Columbia Journal of Transnational Law

The exercise of extraterritorial jurisdiction is necessarily invasive of some other sovereign's power and so inevitably leads to conflict, or at least, controversy. In the Western world, where international legal, economic, and political norms seem to be converging towards relative harmony, the natural tendency of governments has been to restrict the extraterritorial reach of sovereign power and rely instead on international cooperation. France has been particularly outspoken in its resistance to the exercise by any other country of jurisdictional rights perceived by France as extraterritorial. For example, since the adoption in July 2002 of the Sarbanes-Oxley Act, French market regulators and commentators have criticized the Act as an overextension of United States law, in its application to foreign private issuers whose securities are traded in the United States. Yet, while the Sarbanes-Oxley Act sets rules for businesses that have chosen to operate in the United States, France itself adopted rules of criminal jurisdiction in the 1990s that extend the reach of French criminal law not only to foreign businesses operating in France, but also to any foreign persons interacting with French nationals abroad. The passive personality jurisdiction is widely regarded as the most aggressive basis for extraterritorial jurisdiction. It is typically applied only to the most egregious criminal actions, such as terrorism and violent crimes, and even then, it is strictly limited by procedural safeguards and the requirements of reasonableness and dual criminality. This article discusses France's uniquely broad approach to passive personality jurisdiction and its incompatibility in the economic sphere, and particularly in connection with international financing transactions, with international principles of comity among nations.
According to the United States Supreme Court in Medellín v. Texas, decisions of the International Court of Justice (ICJ) are not enforceable in U.S. courts and have no direct domestic effect. The Medellín Majority found that compliance with ICJ orders and judgments can only be demonstrated at the international level, and that the U.S. may demonstrate non-compliance with ICJ decisions by vetoing a Security Council resolution that seeks to enforce the ICJ decision. This Note argues that the guiding premise of the Majority’s holding - that the U.S. enjoys an unqualified veto in the Security Council - is incorrect. In fact, the U.S. must abstain from voting as a party to the dispute when an enforcing resolution is an exercise of the Security Council’s peaceful dispute settlement powers. The Security Council voting rule stipulated in Article 27(3) of the U.N. Charter, termed the “obligatory abstention,” mandates that “in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.” One implication of the obligatory abstention is that ICJ decisions are not solely internationally enforceable, and that some ICJ decisions may be at least partially domestically enforceable, as articulated by the Medellín Dissent. Furthermore, a Security Council resolution giving effect to the ICJ decision may be enforceable in U.S. courts, as the D.C. Circuit suggested in Diggs v. Richardson.
Economic globalization represents both an unmet opportunity and a significant challenge for the fulfillment of social and economic rights, including the right to food. While corporate sector accountability and the responsibility of international financial institutions (IFIs) to ensure social and economic rights are now at the forefront of the globalization discourse, greater attention must be paid to how these actors can be held accountable under international law. The existing human rights legal framework is ill-equipped to deal with violations committed by non-state actors, such as transnational corporations (TNCs), and multi-state actors, such as IFIs. Using the right to food as an entry point, this Article argues that international law is in need of rethinking under globalization. Part I examines the impact of IFIs and TNCs on the right to food and argues that effective implementation of the right to food is undermined by international human rights law's state-centric focus and jurisdictional constraints. Part II asserts that under the obligation of international cooperation, States Parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) must respect and protect the right to food extraterritorially. This includes an obligation to regulate the activities of TNCs and IFIs over which they exercise influence or control. Pan III addresses the need to locate the right to food outside of the international treaty law framework to ensure the accountability of non-ICESCR ratifying states. It analyzes the right to food as customary international law and concludes that the minimum core component of the right to food - the right to be free from hunger - may have already achieved customary status.
The Foreign Sovereign Immunities Act (FSIA) governs suits against foreign governments in the federal and state courts. The contempt power is a core judicial competency for maintaining efficiency and enforcing orders. As currently enacted, the FSIA does not prohibit use of the contempt power against foreign governments. However, the Act's structure, the quasi-punitive nature of judicial contempt sanctions and the fact that such sanctions are nearly per se unenforceable under the FSIA's statutory terms render use of this power inconsistent with the constitutional allocation of the foreign affairs powers. Because contempt sanctions cannot be effectively enforced in FSIA cases, they are reduced to judicial statements of disapproval regarding the conduct of a foreign government. Such statements are the province of the executive branch. This Note argues that the contempt power should be restricted under the FSIA and presents three potential methods for achieving this result: judicial abstention, executive statements of interest and legislative restriction. This proposed restriction will help prevent potential foreign policy complications with only a minimal impact on the historical power of the judiciary and the rights of plaintiffs.
The Chinese government’s rule of law campaign has created greater awareness of legal issues and generated bottom-up pressure for legal change. This dynamic was highlighted in April 2003, when Chinese media reports on the death of a young man named Sun Zhigang while in police custody sparked a public outcry. This public pressure, coupled with a groundbreaking citizen legal challenge, eventually prompted China’s State Council to dismantle a controversial form of administrative detention called “custody and repatriation.” The Sun Zhigang incident demonstrated that by leveraging a wave of media coverage and public opinion in a case of mass concern, co-opting laws and official rule of law rhetoric, formulating a technical, well-grounded legal appeal within the system, and focusing on modest legal reform goals that did not challenge fundamental state or Party interests, lawyers could successfully accelerate legal reform without triggering the type of damaging backlash directed against other, more politicized citizen actions. Although reformers failed in their secondary goal of creating a precedent for National People’s Congress annulment of an administrative regulation, their efforts had broad impacts in promoting the development of constitutionalism, generating political pressure for law enforcement reforms, creating an enhanced sense of citizen empowerment, and providing a refined model for law-based citizen rights actions. Legal activists have successfully applied similar moderate legal strategies in some subsequent cases, while more aggressive, politicized tactics have prompted negative state responses. Overall, the citizen action strategies refined in the Sun Zhigang incident have provided legal reformers with one path forward for promoting modest but meaningful legal reform in China. Recent government efforts to control the scope and potential impact of some citizen initiatives will provide a key test of the degree to which this reform model is sustainable in the near-term.
This article examines a form of securities class action that is growing increasingly popular in U.S. courts: the foreign cubed action, brought against a foreign issuer on behalf of a class that includes foreign investors who purchased securities on a foreign exchange. These cases are becoming an important part of the regulatory landscape (as evidenced by recent high-profile lawsuits involving issuers such as Vivendi, Bayer and Royal Ahold), and they create the potential for particularly severe conflict with other countries on the question of how best to regulate global economic activity. Yet they point out quite clearly that the traditional conduct and effects tests for subject-matter jurisdiction are inadequate to the task of delimiting the reach of U.S. securities laws in the global capital markets. The article draws on a study of almost 50 foreign cubed claims. It analyzes the arguments made by foreign investors seeking to justify the application of U.S. law to their claims - arguments that base an expansive theory of regulatory jurisdiction on the interconnections among the world's capital markets. It then turns to judicial disposition of such claims, examining the various stages of litigation (including class certification) at which courts confront jurisdictional questions and identifying a series of assumptions that courts make in attempting to draw jurisdictional lines. It then uses those assumptions to predict how courts will respond to multinational class actions in the continued absence of legislative guidance regarding subject-matter jurisdiction under the securities laws.
The role of the eighteen judges of the International Criminal Court is an under-explored yet critical topic for followers, both opponents and proponents alike, of the Rome Statute. However, the scarcity of analysis regarding the potential for judicial policy-making at the ICC is symptomatic of a larger problem: there is no general theory of judging in the international context. This article examines the role of the judge in international adjudication by canvassing literature and case - studies on the structural and cultural factors which influence judicial policy-making in national and international courts and applying the derived lessons to the ICC. In addition, the professional norms shared by the community of ICC judges will be examined for their impact on the exercise of judicial discretion. More generally, the article will attempt to forward the project of forming a theory of judicial policy-making in the course of international adjudication. The article predicts that the pre-formed, professional norms of ICC judges will push the Court towards robust judicial policy-making due to both the character of the Rome Statute's controls over the bench and the inherent nature of humanitarian law. The article concludes by arguing for the limited introduction of new professional norms into the community of ICC judges to better capture the efficiency gains from judicial discretion while lessening the fears which have produced much of the distrust of the Court.
This article posits that the creation and development of international regulatory regimes has so far required a choice between rulemaking and adjudication. Regulators that wish to make policy broadly and prospectively have done so informally and through rules. More elaborate and powerful regulatory regimes, however, have tended to feature the creation of an adjudicator. This choice of policymaking form has important, but often overlooked, procedural consequences. Choice of form affects the effectiveness, flexibility, accountability, and transparency of an international regulatory regime. The article examines three characteristic ways that international regulators make rules. For adjudication, it introduces three tribunals that exemplify that process. It uses the distinction between rulemaking and adjudication to organize these disparate international institutions and concludes with recommendations that would help to increase the formality of the new breed of international rulemakers, and conversely increase the flexibility of the new set of international tribunals.
This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important weaknesses in the neorealist understanding of international human rights law.
On July 22, 2010, the International Court of Justice (the court or the ICJ) rendered an Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion or Opinion), considering whether the unilateral declaration of independence of Kosovo is in accordance with international law. This Paper contrasts the court’s narrow interpretation of the question put to it by the General Assembly, and its subsequent narrow conclusions, with the broader consequences of its reasoning, in particular in relation to the questions of the legality of Kosovo’s attempted secession and the legality of the recognition of Kosovo’s independence by third States. By analyzing the court’s reasoning in relation to the scope and meaning of the question as well as to whether the adoption of the declaration of independence was in violation of general international law, Security Council Resolution 1244 (1999) and the Constitutional Framework, this Paper reveals an Opinion far more damaging to Serbia’s interests than its narrow conclusions might suggest. The Paper concludes that the court’s ultimate message is that while secessionist movements are free to declare independence, achieving it in practice should be left to the international community to decide through political fora. In this light, this Paper urges Serbia and Kosovo to take up the European Union’s (EU) offer to facilitate a dialogue and begin their journey on the path towards peace, security and stability in the region.
OHADA (in English, Organization for Harmonization in Africa of Business Laws) is a system of business laws and implementing institutions. Sixteen West African nations adopted this regime in order to increase their attractiveness to foreign investment. Because most of the member states are former French colonies, the OHADA laws are based on the French legal system. Despite certain economists’ recent, well-publicized assertions that any French-based legal system is incompatible with development, other studies challenge those claims and in doing so outline characteristics that a pro-development system of business laws should possess. This Article reviews selected provisions from OHADA’s corporate law and of OHADA’s institutions, revealing that they correspond to those pro-development characteristics. Interviews conducted with legal professionals in Senegal, Côte d’Ivoire, and Cameroon highlight the local perception that the OHADA regime, while still
This brief response to Timothy Webster's article, "China's Human Rights Footprint in Africa," critically appraises China's disavowal of human rights, the rule of law and democracy in its African relations. China has argued that its African relations are based on the principles of political equality and reciprocity, mutual trust and benefit, common prosperity, sincerity and friendship. I critically evaluate this effort to redraw the boundaries between political and economic interventionism. In so doing, I make two major claims. First, viewing China's involvement in Africa as purely or primarily economic, and not interventionist, imperial or political, is inaccurate. Second, to address Africa's development and human rights challenges, African countries must capitalize on the trade and investment opportunities China and other countries provide by taking concerted measures to transform their dependency on primary products by developing a productive base upon which competitive industries could emerge to promote the kind of growth that would inure positively for human rights. African governments must develop relations with Chinese firms and government that transfer skills and technology to African firms so that Africa can benefit from Chinese expertise and knowledge as a positive strategy for moving away from dependency on raw-material production without value-addition.
One of the most polarizing debates in international law is how the goal of peace should figure into the work of international criminal tribunals. The freshly minted crime of aggression lands the judges of the International Criminal Court in the middle of the peace versus justice dilemma and will challenge the court to prove its value for advancing peace in appropriate circumstances while building the rule of law and maintaining its legitimacy. This Article, the final installment in the author's trilogy on the crime of aggression, explores the gaps, ambiguities and contradictions woven into the definition of the crime and evaluates the range of ways in which well-intentioned international judges might attempt to do justice while promoting peace through decisional law focusing on three of international law's most controversial questions: the scope of self-defense, the status of humanitarian intervention under the UN Charter and the character of an armed attack. Ultimately, this Article argues for a richer understanding of the concepts of peace and justice that will permit international judges to punish aggression while promoting peace.
Delegates recently convened in Kampala, Uganda to lay the groundwork for the International Criminal Court’s eventual prosecution of the crime of aggression. This achievement caps decades of negotiations that began in the post-World War II period. From virtually the beginning of the negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Delegations diverged on which body — the Security Council or the court itself — should be empowered to determine whether a predicate act of aggression had occurred and whether it was necessary for the putative aggressor state(s), the victim state(s), or both, to have consented to the court’s jurisdiction before a prosecution could proceed. The end product was an unimpeachable regime of state consent that completely insulates the nationals of non-party states from prosecution and allows States Parties to opt out of the crime entirely. The results achieved in Kampala have subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in international relations. This Article examines the aggression amendments and the process by which they were adopted, concluding with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent and judicial independence within public international law.
This article considers the tension in U.S. foreign policy between unilateral and multilateral approaches to the promotion and protection of religious freedom. In particular, it analyzes the recently enacted International Religious Freedom Act of 1998 that seeks to enforce international human rights norms through the imposition of unilateral sanctions on foreign countries that deny religious freedom and persecute religious groups. The Article suggests that this approach stands in an uneasy relationship with existing international and regional human rights regimes and institutions. It argues that as an instrument of foreign policy, the Act is vulnerable to politicization and abuse of the human rights agenda and serves ultimately to undermine the universality, legitimacy, and progressive development of multilateral human rights regimes and actors. Instead of unilateral coercive enforcement, it is suggested that effective compliance with international religious freedom norms depends upon a process of repeated interaction with international actors and participation in multilateral regimes so that the relevant norms become internalized in the constitutional, legal, and political systems of all states.
A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This Article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation. The Article next considers the strengths and limitations of the Inter-American Tribunal's unique reparative approach, which has been neglected in the literature despite significant evolution in recent years. The following section attempts to refine the Court's normative model by proposing a "participative" methodology, consisting in procedural reforms, to calibrate remedies more precisely to a victim's situation and necessities. Finally, the work discusses how the Court's victim-conscious balance of non-monetary orders and economic compensation, which has revamped standards for redress in international law, should be incorporated to a greater extent into the remedial approaches of other international courts and domestic institutions.
This article examines implementation of the international sales law by arbitral tribunals in China. The leading Chinese arbitral tribunal -- CIETAC -- has recently released the full-text decisions issued in over 300 disputes involving international trade. Upon a careful examination of this decisions involving non-conformity of goods, the authors conclude that the decisions generally convey objective, non-biased jurisprudence (notwithstanding some caveats about the completeness of the available record). They go on to conclude that the ability to rely on a fairly predictable tribunal has been good for the development not only of China's trade-based economy but also for its more general rule of law.
This Article challenges the emerging consensus that arbitrators who adjudicate investor-state disputes should strive for greater consistency. It submits that consistent adjudication can only be realized by sacrificing accuracy, sincerity and transparency. For many national and supranational legal systems, this is a price worth paying to promote goals like equality, certainty, predictability and perceived legitimacy of dispute resolution. The case for privileging these goals, however, loses much of its force in the context of investment treaty arbitration. Substantive investment law, currently consisting of approximately three thousand instruments, is fragmented and dynamic. And due to its ad hoc character, arbitration is flawed as a vehicle for harmonizing law. For these reasons, arbitrators in investor-state arbitrations should resist any norm of precedent in the sense of deference to earlier awards. At the same time, arbitrators ought to be mindful that their awards contribute to the development of substantive law in an area of great public importance. The Article concludes that the key lessons from precedent lie in its forward-looking aspects, namely the decision-making and reason-giving responsibilities that flow from the notion that decisions will have effects beyond resolution of the immediate dispute.
Investment treaty arbitration is a relatively recent innovation designed to allow foreign investors to bring claims against host States without having to seek redress in the host State’s own courts. Yet a trend has emerged that some have characterized as inconsistent with this purpose: several tribunals have rejected treaty claims based on their impression that the claimants had not adequately pursued local remedies prior to initiating arbitration. Moreover, some of these tribunals have suggested that if an investor does pursue local remedies, it may be effectively prevented from later rearguing issues addressed by national courts. The combined effect of these holdings is to place investors in a Catch-22, encouraging them to pursue local remedies, while warning them that doing so may foreclose success at the international level. This Article highlights the tension between these distinct aspects of this line of authority and evaluates each by reference to treaty language, principles of international law, domestic analogs under U.S. constitutional law and policy considerations. This analysis reveals that there is a sound basis for treating local remedies as relevant to the merits of certain treaty claims, but that tribunals should give more limited deference to national court decisions. The modified approach outlined in this Article promises to strike a better balance between investor protections and national sovereignty, and thereby promote the long-term viability of investment treaty arbitration.
International arbitration has become the preferred method for resolving disputes between parties of different nationalities, because it theoretically offers them a neutral forum to quickly and economically settle their differences. Unfortunately, the methods currently being used to determine challenges to the jurisdiction of arbitral tribunals often frustrate these objectives because these methods do not use the most efficient procedure to resolve such challenges. This article offers a new approach for handling jurisdictional challenges that would provide arbitrators with uniform guidelines for resolving these claims and decrease the amount of time and the cost to resolve the dispute.
In recent decades, developing countries and indigenous communities have increasingly asserted the necessity of protecting so-called “traditional cultural expression” – the array of creative expressions integral to the cultural and social identities of indigenous and local communities – from improper exploitation. Among the more prominent voices responding to such calls has been the World Intellectual Property Organization (WIPO), which has worked to develop an international framework affording traditional cultural expression and folklore sui generis rights. This Note examines WIPO’s recently promulgated Revised Draft Provisions for the Protection of Traditional Cultural Expressions/Expressions of Folklore, which would, among other things, loosely define “architectural forms” as a protectable traditional cultural expression. In evaluating the proposed protection for “architectural forms,” this Note simultaneously assesses the profound tensions WIPO’s Revised Draft Provisions create with respect to the existing U.S. intellectual property regime and identifies the general limits of WIPO’s current vision for protecting traditional cultural expression in general. Ultimately, this Note argues that WIPO’s proposals should not include the vaguely defined category of “architectural forms” as protectable subject matter because the currently broad language would raise serious issues as to public domain and free speech rights, and could seriously impair creative expression, cultural development and the progress of an important professional service.
One of the greatest World War II human rights abuses against women occurred in Asia when the Japanese Imperial Army instituted a policy of forced prostitution. A long kept secret until the late 1980s, the women who survived this strategy have yet to receive any direct compensation from the Japanese government. In an effort to partially right this egregious wrong two groups of women, Korean and Filipina, have sued the Japanese government in Tokyo District Court. Despite the overwhelming moral dynamic of their case, this Article predicts that due to both substantive and procedural obstacles, the plaintiffs will fail to gain a favorable legal outcome. However, this Article concludes that the plaintiffs' litigation campaign is an important, perhaps necessary, factor in stepping up the pressure on the Japanese government to reach a political solution that will remedy this horrifying human rights abuse committed against Asian women.
This Article discusses the normative trajectory of international obligations assumed by Southeast Asian countries (particularly the Organizational Purposes that mandate compliance with international treaties, human rights, and democratic freedoms), and the inevitable emergence of a body of discrete "ASEAN law" arising from the combined legislative functions of the ASEAN Summit and the ASEAN Political, Economic and Social Communities. I discuss several immediate and short-term challenges from the increased constitutionalization of international obligations, such as: 1) the problem of incorporation (or lack of direct effect) and the remaining dependence of some Southeast Asian states on their respective constitutional mechanisms to transform international obligations into binding constitutional or statutory obligations; 2) the problem of hybridity and normative transplantation, which I illustrate in the interpretive issues regarding the final text of the ASEAN Comprehensive Investment Agreement which draws some provisions from GATT 1994 and parallel language similar to the US and German Model BITs; and 3) the problem of diffuse or insufficient judicial oversight within ASEAN, seen through lingering dependence on national court implementation despite the regional effort at standardization of legal norms on specific areas of trade, security and human rights. I conclude that leaving these problems unaddressed could impede Southeast Asia's vast potential to contribute to the project of constitutionalization of international law.
This Article explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter's prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to self-defense codified in Article 51. Concluding that traditional applications of the use of force prohibition fail to adequately safeguard shared community values threatened by CNA, the Article proposes an alternative normative framework based on scrutiny of the consequences caused by such operations.
Part I lays out why incentives and audiences matter. We explain the idea of judicial audiences and how they shape the judiciary in different legal families. We provide a common framework for understanding what have been traditionally perceived as very different institutions, namely the so-called “career” judiciary and the “recognition” judiciary. This framework provides new insights into the profound changes judiciaries have been going through in many different jurisdictions across the world. Part II considers the particular dynamics of internal and external audiences for judicial performance, using case studies from various judicial systems. In particular, we look at traditional civil law jurisdictions such as France, Italy and Japan where judicial activism has progressively made its way. We also compare the United States and Britain, examining recent British constitutional reforms in detail and speculating about the future consequences of the new institutional design. We argue that our framework provides a useful way of understanding the main forces shaping the recent changes in all these different jurisdictions, thus providing a common ground for analysis.
In the author's words: "A common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the US war in Afghanistan emerged within the Bush Administration in 2002 . . . (the plan) was approved in January 2002 and led to high-level approval and use of unlawful interrogation tactics that year and in 2003 and 2004. A major part of the plan was to deny protections under the customary laws of war and treaties that require humane treatment of all persons who are detained during an armed conflict, regardless of their status and regardless of any claimed necessity to treat human beings inhumanely. The common plan and authorizations have criminal implications, since denials of these protections are violations of the laws of war, which are war crimes." The author goes on to review the laws of war and human rights, and their applicability to events which took place during the 2001 Afghan War. The author then goes on to detail the memoranda created by the Bush administration that purported to justify the denial and abrogation of these rights. Finally, the author examines the interrogation practices and procedures implemented at Abu Ghraib and similar locations, and their significance.
As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without the unanimous support of all twenty-seven Member States. As the European Court of Justice strikes down Member State efforts to prevent tax avoidance, no institution can step in to replace these Member State provisions. Member States are thus losing sovereignty over policy tax avoidance, but no legislative move toward an integrated approach is possible without the support of Member States. This article proposes several solutions to the problems posed by the doctrine.
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion of judicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development.
This article takes as its subject the growth of "governance beyond the state." It highlights the problems resulting from the large number of organizations, networks and practices which are making authoritative rules and policies outside the state, and which lie beyond the control of national democratic and constitutional structures. Having set out the double dilemma posed by the rapid growth of transnational governance and its problematic relationship to democracy, the article criticizes existing approaches to the dilemma. The dominant current perspective, which I label the "compensatory approach," takes the view that democracy cannot be transposed from the national to the transnational arena, and that other compensatory mechanisms must be found to regulate transnational governance. I take issue with the general consensus that democratization of transnational governance is not plausible, and I argue that any convincing attempt to reform transnational governance must contend with the democracy problem. Although our contemporary understanding of the concept of democracy is closely tied to the state context, I argue that we should not jettison democratic ideals when attempting to design more legitimate governance structures beyond the state. Rather, we should acknowledge the powerful normative and social appeal of democracy as a governing ideal, try to identify its conceptual "building blocks," and think about the possible design of legitimate democracy-oriented governance processes beyond and between states.
This article addresses some of the complex legal issues raised by the sustainable use of marine biological diversity in areas beyond national jurisdiction and the deficiencies in its existing legal protection. The importance ofsuch an undertaking was emphasised by the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) in its first meeting (COP I), through its selection of marine and coastal biological diversity as the first major ecosystem theme to be addressed as part of its medium-term programme of work. Realistically, effective conservation and sustainable use of marine biological diversity in areas solely or partially outside of national jurisdiction will require the further "cooperation" of all states. There are a number of alternative ways forward each with its advantages and disadvantages. Regardless of the alternative selected, a number of common and familiar legal issues will have to be faced and there are risks. Politically, it will be essentially to avoid the intractable problems that arose in connection with the negotiation of the normative regime intended to regulate the exploitation of mineral resources in the LOS Convention. Unworkable law is little better than no law.
This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about the role of judicial power, and our efforts to explain and contain that power, in the United States.
The use of multilateral treaties in the field of international commercial law has been in a state of steady decline. Traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. This Article explains how the Cape Town Convention on International Interests in Mobile Equipment (which entered into force on March 1, 2006) provides an innovative approach to the creation of treaties that promises to revive the status of treaties in international law. The "Cape Town approach" to treaty formation is characterized by a novel use of protocols that brings new flexibility to the treaty structure. This Article examines the Cape Town Convention's use of protocols and explores the potential of the "Cape Town approach" as a new tool for making international law.
This article addresses what is often described as the "peace versus justice" problem, as it confronts the recently-established International Crminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. If a state grants amnesty or de facto impunity as the price of peace, should the ICC's prosecutor bring charges in its stead? This article analyzes the conflicting claims of peace, pluralism and punishment in such cases by exploring three fundamental questions: (1) Does justice in the aftermath of crime always require prosecution? (2) If justice does require prosecution, does this obligation outweigh all other considerations? And (3) as a global institution, how much deference should the ICC afford to diverse state approaches to the previous two questions? Given the Rome Statute's silence on these questions, the ICC will have to develop its own answers, and these answers will help shape the contours of an emerging global standard of criminal justice.
This article offers an analysis of the key theoretical challenges that arise from the impact of local and transnational social movement action - as witnessed in Seattle in 1999 - on international law and institutions. In spite of a vast scholarly literature in the social sciences on social movements and their relationship to the state and other actors, international lawyers have not engaged this literature so far. Given the increasing importance of non-state and individual action in international affairs, this article suggests that it is now timely to engage with this literature. This article presents the outlines of a larger project to rethink international law through social movements rather than through states or individuals, as realists and liberals do. At the heart of the analysis in this article is the question of how international lawyers can understand the mass resistance around the world to global legal structures. The article argues that international lawyers need a theory of resistance, not simply one of governance, to ensure that the voices of the ordinary people who are increasingly marginalized by the current global order, are properly heard. After outlining some of the key theoretical barriers in international law that prevent a real engagement with social movements, the article explores some possible foundations for a cultural politics of international law that would enable international legal scholarship to pay proper regard to the empirical reality of international relations and to remain committed to the best cosmopolitan ideals of the discipline.
This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages. To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country's public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally may be awarded in civil suits, there is no agreement on the circumstances warranting punitive damages, and courts differ on the appropriate amount of such an award. While traditionally American awards of punitive damages have been difficult to enforce abroad, this practice may be about to change. Recently developments in France, Germany and the European Union, as well as decisions in Australia, Canada and Spain point toward greater receptivity to punitive damages and enforcement of foreign awards of these damages. In France, proposed revisions to the French Civil Code call for awarding punitive damages in certain cases. In Germany, a study by a prominent scholar finds that German courts are beginning to award penal damages in civil actions. In the European Union, a European Commission Green Paper raises the possibility of allowing the doubling of damages in certain antitrust cases. In Australia, a recent decision by the Supreme Court of South Australia opines that Australian courts would enforce large punitive damages awards ordered by American courts. Moreover, in Canada and Spain, appellate courts affirm decisions to enforce American judgments that included punitive damages. While these developments do not point toward clear sailing for American punitive damages abroad, when viewed together they may foreshadow a change in the wind that may ultimately lead to greater enforcement of these damages.
In July 2011, two former vice mayors of prominent Chinese cities were executed for accepting vast amounts of bribes and abusing their powers. Stories of officials abusing power for private gain are found the world over, but China faces a crisis that dwarfs most countries’ battles with corruption. In order to counter rampant corruption, China has criminalized illicit enrichment, i.e., a significant increase in the as-sets of a public official that he cannot explain in relation to his lawful income. This Article addresses the tension between the presumption of innocence and the goal of effectively prosecuting corruption. In particular, the Article argues that, despite the strong presumption of innocence expressed in international human rights norms, illicit enrichment in China provides a compelling illustration of circumstances in which it is appropriate that the defendant disproves an element of the crime.The Article further proposes that we look at procedural rights holistically and not in isolation. Accordingly, any erosion of the presumption of innocence must be understood in the context of its relationship to other foundational procedural rights, particularly the right to silence and the right to counsel. The Article argues that the presumption of innocence and right to counsel have an inverse relationship, in that the more we diminish the presumption of innocence, the greater the need for counsel and, in particular, competent counsel with access to exculpatory information. China’s recent consideration of reforms to its Criminal Procedure Law and possible ratification of the Inter-national Covenant on Civil and Political Rights pre-sent opportunities both to enhance the presumption of innocence generally and to provide for a more robust defense, especially when a defendant is charged with an offense for which the presumption is relaxed.
What role do cities play in the emerging global legal order? Over the past two decades cities have become objects of international and transnational regulation, and they have also begun enforcing international legal norms and standards. This transformation is part of an emerging global order that reconfigures cities and utilizes them in order to advance various, often conflicting ideological and political commitments. While there is a burgeoning body of literature on the globalization of cities, that literature has ignored the legal dimension of this phenomenon. This Article fills that gap and shows how "local" law impacts on "global" change. And while there is a growing body of literature dealing with the rise of non-state actors in international law and politics, that literature has overlooked the emergence of cities as independent agents. Drawing on examples from across the globe, the Article demonstrates that cities are gaining independent status and are functioning as vessels through which world norms reach individuals and communities. An important implication of the analysis is that we should recognize cities' singular role as normative mediators between the world and the state. This function of cities is crucial because of their special characteristics as democratically organized communities in which place is not only imagined, but lived.
This article first reviews initiatives by the international community to address the "linkage" between trade and international labor rights and fair labor standards through domestic trade statutes, regional trade agreements and other governmental approaches. It then examines several private sector efforts embracing "codes of conduct" for labor and employment practices in international commerce. Some are proposed by sources external to multinational corporations as codes by which they can pledge to abide. Others are initiated by individual companies themselves. The authors focus their treatment on codes of conduct issued by Levi Strauss &. Co. and Reebok Corporation as examples of the challenges in formulating, auditing and enforcing labor rights and labor standards by private corporations engaged in international trade.
Over the course of the past thirty years, numerous non-state actor codes of conduct have emerged that seek to promote socially-responsible conduct of multinational corporations (MNCs), especially in the developing world. The objective of such codes is to prevent harm or mistreatment of persons or things caused by MNC operations (e.g., the existence of unhealthy worker conditions in an MNC factory). Such harm or mistreatment need not be a core concern for the corporate actor. Indeed, the MNC - in theory driven to maximize its profits although in practice driven by various factors - may benefit far more by inflicting the harm or mistreatment than by engaging in socially-responsible behavior. Only in reaction to outrage and discontent by other actors (governments, non-governmental organizations, or civil society groups) might the MNC see a value in developing a code of conduct that, if adhered to, would reduce the harm or mistreatment the MNC inflicts on others. This essay briefly summarizes the rise of these codes of conduct, with particular attention to certain highly visible examples. Many criticisms have been levied against such codes suggesting that, over the long term, they may not survive in their present form. Consequently, this essay suggests a new approach to thinking about these codes, one that might enhance their legitimacy, effectiveness, and credibility. Greater thought should be given by all stakeholders to an increased role for governments in the development and implementation of such codes. While transforming the codes wholesale into binding law is not politically feasible at this time, and may never be economically desirable, other means of governmental involvement should be considered. For instance, governments can play a better role in bringing stakeholders together to form such codes and do better at identifying what types of codes are effective and which are not. Governments might do better at using national laws and regulations to make adherence to such codes more attractive, such as by using the codes to help reduce regulatory uncertainty and as safe harbors for MNCs against criminal or civil penalties. At the same time, governments might use national laws to regulate better MNC use of the codes, such as by compelling disclosure of information about MNC adherence to the code. The role of governments would not be one of state control of corporate activity but, rather, one of helping empower the individual autonomy of corporations within certain bounds of justice, fairness, and equity.
Professor Janger’s thoughtful proposal of “universal proceduralism” raises a number of important issues. In particular, his proposal invites a focus on the place of local insolvency rules in a multinational business insolvency case. I will not attempt in the brief space of this response to address all the issues implicated by universal proceduralism, but will address the important question of local interests and local priorities, as well as related problems like forum stashing. I rely for the most part on Professor Janger’s lucid explanation of the concepts and terms commonly used in discussing multinational insolvency.
The bilateral treaty of friendship, commerce and navigation was for centuries a staple of international diplomacy. These treaties were famous for addressing a wide range of issues — including human rights, trade and investment protection — in a single document. In recent years, however, states have increasingly entered into specialized agreements on topics that were historically addressed by these treaties. Today, the conventional wisdom is that treaties of friendship, commerce and navigation are of primarily historical interest. This Article both confirms and challenges this conventional wisdom. It first provides a richly detailed account of how the treaty of friendship, commerce and navigation has been undermined as a source of rights in the United States over the past fifty years. It then goes on to argue that, notwithstanding this loss of influence, treaties of friendship, commerce and navigation continue to offer important conceptual insights to scholars and policy-makers in two ways. First, they show how treaty rights might be coordinated across specialized treaty regimes. Second, they show how treaty rights might be better balanced within a single regime. This Article suggests that a renewed appreciation for these insights could both enrich contemporary debates about the “fragmentation” of international law and lead to important reforms to the bilateral investment treaty regime.
The free movement of capital is one of the four freedoms set forth in the Treaty of Rome. Although good progress has been made with respect to monetary integration, culminating with commencement of the European Monetary Union, the introduction of the euro in most of the European Union (EU) countries in 1999 and the formation of a European Central Bank, integration of the equity markets is far from complete. Despite the adoption of various directives relevant to public investors and equity trading markets, there is not an integrated European market enabling issuers to float public offerings or savers to invest and trade across national borders in a single market. The persistence of national equity markets has several causes. One important factor is the lack of a common equity culture across Europe. Nevertheless, the time is ripe for a public securities market that will transcend national boundaries. All over Europe, governments are attempting to foster an equity culture for both ideological and practical reasons. A European equity market is needed in order to finance the needs of the enterprises and peoples of Europe. While laws and regulators cannot create a market, they can either impede or foster one. At the very least, regulation can eliminate anticompetitive practices that inhibit market development. In addition, securities regulation designed to protect investors and instill confidence in the equity markets can change the conduct of issuers and traders that discourage savers from investing in equities. These objectives have not and probably cannot be met through directives of the European Commission. Quicker and more flexible responses to developments in the capital markets are required. This paper will argue that a European Securities and Exchange Commission (European SEC) is needed to foster an equity culture throughout Europe and to develop and administer flexible regulations to govern a European equity market. The paper will also discuss some of the programs a European SEC could undertake.
Charges that the IMF has been engaging in "mission creep," gradually taking on a growing number of activities that exceed its constitutive mandate, have grown both in vehemence and in frequency since the late 1990s. I argue that, what ever the substantive merits of its actions, the IMF's developing attention to the structural determinants of global financial stability is not ultra vires. The Fund's evolving role was both foreseen and constitutionally provided for, both at its founding and at the principal constitutive Articles-amending "moments" since.
This Article challenges the prevailing and long-entrenched orthodoxy in constitutional theory that a constitutional role for the military in an emerging democracy necessarily hinders democratic progress. I argue that the ideal level of military involvement in a new democracy is not always zero and that certain militaries can play, and have played, a democracy-promoting role in the initial phases of a transition from autocracy to constitutional democracy. The conventional constitutional theory, which assumes that all militaries are hegemonic and praetorian institutions that must be completely disconnected from the civilian realm, has restrained innovative thinking on this important and timely topic. As the fourth wave of democratization sweeps across the Arab World, with attendant debates about the appropriate constitutional role for the military in post-authoritarian societies such as Egypt, this Article offers a timely theory of the democracy-promoting military. It argues that some militaries — what I call “interdependent” militaries — are capable of playing a democracy-promoting constitutional role in a post-authoritarian society because their self-interests often align with the conditions that James Madison and others have identified as conducive to the genesis of a constitutional democracy: institutional stability, political pluralism, and national unity. After theorizing the democracy-promoting military, the Article applies it to case studies. It analyzes the democracy-promoting constitutional role that the militaries in Turkey and Portugal played following respective military coups in 1960 and 1974 that toppled authoritarian regimes and established democracies. The Article concludes by examining the implications of this theory for the future of Egypt’s democracy.
At the heart of the War on Terror lie governments' struggles to reduce the risk of future catastrophes. Effective risk management that is also respectful of human rights must take into account the probability that the catastrophe will strike again. However, in times of emergency governments tend to set aside questions of probability and resort instead to drastic measures that often adversely affect human rights. Evidently, courts themselves are not immune from the same probability neglect that might also result in a constitutional analysis that can adversely affect human rights. For those who believe in the fundamental deontological insight that rights should have a priority over the good, this is a worrying state of affair. In this article we draw from the psychological research on the cognitive bias of "probability neglect" and call for the (re)-introduction of probability tests, such as the abandoned American "clear and present danger" test or the Israeli "near certainty" test, and for their integration into contemporary models of rights adjudications in global constitutionalism. We find that both the American strict scrutiny test that focuses on a rigorous means-ends analysis, and the highly influential German proportionality test, that centers on the balancing of rights and interests, fail to properly ensure the priority of rights. It is our contention that the imposition of the judicial requirement that the government meet a certain pre-defined probability threshold after engaging in means-ends analysis and prior to engaging in balancing - serves as a useful and important deontological constraint that secures the priority of rights.
By linking the interactional legal theory of Lon L. Fuller to the insights of recent constructivist literature in international relations (IR) theory, this article posits a distinctive explanation of the binding force of international law and begins to trace out an explanation of law’s persuasive power in international society. The authors challenge the dominant positivist explanations of law in international legal theory, and show how those explanations have been borrowed uncritically even by many of those international relations scholars who have paid particular attention to the role of norms in world politics. Arguing that law is most persuasive when it is created through processes of mutual construction by a wide range of participants in a legal system, the authors focus upon a particular understanding of legal legitimacy, rooted in adherence to internal morality and specificity of legal rationality, a specificity generated in large measure by rhetorical processes. The article concludes with suggestions for a shared research agenda for international lawyers and constructivist IR scholars.
This Article advocates an innovative contextual approach to assessing the international legality of bans in public schools on modest garments claimed by some to be required by religious beliefs for Muslim women. Too often this has been considered solely a question of religious freedom. This paper advocates the re-insertion of gender equality into the heart of the debate. To obtain the results most conducive to reconciling the human right to religious freedom and the human right to gender equality, it examines restrictions on headscarves and veils in a novel matrix of factors, including pressures on individual women to wear or not wear such gear, the impact on other female students, fundamentalist organizing targeting education, Islamophobia, and the multiple meanings of veiling. Applying the contextual approach, this Article argues that the European Court of Human Rights ruled correctly in Sahin v. Turkey when it upheld Istanbul University's ban on headscarves in context. The Article rebuts the sharp criticism of this decision from some human rights groups and asserts that secularism is vital for the implementation of women's human rights.
Human trafficking generates an estimated £5 billion per year (approximately $7.3 billion), making it the second largest criminal enterprise in the world. Its victims are often poor, uneducated, exploited due to their lack of family or friends or stable community, and snatched away from their homes to be forced into the sex trade or domestic slavery. However, those trafficking victims who have been transported to another country and are lucky enough to escape from their captors often find themselves facing deportation to their home countries, where they may be at significant risk of being re-trafficked. One signficant, though to date underutilized, method of gaining asylum for victims who have been denied residency under the domestic laws of a Council of Europe (COE) member state may exist Article 3 of the European Convention on Human Rights and Fundamental Freedoms. The expansive jurisprudence of Article 3 claims, together with Article 3's requirement of non-refoulement, arguably offers a significant additional layer of protection to trafficking victims seeking to avoid deportation from a COE member state, and is a method which should be used more frequently for the benefit of these victims.
International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly -- that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms --- primarily those relating to war crimes, crimes against humanity, and forced labor -- apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with the norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international law.
This Article discusses the contours of the prohibition of crimes against humanity with reference to proceedings before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and deliberations at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Because the contemporary status of this offense under international law cannot be understood or appreciated without reference to its history, this Article traces the evolution of the concept of crimes against humanity with particular reference to the genesis and re-interpretation of the war nexus requirement. A recurrent theme in this narrative is the search for an element of the offense sufficient to distinguish crimes against humanity from "ordinary" municipal crimes (e.g., murder, assault or false imprisonment) and to justify the exercise of international jurisdiction over inhumane acts that would otherwise be the subject of domestic adjudication. As this Article reveals, the war nexus originally served this purpose for the Nuremberg architects, although the time-honored doctrine of humanitarian intervention could have provided adequate precedent for the international prosecution of crimes against humanity. The ICTY devised an ingenuous solution to the problem of delimiting international jurisdiction and distinguishing crimes against humanity from "ordinary" crimes. The Trial Chamber did not require proof of a substantial link between the defendant's inhumane act and a state of war. Rather, the Chamber defined crimes against humanity in terms of the mens rea of the defendant and the existence of a widespread or systematic attack against a civilian population. However, at the same time, a Trial Chamber of the Tribunal added additional elements to the definition of crimes against humanity that further complicate the definition and the Prosecution's burden of proof. The Article argues that these elements should be eliminated on appeal. [N.B. The Appeals Chamber did overturn the Trial Chamber in this regard in the Tadic case.] Most recently, members of the international community drafting the Statute for the permanent ICC drew upon the ICTY Statute and the work of the Tribunal in drafting a consensus definition of crimes against humanity that will govern prosecutions before the new court. Fortunately, these drafters stopped where the Trial Chamber should have. They defined crimes against humanity with reference only to the existence of a widespread or systematic attack against a civilian population and the mental state of the individual defendant. In so doing, they recognized that once the abuse of civilians surpasses a particular threshold, the prescriptions of international law are activated and individual perpetrators can be held internationally liable for their acts of murder, assault, rape, or unlawful detention. The evolving definition of crimes against humanity since the Nuremberg era provides an example of the way in which the principles guiding the contemporary codification of international criminal law are dramatically shifting. Such norms were previously drafted with an eye toward fortifying, or at least defending, state sovereignty. Over time, however, these guiding principles have become more concerned with condemning injurious conduct and guaranteeing the accountability of individuals who subject others, including their compatriots, to inhumane acts.
Top-cited authors
Jud Mathews
  • Pennsylvania State University
Stephen J. Toope
  • University of Toronto
Paul Schiff Berman
  • George Washington University
Thomas Gammeltoft-Hansen
  • University of Copenhagen
Beth Van Schaack
  • Stanford University