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Essay
23.1
Violating International Law Is Contagious
Shai Dothan
Associate Professor of International and Public Law, Jean Monnet Chair in EU Law & Politics, University of Copenhagen Faculty of Law affiliated with iCourts – the Centre of Excellence for International Courts and Study Hub for International Economic Law and Development (SHIELD). PhD, LLM, LLB, Tel Aviv University Faculty of Law.

I thank Patrick Barry and Uri Weiss for many conversations and comments. This research is funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts.

International law is a mechanism of cooperation between states: it can make states vulnerable to betrayal, but also increase their chances for successful collaboration. In other words, complying with international law is like playing cooperate in a stag hunt game. Cooperating is an efficient strategy but not a strategy that is evolutionarily stable. If an autocracy emerges and starts to violate international law, democracies will violate international law in response.

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Essay
23.1
Dark Law on the South China Sea
Stephen Cody
Assistant Professor of Law, Suffolk University Law School; PhD, J.D., University of California, Berkeley; MPhil, Cambridge University; B.A., Temple University.

The author is grateful to the Chicago Journal of International Law editors and symposium participants Karen Alter, Aslı Ü. Bâli, Shai Dothan, Aleksandra Dzięgielewska, Veronika Fikfak, Tom Ginsburg, Aziz Huq, Tokujin Matsudaira, Eric Posner, Mariana Olaizola Rosenblat, Brad Roth, and Tim Webster. I also appreciate feedback from Amanda Beck and Joshua Weishart.

Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the global entrenchment of authoritarianism. In this Essay, I argue that dark law also contributes to the construction of authoritarian international law.

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Essay
23.1
The Limits of Prodemocratic International Law in Europe
Aslı Ü. Bâli
Professor of Law, UCLA School of Law.

I would like to thank the symposium participants for their helpful comments and the editors of the journal for their excellent suggestions. I would also like to thank Mariam Abuladze for exceptional research assistance.

In this symposium contribution, I examine the impact of the relationship between the European Union (E.U.) and Turkey on that country’s record of democratic backsliding. I argue that European countries’ difficulties in managing multi-racial democracy have limited the depth and effectiveness of the E.U.’s pro-democratic commitments in its dealings with Turkey.

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Essay
23.1
The Future of Embedded International Law: Democratic and Authoritarian Trajectories
Karen J. Alter
Norman Dwight Harris Professor of International Relations, Northwestern University and Permanent Visiting Professor at iCourts, the Danish National Research Council’s Center of Excellence for international courts.

This short Essay explains why deeply embedding international law (IL) directly into domestic legal orders is seen as a helpful democratic legal strategy to make international law more effective. It also describes the logistics of embedding international law into national legal systems.

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Essay
23.1
Democracies and International Law: An Update
Tom Ginsburg
Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science

Thanks to Miriam Kohn and Thomas Weil for research assistance, and to Aleksandra Dzięgielewska for helpful comments.

This short Essay provides an update of my recently published book, Democracies and International Law, which brings together several of my academic concerns over the past two decades.

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Article
22.2
The Persistent Objector Doctrine: Identifying Contradictions
Shelly Aviv Yeini
Post-Doctoral Fellow, Hauser Global Fellows Program at NYU School of Law; Post-Doctoral Fellow, Minerva Center for the Rule of Law Under Extreme Conditions, Faculty of Law and Department of Geography and Environmental Studies, University of Haifa.

I thank Itamar Mann and Eliav Lieblich for their valuable comments. I have also benefited from comments by participants of the Young Researchers Workshop at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa.

The persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. This Article offers a novel understanding of “contradiction.”

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Article
22.2
Political Stare Decisis
Oren Tamir
Graduate Fellow & SJD Candidate, Harvard Law School.

Many thanks to Ash Ahmed, Nick Barber, Omri Ben-Zvi, Josh Braver, Elena Chachko, Lawrence David, Ros Dixon, Oran Doyle, Richard Fallon, Jon Gould, Tom Ginsburg, Daphna Gluck, Tara Leigh Grove, Vicki Jackson, Larry Lessig, Asaf Lubin, Nadiv Mordechai, Gali Racabi, Richard Re, Daphna Renan, Fred Schauer, Rafi Stern, Cass Sunstein, and Mark Tushnet for helpful comments and conversations on previous drafts. Deep thanks as well to the devoted editorial team of the Chicago Journal of International Law for their tireless work on this piece. The usual disclaimers apply.

This Article fills a gap in existing scholarship by offering a comprehensive explanatory and functional theory of the role of the past as a constraint in domestic and global politics, or, in short, a theory of political stare decisis.

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Comment
22.2
Searching for Justice for Australia’s Stolen Generations
Keila Mayberry
J.D. Candidate, 2022, The University of Chicago Law School.

The author wishes to thank the entire Chicago Journal of International Law editorial staff for their extensive review, and Professor Tom Ginsburg for his advisement.

This Comment argues that a claim brought on behalf of Australia's "Stolen Generations" at the International Court of Justice could correct the Court’s jurisprudential errors in its application of the Genocide Convention and enable the Stolen Generations to achieve justice.

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Article
22.2
The Global Rise of International Commercial Courts: Typology and Power Dynamics
Weixia Gu
Weixia Gu is Associate Professor at the Faculty of Law, University of Hong Kong.

Please send direct correspondence to Weixia Gu, Faculty of Law, University of Hong Kong, Pokfulam, Hong Kong; Email: guweixia@hku.hk. Research leading to this paper is funded by the Hong Kong Government Research Grants Council General Research Fund (HKU 17606021; 17609419; 17602218) and University of Hong Kong Outstanding Young Researcher Award Scheme. The paper benefited from presentation and discussion at Oxford Law Faculty, Cambridge Law Faculty, Harvard Law School, Yale Law School, NYU Law School, University of Lausanne, Renmin University, Fudan University, IV Oxford Symposium on Comparative International Commercial Arbitration, 2019 American Society of International Law Annual Meeting, 2020 Oxford-HILJ-YJIL “China and International Legal Ordering” Virtual Symposium and 2021 BIICL “Taking Stock: International Commercial Courts in Europe and Asia” Conference. We thank Matthew Erie and Jarrod Wong for constructive comments on earlier drafts.

Jacky Tam
Jacky Tam is Trainee Solicitor at Baker McKenzie’s Hong Kong Office.

This Article offers a unique typological framework to study the evolution of International Commercial Courts (ICCs). It argues that the most apt characterization of the relevant power dynamics is “co-opetition,” a combination of “cooperation/collaboration/complementarity” and “competition.”

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Article
22.2
Siege Starvation: A War Crime of Societal Torture
Tom Dannenbaum

The author is grateful for conversations on this and earlier working papers from which it was derived at the Hauser Colloquium at New York University School of Law, the Junior International Law Scholars Association Workshop at Cornell Law School, and the ICC Scholars Forum, hosted virtually by Leiden University. Thanks also to the editors of the Chicago Journal of International Law for their outstanding work. All errors are the responsibility of the author.

Drawing on the moral philosophy of torture, this Article argues that siege starvation is a war crime of societal torture. Recognizing this redefines the meaning and place of the crime in the framework of international criminal law.

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Comment
22.2
UNHRC Resolution 26/9: Is a New International “Red Card” Enough to Keep FIFA and Others Accountable?
Griffin A. Clark
J.D. Candidate 2022, The University of Chicago Law School.

I would like to thank CJIL for the opportunity to publish this Comment. I would also like to thank my faculty advisor, Professor Chilton, for his ideas and insights during the development of this Comment.

Using U.N. Human Rights Council Resolution 26/9 and its proposed legally binding instrument as a new avenue for transnational corporate accountability, this Comment examines FIFA’s liability for human rights violations in Qatar connected to the World Cup.

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Comment
22.1
Linguistic Minorities with Disabilities and the Right to Native Language Instruction
Carol Zhang
J.D. Candidate, 2022, at The University of Chicago Law School.

Thank you to Professor Emily Buss for her guidance and insights, the CJIL team for their excellent feedback, and Kathleen Boundy and the Center for Law and Education for inspiring this topic. Special thanks to my friends and family for their endless support and encouragement.

This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction.