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 3 | June 2017

Electoral Choices, Ethnic Accomodations, and the Consolidation of Coalitions: Critiquing the Runoff Clause of the Afghan Constitution

Mohammed Bashir Mobasher
26 WASH. INT’L L.J. 413 (2017)
June 2017

Article sixty-one of the Afghan Constitution requires a candidate to win an absolute majority of votes to become the president. This constitutional rule comprises a runoff clause, which prescribes a second round of elections between the two front-runners should no candidate win over 50% of the votes in the first round. While this article agrees with the majority view of Afghan scholars and politicians who see the runoff clause as instrumental to developing trans-ethnic coalitions and governments, it distinguishes between the formation of alliances and their consolidation. Ultimately, this article posits that the runoff clause actually impedes the longterm success of these coalitions. The analysis reveals that the formation of cross-ethnic coalitions under the runoff clause does not necessarily eliminate the likelihood of ethnic tensions during or after elections. Having revealed some inherent flaws of the runoff clause, this article introduces some alternatives to, and adaptations of, the runoff system, which have been adopted in the constitutions, and electoral laws of other multiethnic states. It examines these alternatives in light of counterfactual simulations using the last three presidential elections. Through these observations, this article contributes to the ongoing legal and political discourse on reforming the Constitution and the electoral laws that began with the National Unity Government Agreement.

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Globalization of Constitutional Identity 

Buc Ngoc Son
26 WASH. INT’L L.J. 463 (2017)
June 2017

This Article extends Gary J. Jacobsohn’s theory of constitutional identity to better understand the dynamics of constitutional identity in the era of globalization. The extended theoretical framework features the relation of constitutional globalization to the change of national constitutional identity. Within that framework, this Article offers an original, empirical examination of the case of Vietnam and compares it with other socialist regimes (China, Laos, North Korea, and Cuba). It argues that globalization induces adaption to the socialist constitutional identity. The socialist constitutional identity is adapted by the pragmatic incorporation of fundamental ideas and principles of global constitutionalism. Consequently, the essence of the socialist constitutional identity remains but is modified and extended in the globalizing context. Although there is convergence in the adaption to socialist constitutional identity among the five socialist countries due to the impact of constitutional globalization, there are four divergent models which these countries adopt to react to the global impact on their constitutional identity, namely constitutional globalism (Vietnam and Laos); constitutional exceptionalism (China); constitutional isolationism (North Korea); and constitutional reservationism (Cuba). This Article contributes to the scholarship on constitutional globalization, comparative theory on constitutional identity, and empirical knowledge on constitutional dynamics in the contemporary socialist world. 

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South Africa's Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan's President Omar Al Bashir

Ntombizozuko Dyani-Mhango
26 WASH. INT’L L.J. 535 (2017)
June 2017

President Al Bashir has avoided the International Criminal Court (“ICC”) for seven years and has been able to travel to both states that are party to the Rome Statute and states that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of states parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the ICC equally makes the ICC’s job difficult. This article examines whether there is a justification for South Africa’s failure to abide by its obligations under the Rome Statute when it did not secure and arrest President Al Bashir. This will be done against the backdrop of the ICC decisions on the obligations of states parties to the Rome Statute to cooperate. The article also analyzes the South African High Court and the Supreme Court of Appeal judgments with regard to South Africa’s domestic and international obligations. 

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Tokyo High Court, Judgment for JASRAC Case (2013) (Japan)

Chengyu Shi
26 WASH. INT’L L.J. 573 (2017)
June 2017

The Tokyo High Court, Judgment of November 1, 2013 made a unique judgment in regard to standing to sue for a party who is not a direct addressee.2 Under the Japanese Administrative Case Litigation Act Article 9, Section 1, only “a person with legal interest” can bring an administrative lawsuit. The definition of “a person with legal interest” for revocation of a public order is an individual whose legal rights or interests are protected by law and are being infringed or threatened with unavoidable infringement. In addition to this definition, the Court considered not only the text of the law, but also (1) the meaning and purpose of the law and (2) the character and the context of the interests for deciding whether a person other than the addressee has an interest protected by law. The Court ruled that a party who is not a direct addressee had standing to sue if they are likely and unavoidably to be directly damaged because of the infringement of fair and free competition in the market, and if the damage would be substantial.

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The Evolution of Antimonopoly Porceedings in Japan: Observations of Third Party Standing to Sue in the Case Involving JASRAC

Yutaka Ishida
26 WASH. INT’L L.J. 585 (2017)
June 2017

Japan’s Antimonopoly Proceeding has repeatedly changed throughout the 21st century. Originally enacted as the Preliminary Review Procedure, the administrative process evolved into the Complaint Review Procedure from 2005 to 2013, before becoming the Direct Appeal to District Court Procedure in effect now. The proceedings allow the Japan Fair Trade Commission ("JFTC") to regulate the market and shield it from monopolistic behavior. The Japanese Society for Rights of Authors, Composers, and Publishers ("JASRAC") dominates the music copyright management service provider industry in Japan. The company's fee collection methods led the JFTC to issue it a cease and desist order under the Antimonopoly Act. JASRAC subsequently initiated the administrative review process, which was the Complaint Review Procedure at the time, and the case was eventually appealed to the Supreme Court of Japan. During the litigation process, e-License, JASRAC's sole competitor, became involved as well, raising unique third party standing issues in conjunction with the Antimonopoly Act. Accompanied by a partial translation of the Tokyo High Court opinion in the JASRAC case, this comment analyzes the Japanese Antimonopoly Act and its administrative review process, while focusing on the procedural posture presented. As the Japanese government continues its efforts to halt monopolistic activities and enforce the statute, the issue of whether third parties have standing to sue will remain relevant moving forward.

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Appellations and Adaptations: Geographical Indication, Viticulture, and Climate Change

Raz Barnea
26 WASH. INT’L L.J. 605 (2017)
June 2017

Fine wine as we know it is a relatively modern innovation. But French wine culture presents a mythology of a stable and venerable tradition dating back centuries. Central to this mythology is the concept of terroir: the notion that the place—both the land and the people— defines the product. In the early Twentieth Century, France adopted laws giving local producers of wine exclusive rights to name the wine for the region of its origin. These regions, called appellations, have come to stand for the type and quality of wine produced within them— Champagne and Bordeaux are two well-known examples. The appellation regime had two justifications both relating to prevention of fraud: consumers could have confidence that wine was bona-fide and producers were protected because outside competition could not claim the appellation. Current law requires that wines claiming appellation meet strict requirements for quality, typicity, geography, and production method. But long-term climate change threatens to upend this regime. This paper traces the origins of French wine law and shows how the cultural and economic history has shaped the current law. It then surveys the current state of climate science as it relates to French wine and suggests that the law is presently ill-equipped to cope with projected changes. The paper concludes by presenting several alternatives to present law, each allowing for greater flexibility to protect the interests of wine producers and wine consumers

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The Fight for Green Economies: The Role of Sustaintable Development in Nations Facing Turmoil

Lucy K. Infeld
26 WASH. INT’L L.J. 635 (2017)
June 2017

The international focus on sustainable development, and lessening the damage to our environment, can be seen in numerous international conventions and the laws of many individual countries. While most countries around the world have attempted some action to lessen the impact of global warming, not all of these efforts have been successful. Notably, Syria created numerous legal reforms aimed at sustainable development, but has had difficulty implementing these reforms. Contrarily, Morocco, a country with similar climate and obstacles in implementing sustainable development has had great success. A question remains as to whether the lack of implementation of sustainable development practices contributed to Syria’s political upheaval or the other way around. 

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The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia

Ellie A. Page
26 WASH. INT’L L.J. 659 (2017)
June 2017

“Neurolaw” is the emerging field of Law and Neuroscience that has the potential to lend insight into an offender’s mental state and influence criminal responsibility. In New South Wales, Australia, courts allow neuroscientific evidence of an offender’s cognitive impairment as a consideration in sentencing proceedings. In this comment, I discuss the discretionary nature of New South Wales’ sentencing regime and the limitations of how neuroscience may be utilized within that regime. Although neuroscientists can address the association of an offender’s cognitive impairment with the commission of a crime, they cannot identify, with certainty, a causal relationship. I analyze an original compilation of six case studies from New South Wales to illustrate that sentencing judges resist mitigating offenders’ sentences based on evidence of a cognitive impairment unless there are other factors favorable to the offender, such as a guilty plea or a lack of criminal history. Judges’ resistance to using evidence of a cognitive impairment alone to significantly mitigate an offender’s sentence indicates that judges regard evidence of cognitive dysfunction as simply one factor in the holistic framework at their discretion in sentencing, likely due to the lack of certainty surrounding the nature of the relationship between an offender’s impairment and the commission of the crime. Judges’ reluctance to use neuroscience as a significant mitigating factor also maintains implications for the sustained retributivist nature of the criminal justice system in New South Wales and raises the issue of whether the judiciary is the appropriate body to apply neuroscience to the law

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