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 26 | Number 2 | April 2017

Chinese Patent Law’s Statutory Damages Provision: The One Size That Fits None

Xiaowu Li & Don Wang
26 WASH. INT'L L.J. 209 (2017)
May 2017

The concept of statutory damages was first introduced into the Chinese patent regime in 2001 as a “last-resort” approach for damages calculation in infringement cases. Curiously, in the following 15 years, this last-resort approach became so popular among the courts that it is essentially the exclusive approach today. This Article examines the legal and policy implications of the current statutory damages scheme, and concludes that the existence of statutory damages is fundamentally detrimental to the validity of the Chinese patent system. Therefore, we argue that the statutory damages provision in Article 65 of the Patent Law of China should be eliminated. This Article further provides a comparative law perspective, drawing lessons from U.S. copyright law, U.S. patent law, and German patent law, to illustrate that China’s patent system would be better off without this statutory damages provision.

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Entrenching the Minority: The Constitutional Court in Thailand’s Political Conflict

Khemthong Tonakulrungruang
26 WASH. INT'L L.J. 247 (2017)
May 2017

Since 2006, Thailand has witnessed an unprecedented surge of judicial activism from the Constitutional Court to scrutinize elected politicians in the name of the rule of law. Democracy, argued Constitutional Court judges, could only be consolidated if the rule of law was maintained. But examination of several high-profile constitutional cases suggested that the Constitutional Court was actually working on behalf of the powerful elite minority to obstruct the democratic process under the pretext of protecting the rule of law. This antagonistic position brewed resentment and violence which jeopardized the Constitutional Court’s legitimacy as a neutral political arbiter. The 2014 coup d’etat showed that once again the country has failed to consolidate its democratization. This failure suggests that the Constitutional Court’s notion of the rule of law might not be compatible with the notion of electoral democracy.

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Pushing the Envelope: Application of Guiding Cases in Chinese Courts and Development of Case Law in China

Mo Zhang
26. WASH. INT’L. L. J. 269 (2017)
May 2017

The modern Chinese legal system has at least two notable features. First, bearing the civil law tradition, Chinese courts do not follow precedent. Second, under the people’s congress system, the Chinese judiciary has no power to make law. In recent years, however, the Supreme People's Court of China began building a guiding case system in the Chinese judiciary. The application of guiding cases implicates (a) an expansion of the power of the Chinese judiciary into the field of law-making; and (b) development of case law in China.

Chinese guiding cases differ from the common law cases in many aspects, and their legal role and status is still to be addressed and tested. The key issue is whether the compulsory reference imposed by the Supreme People's Court on the application of guiding cases would make the guiding cases a source of law. Behind the issue is the question of whether the Chinese judiciary should have any role to play in the law-making arena. No matter what the answer may be, the establishment of the guiding case system will inevitably result in changes for the Chinese legal landscape.

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No Port, No Passport: Why Submerged States Can Have No Nationals

Johnathon Simon & Heather Alexander
26 WASH. INT’L L.J. 307 (2017)
April 2017

Territorial loss owing to sea level rise presents novel challenges to the international legal order. Nowhere is this clearer than in the case of small island states like the Maldives, Tuvalu and Kiribati, whose very existence is in jeopardy. In our recent article, Sinking Into Statelessness, we argue that the principle of presumption of continuity of state existence does not ensure that sinking states shall, or may, retain their legal statehood, because that principle cannot overrule the fact that territoriality is a constitutive feature of legal statehood. Here, we argue that even if, contra our previous conclusion, submerged states retain their legal statehood, territory is nevertheless necessary in order for a state to confer nationality in the sense of the 1954 Convention Relating to the Status of Stateless Persons; that is, for a state to consider someone a national under the operation of its law. In consequence, even granting that a submerged state could exist and have members, its members would need nationality in another state in order to avoid de jure statelessness. To establish this claim, we will argue that for a state to consider someone a national under the operation of its law, that state must be capable of complying with the duty to readmit nationals when requested to do so by another state, which requires habitable territory.

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Customary Ivory Law: Inefficient Problem Solving with Customary International Law

Michael Graves
26 WASH. INT’L L.J. 325 (2017)
April 2017

Abstract: For one of only two principal sources of international law, customary international law is surprisingly opaque. Scholars disagree not only on whether a particular norm has become a customary law, but also on what constitutes persuasive evidence of that fact. One popular theory advanced by Anthony D’Amato and others—that treaties can provide sufficient evidence of customary international law—attempts to clarify and simplify the process. It does so at the expense of accuracy. This error is particularly clear in the context of environmental law. Customary international law, such scholars argue, protects a wide variety of creatures and natural resources. As evidence, they cite to treaties on conservation, noting their widespread international support. For the African elephant, this is, at best, a legal fiction. Sobering reports of elephant population declines throughout most of Africa indicate an uncertain future for the species. This article argues that these scholarly assertions are erroneously made based on a theory of customary law that gives excessive weight to treaties as evidence of custom. The purpose of this article is to examine the conceptual and evidentiary problems inherent in relying on treaties to articulate customary international law. Primarily, it analyzes the habit of tribunals and scholars using treaties this way to artificially assert, and thereby create, customary international law to address global social problems. This phenomenon is especially clear in the context of the ivory trade. Using China as a case study, this article concludes that asserting customary international law where there is little evidence for it may ultimately hinder solutions to the very problems the advocates seek to resolve.

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Can the Japanese Supreme Court Overcome the Political Question Hurdle?

Po Liang Chen & Jordan T. Wada
26 WASH. INT’L L.J. 349 (2017)
April 2017

 In 1947, a new Japanese Constitution (“Kenpō”) was born and its pacifist ideal was embodied in Article 9. Meanwhile, judicial review was transplanted, mainly from the United States (“U.S.”), into Japan. While the U.S. Supreme Court has narrowed its political question doctrine since Baker v. Carr in 1962, Japan developed its constitutional avoidance and political question doctrine in part to avoid deciding the merits of Article 9 disputes, including the legitimacy of Japan’s Self-Defense Force, the Security Treaty between the US and Japan, and the stationing of U.S. Forces in Japan. The Japanese Supreme Court (“SCJ”) adopted a deferential temperament to maintain stability with the political branches, thereby abdicating an effective means of settling critical disputes by routinely allowing executive interpretations of the Kenpō to stand unchallenged. Under the auspices of Prime Minister Shinzo Abe, an executive reinterpretation of Article 9 in July of 2014 sparked intense debate over the Kenpō’s fundamental principle of pacifism; it nearly divided Japan. In order to stimulate constitutional checks and balances, SCJ should seize the role of authoritative interpreter of the Kenpō. An important step in this direction can be accomplished by reexamining the unique text and history of the Kenpō and the development of political question doctrine in Japan. As the U.S. acted as Japan’s transplant donor of judicial review, the development of the U.S. political question doctrine could offer a model for SCJ to reconsider the weight of textual and historical considerations. We recommend that SCJ restate and clarify its political question doctrine using the development of the U.S. political question doctrine as a model. Further, agreeing to hear an Article 9 case will allow SCJ to play an active role in furtherance of a constructive dialogue between the government and the people to form a new consensus on its national security strategies and move Japan forward.

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A Quest to Increase Women in Corporate Board Leadership: Comparing the Law in Norway and the U.S. 

Angela R. Foster
26 WASH. INT’L L.J. 381 (2017)
April 2017

Gender imbalance is a persistent problem on corporate boards the world over. Women are severely underrepresented in these important leadership positions within public companies. Norway took a big swing at inequality in 2003 by enacting a quota law requiring at least 40% representation of each gender on boards of directors of public companies. Norway now has the highest percentage of women serving on corporate boards. Through Securities and Exchange Commission regulations, the United States enacted a diversity disclosure rule that requires public companies to divulge their policy regarding gender in board hiring. The disclosure rule has proven ineffectual, and at the current rate of change, it will take 70 years for women to gain equal seats on U.S. corporate boards. Many stereotypes about women in the workplace persist, making it difficult for women to climb to the top of the corporate hierarchy. A closer look at the barriers to women’s success reveals that advocates of gender equality on corporate boards may need to change tactics in the U.S. and advocate for stronger government intervention in the private sphere in order to achieve change more quickly. Short of imposing a quota, which is highly unlikely in the United States, what can advocates learn from the advancements made in Norway?

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