The Law and Lawlessness of U.S. Immigration Detention

Question: Why is it difficult for detainees in the US immigration detention system to obtain substantive rights protection through judicial procedures? How should judicial review be based on the reconstruction of legislative and administrative history to determine the criteria for 'civil detention interests'?

1. Three reasons for the current predicament | Firstly, there is a fallacy in judicial cognition, where courts confuse the government interests of "deportation procedure assistance" and "detention condition management", while ignoring the independent "civil detention interests" of Congress. The Fraitat case refused to apply the Bell standard. Secondly, there is a misinterpretation of written law, where INA provisions are interpreted as expanding administrative power, but history has shown that they aim to establish minimum standards of humanity. Thirdly, administrative guidelines are virtually non-existent, and ICE standards, which should have been Congress' response to administrative failures, are seen as voluntary guidelines. Therefore, the focus of reconstruction is on the reconstruction basis: recognizing the "civil detention interest" as an independent government interest, separating it from the goal of expulsion law enforcement, and returning judicial review to the Bell case's "purpose means" proportional analysis framework. | 2. Historical reinterpretation of legislative authorization and reconstruction of written legal rules | The history of congressional intervention in the detention system reflects the legislative intent. This is manifested in two points. The first is the republican commitment to "appropriate places". In the legislative debate of the 1950 Internal Security Act, the controversy over "concentration camps" prompted Congress to emphasize that detention facilities must be immigration checkpoints (such as Ellis Island) and distinguished from criminal facilities (Lehlbach interrogation records). Accordingly, § 1231 (g) (1) should be interpreted as a restrictive authorization for the category of detention facilities, prohibiting the use of prison templates. Secondly, regarding the contractual implementation of "acceptable conditions," the "cooperation agreement" clause in § 1103 (a) (11) requires funds to be paid to improve local prison conditions, reflecting the intention of Congress to promote the classification of detention facilities. A three-tier mechanism should be constructed based on this: detainees can file lawsuits against local facilities that do not meet ICE standards; The federal court froze financial payments on the grounds of "explicit violation of funding conditions"; The OIDO monitoring report shall be given priority for acceptance as evidence of systematic violations. | 3. Enhancing the effectiveness of administrative standards and empowering the judiciary | The soft law attributes of ICE standards have undergone a qualitative change due to congressional intervention, and the enforcement mechanism needs to be restructured. Firstly, the normative extension of the Accardi principle: ICE standards comply with the "impact on private rights" standard (Morton v. Ruiz) and have quasi statutory effect due to their integration into the "two strike clause" of Congress. Refusing to enforce such rules is equivalent to allowing the abuse of administrative discretion. Enforcement should be carried out through two judicial channels. Firstly, in the procedural pathway, detainees can sue ICE for violating APA § 706 (1) administrative inaction (Innovation Law Lab pathway); Secondly, in the physical path, the standard is regarded as a contractual requirement, granting the detained person the right of execution as a third-party beneficiary, imitating California private law remedies. | 4. Legitimacy basis for institutional restructuring | (1) Judicial role correction. The court only enforces the civil detention benefits established by Congress (such as checkpoint standards and non punitive places of isolation), and does not create new policies. | (2) Strengthen administrative accountability. By enforcing standards through Accardi, ICE is forced to develop an internal regulatory culture (such as transparency in medical isolation procedures). | (3) Implement the legislative intent. Integrate the Congress' rejection of concentration camps in 1950 and the stringent design of the two strike clause after 2000 into operational judicial review standards. | 5. Backup Plan: Restructuring Failure and Institutional Abolition | If the judiciary continues to refuse to recognize the benefits of civil detention, it can confirm that the immigration detention system is essentially a "legal vacuum" and can instead support its abolition. Judicial evasion of the civil interests explicitly stated by Congress exposes the incompatibility of the detention system with the constitutional framework. The failure of judicialization of detainees' rights, such as death reports, will provide moral impetus for the abolition movement. | By combining the excavation of historical meanings, the updating of legal doctrine, and institutional design, a feasible path for judicial intervention has been constructed, while anchored in the legislative history of Congress to dispel doubts about the "anti majority problem". Always take "civil detention interests" as the axis to run through legal interpretation and institutional reconstruction.

1. Reveal three root causes for detainees’ lack of substantive rights protection: judicial cognitive errors, misinterpretation of statutes, and virtualization of administrative guidelines.
2. Restructure constitutional review: adopt objective rationality, extend Kingsley and Jones v. Blanas logic, and introduce rebuttable presumption against punitive detention.
3. Update statutory interpretation: redefine INA §1231(g)(1) as “appropriate place” (non-punitive facilities) and activate INA §1103(a)(11) “Acceptable Conditions” as a statutory cause of action.
4. Enforce administrative guidelines: treat ICE standards as binding under the Accardi principle, and allow detainees to enforce contracts as third-party beneficiaries.

1. Difficulties in judicial practice. At the constitutional level, the review of "punitive conditions" by courts is constrained by the principles of "plenari power" and "penal power doctrine", equating detention standards with criminal imprisonment, as seen in Hope v. Warden and Fraihat v. ICE cases. At the level of written law, the provision in Section 1231 (g) (1) of the Immigration and Nationality Act regarding "appropriate places of detention" has been misinterpreted as an administrative discretionary authorization rather than a binding obligation. At the administrative law level, ICE detention standards are considered as' non mandatory guidelines'. | 2. History and policy evolution. During the federalization period, congressional federalization of detention aimed to improve the harsh conditions of private dock detention facilities and establish the dual goal of "humane detention". In the era of national security (1950s): The "appropriate place" clause in the Internal Security Act aimed to avoid "concentration camps" and required differentiation from punitive facilities. Since the 1980s, Congress has strengthened the enforcement of ICE standards through the "Two Strikes Mandate" and the Office of Inspection and Control (OIDO), gradually losing trust in the discretion of administrative agencies.

1. Civil Detention Interest: a composite intention reflected in federal legislation and administrative history: (1) to ensure non punitive and humane detention conditions; (2) The demand for congressional supervision arising from the negligence of administrative agencies. | 2. Lawlessness: Refers to a state where detainees lack foreseeable and enforceable substantive rights standards, and judicial remedies are systematically ineffective.

1. Historical analysis method: Vertically review legislative debates, hearing records, and administrative documents from three periods (such as the 1944 federal regulations on detention restrictions for women and children). | 2. Case study method: By comparing immigration detention cases (A.S.M. v. Warden) with ordinary civil detention rights standards (Kingsley v. Hendrickson) through case studies. | 3. Research methods of legal doctrine: reinterpret the legislative intent of INA § 1231 (g) (1) and 1103 (a) (11), and argue that "appropriate places" and "acceptable conditions" are legal sources of rights.


The Counterfeit Sham

Question: Why do policymakers, courts and academia in the field of design patents frequently use the term "counterfeit", which has a specific legal definition, to describe infringement of design patents? How does this rhetorical strategy distort legal logic, evade due process protection, and ultimately lead to an excessive reinforcement of legal remedies for design patent holders, thereby harming public interests?

1. Revealing why the term "counterfeit" is used: Firstly, emotional agitation, "counterfeit" specifically refers to the intentional act of counterfeiting registered trademarks in US intellectual property law. Fake drugs and inferior car parts are directly related to public safety risks and carry strong negative moral connotations. Binding design patent infringement with "counterfeiting" can evoke fear of public safety, such as claiming that "counterfeit electronic products will explode", thus giving ordinary infringement behavior a moral label of "social harm". Secondly, avoid differences in legal logic. What are the differences in legal definitions between counterfeiting and design patents. Trademark Counterfeiting requires: ① counterfeiting registered trademarks; ② Causing consumers to confuse sources; ③ Usually with fraudulent intent. Design Patent Infringement requires: ① The product appearance is "substantially similar" to the patented design (only visually comparable); ② No need to prove trademark confusion or subjective malice (strict liability). Through rhetorical confusion, policy makers attempt to conceal the fundamental differences between the two and avoid the legal logic loophole of "design patents not protecting source identification functions". Thirdly, promote special policy agendas, such as the 2019 Counterfeit Goods Seize Act, which ostensibly combats "counterfeiting" but actually authorizes customs to seize design patent infringing products. This move shifts the cost of private rights protection onto the government, with taxpayers bearing the cost of law enforcement, and legitimizes it under the guise of "public safety". | 2. Revealing the impact of incorrect usage: Firstly, fabricating the harmfulness of infringing behavior and distorting legal logic. Infringement of design patents does not necessarily lead to product quality issues or safety risks. But the rhetoric of "counterfeiting" forcibly associates infringing products with real cases such as "toxic cosmetics" and "explosive batteries", creating a false causal chain. Secondly, changing the legal elements can strategically avoid the functional exclusion principle of trademark law. If a product design has practical functions, it cannot obtain trademark protection, but patent law does not have this restriction. Thirdly, it harms public interests by shifting the cost of private rights protection onto the government, requiring taxpayers to subsidize corporate rights protection and encroaching on public law enforcement resources. Fourthly, the relief path is distorted. The original purpose of patent law compensation was to compensate for design innovation, but the rhetoric of "counterfeiting" has driven excessive compensation, such as advocating for "total profit" (including the value of non infringing components) to replace "proportional sharing". And it will also generate program privileges, such as breaking due process and freezing hundreds of merchant assets in bulk under the pretext of cracking down on "counterfeiting" in Schedule A litigation. | 3. Establish the principle of legal terminology norms. In the fields of policy and justice, the use of "counterfeit" is strictly limited to scenarios defined by the Lanham Act, and its extension to infringement of design patents is prohibited. Moreover, when citing "fake" data in legislative hearings, court documents, and academic research, it is necessary to clearly define the standard of the data source and provide relevance arguments. | 4. Improve the judicial review and procedural guarantee system. First, the abuse of "Appendix A cases" should be restricted. Courts can only apply unilateral asset freezing in actual counterfeiting cases, and design patent cases must go through the opposition procedure. The court appointed an independent design patent expert to review the application of the "ordinary observer test" and particularly assess the scope of patent protection. Second, implement a hierarchical review mechanism. Judges need to compare the drawings of the patent involved in the case with the visualized differences of the accused product, and rule out "obviously dissimilar" (plainly dissimilar) cases based on the Egyptian Goddess case standard for preliminary review. For suspected infringing products, a thorough assessment should be conducted, and the defendant should be compelled to provide evidence of existing designs to prevent the plaintiff from selectively using information to mislead the judgment. | 5. Reconstruct the law enforcement and relief system for intellectual property rights. First, strictly define the boundaries of customs law enforcement and refuse to include design patents within the scope of active customs investigation and handling. Because infringement of design patents requires comparison with prior art, the customs lacks professional capabilities. Moreover, the existing International Trade Commission (ITC) procedures have provided relief channels, and enhancing their efficiency is superior to adding high-risk law enforcement. Second, the compensation rules should be reformed. The loophole of the "total profits" rule left over from the Samsung v. Apple case should be abolished. The compensation should be calculated based on the "principle of proportionality" to avoid seeking excessive profits through "fake" narratives. | 6. Institutionalized response rhetorical strategies. First, expose the mechanism of interest transfer. The "fake security theory" in legislative lobbying is essentially a strategy of publicizing the cost of private rights enforcement. It is mandatory for the proposer to provide evidence in the congressional records of the statistical correlation between design patent infringement and product safety. Second, Judicial education and training should be carried out. The Federal Judicial Center should add a special course on design patent law, focusing on deconstructing the limited protection scope of fragmented design patents and cases of legal conflicts between design patents and the functionality doctrine of trademarks.

1. Point out the legal fallacy: design patent infringement does not require trademark use, confusion, or safety risks, and is not equivalent to counterfeiting.
2. Refute the false safety proposition: design patents are not quality certifications, and product safety is irrelevant to infringement.
3. Analyze the root cause: the “fake” narrative is a lobbying tactic to shift enforcement costs and weaken procedural protections.
4. Identify judicial impact: this fallacy led to mass unilateral relief in “Schedule A” cases, depriving defendants of due process rights.

Existing research has revealed a strict definition of "counterfeiting" under trademark law, as well as an independent legal framework for design patent infringement, namely visual similarity testing. However, similar rhetorical abuse exists in other IP fields such as copyright, but there is a lack of systematic criticism in the field of design patents. At the legislative level, the Anti-Counterfeiting Goods Seizure Act of 2019 attempted to grant customs the power to seize products infringing on design patents, but the name and content of the act were mismatched. At the judicial level, in "Schedule A cases", the plaintiff used the rhetoric of "counterfeiting" to obtain unconventional remedies and associated design patent infringement with transnational crimes to circumvent due process. Industry organizations such as INTA and AIPLA, as well as lawyers, deliberately confuse concepts in court opinions and industry conferences, equating design patents with the safety risks of "counterfeit" goods.

1.Legal definition of Counterfeiting (Actual Counterfeiting) : "False marks that are identical with or substantially indistincishable from registered trademarks" as defined in Section 1127 of the Lanham Act of the United States is the worst form of trademark infringement and criminal responsibility can be pursued. | 2.Colloquial Counterfeiting: The act of "intentionally imitating another thing to deceive" in everyday language, without strict legal requirements. | 3. Counterfeit Rhetoric: When there is no actual counterfeit behavior (such as pure design patent infringement cases), the term "counterfeit" is strategically used to create moral panic.

The main method adopted is legal empirical analysis: | First, deconstruct the normative differences between Trademark law and design patent law, and clarify the infringement standards through case law. | Second, collect records of congressional hearings, court documents, industry reports and academic discourses to analyze the dissemination paths of "fake" narratives.


Determining Rights

Question: Is the interpretive approach of modern originalism consistent with the historical jurisprudence and normative purposes embedded in the drafting of the U.S. Bill of Rights

Theoretical Refinement Approach: The Original Design of Rights Determination and Its Contemporary Implications | The ideological foundation of the concept of rights during the founding period of the USA. First, the social contract theory requires that the determination of rights belong to the people. Natural rights under natural conditions (such as the right to speech and the right to enjoy the fruits of labor) need to be transferred to the political society through the social contract due to actual deficiencies. After the people establish a government through majority consent, they retain the right to decide on the content of their rights (such as Rutherford's argument that the setting of age standards falls under legislative discretion). Second, the incomplete certainty of natural law needs to be supplemented by written law. Natural law only provides general principles (such as minors having no capacity to enter into contracts), and specific rules need to be "determined" by legislation (as Blackstone pointed out, legislators need to define the boundaries of freedom). Third, customary law serves as the medium of determination. Juries are regarded as representatives of the people (Wilson), common laws are not created by judges but are the accumulation of customs (Wood), and the legislature resolves disputes through general acts or special rulings (Desan). | 2. The construction logic and historical evidence of the Bill of Rights. First, the congressional debate demonstrates a declarative and dominant intention. In 1789, Madison emphasized in Congress that the goal of the amendment was to "set forth the principle of clear and straightforward acceptance" in order to pacify public opinion and avoid involving controversial areas (such as refusing to impose specific restrictions on "freedom of the press"). Its proposal focuses on confirming existing rights (such as "jury trials are inviolable") and non-innovative rules. In contrast to the fact that the Jefferson Draft's attempts to specify (such as "the published content is only responsible for false facts") were rejected by Congress, this corroborates the mainstream choice. Second, the adjustment of the provisions reflects the priority of customary law. The Fourth Amendment was changed from the original draft's "No issuance of search warrants without specific requirements" to "prohibition of unreasonable search", as Benson claimed that the amendment should be a "declarative provision", directly invoking the reasonableness standard in customary law. Third, limited concretization is an exception. The Seventh Amendment's setting of a $20 litigation threshold (clearly quantified) is a rare exception, reflecting the drafter's awareness to distinguish between the two paths. The final document of Congress calls itself the "Declaration and Limitation Clause" (1790), confirming that the core function is to mark rather than create. | 3. National Consensus on Judicial and Political Authority. First, the judicial role is limited to enforcing established rules. Hamilton stated in Federalist Papers No. 84 that the Bill of Rights would guide courts to protect rights, but only those with clear content (such as contractual terms). Courts have no authority to reshape boundaries for declarative rights (such as freedom of speech) on the grounds of balancing public interests. Second, the political branch dominates the discretionary space. In the debate over the Incitement Act, the Republicans (Jeffersonians) emphasized the state's right to define "permissive speech", while the Federalists appealed to the common legal tradition. Both sides agreed that state/federal legislators have the right to specify. Thirdly, the differences in the Calder v. Bull case highlight judicial limits. Chase maintained that legislation would be invalid if it violated the "fundamental principles of the social contract" (such as expropriation without compensation). Eldel countered that natural justice "has no fixed standard", and judicial intervention must be based on text or customary law; otherwise, it would be an overreach. | 4. Misinterpretation of Contemporary Legal Principles and Historical Implications. First, the dual divergence of "textual and historical methods". Modern originalism (such as the Bruen case) first derived the initial scope of rights through text (concretization), and then defined exceptions based on the practice of 1791 (fabricated declarative nature). The hybrid framework contradicts the founding logic. The Jefferson Plan (precisely defined in the text) was long rejected by Congress, and the tradition of customary law has vanished in modern legal theory. Second, the nature of rights is confused. Hanberg's claim that "enumeration makes rights an absolute limit of government power" is contrary to historical facts: The Bill of Rights mentions the jury system and others because customary law has established certainty (such as prohibiting retroactivity), rather than because enumeration itself endows it with an "ace" attribute. Third, feasible path adjustment: First, at the level of textual interpretation, recognize the declarative nature of most provisions (for example, the First Amendment's "not establishing a state religion" needs to be understood in combination with the Virginia Religious Debate); Secondly, at the judicial role level, abandon the illusion of "complete certainty", and distinguish between rights with clear content (such as the right to cross-examine under the Sixth Amendment) and rights requiring political discretion (such as equal protection). Thirdly, in the context of the fading belief in natural law, the reconstruction of the legal basis should clearly state whether the determination of rights belongs to democratic procedures or judicial constitutional interpretation, rather than relying on historical original intentions. | In short, the institutional wisdom of the Bill of Rights lies in anchoring the value of rights with declarative texts and assigning specific responsibilities to the political process of citizen participation. This "self-determination of the people" model ensures that the foundation of rights is not eroded while avoiding judicial elitism. If modern originalism is used to solidify the interpretation of rights through "text and history", it is actually a self delusion that deviates from history. Returning to Madison's philosophy of proclamation is necessary to restore the constitutional intent of the Bill of Rights as the starting point of democratic dialogue rather than the endpoint of judicial monopoly.

1. The Bill of Rights is primarily declarative, reaffirming natural/customary rights without fixing their content in text.
2. Reject judicial centrism: rights belong to the people, not exclusively to government officials.
3. Specialized text function: specific provisions (e.g., Seventh Amendment) address special cases and require legislative involvement.
4. Rights are diverse in origin, stemming from customary or natural law rather than created by constitutional text.
5. Modern interpretive methods misread history: “text and history” originalism conflates declarative with substantive, distorting the founders’ vision.

1.There are three levels of intellectual history background. First, the theory of social contract, where rights originate from the natural state (Locke, Pufendorf), and some rights are transferred through the social contract to form a political society. Second, natural law and customary law have their rights based on God/reason (Blackstone), but they need to be regulated by written law (for example, the age of majority is determined by customary law). Third, the principle of popular sovereignty: The people retain the right to decide, which is realized through legislation, juries and customary law (Federalist peasants' theory). | 2. There are some key issues in practice. First, the Incitement Act (1798) was divided: Federalists resorted to customary law to define the boundaries of speech, while Republicans emphasized state autonomy. Second, the Calder v. Bull (1798) case: Justices Chase and Eldel debated whether legislation was bound by natural law, reflecting the cognitive gap in the role of the judiciary.

1. Declaratory clause: It merely indicates the existence of existing rights, such as natural rights/customary rights, without altering their content. | 2. Specificatory clause: The content of the rights is determined through the text, such as the threshold of the disputed amount under the Seventh Amendment. | 3. Determining Rights (Determining Rights) : It can be divided into two levels: the metaphysical level, which endows rights with specific legal content, and the epistemological level, which identifies established content. The former requires the intervention of political procedures.

1. Empirical research: Such as historical empirical research, systematically sort out the literature on social contract theory (Locke, Pufendoff) and natural law theory (Blackstone) from the 17th to the 18th century, and trace how they influenced the understanding of the essence of rights by American constitutionalists. | 2. Comparative study. If compared longitudinally, the British Bill of Rights 1689 → colonial charter → State Declaration of Rights → Federal Bill of Rights, analyze the continuation and break of the "declarative" tradition. By making a horizontal comparison, different provisions in the Bill of Rights are classified by function and their legal effect differences are compared, such as the general expression of "carrying a weapon" in the Second Amendment versus the precise regulation of the $20 litigation threshold in the Seventh Amendment.


Human Rights Obligations in Maritime Search and Rescue

Question: Although international law clearly stipulates that countries have the obligation to rescue those in distress at sea, the existing maritime law documents do not incorporate human rights obligations into them. This has led to frequent human rights violations in rescue operations. How to establish appropriate systems to address the issue of the disconnection between maritime rescue and human rights protection?

1.The nature of the duty to render assistance: | Under the United Nations Convention on the Law of the Sea (LOSC) and the International Convention on Maritime Search and Rescue (SAR Convention), the duty to render assistance applies to all maritime zones and all vessels, regardless of the nationality or status of persons in distress, and whether they are involved in unlawful activities. | The obligation to provide assistance binds flag States and coastal States. The responsibility for rescuing persons in distress primarily lies with shipmasters: flag States must take necessary and appropriate measures to ensure that vessels flying their flag assist persons in distress, but they are not obliged to guarantee the rescue of all such persons. Coastal States should "promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea, and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States". This indicates that the duty to render assistance is of a due diligence nature, rather than a mandatory obligation to rescue all persons in distress, and such due diligence obligations may evolve over time. | The relationship between the duty to render assistance and the right to life has attracted increasing attention. Interpreting this duty from a human rights perspective aims to impose an obligation on States to take reasonable and positive measures to protect the right to life at sea, without imposing an excessive burden on them. | | 2.Human rights jurisdiction in maritime SAR | The specific location of an incident is a key determinant in determining which State has human rights jurisdiction. | Under international law of the sea and human rights law, coastal States have clear jurisdiction over their territorial sea and internal waters. Navigable boundary rivers also fall within the jurisdiction of riparian States. Coastal States exercise limited human rights jurisdiction in the contiguous zone, exclusive economic zone (EEZ), and continental shelf, primarily responsible for providing assistance to persons in distress within a safety zone of approximately 500 metres. | Jurisdiction in the high seas is more complex. When a rescuing State conducts a search and rescue (SAR) operation, jurisdiction is triggered by "effective control" if there is some form of physical contact between State agents and persons in distress, or if the State exercises control over the situation. Once persons in distress are rescued and board a rescue vessel, they fall under the jurisdiction of the flag State. When a coastal State carries out SAR operations within its search and rescue region (SRR), it may trigger jurisdiction by assisting in the operation. For example, in the A.S. case, the UN Human Rights Committee held that a coastal State’s coordination of SAR constitutes "effective control" over the operation, without excluding the possibility of concurrent jurisdiction between two States. Even if a State fails to respond to a distress call in another State’s SRR or on the high seas, jurisdiction may still be triggered by a "special relationship of dependency", as seen in the A.S. case where Italy was found to have jurisdiction due to its proximity to the distressed vessel and capacity to rescue. | Cooperative SAR cannot serve as a tool to evade human rights obligations. Whether or not a State directly participates in the rescue, if it exerts substantial influence over the actions of cooperative parties through "instructions, coordination, or resource support", it may trigger jurisdiction. States must ensure that cooperative parties have the capacity to protect human rights; otherwise, they shall not transfer rescue responsibilities. Human rights supervision must be imposed on rescue operations by private actors to prevent them from becoming "liability-free tools" for States. | | 3.When is the duty to render assistance triggered? | According to the International Convention on Maritime Search and Rescue (SAR Convention), the distress phase refers to a situation where there is reasonable certainty that a vessel or persons are facing grave and imminent danger requiring immediate assistance. The "danger" does not need to reach the level of directly threatening life. Some States interpret "distress" too mechanically and strictly, taking only vessel sinking as the criterion while ignoring the overall condition of the vessel. A common understanding of distress situations is of great importance for shipmasters, as it helps them not only determine when to conduct maritime search and rescue (SAR) operations, but also when to avoid intervention. | A human rights-oriented approach to SAR should meet two requirements: first, distress calls should be responded to as soon as possible to enable States and shipmasters to better assess whether a vessel is in distress and what further rescue measures should be taken; second, the determination of whether a vessel is in distress should not be based solely on weather or the vessel’s technical characteristics, but should focus primarily on the needs of the persons on board. | | 4.How should a human rights-compliant SAR operation be planned and conducted? | The compliance of rescue operations with human rights law is primarily assessed based on the rescue methods adopted by States. Jurisprudence of the European Court of Human Rights (ECtHR) holds that if a rescue operation may lead to the death of one or more persons, authorities must carefully plan and control the operation to ensure the maximum minimization of risks to life, and must not be negligent in the choice of actions. States must carefully plan search and rescue (SAR) operations, taking into account key factors such as weather conditions and the number of persons in distress, and ensure that appropriate rescue units and equipment are available to carry out the mission. In addition, States need to formulate appropriate evacuation plans and ensure that medical assistance is readily available. | In SAR operations, the use of force should be avoided whenever possible; if unavoidable, it must not exceed the scope of reasonableness and necessity. For smugglers or migrants who refuse assistance, SAR operations should not be transformed into law enforcement actions. When a person dies during a rescue operation, States shall investigate the specific circumstances of the person's death or disappearance and, where appropriate, punish those responsible. The duty to investigate is likewise a means rather than an end. | | 5.When does the duty to render assistance terminate? | The termination of the duty to render assistance is not determined by the formal criterion of "disembarkation of persons", but by the substantive requirement of "establishment of a place of safety". The SAR legal regime lacks clear guidance on where rescued migrants should land. Although there are multiple landing options, no specific choice is regarded as a customary obligation. According to the International Convention on Maritime Search and Rescue (SAR Convention) and guidelines of the International Maritime Organization (IMO), a place of safety refers to a location where persons can obtain basic security guarantees, medical assistance, and legal protection upon arrival, and the assisting vessel itself is not generally considered a place of safety. Under international refugee law and human rights law, a place of safety must also meet the following conditions: it must not violate the principle of non-refoulement, prohibit the return of migrants to countries where they face persecution, forbid torture and inhumane treatment, and ensure fundamental rights such as access to legal counsel and communication with the outside world.

1. Clarify the obligation to rescue persons in distress at sea under the law of the sea, and note the lack of explicit human rights obligations in related legal documents.
2. Define the duty to render assistance as due diligence, requiring flag states, coastal states, and shipmasters to fulfill specific responsibilities under UNCLOS.
3. Clarify human rights jurisdiction in maritime search and rescue, including internal waters, territorial seas, and beyond, using the effective control test and flag state jurisdiction.
4. Specify the trigger for assistance: a ship in grave and imminent danger, judged by multiple factors and not only sinking.
5. Clarify human rights-compliant requirements for search and rescue: planning, equipment, minimal use of force, and independent investigations.
6. Define termination of the duty: delivery of rescued persons to a safe place that respects non-refoulement and guarantees asylum access.

1. The general obligation to provide assistance to distressed ships has existed since ancient times, but the documents that stipulate maritime rescue obligations do not include human rights obligations. | 2. With the increase in the number of maritime personnel, the obligation to provide assistance to those in distress is more challenging and controversial for countries and captains. On one hand, the demand for search and rescue operations for those in danger at sea is constantly increasing; on the other hand, countries adopt strict border control measures to prevent immigrants from entering their territory. Whether these practices are in line with international law has sparked intense discussions. | 3. Due to the cruel acts of smugglers and the law enforcement actions of various countries, migrants may face serious human rights violations when crossing the sea. Although in the maritime law documents that stipulate rescue obligations, countries do not have human rights obligations, people still generally believe that countries are bound by human rights obligations when conducting operations at sea (including maritime rescue operations).

1.Coastal State：Countries that have jurisdiction over adjacent maritime areas (such as internal waters, territorial seas, EEZs, etc.) in accordance with international maritime law and undertake the corresponding duties such as coordinating maritime search and rescue operations and building service facilities. | 2.Effective Control：It refers to the substantive control state that a country exercises over individuals or vessels in distress at sea through physical contact, legal dominance, or actual influence. This is the core legal criterion for determining whether a country bears human rights obligations in maritime search and rescue operations. | 3.Distress Phase：The circumstances stipulated in the SAR Convention where there is a reasonable certainty that a ship or personnel is facing a serious and imminent danger and immediate assistance is required. | 4The Principle of Non-refoulement：The core principles of the refugee law regarding the protection of refugees and related individuals stipulate that it is prohibited to send refugees or other protected individuals back to countries or regions where their lives, freedom are at serious risk, or where they may face persecution, torture, inhumane or degrading treatment.

1. Normative Analysis Method: Systematically interpret the core treaties of international maritime law and human rights law, including LOSC, SAR Convention, ICCPR, etc., and clarify the specific provisions of the legal texts regarding the obligation to rescue and human rights clauses. Cross-compare the normative systems of maritime law and human rights law to form an analytical framework of normative complementarity. | 2. Case Analysis Method: Rely heavily on international judicial decisions to support theoretical analysis. For example, the Hirsi Jamaa v Italy case determined that Italy's pushing migrants back to Libya violated the non-refoulement principle, and the A.S. v Malta case established the jurisdiction of coastal states in the coordination of search and rescue areas, illustrating the constraints of human rights law on the inaction of states in search and rescue. Refer to domestic judicial decisions of countries such as Italy and Greece, such as the Carola Rackete case, to analyze how states incorporate international human rights law into domestic law for application. | 3. Empirical Analysis Method: Review the search and rescue policies of the European Union and countries along the Mediterranean coast, revealing the gap between national practices and legal obligations. Analyze the "Missing Migrants Project" of the International Organization for Migration (IOM) and the reports of the United Nations High Commissioner for Refugees (UNHCR) on migrant rescue, supporting the universality of maritime human rights violations. | 4. Comparative Analysis Method: Compare search and rescue cases in regions such as the Mediterranean, Aegean Sea, and North Atlantic, analyzing the differences in the definitions of "distress stage" and "safe location" by different countries. Compare the definitions of "jurisdiction" in maritime law and human rights law, such as the application field distinction between "flag state jurisdiction" in maritime law and "effective control jurisdiction" in human rights law, and clarify the competition issues of jurisdiction in search and rescue.


Long-Term Relationship over Litigation: Mediation in WTO Dispute Settlement Proceedings

Question: In the context of the dysfunctional appeal mechanism of the WTO Dispute Settlement Body (DSB) and the need for reform, how can a mediation mechanism be introduced to complement the existing binding procedures, in order to more efficiently resolve trade disputes among member countries while avoiding the potential legal and practical risks it may bring?

1.Mediation as an Alternative Means to Resolve International Disputes | Alternative Dispute Resolution (ADR) refers to methods of resolving disputes other than litigation, including arbitration, negotiation, good offices, mediation, relevant committee proceedings, and joint interpretation by contracting parties. With the introduction of the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention), mediation has received increasing attention. The Singapore Convention aims to promote mediation for international commercial disputes by enforcing mediation outcomes across multiple jurisdictions. Investor-State Dispute Settlement (ISDS) proceedings also hold the potential for mediation, and some recent Free Trade Agreements (FTAs) have introduced mediation procedures under various names and modes as an additional means to settle disputes between contracting parties. | | Mediation is generally defined as any proceeding involving a third party who facilitates negotiations between disputing parties but lacks the authority to render a binding decision. It possesses unique advantages in preserving long-term relationships among stakeholders and has long served as an important tool for resolving sensitive political and diplomatic disputes between states. Meanwhile, mediation has its own shortcomings and limitations. Introducing a new proceeding into the already strained WTO Dispute Settlement Mechanism (DSM) will bring new risks. However, through carefully designed provisions and striking a proper balance between its advantages and disadvantages, mediation may efficiently address certain types of disputes. | 2. Mediation in Trade Agreements | 2.1Mediation in the WTO | Article 5 of the Dispute Settlement Understanding (DSU) provides for mediation and other forms of ADR. Apart from these generic provisions, the DSU and other covered agreements remain silent on the specifics of mediation. The absence of detailed procedural rules has led to the near-total non-utilization of mediation, with its status in the DSM remaining rather ambiguous. Government officials of disputing parties rarely possess the authority or initiative to propose and accept mediation proposals. Even if mediation proceeds and a compromise package that appears mutually beneficial in the long term is reached, officials may still hesitate to accept the agreement due to potential political and legal consequences from domestic constituents. | | Before the Appellate Body’s paralysis, few Members were incentivized to explore mediation due to the lack of detailed rules. Today, Members need to look beyond the existing DSM and elaborate and systematize mediation clauses in WTO agreements to promote mediation as a meaningful alternative in the WTO DSM. | | 2.2Mediation in FTAs | There are three pathways for mediation in FTAs: | General Provisions as an ADR Option: Similar to Article 5 of the DSU, some FTAs include general clauses designating mediation as one of the ADR options, though not all FTAs contain such provisions. | Committee-Responsible Mediation: Committees corresponding to each chapter of FTAs may offer mediation as an option to resolve disputes between contracting parties, which can be either voluntary or mandatory. | Mediation for Specific Types of Disputes: In this category, mediation serves as the exclusive means to resolve disputes arising from specific chapters, such as labor, environmental, and non-tariff barrier (NTB) disputes. The third form has become a viable path because it stipulates detailed provisions in advance, enabling disputing parties to understand how to proceed with mediation. Therefore, the core of promoting mediation in the WTO DSM should lie in detailed stipulation and systematization. | | 3.Reform of the WTO DSM and Mediation | 3.1Advantages and Disadvantages of Mediation | | Advantages: Mediation can resolve disputes promptly at low cost while preserving long-term relationships between disputing parties, achieving a proper balance between long-term cooperation and short-term trade interests. | Disadvantages: Uncertain enforceability; government agencies and officials may face domestic political criticism and legal consequences for settling disputes through mediation; relative inexperience with mediation may lead to prolonged procedures and increased costs. | | 3.2Can Mediation Help Resolve Disputes among Members? | If added to the WTO DSM as an additional option for disputing parties, mediation may help them settle disputes outside of panel or Appellate Body proceedings. Applicable scenarios include disputes with high political sensitivity (e.g., subsidies, national security exceptions), disputes involving outdated treaty provisions (e.g., digital economy regulations), and long-standing complex disputes (e.g., the US-EU large civil aircraft dispute). | | 3.3How to Facilitate Mediation? | To facilitate mediation in the WTO framework, the primary tasks are to elaborate, structure, and systematize mediation clauses in WTO agreements: | | Elaboration: Provide mediation as a readily available option with clear step-by-step guidance. Define key terms in the DSU and consider amending relevant DSU provisions. | Structuring: Prepare thoroughly for logistical and administrative issues related to mediation to ensure smooth initiation and conduct. While mediation itself is non-binding, instruments reflecting its outcomes may evolve into formal agreements if parties commit to honoring the terms, depending on their will. | Systematization: Mediation should be explored, designed, and applied in tandem with the existing WTO DSM, operating effectively only when fully integrated with the overall architecture of the WTO. | | 3.4How to Align Mediation with Panel/Appellate Body Proceedings? | When introducing mediation to the WTO DSM, prioritize systematization. Mediation should serve as a supplementary procedure applicable at all stages of a dispute (pre-panel, parallel, post-panel) with timelines for panel/AB proceedings suspended during mediation. Mediators may be appointed from the three panelists or AB members hearing the case, or recommended by the panel/AB. Clearly restrict the use of information from mediation in subsequent proceedings, such as prohibiting references to mediators’ proposals. | | 3.5How to Manage Novel Challenges and Obstacles? | Avoid Unnecessary Procedural Layers: Introduce reliable procedural safeguards to prevent unreasonable cost and time increases. The addition of mediation is justified only if the system is designed to enable robust mediation that resolves underlying disputes early and avoids process abuse. | Balance Transparency and Confidentiality: Include specific clauses in future mediation procedures to strike a compromise, as both transparency and confidentiality serve legitimate objectives. | Ensure Due Process: Regulate mediators by selecting reliable candidates, establishing strong ethical guidelines, allowing peremptory challenges, and imposing sanctions through the Dispute Settlement Body (DSB) when justified, while preserving procedural flexibility. | Guarantee Enforcement: Transform mediation outcomes into international treaties consistent with the Vienna Convention on the Law of Treaties to render them legally binding; report mediation agreements to the DSB for regular enforcement monitoring, and allow parties to request panel confirmation of the agreement’s validity or initiate retaliation procedures in case of non-compliance.

1. Recognize the WTO dispute settlement crisis due to Appellate Body paralysis and the supplementary role of mediation.
2. Explain mediation’s features: third-party assistance, party autonomy, long-term relationship preservation, with support from the Singapore Convention and investment practices.
3. Note Article 5 DSU has vague mediation provisions, leading to almost no use since 1995.
4. Compare with FTAs that use mediation more widely, some with detailed provisions improving operability.
5. Highlight mediation’s potential in WTO DSM for sensitive disputes, flexible outcomes, and long-term relations, while identifying challenges like enforcement and transparency.
6. Suggest WTO reforms: refine mediation rules, coordinate with panels and appeals, and establish enforcement to make mediation viable.

1. The structural crisis of WTO DSM：The Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO) has been in a dire situation since 2016 as the reappointment of retiring Appellate Body (AB) members has been repeatedly blocked. Subsequently, the AB ceased to function in December 2019, and the final AB members’ terms ultimately expired in January 2021.Members of the World Trade Organization began a discussion on the "reform" of the WTO Dispute Settlement Mechanism (DSM), but still failed to reach a consensus on the core issues. | 2.Mediation has become a new means of resolving international disputes：Can alternative dispute resolution (ADR) effectively resolve disputes among WTO members, thereby securing a more stable position in the WTO dispute settlement mechanism (DSM) and becoming the core issue of WTO dispute settlement? Among various alternative dispute resolution options, mediation stands out particularly due to its advanced nature and complexity, and has once again gained attention.

1. Dispute Settlement Mechanism (DSM)： The formal procedural system of the WTO for handling trade disputes among its Members, with core components being the binding rulings of the Panel and the Appellate Body (AB). | 2. Alternative Dispute Resolution (ADR)： Dispute resolution methods other than litigation (such as WTO Panel/AB proceedings), including mediation, arbitration, negotiation, etc., which are non-binding in nature (except for arbitration). | 3. Non-Tariff Barriers (NTB)： Policy measures restricting trade other than tariffs, such as technical standards and sanitary and phytosanitary regulations, which often trigger complex regulatory disputes. | 4. Specific Trade Concern (STC)：A mechanism allowed by the WTO's Committee on Technical Barriers to Trade (TBT) and Committee on Sanitary and Phytosanitary Measures (SPS), where Members can raise concerns about specific measures and resolve them through discussions in the committees, similar to multilateral mediation. | 5. Investor-State Dispute Settlement (ISDS)： A mechanism in international investment agreements that allows investors to initiate arbitration against the host government, with mediation introduced as an alternative approach in recent years.

1. Case study method: Analyze specific practical cases of mediation in the WTO and free trade agreements, such as the tuna tariff dispute between the EU and Thailand and the Philippines in 2002, the Non-Tariff Barrier (NTB) mediation mechanism of the EU-Korea FTA, and the connection design of mediation and binding procedures in the agreements such as Canada-Korea FTA, CPTPP, etc., to demonstrate the feasibility and limitations of mediation. | 2. Comparative research method: Compare the design differences of mediation clauses in the WTO and FTAs, explain the ambiguity of Article 5 of the DSU, the lack of procedural details making it difficult to apply in practice, and FTAs have solved the ambiguity of procedures through a three-layer design of "general provisions + committee mediation + exclusive procedures", which is innovative. | 3. Normative analysis method: Refer to relevant provisions of the "Dispute Settlement Mechanism" (DSU), the "Vienna Convention on the Law of Treaties" (VCLT), and the "Singapore Convention on Mediation" of the United Nations, construct a demonstration system, and based on the WTO institutional goals, propose reform suggestions for the mediation mechanism.


State Immunity from Non-Judicial Measures of Constraint

Question: Traditionally, discussions on state immunity have mainly focused on its application in judicial proceedings. Does the principle of state immunity against non-judicial measures of constraint exist in customary international law, and how should the normative content of this principle be defined?

1.Current debate on State immunity | The law of state immunity emerges at the intersection of two conflicting principles: the principle of territorial sovereignty and the principle of sovereign equality. The concept of sovereignty implies that states have the right to regulate property rights over assets within their territory according to their own judgment, and state immunity constitutes a "departure from the principle of territorial sovereignty". Since applicable treaties are generally absent, relevant rules derive from customary international law, meaning the existence and scope of any rule must be established through sufficiently widespread and uniform state practice, accompanied by opinio juris. | A state's sovereignty means it should not be subject to another state's sovereignty, often expressed by the legal maxim "par in parem non habet imperium" (equals have no jurisdiction over one another). Modern state jurisdiction takes three forms: prescriptive jurisdiction, adjudicative jurisdiction, and enforcement jurisdiction. In principle, foreign states are subject to prescriptive jurisdiction while enjoying immunity from adjudicative and enforcement jurisdiction. Exceptions to enforcement immunity depend on the use of property against which "measures of constraint" are taken. The dispute lies in whether a state's enforcement immunity applies to other scenarios, such as "measures of constraint" adopted in non-judicial contexts (e.g., sanctions). Sanctions regimes typically include a range of measures by executive and legislative organs against foreign state property, and the extent to which such property is protected by immunity against these measures is crucial to determining the sanctions' legality. | Two different theories exist on this issue. The first argues that state immunity law applies equally to non-judicial contexts, based on the assumption that the law serves to safeguard sovereign equality, and its purpose would be frustrated if other (non-judicial) coercive measures were excluded from its scope. The second theory contends that existing state practice and opinio juris are limited to immunity in judicial proceedings, lacking materials to suggest immunity can counter measures taken independently by executive or legislative organs. To resolve this issue, one must examine it based on customary international law rather than relying solely on the purpose of state immunity norms. The increasing use of sanctions by states against foreign state property has led to more state practice and opinio juris on this matter, providing substantial support for such immunity. | | 2.Immunity from non-judicial measures of constraint: ascertaining the existence of a norm | In terms of state practice:In the field of domestic legislation, most state immunity laws focus on immunity in judicial proceedings, with immunity from enforcement generally adopted as a basic principle. In rare cases, domestic legislation can be interpreted as addressing non-judicial restrictive measures. For example, French law generally provides protection for foreign central bank assets from seizure, and Spain's Organic Law No. 16/2015 defines "immunity from execution" broadly, though it remains practically limited to judicial contexts. In administrative and judicial cases, relevant examples include New Zealand's Controller and Auditor-General v Sir Ronald Davison, where the court denied immunity application but acknowledged the relevance of sovereign immunity in non-judicial investigations; Austria waived enforcement of administrative decisions in a diplomatic building underground construction case due to immunity. | In terms of opinio juris: Many states oppose unilateral or autonomous sanctions, and criticisms of non-judicial coercive measures against state property violating state immunity are relatively consistent. For instance, Iran opposed the U.S. freezing of its central bank assets, claiming it violated the UN Convention on State Immunity; furthermore, Russia, together with China, Iran, etc., issued statements condemning asset confiscation as violating sovereign immunity. Internationally, the Asian-African Legal Consultative Organization (AALCO) has repeatedly adopted resolutions condemning sanctions against central banks as violating state immunity; internal EU documents acknowledge the existence of immunity but argue that "proportional and temporary" measures are lawful. | | 3.Sketching the contours of the norm Evidence suggests that immunity from coercive measures in non-judicial contexts differs from that applied in judicial contexts. In fact, the sovereign interests of the territorial state may be implicated to a greater degree in non-judicial contexts, as the stakes involved may be more fundamental than merely ensuring the proper conduct of civil proceedings. The core distinction between the two is that, unlike the strict immunity in judicial proceedings, non-judicial immunity requires balancing the public policy interests of the territorial state, meaning the territorial state may take exceptional measures against foreign state property to safeguard certain vital interests. Such interests include preventing the commission of crimes, ensuring the investigation of crimes directed against the state, and averting other threats to public safety. This analysis does not rely on the traditional exception of "commercial" use of property but considers the specific purpose of the measures taken by the territorial state, rather than the purpose of the property in question. | Recognizing the existence of a public policy exception for non-judicial restrictive measures means the territorial state may adopt certain measures against foreign property through executive or legislative acts that would be unlawful in judicial contexts. Therefore, defining which specific "public policy" is sufficiently important to permit restrictive measures is crucial to prevent eroding state immunity protections. | This issue involves the determination of "measures of constraint", i.e., the minimum level of interference required for a territorial state's measures against foreign state property to be prima facie considered a violation of the principle of state immunity. In judicial contexts, the decisive factor for whether an act constitutes a measure of constraint is whether the person enjoying immunity is subjected to a "constraining act of authority", a consideration equally applicable in non-judicial contexts. If an immune individual, entity, or property is not subjected to (or threatened with) state coercion but retains freedom of action, the measure does not violate the principle of state immunity. If an executive or legislative act by the territorial state against foreign state property can be identified as a measure of constraint, it may still be lawful based on the public policy exception. For example, New Zealand courts have held that immunity may be denied exceptionally if a foreign state's conduct violates the territorial state's "fundamental principles of justice", and the International Court of Justice recognized in the Tehran Hostages case that temporary restrictions on diplomatic personnel are permissible to prevent crimes. | | 4.Conclusion | A principle of state immunity from non-judicial measures of constraint exists in customary international law, but its normative content differs fundamentally from judicial immunity. It requires upholding the core principle of sovereign equality while acknowledging the reality of the normalization of unilateral sanctions in the modern international community. It is recommended that when a territorial state adopts non-judicial coercive measures, the objectives of the measures should be directly linked to vital public interests such as "crime prevention" and "security maintenance", remain temporary, avoid permanent deprivation of ownership, and prioritize reversible measures such as taxation or temporary management.

1. Elaborate that current discussions on state immunity focus on judicial immunity, with two theories on non-judicial measures: full extension vs. restriction to courts.
2. Explain that customary international law recognizes immunity from non-judicial measures, citing state practice and opinio juris criticizing such measures as violations.
3. Clarify that immunity from non-judicial measures is not absolute: a public policy exception allows states to act against foreign property to protect vital interests.
4. Distinguish non-judicial immunity from judicial immunity: uphold sovereign equality, ensure temporariness, prefer reversible measures, and avoid permanent deprivation.

1.Sanctions against Russia: After Russia's invasion of Ukraine in 2022, the European Union and multiple countries imposed extensive unilateral sanctions on Russia. In the financial sector, these sanctions not only froze the assets of numerous individuals and entities linked to the Kremlin but also "froze" the assets of the Central Bank of Russia. This freezing was unprecedented in scale, implemented through legislative and executive actions without the involvement of judicial authorities. | 2.Subsequent developments: Debates have emerged in multiple countries regarding whether to take further actions. The G7 leaders' statement pledged to continue measures including seizing and confiscating assets of individuals and entities related to Russia's aggression, and stated that Russia's sovereign assets in their jurisdictions would remain frozen until Russia compensates for the damage it caused. Countries like the United States, Canada, and the United Kingdom have pushed for legislation to seize Russian sovereign assets. Additionally, political actors have considered "temporary active management" of the Central Bank of Russia's assets or taxing the windfall profits of asset holders to support Ukraine. The EU has already imposed taxes on windfall profits of central securities depositories (CSDs) holding the Central Bank of Russia's assets, sparking discussions on the legal protection of sovereign assets. | 3.Academic controversies: The question of whether state immunity protects foreign states' property from non-judicial coercive measures by executive and legislative authorities has gained new attention in recent years due to sanctions like those against the Central Bank of Russia. The international community holds diverging views on this issue: some scholars argue that state immunity should apply to non-judicial contexts, while others believe it only applies to judicial proceedings. The core of the controversy lies in defining the scope of state immunity and balancing the principles of sovereign equality and territorial sovereignty in non-judicial measures.

1.State Immunity: The right of a state and its property to be immune from jurisdiction and enforcement in the judicial, administrative, or legislative proceedings of another state, fundamentally based on the principle of "sovereign equality", namely "par in parem non habet imperium" (equals have no sovereignty over each other). | 2. Non-Judicial Measures of Constraint: Measures restricting the property of a foreign state taken by executive or legislative organs (such as freezing, confiscation, taxation, etc.), distinguishing them from judicial enforcement measures following court judgments. | 3.Unilateral Sanctions: Restrictive measures unilaterally imposed by a state or group of states against another state without United Nations authorization (e.g., economic sanctions). | 4.Public Policy Exception: An exception allowing a territorial state to take coercive measures against the property of a foreign state to safeguard significant public interests (such as crime prevention or security). | 5.Immunity from Enforcement: The right of state property to be exempt from compulsory enforcement measures (such as attachment or auction), differing from immunity from jurisdiction.

1.Normative research method: Combing through the provisions of legal instruments such as the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), clarifying its limitations on "immunity in judicial proceedings", and exploring whether customary international law breaks through this scope. Extracting the legal principles of state immunity through precedents of the International Court of Justice (ICJ), and analyzing the applicable boundaries of these principles for non-judicial measures. | 2.Empirical research method: Analyzing the provisions on non-judicial immunity in the domestic laws of countries like France and Spain, and comparing their differences from traditional judicial immunity. Studying the administrative and judicial cases in Austria, New Zealand, etc., to examine the practical application of non-judicial immunity by administrative organs and courts. Taking measures such as the EU's "freezing" of the Central Bank of Russia's assets and "taxation on windfall profits" as samples to analyze their legal nature and impact on state immunity. | 3.Comparative research method: Contrasting the "comprehensive immunity theory" that claims immunity applies to all state powers with the "judicial limitation theory" that argues immunity is limited to judicial proceedings, and analyzing the logical foundations of both. Introducing the concept of "Inviolability" from international investment law and diplomatic law, and analogizing its protection logic with state immunity to assist in defining the content of non-judicial immunity. | 4.Case study method: Conducting a detailed analysis of typical cases of sanctions measures, such as the U.S. freezing of the Central Bank of Iran's assets and the EU's tax measures on Russian assets, to examine the legal controversies of non-judicial measures. Tracking Russia's protests against asset confiscation in the UN General Assembly and bilateral statements, and analyzing their legal basis. Dissecting the judgments on state immunity by courts such as the Federal Court of Justice of Germany and the New Zealand Court of Appeal, and exploring the immunity exceptions in non-judicial scenarios.


The Unsettled Governance of the Dual-Use Items under Article XXI(b)(ii) GATT: A New Battleground for WTO Security Exceptions

Question: Against the backdrop of escalating technological competition and geopolitical conflicts, how to address ambiguities in the governance of dual-use items trade by clarifying the regulatory connotations of Article XXI(b)(ii) of the GATT. This clarification aims to prevent "security exceptions" from being distorted into tools of trade protectionism, thus safeguarding the legitimacy and stability of the multilateral trading system.

1.Setting the Scene: The Blurring Line between Military and Civilian Applications in the Times of Global Insecurity | The concept of dual-use products reflects the reality that certain commodities have both civilian and military value. However, the specific meaning of this concept is dynamically changing, contingent upon the epistemological context and instrumental interpretation. In recent years, significant changes have occurred in both dimensions, leading to a notable expansion of the scope of dual-use products. First, the technologization of modern warfare and the commercialization of military applications have greatly widened the range of dual-use products. Concurrently, the evolution of the concept of security has resulted in items previously outside the scope of conventional security concerns being incorporated into it. | | 1.1 Recent disputes regarding restrictions on dual-use items by the World Trade Organization | In 2022, China initiated a trade dispute against the US semiconductor export control measures, pointing out that the US imposed export controls on civilian items or commercial entities' activities, aiming to undermine the technological development of other WTO member countries and maintain its technological superiority. The US continued to implement its "Small Yard, High Fence" strategy under the slogan of "economic security equals national security", formulating regulatory policies based on the premise of economic growth, resources, and technological innovation necessary for maintaining advanced military forces. Other countries also followed suit. In the "European Economic Security Package" released in early 2024, the European Commission further called for enhanced coordination of control lists among countries to ensure that the EU has a common voice in European security and international trade control of dual-use items. The further expansion of export control measures by various countries and regions may trigger new trade disputes and retaliatory actions, further highlighting the urgency of clearly defining trade rules applicable to dual-use items. | | 1.2 Increase in the variety of dual-purpose products | In everyday language, the term "dual-use" refers to products, activities, or technologies that have at least two different uses. Traditionally, the definition of dual-use products is based on the binary opposition of civilian and military. In the current geopolitical confrontation context, there are three trends that have expanded the scope of dual-use products, thereby posing new challenges to the regulation of these products: | Firstly, the technologicalization of modern warfare and the privatization of military supply chains. The enhancement of the technological level of modern warfare and the privatization of military supply chains have accelerated the expansion of dual-use items that can be used for both military and civilian purposes, while further enhancing the role of private contractors in defense-related procurements. | Secondly, the control of dual-use items based on moral or value considerations. Based on the more ethical and value-oriented "good" and "bad" purposes, the identification of dual-use items is increasing. These purposes typically involve counter-terrorism, combating crime, cybersecurity, and human rights protection. In recent years, the subjectivity of identifying dual-use items has become increasingly prominent. Not only are products used for military purposes reviewed, but those that may be used for malicious purposes are also reviewed. | Finally, are the deficiencies of multilateral export control systems. So far, the export control of dual-use items has been managed under the "Vassenar Agreement". This agreement was created in the 1990s to limit the transfer of weapons and dual-use technologies to communist countries during the Cold War. With the change in the traditional security basis of the "Vassenar Agreement", this list is considered outdated as it no longer meets new security concerns and gradually becomes obsolete. At the same time, there is a lack of a multilateral platform for discussing emerging security issues, leading to the absence of multilateral solutions. | | 2.Dual-Use Items within the Meaning of Article XXI(b)(ii) GATT | WTO rules do not distinguish between dual-use items and single-use items. Any measure restricting international trade in dual-use items must comply with WTO rules. If the regulation of dual-use items takes the form of export controls, it may violate basic obligations such as the prohibition on quantitative restrictions and non-discrimination principles, and may undermine related commitments. At this point, the WTO Member may be exempt from liability by invoking exceptions in the agreements, and Article XXI(b)(ii) GATT is precisely the key basis for regulating trade in dual-use items. | | Through doctrinal analysis, the following conclusions can be drawn: First, unlike Article XXI(b)(iii), which applies only to "war or other emergency in international relations", paragraph (b)(ii) can be invoked in peacetime without relying on war or emergency as a prerequisite. Second, paragraph (b)(ii) only focuses on trade in military supplies and does not cover emerging issues such as human rights. Third, paragraph (b)(ii) is divided into two parts, both of which may apply to trade restrictions on dual-use items. The first part covers trade in "arms, ammunition and implements of war", including raw materials, technologies and services that contribute to their manufacture and maintenance. The second part covers trade in other items "carried directly or indirectly for the purpose of supplying a military establishment", which must satisfy the "purpose test". In practice, governments that wish to impose restrictions on dual-use items under paragraph (b)(ii) must show that they have conducted due diligence or obtained evidence from reliable sources, leading them to believe that the restricted products serve military purposes "directly" or "indirectly". This is crucial to prevent abuse of the provision. | | | 2.1 Interpretation of "Self-Judging" Elements in Security Exceptions | Article XXI of the General Agreement on Tariffs and Trade reads as follows: | Noting in this Agreement shall be construed | (a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or | (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests | (i) relating to fissionable materials or the materials from which they are derived; | (ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried directly or indirectly for the purpose of supplying a military establishment; | (iii) taken in time of war or other emergency in international relations. | | Article XXI provides two grounds for WTO Members to legitimize their trade restrictions. Paragraph (a) permits states to withhold information they consider detrimental to their essential security interests, while paragraph (b) allows trade-restrictive measures to be taken to protect essential security interests under certain circumstances. Regarding the chapeau of paragraph (b), there has long been a debate over whether its wording constitutes self-judgment. Proponents argue that sovereign states have unrestricted discretion in defining security interests and the actions needed to protect those interests; opponents, however, are concerned about the unrestricted invocation of the provision and call for the development of appropriate legal standards to review such invocations. | | In a series of recent cases, WTO panels have been required to consider the interpretation of the chapeau of paragraph (b) and its sub-paragraphs. Despite minor differences, the panels have almost consistently held that security exceptions include both subjective and objective elements. When invoking security exceptions, WTO Members are entitled to determine the specific content of their core security interests, including any interests or threats deemed essential to the existence of the state, such as international war, civil war, domestic riots, terrorism, and even human rights violations occurring in territories other than that of the invoking state. Regardless of what a WTO Member considers to be its essential security interests, it must articulate those interests sufficiently to demonstrate their veracity and convince the panel that the invocation is made in good faith. Meanwhile, the elements mentioned in sub-paragraphs (i), (ii) and (iii) can and should be objectively verified by the panel. From these cases, it can be concluded that the panels’ interpretation of "it considers" in the chapeau of paragraph (b) falls into two parts: first, it grants WTO Members significant discretion over their essential security interests and the means of protection; second, it lowers the standard of proof for the specific paragraphs mentioned in the sub-paragraphs. | | 2.2 Interpretation of Objective Elements in Sub-Paragraph (b)(ii) | Sub-paragraph (b)(ii) covers trade in "arms, ammunition and implements of war" and trade in goods "carried directly or indirectly for the purpose of supplying a military establishment". Unlike the security measures in emergency situations mentioned in sub-paragraph (b)(iii), this indicates that such trade can be restricted even in peacetime. | | Structurally, Article XXI(b)(ii) is divided into two separate parts by the conjunction "and", with mutually exclusive scopes of coverage. "Traffic" is equivalent to "trade". "Arms, ammunition and implements of war" shall be understood in their ordinary sense unless there is evidence to the contrary. Meanwhile, the juxtaposition of "implements of war" with the other two items indicates that this definition should exclude items that may be used by the military but are not specifically intended for combat. However, there remains controversy over whether raw materials, technological products and services that may be used in weapons manufacturing and maintenance can be included. The second part of sub-paragraph (b)(ii) originated from a proposal by the United States during the negotiations of the International Trade Organization (ITO), aiming to address the "legitimacy of trade restrictions related to military supplies". The United States was the primary drafter of this article, and "military establishment" is regarded in U.S. foreign policy as a broader military bureaucracy or defense system. However, ITO negotiators, except for U.S. representatives, had doubts about the precise meaning of this term. Since the intended purpose of such "traffic" is to support the "military establishment", the "purpose test" is the core of this analysis. From the negotiating history of the provision, it can be seen that GATT/WTO members were aware that the provision might be interpreted more broadly, but they were not prepared for it to cover "almost everything", and the scope of the provision remains an open question. | | The final compromise was reflected in two aspects: first, "military establishment" should not be interpreted as involving long-term defense or security plans; second, the form of "indirectly" supplying was added during the negotiations. In "directly or indirectly", "direct" refers to situations where items are delivered directly to military establishments; "indirect" refers to situations where items may initially be used in civilian scenarios but ultimately may serve military purposes. This formulation stems from considerations of "the integrity of military supply chains" during the negotiations. | | | 2.3 Legitimate Restrictions on Dual-Use Items | First, it should be clarified that sub-paragraph (b)(ii) can be invoked in peacetime. | Second, sub-paragraph (b)(ii) can only be used to justify trade restrictions on direct or indirect military supplies. Dual-use items are expected to be categorized under the second part of sub-paragraph (b)(ii). This provision does not permit restrictions on dual-use items identified based on ethical or value-based categories outside the civil-military dichotomy. Export controls imposed to restrict trade in goods and technologies that may be used to violate human rights are unlikely to meet the requirements of sub-paragraph (b)(ii) unless such violations are perpetrated by the military using the controlled items. | Third, sub-paragraph (b)(ii) provides a safety valve to curb disguised protectionism. The state invoking this provision must prove that the trade of restricted items is for the purpose of "directly or indirectly supplying a military establishment", rather than based on vague grounds such as long-term defense plans. At the same time, when imposing trade-restrictive measures, the invoking state must have a clear subjective awareness of the items’ purpose of military supply through due diligence or reliable information, and such awareness cannot be established retrospectively. In terms of export controls, the aforementioned purpose test should be carried out in two stages. The first stage is inclusion in the control list, where the invoking state must prove that the items listed have potential military applications to justify their inclusion in the control list. The second stage involves the granting of export licenses, where the invoking state must demonstrate its awareness that the export of specific batches of items may directly or indirectly supply military establishments. However, the highly confidential nature of military supply means that importing countries and traders usually do not disclose information about military-related transactions, increasing the difficulty of verifying the "purpose test". | Invoking states should be given a certain degree of flexibility in determining the ultimate use and destination of items. Nevertheless, this poses challenges for reviewing bodies in defining the boundaries of the invoking states’ discretion, and this challenge ultimately translates into the issue of the standard of proof in adjudication. In addition, even if the invoking state has accurate information, requiring it to disclose such information to the reviewing body may endanger national security interests. | | 3.The Standard of Proof Issue | The difficulty in effectively reviewing the conditions specified in sub-paragraph (b)(ii) lies in the fact that WTO Members have the right to refuse to provide specific confidential information. Therefore, adjudicators may consider that the invoking country has fulfilled its burden of proof if it can demonstrate that certain products were included in the control list because they have military uses, regardless of whether they are actually used or will be used in the future. This limits the effectiveness of the purpose test in preventing the abuse of this provision. | | In the 1949 Czechoslovakia v. US case, the US imposed export controls on the grounds that "ball bearings could be used for military purposes". Although Czechoslovakia argued that the scope of the controls was too broad, the GATT Contracting Parties ultimately rejected its claim. This case shows that the "purpose test" requires the invoking country to prove its subjective awareness of the ultimate military use of the items, but the actual determination is extremely difficult. The US was able to meet the proof requirements merely by inferring military use from product specifications, reflecting the relaxation of the standard of proof. The US argues that the "purpose test" should be judged by the invoking country itself and opposes secondary review by adjudicative bodies. This conflicts with the position confirmed by recent WTO panels that "the elements of sub-paragraphs need to be objectively verified". However, the "subjective awareness" element still weakens the objective standard of proof. | | Article XXI(a) GATT explicitly allows contracting parties to refuse to disclose information that "is contrary to their essential security interests". In the "Russia – Measures Concerning Traffic in Transit" case, Russia refused to explain the specific basis for the "emergency in international relations" on the grounds that "the information is confidential" and only cited public information as evidence. The panel ultimately recognized that its "elaboration of essential security interests meets the minimum standard". This indicates that when the invoking country refuses to disclose information on the grounds of national security, adjudicative bodies can only rely on public information, making it difficult to verify whether the "purpose test" has actually been satisfied. | | Although the purpose test is intended to curb the abuse of Article XXI(b)(ii) GATT, imposing countries still retain considerable flexibility in their decisions. The question as to whether the invoking states adequately fulfill the ‘purpose test’, and discharge their burden of proof in so doing, can only be decided on a case-by-case basis. Furthermore, when the WTO Members refuse to provide certain information on the grounds of security, the panels will have to consider publicly available information. This provides significant room for maneuver to countries seeking to use, or abuse, security exceptions to justify trade restrictions on certain products. | | 4.The Provision in Action: Implications for Trade Governance | Take export control measures as an example. According to the Wassenaar Arrangement, Article XXI(b)(ii) of the GATT is based on traditional security concepts. Therefore, this clause only covers items used for military deployment. It is outdated in reflecting emerging security threats and demonstrates its lack of inclusiveness. Besides, another defect of this clause lies in its weakness in curbing malicious citation. This is mainly attributed to the difficulty in implementing the "purpose test". Export control already allows for taking punitive measures against companies that fail to meet the notification requirements. This means that traders may face penalties such as bans and fines for being preliminarily identified as dual-use items, without the need for further investigation into their actual transactions. | | Moreover, due to the lower proof standard, the licensing authority will have greater discretion when conducting such investigations. The core issue lies in whether the citing country actually has the information to support its judgment on military supplies. Under a more lenient proof standard, it is difficult for the referee to verify this information. Therefore, this clause is prone to being abused to restrict trade for products that have dual uses but are not intended for military institutions. | | Conclusion | While the Purpose Test aims to curb abuse, its effectiveness is limited by relaxed proof standards for security measures, leaving states substantial flexibility in interpreting the test. When Members withhold evidence on security grounds, panels must rely on public data, enabling broad misuse of security exceptions to justify trade restrictions on dual-use items. | | Security exceptions embody a realist challenge to the neoliberal foundations of the international trading system. The "self-judging" elements in these clauses, rooted in negotiators’ consensus, render them prone to abuse. For seven decades, states exercised political (not legal) self-restraint in invoking these clauses, but this restraint has eroded as states increasingly exploit security exceptions for expanding or pretextual security interests. Restrictions on dual-use items now pose the next challenge to the global trading system, with uncertainties growing as the dysfunctional WTO dispute settlement mechanism fails to resolve emerging trade conflicts.

1. Correctly elaborate the concept of dual-use items and analyze the international situation to demonstrate the urgency of clearly establishing trade rules applicable to dual-use items.
2. Correctly elaborate several factors that have expanded the scope of dual-use products, including the technologization of modern warfare and privatization of military supply chains, ethics- or value-based control of dual-use items, and deficiencies of multilateral export control regimes.
3. Correctly understand that Article XXI(b)(ii) GATT is the core provision regulating trade in dual-use items, applicable in peacetime, covering trade in "arms, ammunition and implements of war" and trade in other goods "carried on directly or indirectly for the purpose of supplying a military establishment".
4. Correctly understand the "purpose test" contained in Article XXI(b)(ii) GATT, which requires the invoking state to prove that the trade of restricted items is for the purpose of directly or indirectly supplying a military establishment and that it had subjective awareness of this when invoking the provision. This is a key safeguard to prevent abuse of the provision.
5. Correctly understand the difficulty in the standard of proof when applying this provision: due to the right to non-disclosure of national security information, reviewing bodies often rely on publicly available information, resulting in a relaxed standard of proof, which makes it difficult to effectively verify whether the "purpose test" is satisfied.
6. Point out that the ambiguity of this provision and challenges in its application may pose a threat to multilateral trade governance, making it hard to balance legitimate security needs and trade protectionism, and this issue needs to be addressed urgently.

1.Deep integration of technology and military fields: The technologization of modern warfare and privatization of supply chains have endowed numerous civilian technologies (e.g., semiconductors, drones) with military application potential, expanding the scope of dual-use items from traditional weapons to high-end tech products. | 2.Technological competition as a core national security issue: The U.S. restricts exports of critical technologies through the "small yard, high fence" strategy to maintain technological hegemony, essentially practicing trade protectionism under the guise of "security". | 3.Escalation of geopolitical conflicts: The trend of economic decoupling among economies like China-U.S. and Europe-U.S. has intensified. The U.S. has imposed approximately 2,800 export controls on Chinese semiconductors—over 1,000 more than multilateral frameworks—prompting accusations of "disguised protectionism". | 4.Focus of WTO disputes: In the U.S.-China semiconductor dispute, the U.S. claims export restrictions aim to prevent technology from flowing to China’s military, while China accuses it of undermining multilateral trade rules. Such disputes highlight the direct conflict between "security exceptions" and trade rules. | 5.Lagging application of GATT rules: Drafted during the Cold War, GATT Article XXI(b)(ii) only covers "arms, ammunition, implements of war" and items "supplying military establishments directly/indirectly", failing to adapt to controls on emerging technologies like AI and quantum computing. The clause allows members to self-judge "essential security interests", making it difficult for WTO panels to review the legitimacy of control measures.

1.Security Exceptions: Provisions in WTO agreements that allow members to deviate from trade obligations under specific security crises, such as Article 21 of GATT, Article XIV bis of GATS, etc. | 2.Purpose Test: Aburden of proof mechanism required by Article 21(b)(ii) of GATT, obliging the invoking party to demonstrate that the controlled items are "supplied directly or indirectly to military establishments". | 3.Entity List: A trade restriction list issued by the U.S. Department of Commerce's Bureau of Industry and Security (BIS), aiming to restrict specific foreign entities from accessing U.S. technologies to safeguard U.S. national security and foreign policy interests. | 4. Small Yard, High Fence: A U.S. strategy referring to precise and strict controls over critical technologies and "hostile nations". | 5.Quantitative Restrictions: Measures restricting trade through quotas, export bans, etc., which are generally prohibited by WTO principles. | 6.Most-Favoured-Nation Treatment: A fundamental WTO principle requiring members to grant trade treatment to other members no less favorable than that accorded to any third party.

1. Normative Analysis Method: Conduct a strict interpretation of the provisions and terms of Article XXI(b)(ii) of GATT, pointing out that due to its "self-judgment" attribute and the right to information confidentiality, it is difficult to effectively curb the abuse of protectionism. Distinguish the purpose element of the clause "direct/indirect supply to military institutions", and propose a two-stage standard (list formulation and license approval stage) for the "purpose test". Criticize that the framework of the clause lags behind technological development and fails to cover emerging dual-use items such as AI and quantum computing. | 2. Case Analysis Method: Conduct a WTO dispute case analysis, focusing on the semiconductor dispute between China and the United States (WT/DS615), analyzing the legitimacy controversy of the United States' implementation of export control under the pretext of "military modernization". Analyze the Russian transit trade case (WT/DS512), the Saudi intellectual property case, etc., and discuss the issue of "relaxation of the burden of proof" in the invocation of the security exception. Refer to the 1949 Czechoslovakia v. United States export control case for historical reference, explaining the lenient recognition standard of "purpose test" in the early GATT. | 3. Comparative Analysis Method: Compare the Wassenaar Arrangement with GATT rules, pointing out that the former's consensus decision-making failure prompted countries to turn to unilateral control. Trace the negotiation history of Article XXI, explaining the historical limitations of the clause design. | 4. Empirical Analysis Method: Quote the WTO report to indicate that 15% of quantitative restrictions in 2023 invoked Article XXI, reflecting the actual application trend of the security exception.