that the United States’ trade-related measures can be justified under the general exception—public morals—and the national security exception in the General Agreement on Tariffs and Trade (GATT). We observe that the United States’ termination of preferential treatment for Hong Kong based on its separate customs territory status covers four dimensions: rules of origin, tariffs, export control, and currency. We argue that even though there is little guidance from GATT and WTO law, historical and comparative approaches are helpful in evaluating whether Hong Kong still can sustain its WTO membership by virtue of its separate customs territory status.
Comments
Expanding the Gender of Genocidal Sexual Violence: Towards the Inclusion of Men, Transgender Women, and People Outside the Binary
This Comment expands upon legal and academic understandings of sexual violence as an act of genocide, arguing that men, transgender women, and intersex/non-binary/third-gender individuals can also experience genocidal forms of sexual violence. I demonstrate how international law about genocidal sexual violence has almost entirely focused on the bodies and reproductive capacities of cisgender women, obscuring how and why other individuals can be targeted during episodes of genocide. I then discuss how genocidal sexual violence against different genders can be understood, challenging international criminal law practitioners to adopt a more inclusive outlook on gender and victimhood in future genocide investigations and prosecutions.