UC Irvine Journal of International, Transnational, and Comparative Law

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This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The “color of COVID” results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups.

Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the WHO resist state responsibility or accountability for COVID.

This Article argues that since, under international law, states owe a duty to provide remedies to persons within their jurisdiction who are denied fundamental rights because of de facto or de jure discrimination, there will be a substantial number of COVID-related claims presented in national courts and international venues, such as human rights courts and treaty bodies. States will face a choice between allowing judges to respond to actions or anticipating the most serious of them by establishing reparations mechanisms or commissions to address the color of COVID. As students of transitional justice can attest, there are advantages to doing both: allowing tort-like claims to proceed in judicial fora while establishing, at the national and possibly sub-national levels, mechanisms to enable contextually sensitive responses—from government apologies to forms of recompense. Intrastate reparations are more politically viable than interstate claims seeking to establish blame for the spread of COVID. National efforts to provide a measure of restorative justice to those harmed within each country by discriminatory practices are justified morally, legally, and from a utilitarian perspective. Bringing out the facts of the color of COVID and making states accountable may deter discriminatory actions (and inactions) that have furthered COVID-19 and its variants. Enabling accountability for the color of COVID can help mitigate the impact of future pandemics. Reparations would also advance the idea that all persons, irrespective of color of skin, have a basic right to life and health.

This Article assesses the extent of inequality and marginalization in the making of international law. It examines whether there is equal contribution, and equal opportunity for contribution, in the making of international law by and for all States. In particular, the Article ponders whether the Global South is marginalized in law-making processes, or, put another way, whether the Global North is privileged. The Article evaluates whether there is equitable representation in international law-making bodies, and it focuses on the two most prominent ones, namely the International Court of Justice and the International Law Commission. The assessment addresses both the formal requirements of representation and the actual practices within both bodies.

This article applies discursive analysis of the UN Human Rights Council debate after the killing of George Floyd in June 2020. It assesses state members’ speeches delivered during the UN session convened in June 2020, as well as the ensuing landmark report by the UN Human Commissioner for Human Rights on police violence and racism released one year later, in June 2021. Through its analysis of the current global debate on police violence against black people at the United Nations, it shows how racialized violence is and is not considered in international law. The underlying task is to unmask whiteness-coping mechanisms used in international law when issues of racism arise, as well as to light fire on the disruptive nature of black movements’ engagement with the UN to dismantle racism in a structural manner. This article is particularly interested in international law as legal imaginations shared, colliding, and contested in multiple fora, among them the United Nations. Using this case study of the debate on racism and police violence at the United Nations in 2020, the article examines how different views of racism and international human rights law come into play on the global stage of the United Nations. It thereby highlights what those differing views reveal about international law in relation to racism.

On July 21, 2021, a resolution was introduced in the Chicago City Council calling on the US government to ratify the new United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW) and describing the struggle to abolish nuclear weapons as a matter of racial justice. Unlike prior nuclear disarmament treaties, the TPNW bans all nuclear weapons outright and reframes nuclear disarmament as a matter of decolonial struggle. The coming into force of the TPNW treaty raises questions about the relationship between this new treaty regime and the traditional framework of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

In this Article, we argue for understanding the novelty of the TPNW through the prism of intergenerational conflict and justice. The Nuclear Ban Treaty comes into effect at a moment when the generation that personally experienced nuclear warfare is quickly passing, and it speaks to a new generation of activists and diplomats who place less hope in back-room negotiations among great powers. More broadly, we argue for centering intergenerational justice in international law. Although the question of what each generation owes the next is not a standard frame of reference in international law, as we suggest in Part II, upon closer analysis, questions of intergenerational justice pervade may international legal problems, from climate change to human rights to the law of war.

To address the challenge of intergenerational justice demands that international lawyers develop more complex and subtle approaches to intergenerational conflict and collaboration. In Part III, we borrow insights from a global anti-nuclear art mural project with roots in Chicago's community-based struggles for racial justice in which political action is framed as a problem of intergenerational collaboration.

Ultimately, we argue in Part IV that the contested relationship between the NPT and the TPNW frameworks can be an opportunity for intergenerational collaboration of its own. Progress on the elimination of nuclear weapons now requires working across generational divides in international law and developing methodologies and commitments to build solidarity across generations of experts and activists.

The redress and reparation efforts for the “comfort women” of the Japanese military during the Pacific War have been hampered in their home countries by the state immunity doctrine. In this article, we first evaluate the current state of jurisprudence on state immunity doctrine, especially as expressed in the seminal 2012 ICJ decision in Ferrini. We find there that the concept of “armed forces” has been commandeered to bolster the strict application of state immunity and evaluate such usage of the categories such as “armed conflicts” and “armed forces.” We note that full legal analysis under the state immunity doctrine, namely, that of the putative exception of “territorial torts,” was cut short by the court upon their findings on the elements of “armed conflicts” and “armed forces.” For subject matter relevance, the less well-known 2007 Hwang Geum Joo decision of a US court that applied similar reasoning to the “comfort women” in interpreting the American codification of the state immunity doctrine, is also evaluated against the pre-existing U.S. jurisprudence on “commercial activities.” We find that the Ferrini decision and the current jurisprudence of customary international law as informed by the relevant American precedent carefully circumscribes itself and thereby leaves intact the potential availability of two actus jure gestionis exceptions to state immunity—"private civil or commercial act”—for the “comfort women”: “territorial torts” and “commercial activity.”

The Japanese military, as the end-customer of “comfort services,” solicited, procured, and paid for ‘comfort services’ to reduce the cost of the war. These private legal acts incentivized the private contractors into recruiting Korean women, already impoverished under colonial racism, by deceit, and into treating the Korean women thus recruited harshly and inhumanely during the “comfort services.” Throughout the relevant periods, despite the Japanese military’s acts of “armed forces during an armed conflict” or any other sovereign act or governing act with respect to “comfort women,” it is undeniable that it set the specifications of the services to be delivered, exercising its prerogative as the end-customer and primary contractor. It is in this role as a joint tortfeasor in the “territorial tort” of fraudulent human trafficking and as a purchaser in the “commercial activity” of purchasing “comfort services” that the modern Japanese government should be held accountable in a Korean court of law in line with the exceptions to state immunity doctrine.

Combating climate change is one of the most important areas for international cooperation and negotiation. The urgency of the climate crisis requires countries, especially large carbon emitters such as China, to be more active in taking climate actions. This Note mainly focuses on the two most important trade-related climate policies for reducing carbon emissions: border carbon adjustment and low-carbon subsidies. Both policies have or would likely raise legal challenges under the existing WTO legal framework. This Note introduces the two policies, analyzes why they are disputed among WTO Members, discusses China’s viewpoints, and suggests the possible actions that China can take in helping to mitigate trade policy conflicts over carbon emissions under the current WTO trade system.