Public International Law eJournal最新文献

{"title":"Legal Empowerment: The Vicious Cycle of Logic in Project Funding","authors":"Paul Daniel Rivera","doi":"10.2139/ssrn.1673552","DOIUrl":"https://doi.org/10.2139/ssrn.1673552","url":null,"abstract":"Millions of dollars of international aid is given to developing countries each year to strengthen “rule-of-law” institutions. Led by institutions like the World Bank and the International Monetary Fund (IMF), the majority of international legal aid rests on the assumption that market and investment friendly legal systems – protecting foreign and domestic investment, property and contract rights – will spur economic growth that in turn, will “trickle down” to the poor in the name of poverty alleviation. However, even after over two decades of these institutional legal reforms, little evidence has emerged supporting the impact that these reforms have had on poverty alleviation.From the frustrations of international legal development practitioners who have witnessed the real gaps between this top-down institutional approach and poverty alleviation emerged the field of legal empowerment. A promising alternative, it is a bottom-up approach aiming to afford poor and disadvantaged populations legal advice and services under the belief that once knowledgeable about their legal rights, these groups may take more control of their lives and lift themselves from the strains of poverty. At the moment, a huge imbalance exists between the amount of funding given to institutional reforms and those given to legal empowerment type projects. This imbalance needs to change, but is seemingly troubled by a vicious cycle of funding logic. International aid institutions like the World Bank and the IMF hesitate to grant long-term development loans unless impact is shown or looks promising. This is usually determined by looking at the impact of short-term developmental loans, which often act as a preliminary indicator of a projects tangible impact or promise. Herein lies the fundamental tension such a short-term, impact-oriented approach has with legal empowerment, which is by nature, a long-term process. In fact, sustained funding is often a predicate to the success of a legal empowerment intervention. This is because legal empowerment targets the “users” of the law and not the institutions. Whereas institutional reform may often be perceived as a more attractive option because it can point to tangible results like how many courts have been built, how many cases have been adjudicated, and number of judicial officers trained, this is often indeterminate of who is using the judicial channels and for what purpose. It’s possible that, for example, such cases actually involved wealthy corporations or individuals that disenfranchised the poor. In such cases, one must question whether poverty alleviation is really taking place. On the other hand, legal empowerment targets the poor and disadvantaged. It’s a long-term process because it seeks to educate these groups of their rights from the ground-up and that demands patience. In addition, these groups face deeply engrained cultures and socio-economic barriers making impact that more challenging. Thus, short-term tangible impact ","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130297074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rights to Animal Genetic Resources for Food and Agriculture","authors":"Susette Biber-Klemm, M. Temmerman","doi":"10.2139/ssrn.1652166","DOIUrl":"https://doi.org/10.2139/ssrn.1652166","url":null,"abstract":"The World Trade Institute of the University of Bern, which has previously deepened the studies on the question of rights to plant genetic resources and traditional knowledge in the international trading system, took up these issues. One year after the adoption of the Animal Genetic Resources Global Plan of Action by the International Technical Conference on Animal Genetic Resources for Food and Agriculture (AnGRFA), it gathered a pool of experts to discuss the interface of AnGRFA, international trade and property rights. The result of this exchange is at the centre of this report.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131348680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating the Root: The Role of ICANN as Regulator, and Accountability","authors":"Emily A. Wilsdon","doi":"10.2139/SSRN.1632885","DOIUrl":"https://doi.org/10.2139/SSRN.1632885","url":null,"abstract":"The Internet is emphatically not a government free zone. A central part is ICANN - the Internet Corporation for Assigned Names and Numbers - the institution which regulates the ‘root’ of the internet (the domain name system and internet protocol addresses). This a fundamental element of the architecture of the Internet. We would be, literally, lost without it. In a sense, the code of the Internet, its protocols and languages are regulation - they control how the system behaves. ICANN is the regulator who regulates that ‘regulation.’ Principles of global administrative law can, once suitably modified for the context, suggest the most effective reforms.ICANN displays features characteristic of a hybrid public-private regulator. Authority is formally delegated by the US, but importance is placed on the acceptance of ICANN as legitimate by the wider community (including technical experts). It is formed as a corporation, and regulates on a contractual basis. However, it is charged (legally) with pursuing the global public interest due to the way in which it was set up as a non-profit organization, and is essentially a monopoly. Institutional design has been approached from the start, and through successive reforms, with democratic norms in mind. However, there has historically been capture by powerful interests - due to the accountability deficit, in particular.In order to pursue reform effectively, ICANN should focus on transparency, giving reasons, and strengthened review. To be successful however, requires strong backing from all states and an 'entrepreneur' type Board with the expertise, interest, and focus on GAL ideas, and genuine representatives to form a coalition to push for reform effectively. Counter-intuitively, a crisis of legitimacy created by criticism that ICANN is unaccountable might strengthen the force of democratic norms in its design, as NGOs and others are empowered to demand reform.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123811934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ICC’s Jurisdiction over War Crimes in Internal Armed Conflicts: An Insurmountable Obstacle for China’s Accession?","authors":"Jing Guan","doi":"10.2139/ssrn.1673615","DOIUrl":"https://doi.org/10.2139/ssrn.1673615","url":null,"abstract":"This paper argues that the ICC’s jurisdiction over war crimes in internal armed conflicts does not pose real difficulty for China if it wishes to join the ICC. Although the Taiwan issue is potentially the most fatal conflict between China and the ICC, the Chinese government is being over-cautious on the Taiwan issue vis-a-vis possible reaches by the ICC for war crimes purposes. This paper also briefly analyzes China’s other four major official reasons for not joining the ICC and forwards many positive reasons for China to join the ICC. What really explains China’s current reluctance to join the ICC is the political reluctance of a rising power, who still confronts thorny domestic issues that are susceptible to mass violence, to be fettered by yet another multilateral restrictive mechanism.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"109 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134167552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconstructing an International Organization: A Paradigm Shift in the World Trade Organization","authors":"Sungjoon Cho","doi":"10.2139/ssrn.1823564","DOIUrl":"https://doi.org/10.2139/ssrn.1823564","url":null,"abstract":"This article argues that the old paradigm on international organizations (IOs) (Gesellschaft) characterized by realist political bargain cannot fully capture new social realities around contemporary IOs in which ideational factors, such as ideas, values, culture and norms, have become more salient and influential not only in explaining but also in prescribing state behaviors. In an attempt to address the old paradigm’s blind spots, the article offers a new paradigm informed by constructivism that highlights a reflective, intersubjective communication among IO members and consequent norm-building process. Under this new paradigm, one can understand an IO as a “community” (Gemeinschaft), not a mere contractual instrument of its contracting parties. The article applies the new paradigm to the WTO as it describes the WTO’s institutional evolution from a power-oriented, tariff-reducing contract to a norm-oriented world trading community. Critically, this article does not attempt to replace the old paradigm (realism) with the new one (constructivism) proposed here. Instead, the article endeavors to highlight the old paradigms’ structural weaknesses and offers a complimentary, rather than alternative, paradigm. Thus, an IO’s reality embraced jointly by these two paradigms may feature a “double helix” structure under which any single paradigm might not claim its disciplinary monopoly.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123168947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems","authors":"L. Backer","doi":"10.2139/ssrn.1568934","DOIUrl":"https://doi.org/10.2139/ssrn.1568934","url":null,"abstract":"The diffusion of power in the wake of globalization has also revived the recognition of governance authority beyond the state and its formally constituted governance apparatus. Globalization is said to have produced movements toward governance that is based on functionally differentiated transnational public systems that operate above the state. Globalization has provided a governance framework environment marked by a fracturing and diffusing of power beyond political actors. Though the state remains very much alive and continues to be powerful within the ambit of its authority, its claim to a monopoly of governance power, either directly or through public organs at the supra- or infra- national levels, is no longer plausible. This chapter provides an overview of the extent of “governance without government” outside the framework of the state system of public law. It suggests the possibility of a public law without public organs, and the constitution of governance beyond both government and state. The chapter first examines the strands of the theoretical debate. The focus of this section is on a growing corpus of work that suggests that while non-governmental actors are, to an increasing extent, exercising governance power, defined in a variety of ways, none of these governance systems has achieved “escape velocity” from the state. Nor, for many, is such an escape necessary, feasible or prudent. The heart of the examination is on the more radical notion that private entities also govern without the state or its apparatus in functionally differentiated regulatory communities. This is not merely academic theory. A recent example from within the OECD’s enforcement structure points the way to the future. Through an examination of the U.K. National Contact Point’s decision in Vedanta one sees the outlines of polycentricity as an aggregating mechanism for the elaboration of non-state systems free, within its jurisdiction, from the state.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134600933","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role of the Individual in International Law","authors":"A. Clapham","doi":"10.1093/EJIL/CHQ001","DOIUrl":"https://doi.org/10.1093/EJIL/CHQ001","url":null,"abstract":"This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"244 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132622517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Humanitarian Aid and Corruption","authors":"I. Carr, S. Breau","doi":"10.2139/SSRN.1481662","DOIUrl":"https://doi.org/10.2139/SSRN.1481662","url":null,"abstract":"In the recent past we have seen a number of natural and man-made catastrophes where the international community has responded in providing the basic necessities of life such as food, shelter and medical supplies. There are however some problems with respect to the delivery of humanitarian aid/assistance to the victims of such disasters. These include a state disallowing the delivery of international humanitarian assistance to the victims and the attendant presence of corruption where assistance is delivered in emergency situations. The questions we focus on in this paper are: (a) ‘How can delivery of humanitarian aid be justified using international norms and theories?’, and (b) ‘How can corruption in the delivery of humanitarian aid be combated?’. Question (a) is addressed by exploring the relevance of human rights law and the emerging concept of human security to humanitarian assistance and (b) by examining the relevant provisions of the widely ratified international anti-corruption convention, the United Nations Convention against Corruption 2003 (UNCAC), with a view to seeing whether they are adequate to combat the kinds of corrupt activities found in the humanitarian aid context and what further needs to be done to enhance transparency in the process.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117273863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Polygynous Muslim Marriages in South Africa: Their Potential Impact on the Incidence of HIV/AIDS","authors":"N. Moosa","doi":"10.17159/1727-3781/2009/V12I3A2734","DOIUrl":"https://doi.org/10.17159/1727-3781/2009/V12I3A2734","url":null,"abstract":"This article examines whether there is any relationship between the institution of polygynous marriages in Islam and the incidence or spread of the disease. It is suggested that, while polygyny may be a contributing factor, it is not the institution of marriage per se that relates to the disease (although the prospect of greater infection intra marriage must be present in polygynous marriages, if the husband is the infecting party), but the conduct of the parties to the marriage relationship, whatever its nature.The focus and thrust lies with the institution of polygyny in Islam, the South African response to polygyny, the (potential) impact of polygyny on the incidence of AIDS, and the contribution that both an informed approach to HIV and an enlightened approach to the application of Islamic values could or would have on the limitation of the disease's spread.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116247277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privileges and Immunities of Global Public-Private Partnerships: A Case Study of the Global Fund to Fight Aids, Tuberculosis and Malaria","authors":"D. Aziz","doi":"10.2139/ssrn.1644790","DOIUrl":"https://doi.org/10.2139/ssrn.1644790","url":null,"abstract":"The question of whether it is at all appropriate to extend privileges and immunities regimes beyond international organizations to the increasingly ubiquitous global public-private partnership structure has received little attention to date in the scholarly literature. This article examines this question through a study of the Global Fund to Fight AIDS, Tuberculosis and Malaria, a permanent global public-private partnership that formally incorporates non-state actors as equal players in its core governance structures. The article concludes that considerations of genesis and administrative law-type analyses of institutional design may, to some extent, substitute for the constituent treaty of classical international law in order to identify which global public-private partnerships should benefit from privileges and immunities, as well as the specific privileges and immunities to be granted in each case to facilitate the effective fulfilment of these partnerships’ mandates.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115897925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}