The Washington International Law Journal publishes global perspectives on international legal issues while fostering the development of student analysis. The Journal’s professional articles and student comments cover diverse legal and geographical terrain and offer novel approaches to international, foreign, and comparative law. To further cross-cultural dialogue on foreign law, the Journal publishes English-language translations of Chinese, Korean, and Japanese legal materials.

Volume 27 | Number 2 | April 2018

ASEAN Investments Treaties, RCEP, and CPTPP: Regional Strategies, Norms, Institutions, and Politics

Diane A. Desierto
27 WASH. INT’L L.J. 349
April 2018

Abstract: Southeast Asia attracts foreign investment more rapidly than elsewhere in the world, including China. Southeast Asia’s evolving regional strategies, norms, institutions, and politics for investment governance should be of considerable interest to global decision-makers. This Article compares evolving investment treaty strategies and norms between the regional investment treaties of: (1) the Association of Southeast Asian Nations (“ASEAN”); (2) the latest draft investment chapter of the China-led sixteen-member Regional Comprehensive Economic Partnership (“RCEP”), to which all ten ASEAN Member States are also negotiating parties; and (3) some features of the current draft investment chapter for the Trans-Pacific Partnership (now renamed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”)).

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Whose Fault in an Aging World?: Comparing Dementia-Related Tort Liability in Common Law and Civil Law Jurisdictions

Trevor Ryan & Wendy Bonthon
27 WASH.INT’L L.J. 407
April 2018

Abstract: Age-related dementias have been identified as a global health priority, based on their rapidly rising incidence and associated economic burden. Behaviors symptomatic of dementias, such as wandering, potentially expose sufferers to increased likelihood of experiencing harm or causing harms to others. Yet what jurisprudence and case law exists on the issue of tortious liability of people with dementia is largely derived from the broader principles governing tortious liability of those with mental illness or otherwise impaired capacity. Those principles are themselves problematic, reflecting absolutist models of either personal liability (common law jurisdictions) or statutory personal immunity accompanied by imposition of delegated liability on caregivers (civil law jurisdictions), rather than a more nuanced model capable of reflecting the fluctuating nature of capacity in people with dementia, and the variety of models of care arrangements. Similarly, those principles fail to adequately address tensions between paternalism and individual autonomy. This Article provides a comparison of the various models of personal or caregiver liability found in a number of key jurisdictions (primarily Japan and the United States) and offers some suggestions for jurisdictions considering legal reform in this increasingly critical area. 

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Transitional Justice Legislation in Taiwan Before and During the Tsai Administration 

Ernest Caldwell
27 WASH. INT’L L.J. 449
April 2018

Abstract: The Republic of China on Taiwan (“Taiwan”) successfully and peacefully transitioned from authoritarian, one-party rule into a constitutional democracy in the early 1990s. However, due to the island’s complex international status and fraught relationship with China, as well as a rather conservative government approach to post-authoritarian discourse on past human rights violations, there has been relatively little scholarly interest in Anglophone academia on Taiwanese transitional justice issues. This Article seeks to deepen our understanding of East Asian transitional justice by examining the influence of post-democratization local conditions on the scope and language of transitional justice legislation during two phases of Taiwan’s legislative history. The first period runs from the initial steps towards democratization in 1987 until 2016. During this time the Chinese Nationalist Party, which governed the former authoritarian regime, continued to dominate the Taiwanese government, and, in particular, retained its majority in the Legislative Yuan. The second period runs from January 2016 to the present. During this second period, the Democratic Progressive Party managed to secure both the presidency and a legislative majority.

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Acts of Financial Distress in the EU: Is the EU to Blame?

Venetia Argyropoulou
27 WASH. INT’L L.J. 485
April 2018

Abstract: This Article seeks to determine if there is a legal basis for European Union (“EU”) Institutions to be held accountable for measures taken by an EU Member State in cases of financial distress. The Article begins by exploring the concept of sovereignty and then evaluates the limitations placed on state sovereignty by participation in the EU. Next, it explores the definitions of economic coercion and countermeasures and considers whether the actions taken by EU institutions in the context of the Cyprus banking haircut would satisfy either of these definitions. Lastly, this Article studies whether EU law can provide a basis for liability of EU institutions in case of acts adopted by such institutions to address a financial crisis in a manner that targets the rights of investors and, in particular, in the Cyprus Banking Haircut.

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Paris When it Sizzles: What Agenda 21 Can Tell Us About the Likely Success of the Paris Agreement

Jennifer Devlin Calkins
27 WASH. INT'L L.J. 523
April 2018

Abstract: The Paris Agreement seeks to address the problem of climate change, a pressingly urgent issue, and one that is extraordinarily difficult to tackle. A primary mitigation mechanism is the requirement that member countries report their nationally determined contributions (“NDCs”) goals and provide metrics for measuring progress in reducing greenhouse gas emissions. This is a “bottom-up” mechanism that does not bind parties to particular emissions targets, but acts to shift party behavior by making progress transparent. To predict the potential effectiveness of this mechanism, this Comment investigates the effectiveness of a similar mechanism contained in Agenda 21, a plan of action for sustainable development adopted in 1992.

Agenda 21 initially appeared to be effective. Similarly, the initial reporting by countries pursuant to the Paris Agreement NDC requirement indicates that it is similarly procedurally effective. However, Agenda 21 has failed to meet its goal of solving the problems of poverty and environmental degradation. A more successful outcome for the Paris Agreement may rest on how it differs from Agenda 21, including its more legally obligatory nature, its more focused goal, and its NDC ambition “ratcheting” mechanism.

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Ineffective by Design: A Critique of Campaign Finance Law Enforcement in the United States, Australia and the United Kingdom

Kelly Ann Skahan
27 WASH. INT'L L.J. 577
April 2018

Abstract: Though ostensibly tasked with enforcing their respective nations’ campaign finance laws, the Federal Election Commission (“FEC”), Australian Electoral Commission (“AEC”), and Electoral Commission (“EC”) are woefully unable to meaningfully address the evolving nature of campaigns or enforce existing regulations in the United States, Australia, and the United Kingdom, respectively. Attempts at enforcement are cut off at the knees by political infighting, half-hearted grants of independent authority, and a lack of institutional support. Conversely, the New York City Campaign Finance Board (“CFB”) is recognized as an example of meaningful enforcement and relative political independence. By implementing changes that translate the CFB’s municipally-successful structure to federal agencies, the FEC, AEC and EC could become more effective in the enforcement of existing laws and better at adapting to the changing face of elections.

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