Brooklyn journal of international law最新文献

{"title":"The Costs and Consequences of Incorrect Citations: European Law in the U.S. Supreme Court","authors":"A. Pin","doi":"10.2139/SSRN.2974433","DOIUrl":"https://doi.org/10.2139/SSRN.2974433","url":null,"abstract":"Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights' case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges' reasoning: laws targeting homosexual conduct; federalism; and the death penalty. It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. The article argues that the foreign jurisprudence should not have been ignored, but rather should have been used better, investigated deeper, and utilized as an informational tool to aid the court's reflections than merely to bolster its already decided interpretation of the U.S. Constitution. The basic requirement for using foreign laws correctly is an adequate understanding of what such laws mean in the legal order from which they come and how they resonate with the context in which they are imported.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"42 1","pages":"129"},"PeriodicalIF":0.0,"publicationDate":"2016-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2974433","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68456006","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":"Kill-Switches in the New U.S. Model Tax Treaty","authors":"Allison Christians, Alexander Ezenagu","doi":"10.2139/SSRN.2780091","DOIUrl":"https://doi.org/10.2139/SSRN.2780091","url":null,"abstract":"The new US model income tax treaty contains an unusual addition: mechanisms for the parties to unilaterally override the negotiated treaty rates in specified circumstances. Previewed last year in proposed form — a first for Treasury — these new mechanisms work as kill-switches, partially terminating the treaty as to one or both treaty partners. The idea is to forestall a more problematic outcome, such as an enduring breach of one of the parties’ expectations, or the opposite, a complete termination of all the treaty terms in the face of such a breach. Yet embedding a kill-switch in a treaty creates distinct legal, procedural, and political pressures in the tax-treaty relationship that implicate treaty negotiation, ratification, interpretation, and dispute resolution. Kill-switches also communicate a defensive tenor in the tax treaty relationships among many countries. This Article analyzes the new kill-switch provisions and concludes that their introduction in the U.S. Model reflects the steady deterioration of tax treaties from essentially diplomatic documents premised on the good faith of the parties to detailed contracts drafted in anticipation of the opposite.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"41 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2016-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68316040","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":"When Does Cultural Satire Cross the Line in the Global Human Rights Regime?: The Charlie Hebdo Controversy and Its Implication for Creating a New Paradigm to Assess the Bounds of Freedom of Expression","authors":"Kwang Hyuk Yoo","doi":"10.2139/ssrn.2778407","DOIUrl":"https://doi.org/10.2139/ssrn.2778407","url":null,"abstract":"Our modern times rest on a firm basis of the spirit of tolerance that calls upon us to practice generosity to disparate ideas, cultures or religions of others. But the tragic terrorist attack in Paris in 2015, commonly known as the Charlie Hebdo Shooting, shattered deep-rooted complacency about the absolute protection of freedom of expression and exposed the ideological conflict between Islam and the West. The Charlie Hebdo controversy shows us how fragile an achievement it is to create societies where any negative opinion can be unlimitedly tolerated in the name of freedom of expression in this era of undisputable cultural diversity. It is noteworthy that the relative universality of human rights rejects blind normative conformity across the cultural spectrum and rather respects cultural diversity. While invariable universal values are doubtlessly inherent to human rights, their interpretation and enjoyment should not disregard peculiar cultural identities integral to their respective societies.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"42 1","pages":"761-806"},"PeriodicalIF":0.0,"publicationDate":"2016-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68313922","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":"Reservations and the CISG: The Borderland of Uniform International Sales Law and Treaty Law After Thirty-Five Years","authors":"Ulrich G. Schroeter","doi":"10.31228/osf.io/ymfpd","DOIUrl":"https://doi.org/10.31228/osf.io/ymfpd","url":null,"abstract":"The makers of uniform international commercial law have traditionally used an instrument of public international law – the treaty between States, or ‘convention’ – in order to unify commercial law rules governing the relations between private parties (merchants). The resulting ‘dual character’ of such conventions as creatures of both treaty law and private law gives rise to a host of difficult legal questions. Maybe more than by any other type of legal rules, such questions are raised by reservations, i.e. formal declarations by which States ‘opt out’ of certain provisions in uniform law conventions, leaving it to the courts to determine the precise effect on contracts between private parties.The 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) ranks as one of the most successful uniform international commercial law instrument of all times, having been ratified by 83 States worldwide, among them the U.S., 24 of the 28 EU States, Brazil, Russia, China and Japan. The present article takes the 35th anniversary of the CISG as an occasion to provide an overview of the experiences that have been made with reservations thereunder, investigating the various difficulties that the dual character of its reservations has caused in theory and in practice.In doing so, the article first discusses the hotly disputed qualification of some of the CISG’s provisions as ‘reservations’ or mere ‘declarations’, and its legal consequences. It then challenges the commonly held perception that reservations reduce the degree of uniformity under international commercial law conventions, arguing that reservations should be regarded as a tool enabling a ‘wider’ uniformity. The article goes on to address problems that have emerged in practice under the CISG, as notably the tendency among courts to overlook reservations and the significant uncertainty they seem to cause both in the eyes of government officials and – maybe more importantly – of judges and arbitrators deciding cases. Finally, it looks forward to the next 35 years and discusses the (likely) rule of reservations in future CISG practice, including the trend to withdraw reservations, which reservations may be here to stay and which may even gain in importance in the future.In summary, the article presents the most comprehensive treatment yet of reservations under the most important uniform international commercial law convention in force, identifying important lessons to be learned for the unification of commercial law in general.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"41 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2016-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641310","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 Principle of Legality and a Common Law Bill of Rights - Clear Statement Rules Head Down Under","authors":"D. Meagher","doi":"10.2139/SSRN.2712334","DOIUrl":"https://doi.org/10.2139/SSRN.2712334","url":null,"abstract":"This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that at its most critical moments was (and continues to be) informed by American constitutional law design and statutory interpretation principles. On one level that is no surprise when ‘it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.’ But what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, been decisive in this regard. As Sir Anthony Mason - one of the leading figures central to the new judicial rights consciousness in Australia - noted, portentously, in 1995 ‘[j]ust as the courts can protect common law rights by applying presumptive rules of construction, so they can protect fundamental rights, even in the absence of constitutional entrenchment and statutory backing.’ And so it has proven to be. The Australian High Court has transformed an old interpretive canon (with American roots) into a strong Australian species of clear statement rule for fundamental rights called the principle of legality. It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The Court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasi-constitutional common law bill of rights. In order to normatively justify these developments the High Court has turned towards the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"42 1","pages":"65-127"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68267536","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":"Liberté, Égalité, Fraternité: The United Nations Declaration of the Rights of Indigenous Peoples Fails to Protect Hopi Katsinam from the Auction Block in France","authors":"S. Nikić","doi":"10.2139/SSRN.2755719","DOIUrl":"https://doi.org/10.2139/SSRN.2755719","url":null,"abstract":"The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) compels member states to take action in order to protect the rights of the world’s 370 million indigenous peoples, including the right to their cultural property. Notwithstanding the UNDRIP’s robust set of protections, its status as a nonbinding piece of international law remains its ultimate and most fatal flaw. France was an enthusiastic supporter of the UNDRIP at ratification, but has effectively abandoned their position. French auction houses and courts have allowed for sales of Native American sacred property to proceed despite the objections of the Hopi Tribe. In spite of international protest, a French court ruled that Native Americans and all other indigenous peoples lacked the requisite standing to bring cultural claims in France. Subsequently, numerous sales of sacred masks known as “Katsinam” have continued without any legal restitution for the Hopi Tribe. This Note argues thatwhile the UNDRIP sets out basic parameters affording indigenous peoples a means of protection, without the ability to enforce its provisions, the Hopi and indigenous peoples throughout the world will remain incapable of using the UNDRIP as a means of empowerment. France has set a dangerous precedent for countries to continue disobeying the principles of the UNDRIP without consequence for noncompliance. Indigenous peoples will remain powerless to protect their sacramentals unless the UNDRIP is transformed into a multilateral treaty and adopted into the domestic law of member states.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"41 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68292154","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":"Socioeconomic Rights in the Indian Constitution: Toward A Broader Conception of Legitimacy","authors":"R. Abeyratne","doi":"10.2139/SSRN.2189277","DOIUrl":"https://doi.org/10.2139/SSRN.2189277","url":null,"abstract":"The Indian Constitution contains “Directive Principles of State Policy” that require the state to pursue socioeconomic justice. In contrast to justiciable fundamental rights, these principles are explicitly non-justiciable, and the Constitution’s framers intended them to guide elected representatives towards improving socioeconomic conditions. However, the Indian Supreme Court has held that the right to life in Article 21 of the Constitution should be read more broadly to encompass a “right to live with dignity.” The Court has relied on this interpretation to make many Directive Principles justiciable, including rights to food and education. Much scholarship has been devoted to the Supreme Court’s jurisprudence in this area, focusing mostly on the judiciary’s role in democratic government. These works either criticize the Court for “judicial activism” or applaud it for proactively defending the rights of the poor and marginalized.This Article analyzes socioeconomic rights in India from a social contractarian perspective, which illuminates a neglected aspect of this debate. While addressing concerns of judicial overreach, the Article argues that the Supreme Court’s reasoning for locating justiciable socioeconomic rights in the Indian Constitution raises a more fundamental concern: it threatens the Constitution’s legitimacy. The Court’s reasoning is vague and non-transparent, which prevents rational and reasonable citizens from knowing with any clarity or conviction what the Constitution requires in the realm of socioeconomic justice. Thus, drawing on Rawls’s concept of public reason, citizens might not agree to be governed by the Constitution, which then loses its legitimacy as a basis for democratic political rule. The Article aims to make two contributions to the existing literature. First, it surveys Indian constitutional history to distinguish between procedural changes that may lead to judicial overreach and interference in representative government, and substantive changes in the law – such as the widening interpretation of Article 21 – that detract from the Constitution’s legitimacy. Second, and more broadly, the Article moves past the notion that a legitimate constitutional system simply requires acceptable institutional arrangements and desirable political outcomes. A legitimate system also requires that public institutions, particularly the Supreme Court, present clear and transparent reasons for their decisions, accessible to all citizens in light of their common reason.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"39 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2189277","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67975770","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":"Enforcing International Law: States, IOs, and Courts as Shaming Reference Groups","authors":"S. Gopalan, R. Fuller","doi":"10.2139/SSRN.2232902","DOIUrl":"https://doi.org/10.2139/SSRN.2232902","url":null,"abstract":"We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of coercive power in IL is fatal to it being law err in imagining that the types of physical coercion typically used in domestic law enforcement are the only types of coercion available for the enforcement of legal rules. Incarceration is not the only type of coercion available for the enforcement of legal rules. To be sure, depriving the offender of his liberty by locking him up in jail has severe expressive, deterrent, retributive, and incapacitative effects, but that does not itself lead to the conclusion that other punishments cannot achieve the same purposes and be just as coercive. If these alternative punishments can be shown to achieve the aforementioned effects, the central argument against IL being law falls. We aim to do this by focusing on a relatively neglected kind of sanction in IL – shaming. We show that IL is enforced by states, courts, and international organizations by the imposition of shame sanctions on offenders and that these sanctions affect state behaviour in the same ways that traditional coercive sanctions do. In doing the above, we also develop the concept of a shaming reference group.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"39 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2013-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68014542","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":"Adopting the Stateless","authors":"Jay Milbrandt","doi":"10.2139/SSRN.2212925","DOIUrl":"https://doi.org/10.2139/SSRN.2212925","url":null,"abstract":"Statelessness, the lack of legally recognized citizenship, affects twelve million people worldwide. The consequences of statelessness frequently lead to compounding human rights abuses, including human trafficking, oppression, and neglect. Few solutions exist for statelessness absent compelled citizenship recognition in a nation state. Coincidentally, inter-adoption is growing in demand, but contracting in available sending states. This article proposes a nexus of statelessness and intercountry adoption where legislation is put forward to adopt stateless individuals, particularly children. This article will analyze pending legislation for the adoption of North Korean stateless persons and recommend legislation to address broader issues of statelessness.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"39 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2013-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67995252","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 'Americanization' of Legal Education in South Korea: Challenges and Opportunities","authors":"R. Kim","doi":"10.2139/SSRN.2012667","DOIUrl":"https://doi.org/10.2139/SSRN.2012667","url":null,"abstract":"In 2007, Korea reformed its legal education system from one consisting of an undergraduate degree, “cram school,” and a national bar exam with a less than 5% pass rate, to an American-style three year graduate law school system. The reform was instituted to expand and diversify the legal profession in Korea and to meet the demands of an increasingly globalizing economy. The first class of students graduating from the new law schools in February 2012 will face an environment that is not yet prepared to accommodate them. In this article, I explore the economic, cultural and pedagogical challenges posed by the reform. I also discuss the opportunities afforded by adopting a law school model that is in the midst of being re-evaluated. I argue that Korean law schools should implement some key recommendations for reform in U.S. schools. By learning from the U.S. experience, Korea can develop its own effective legal education model.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"38 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2012-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2012667","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67849768","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}