Columbia Journal of Transnational Law最新文献

{"title":"Of Enterprise Principles & Corporate Groups: Does Corporate Law Reach Human Rights?","authors":"Harper Ho, E. Virginia","doi":"10.2139/SSRN.2233166","DOIUrl":"https://doi.org/10.2139/SSRN.2233166","url":null,"abstract":"In recent years, a number of international and cross-sectoral initiatives have attempted to respond to the human rights impacts of corporations. Foremost among these is the United Nations’ 2008 “Protect, Respect, and Remedy” Framework and its Guiding Principles on Business and Human Rights, adopted in March, 2011. The Framework is noteworthy, in part, because it considers the potential intersections of corporate law and human rights. Conventional wisdom, however, maintains that corporate law is largely irrelevant to questions of human rights. It is generally viewed to be enabling, rather than prescriptive, and concerned with private contracting rather than the public interest. From a practical standpoint, human rights impacts often involve conduct by remote affiliates and business partners of vast multinational corporate organizations. Corporate law, in contrast, governs the \"internal affairs\" of discrete legal entities within a given jurisdiction, each protected by a limited liability shield. Questions of global corporate accountability for human rights practices have therefore been viewed as beyond its reach. This Article challenges this accepted wisdom by exploring the extent to which corporate law reaches the multinational enterprise. It argues that notwithstanding the centrality of entity-level principles within corporate law, some dimensions of corporate law in fact extend across the formal internal legal boundaries of the multinational corporation. Although corporate law enforcement mechanisms do not offer direct remedies for victims of human rights violations, corporate law is nonetheless an integral part of the emerging institutional infrastructure supporting the human rights responsibilities of corporations.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"52 1","pages":"113-172"},"PeriodicalIF":1.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68015625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Extraterritoriality and National Security: Protective Jurisdiction as a Circumstance Precluding Wrongfulness","authors":"Noah Bialostozky","doi":"10.2139/SSRN.2143686","DOIUrl":"https://doi.org/10.2139/SSRN.2143686","url":null,"abstract":"This Article posits that the present conception of protective jurisdiction — whereby states may assert jurisdiction over extraterritorial conduct that endangers certain national security interests — fails to delimit state conduct in a manner reconcilable with general principles of international law. Protective jurisdiction’s vague formulation has enabled states to use the concept as a pretext for legislating conduct in foreign territory that bears no meaningful connection to their national security. Take the example of a recent United States material support of terrorism law, which asserts protective jurisdiction over a broad range of foreign conduct in support of the Basque Fatherland and Liberty organization (“ETA”), even though the ETA arguably does not pose a meaningful threat of harm to U.S. national security. Under the prevailing international conception of protective jurisdiction, the U.S. statute is reviewed for “reasonableness” based on comity considerations and comparative state interests. Yet, without the consent of Spain and other affected states, such cross-border regulation should be subject to a rule of international law that requires a juridical link between the extraterritorial conduct and national security. This Article proposes to standardize such a link by reformulating protective jurisdiction as a circumstance precluding wrongfulness under international law. Just as the state of necessity and self-defense doctrines indicate circumstances where otherwise internationally wrongful conduct is exceptionally permitted for the purpose of national security, this Article argues that protective, cross-border regulation should be limited to those exceptional circumstances where it is necessary to protect the regulating state from harm to an essential security interest. Only in those circumstances would a state be sufficiently connected to extraterritorial conduct to warrant interference in the domestic affairs of another state.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"52 1","pages":"617-686"},"PeriodicalIF":1.0,"publicationDate":"2012-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67943936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Serious are International Crimes? The Gravity Problem in International Criminal Law","authors":"Margaret M. deGuzman","doi":"10.2139/SSRN.2014987","DOIUrl":"https://doi.org/10.2139/SSRN.2014987","url":null,"abstract":"International criminal law was born out of the Holocaust – the systematic extermination of millions of people by a government attempting to annihilate a race. It was the gravity of those crimes that provided the theoretical and political justifications for the first international criminal trials at Nuremberg. Yet today, the International Criminal Court’s Office of the Prosecutor is considering situations involving as few as six killings and an international tribunal has been established to address the assassination of a single political leader. This Article explains how the ambiguity of international criminal law’s foundational concept of gravity has facilitated this expansion. It exposes the consequences of expansion for state sovereignty and individual rights, and suggests a solution that moves beyond ambiguous gravity to interrogate the interests at stake in decisions about international criminal adjudication.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"51 1","pages":"18-68"},"PeriodicalIF":1.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2014987","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67853310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arctic Dreams and Geoengineering Wishes: The Collateral Damage of Climate Change","authors":"C. Carlarne","doi":"10.2139/SSRN.1924363","DOIUrl":"https://doi.org/10.2139/SSRN.1924363","url":null,"abstract":"Moving forward into a post-Kyoto world, policymakers struggle to find effective and equitable solutions, not only for the most basic challenges climate change presents, but also for the secondary problems to which climate change gives rise. After more than twenty years of deliberations, policymakers continue to struggle with the fundamental question of how to use law as a tool for reducing greenhouse gas emissions. Yet, even as these deliberations proceed, more complex derivative questions are identified on a daily basis. These spin-off questions range from well-established concerns about the impact of climate change on biodiversity, human health and human rights, to newer questions about the intersections between climate change law and other areas of law, to critical questions about how climate change is revealing new governance gaps. Many of these collateral questions raise pressing legal and political issues that cannot be resolved through ongoing climate negotiations. This Article examines two particularly important areas in which climate change is exposing fundamental gaps in existing systems of global governance. The first of these is governance of the Arctic Ocean at the edges of the existing regulatory reach of the United Nations Convention on the Law of the Sea. The second of these is the complete absence, for all practical purposes, of a governance regime applicable to geoengineering research and experimentation. These seemingly distinct issues are examined together for two reasons. First, they raise two of the most pressing global governance challenges today. Second, global efforts to address Arctic and geoengineering governance gaps pose discreet opportunities for the global community to debate, refine and advance the normative framework and institutional structures for management of the global commons. In both contexts, the questions asked and the answers offered will offer insight into larger questions of global environmental governance.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"49 1","pages":"602-669"},"PeriodicalIF":1.0,"publicationDate":"2011-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67790381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Maximizing Autonomy in the Shadow of Great Powers: The Political Economy of Sovereign Wealth Funds","authors":"Kyle J. Hatton, Katharina Pistor","doi":"10.2139/SSRN.1787565","DOIUrl":"https://doi.org/10.2139/SSRN.1787565","url":null,"abstract":"Sovereign wealth funds (“SWFs”) have received a great deal of attention since they appeared as critical investors during the global financial crisis. Reactions have ranged from fears of state intervention and mercantilism to hopes that SWFs will emerge as model long-term investors that will take on risky investments in green technology and infrastructure that few private investors are willing to touch. In this paper we argue that both of these reactions overlook the fact that SWFs are deeply embedded in the political economy of their respective sovereign sponsors. This pa-per focuses on four political entities that sponsor some of the largest SWFs worldwide: Kuwait, Abu Dhabi, Singapore and China. Each of them has been governed for decades by elites whose grip on power has been tied to the economic fortune of their respective economies and their ability to pacify, or at least balance against, foreign powers. We argue that for these four political entities, both the motives for establishing SWFs and the strategies they employ can best be explained by an “autonomy-maximization” theory.In a world where uncertainty — both economic and political — looms larger as a concern in the wake of the global financial crisis and political upheavals, such as the revolutions in Tunisia, Libya and Egypt, elites use an increasingly diverse array of tools to protect their autonomy within the global system and hedge against unexpected turmoil. SWFs serve ruling elites by concentrating substantial resources, which can be used to pay off domestic adversaries, to insure the economy against major downturns and thereby mitigate public discontent, to signal cooperation to major foreign powers and to increase legitimacy in the global arena by presenting governance structures familiar to the West. We employ a comparative case study analysis to highlight the critical importance of these political economy dynamics in the establishment of SWFs, their governance structures and their behavior in both normal times and during times of crisis.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"50 1","pages":"1-82"},"PeriodicalIF":1.0,"publicationDate":"2011-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1787565","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interest as Damages","authors":"T. Sénéchal, J. Gotanda","doi":"10.2139/SSRN.1116384","DOIUrl":"https://doi.org/10.2139/SSRN.1116384","url":null,"abstract":"In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting a nearly risk-free investment because they are unfamiliar with modern economic and financial principles. We propose changing this practice. We set out a legal framework for allowing an award of interest as damages and then furnish a model for claimants and tribunals to use. Under this model, interest reflects market realities with the interest award to be compounded on a yearly basis. This model would bring awards in line with modern economic realities and more accurately compensate injured parties.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"47 1","pages":"491-536"},"PeriodicalIF":1.0,"publicationDate":"2009-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68141645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Silence of the Laws? Conceptions of International Relations and International Law in Hobbes, Kant, and Locke","authors":"M. Doyle, Geoffrey S. Carlson","doi":"10.1163/9789047425816_010","DOIUrl":"https://doi.org/10.1163/9789047425816_010","url":null,"abstract":"","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"46 1","pages":"648"},"PeriodicalIF":1.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64567611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina","authors":"William W. Burke-White","doi":"10.2139/SSRN.1023923","DOIUrl":"https://doi.org/10.2139/SSRN.1023923","url":null,"abstract":"International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY's influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal's jurisdictional relationship with domestic judicial institutions and the incentives for national and international officials created by that jurisdiction interacted with changing preferences of domestic actors, thereby catalyzing judicial reform and institutional development in Bosnia. Based on an in-depth study of the ICTY's interactions with Bosnia from 1994 to 2006, the article presents new empirical evidence of the Tribunal's early effect of freezing out the activation of the domestic judiciary in Bosnia and its later role in the establishment of the new State Court of Bosnia & Herzegovina with war crimes jurisdiction The article attributes the variance in the Tribunal's influence over time in large part to changes in its jurisdictional relationship with national courts brought about by the ICTY's Completion Strategy and suggests the significance of a tribunal's institutional design, and particularly its jurisdictional relationship, for the direction and intensity of its influence on domestic institutional development.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"46 1","pages":"279-350"},"PeriodicalIF":1.0,"publicationDate":"2007-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1023923","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68128986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward an International Criminal Procedure: Due Process Aspirations and Limitations","authors":"G. S. Gordon","doi":"10.2139/SSRN.928908","DOIUrl":"https://doi.org/10.2139/SSRN.928908","url":null,"abstract":"The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"45 1","pages":"1695"},"PeriodicalIF":1.0,"publicationDate":"2006-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67890742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Executive Plans and Authorizations to Violate International Law","authors":"J. Paust","doi":"10.1017/CBO9780511611322.002","DOIUrl":"https://doi.org/10.1017/CBO9780511611322.002","url":null,"abstract":"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.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":"43 1","pages":"811-864"},"PeriodicalIF":1.0,"publicationDate":"2006-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511611322.002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57079596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}