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State Responsibility for Bribe Solicitation and Extortion: Obligations, Obstacles, and Opportunities 索取和勒索贿赂的国家责任:义务、障碍和机会
Pub Date : 2013-09-20 DOI: 10.2139/SSRN.2298886
Bruce W. Klaw
This Article explores how bribery and extortion in international business transactions and foreign direct investment may be prevented by holding States accountable under international law, improving the viability of investor-State arbitration for corruption claims, and making appropriate use of State-to-State dispute resolution mechanisms like diplomatic protection. It examines the content of States' obligations to prevent and eradicate corruption and considers the conditions and circumstances under which a State may be held responsible under international law for the solicitation and extortion of bribes from foreign investors and the denial of justice to foreign investors subjected to such corruption. It then assesses the opportunities and obstacles currently associated with invoking State responsibility through investor-State arbitration and State-to-State dispute resolution mechanisms such as diplomatic protection. Based on this analysis, it offers a series of suggested improvements that should better enable these international dispute resolution mechanisms to help prevent corruption by encouraging the disclosure of it, securing redress for foreign investors subjected to it, and holding States accountable for it.
本文探讨了如何根据国际法追究国家的责任,提高投资者与国家之间就腐败索赔进行仲裁的可行性,以及适当利用外交保护等国与国之间的争端解决机制,从而防止国际商业交易和外国直接投资中的贿赂和敲诈勒索。它审查了各国预防和根除腐败的义务的内容,并审议了在何种条件和情况下,根据国际法,一国可能对向外国投资者索取和勒索贿赂以及对遭受这种腐败的外国投资者不给予司法公正负责。然后评估目前通过投资者-国家仲裁和国家-国家争端解决机制(如外交保护)援引国家责任所涉及的机会和障碍。根据这一分析,本报告提出了一系列改进建议,这些建议应能更好地使这些国际争端解决机制通过鼓励披露腐败、确保受到腐败影响的外国投资者得到补救和使各国对腐败负责来帮助防止腐败。
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引用次数: 3
Same-Sex Marriage - Building an Argument Before the European Court of Human Rights in Light of the U.S. Experience 同性婚姻——在欧洲人权法庭上根据美国的经验建立一个论点
Pub Date : 2013-09-06 DOI: 10.15779/Z38HH2Q
E. Bribosia, Isabelle Rorive, Laura Van den Eynde
This article adopts a critical but constructive look at the case law of the European Court of Human Rights regarding same-sex marriage, in light of the recent US case law on the issue.
本文结合美国最近的同性婚姻判例法,对欧洲人权法院关于同性婚姻的判例法进行了批判性但具有建设性的审视。
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引用次数: 6
A 'Special Track' for Former Child Soldiers: Enacting a 'Child Soldier Visa' as an Alternative to Asylum Protection 前儿童兵的“特别路线”:颁布“儿童兵签证”作为庇护保护的替代方案
Pub Date : 2013-07-26 DOI: 10.15779/Z381H1G
E. Rossi
Approximately 300,000 child soldiers currently serve in more than 30 conflicts around the world. The international legal community widely considers these children to be victims of severe human rights violations in spite of the atrocities that many of them commit. Although few of these children will ever make it to the United States, those who do manage to escape and arrive in the U.S. face a number of challenges in achieving immigration status. In general, advocates for child soldiers have focused on how the United States’ asylum laws could be changed to make it easier for former child soldiers to receive asylum status. In particular, the proposals have urged clarification of the definition of “particular social group” and incorporation of duress and infancy defenses into the exclusionary bars to asylum. These proposals, although they have merit, fail to acknowledge the floodgates and national security concerns that have likely stalled these needed changes to the asylum laws. This article offers a solution for child soldiers outside the context of asylum law: a Child Soldier Visa that applies only to former child soldiers and which attempts to reconcile the United States’ humanitarian and national security interests. While acknowledging the need to ultimately reform U.S. asylum laws so they conform to the Refugee Convention and state practice, this article discusses a solution that may be more realistic in the short-term than amending the asylum laws.
目前约有30万儿童兵在世界各地的30多个冲突中服役。国际法律界普遍认为这些儿童是严重侵犯人权行为的受害者,尽管他们中的许多人犯下了暴行。虽然这些孩子中很少有人能成功抵达美国,但那些设法逃脱并抵达美国的孩子在获得移民身份方面面临着许多挑战。总的来说,儿童兵的倡导者关注的是如何修改美国的庇护法,使前儿童兵更容易获得庇护身份。这些建议特别敦促澄清“特定社会群体”的定义,并将胁迫和幼年辩护纳入排除庇护的条款。这些提议虽然有其可取之处,但却没有认识到可能阻碍对庇护法进行必要修改的闸门和国家安全担忧。本文为庇护法之外的儿童兵提供了一个解决方案:儿童兵签证,仅适用于前儿童兵,并试图调和美国的人道主义和国家安全利益。虽然承认最终需要改革美国的庇护法,使其符合《难民公约》和国家实践,但本文讨论了一个短期内可能比修改庇护法更现实的解决方案。
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引用次数: 3
Religiosity and Same-Sex Marriage in the United States and Europe 美国和欧洲的宗教信仰与同性婚姻
Pub Date : 2013-06-29 DOI: 10.2139/SSRN.2287286
D. Oppenheimer, A. Oliveira, Aaron Blumenthal
In the United States and Europe there has been a remarkable change in the legal recognition of same-sex relationships over the past two decades. Twenty years ago, no nation recognized same-sex marriage. Today in the United States, thirteen states and the District of Columbia permit same-sex couples to marry, while another six provide varying legal recognition of same-sex relationships, such as partnerships and civil unions. In Europe, nine nations permit same-sex marriage, and an additional thirteen nations provide varying levels of recognition to same-sex couples.Support for same-sex marriage has been linked to age, political party, and education. In this paper, we examine the relationship between religiosity (defined as belief in God and importance of religion in a person’s life) and support for same-sex marriage. We caution that correlation is not causation, but find that in the United States and Western Europe, there is a strong correlation, while in Eastern Europe there is not.In the United States, the correlation is remarkably strong. The most religious states (the highest quartile of States in religiosity) all have constitutional bans of same-sex marriage. Of the twelve states in the lowest religiosity quartile, eight permit same-sex marriage, while three more provide some legal recognition of same-sex relationships. In Western Europe, the correlation is not quite as strong, but some of the exceptions can probably be explained by temporary mismatches between popular support and political leadership. In Eastern Europe, however, the correlation is weak, with low religiosity often combined with low support for same-sex marriage. We suspect that this is a result of the legacy of communism, and its suppression of religion.
在过去的二十年里,美国和欧洲对同性关系的法律认可发生了显著的变化。20年前,没有一个国家承认同性婚姻。今天在美国,有13个州和哥伦比亚特区允许同性伴侣结婚,另有6个州在法律上承认同性关系,如伴侣关系和民事结合。在欧洲,有9个国家允许同性婚姻,另有13个国家对同性伴侣给予不同程度的承认。对同性婚姻的支持与年龄、政党和教育程度有关。在本文中,我们研究了宗教虔诚度(定义为对上帝的信仰和宗教在一个人生活中的重要性)和对同性婚姻的支持之间的关系。我们提醒说,相关性不是因果关系,但发现在美国和西欧,有很强的相关性,而在东欧没有。在美国,这种相关性非常强。最虔诚的州(宗教虔诚度最高的四分之一州)都有宪法禁止同性婚姻。在宗教虔诚度最低的12个州中,有8个州允许同性婚姻,另有3个州在法律上承认同性关系。在西欧,这种相关性没有那么强,但一些例外可能可以用民众支持和政治领导之间的暂时不匹配来解释。然而,在东欧,这种相关性很弱,低宗教信奉度往往与对同性婚姻的低支持率相结合。我们怀疑这是共产主义的遗留问题及其对宗教的压制造成的。
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引用次数: 9
Transnational Rights Enforcement 跨国维权
Pub Date : 2013-05-15 DOI: 10.15779/Z38FP9T
David Gartner
A central debate among international law scholars revolves around the question of how, if at all, international human rights are enforced. Based on recent empirical research, the leading explanations for human rights enforcement are: 1) the democracy thesis; 2) the constitutional thesis; and 3) the international non-governmental organization (INGO) thesis. In order to gain better insight into the causal mechanisms involved and the interplay between these different factors in human rights enforcement, this article tests these competing theories through controlled comparisons and qualitative case studies focused on a single widely ratified right, the right to education. It identifies transnational rights enforcement as an alternative mechanism of human rights enforcement. In this model, transnational civil society actors contribute to human rights enforcement by overcoming international constraints, leveraging domestic commitments, and accelerating compliance with regional norms.
国际法学者之间的一个核心争论围绕着如何(如果有的话)执行国际人权的问题。根据最近的实证研究,对人权强制执行的主要解释是:1)民主理论;2)宪法命题;3)国际非政府组织(INGO)论文。为了更好地了解所涉及的因果机制以及人权执行中这些不同因素之间的相互作用,本文通过对照比较和定性案例研究来检验这些相互竞争的理论,重点关注一项被广泛批准的权利,即受教育权。它确定跨国权利执行是人权执行的另一种机制。在这种模式下,跨国民间社会行为体通过克服国际制约、利用国内承诺和加速遵守区域规范,为人权执法做出贡献。
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引用次数: 4
Led Astray by the Moral Compass: Incorporating Morality into European Union Biotechnology Patent Law 被道德指南针引入歧途:将道德纳入欧盟生物技术专利法
Pub Date : 2012-09-24 DOI: 10.15779/Z38PH11
D. M. Gitter
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引用次数: 8
From Paris to London: The Legal History of European Reparation Claims 1946-1953 从巴黎到伦敦:1946-1953年欧洲赔偿要求的法律史
Pub Date : 2011-08-24 DOI: 10.2139/SSRN.1914802
R. Buxbaum
One of a series of both published and planned studies of the history of European reparations following World War II. This paper narrates the history of the first period of that era, from 1945 to approximately 1952. This period is marked by the disappointment of the expectations of former Allies, especially those that had been under German occupation, to obtain adequate reparations through multilateral arrangements; a frustration that led to later bilateral reparations treaties with the Federal Republic of Germany. It also marks the beginning of the era in which individual subjects who had suffered persecution struggled to establish their own agency - efforts that contributed to the establishment of international human rights in later decades.
关于第二次世界大战后欧洲赔款历史的一系列已出版和计划研究之一。本文叙述了那个时代第一阶段的历史,从1945年到大约1952年。这一时期的特点是,前盟国,特别是在德国占领下的盟国,对通过多边安排获得充分赔偿的期望感到失望;这一挫折导致后来与德意志联邦共和国签订了双边赔偿条约。它还标志着一个时代的开始,在这个时代中,遭受迫害的个别主体努力建立自己的机构- -这些努力在后来的几十年里促进了国际人权的建立。
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引用次数: 4
Why is the U.S. Abdicating the Policing of Multinational Corporations to Europe?: Extraterritoriality, Sovereignty, and the Alien Tort Statute 为什么美国要把跨国公司的监管权让给欧洲?:治外法权、主权和外国人侵权法
Pub Date : 2011-08-01 DOI: 10.15779/Z38CW7K
J. A. Kirshner
The United States has policed the multinational effects of multinational corporations more aggressively than any other coun-try, but recent decisions under the Alien Tort Statute indicate that it is now backtracking. Europe, paradoxically, is moving in the other direction. Why do some countries retract extraterritorial jurisdiction while others step forward? The article traces the opposing trends through corporate human rights cases and suggests that the answer may lie in attitudes towards national sovereignty. The developments raise important questions regarding the position of the United States in a globalizing world and its role in upholding international norms.
美国比其他任何国家都更积极地监管跨国公司的跨国影响,但最近根据《外国人侵权法》作出的决定表明,美国现在正在倒退。矛盾的是,欧洲正朝着另一个方向发展。为什么有的国家在域外管辖权问题上退缩,有的国家在域外管辖权问题上站出来?这篇文章通过企业人权案例追溯了相反的趋势,并提出答案可能在于对国家主权的态度。这些事态发展对美国在全球化世界中的地位及其在维护国际准则方面的作用提出了重要问题。
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引用次数: 28
Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care 混合宪政:以色列的司法审查案例及我们为何要关注
Pub Date : 2011-01-13 DOI: 10.15779/Z384D36
R. Weill
Fifteen years after the Israeli Supreme Court decided in Mizrahi that Israel's "Basic Laws" amount to Israel's formal Constitution and it enjoys the power of judicial review, the debate about Israel's constitutional development is far from over. This essay makes the following four propositions: First, the Israeli political branches have been debating the wrong question. Rather than lingering on the threshold question of whether or not Israel has a formal Constitution at all, they should be discussing what kind of Constitution is developing in Israel. Second, the consensus among scholars who recognize Israel’s formal Constitution is that its existence is best explained by the Constituent Authority theory. But they have adopted a myopic understanding of Israel’s constitutional development. Like so many other aspects of Israel’s national evolution, a single theory cannot adequately explain the existence of its formal constitution. Rather, this national rite of passage occurred incrementally, supported by four different, and at times conflicting, constitutional theories, each with its own strengths and weaknesses as suitable analytical frameworks. Third, depending on the theory one ascribes to Israel's constitutional development, present and future constitutional debates may be resolved differently. As examples, I illustrate how the theories diverge when applied to two contemporary constitutional matters: (1) whether referenda can be used to decide territorial concessions; and (2) whether Ultra-Orthodox Yeshiva students may be singled out for special financial treatment. Broader questions of judicial power are even more pressing, and I further explore how the various theories may affect the use of the legislative override power to overcome judicial review. Last, underlying my discussion is the assertion that there is a strong nexus between the process of enactment of a constitution and the kind of judicial review - whether strong or weak - that may emerge. This thesis deviates from the conventional view that the nature of judicial review is solely dependent on the mechanisms adopted in the constitutional document itself, rather than on the processes by which the constitution was adopted. I pursue this scheme in discussing the ramifications of the Israeli case study for Commonwealth constitutionalism in particular and comparative purposes more broadly.
15年前,以色列最高法院在米兹拉希裁定,以色列的“基本法”相当于以色列的正式宪法,并享有司法审查的权力,但关于以色列宪法发展的辩论远未结束。本文提出以下四个观点:第一,以色列各政治派别一直在讨论错误的问题。他们不应该在以色列是否有一部正式宪法的问题上徘徊,而应该讨论以色列正在制定什么样的宪法。其次,承认以色列正式宪法的学者们一致认为,宪法权威理论最能解释它的存在。但是他们对以色列的宪法发展采取了一种短视的理解。就像以色列国家演变的许多其他方面一样,单一的理论无法充分解释其正式宪法的存在。相反,这个国家的过渡仪式是逐步发生的,得到了四种不同的、有时相互冲突的宪法理论的支持,每种理论都有自己的长处和弱点,作为合适的分析框架。第三,根据以色列宪法发展的理论,现在和未来的宪法辩论可能会有不同的解决方案。作为例子,我说明了理论在适用于两个当代宪法问题时是如何分歧的:(1)公民投票是否可以用来决定领土让步;(2)是否可以挑选出极端正统派的犹太史瓦学生,给予特殊的经济待遇。更广泛的司法权问题更为紧迫,我进一步探讨了各种理论如何影响立法超越权力的使用,以克服司法审查。最后,我的讨论的基础是一个断言,即在宪法的制定过程和可能出现的司法审查之间存在着密切的联系——无论这种联系是强是弱。这篇论文偏离了传统观点,即司法审查的性质仅仅取决于宪法文件本身所采用的机制,而不是宪法通过的过程。我在讨论以色列案例研究对英联邦宪政的具体影响和更广泛的比较目的时采用了这一方案。
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引用次数: 9
The Evolving Definition of the Refugee in Contemporary International Law 当代国际法中难民定义的演变
Pub Date : 2011-01-07 DOI: 10.2139/SSRN.1736547
W. T. Worster
Many scholars of international refugee law assert that there is no definition of refugee under international law except that given in the Refugee Convention. This assertion, however, overlooks the dynamic way that the Refugee Convention is interpreted and is usually made without a detailed analysis of customary international law. This article attempts to address this shortcoming in the literature by examining conventional and customary international law contributing to the contemporary definition of refugee. Furthermore, it will attempt to do this is an even-handed manner, concluding that the definition has expanded in favor of claimants in some aspects, but, actually, contracted against the favor of claimants in others. First, the article will examine the definition of refugee under the Refugee Convention, especially the evolving technique for interpreting the Convention, to determine whether the definition has outgrown its conventional shell. Second, the article will undertake a comprehensive analysis of state practice and opinio juris on this question, examining the most up-to-date sources. In particular, it will reflect on the role of specially interested or specially affected states in the formation of customary international law and the growth of “subsidiary” protection. Also the article will consider the contribution of the practice and opinio juris of international organizations in the frame of the contemporary international law’s understanding of the contribution international organizations can make. Lastly, the article will look at the opposite side of the coin: the ways in which customary international law may have narrowed the definition beyond the terms of the Refugee Convention. It will conclude by proposing the new definition of a refugee under conventional and customary international law based on the findings.
许多国际难民法学者认为,除了《难民公约》中给出的定义外,国际法中没有关于难民的定义。然而,这种说法忽略了解释《难民公约》的动态方式,而且通常在没有详细分析习惯国际法的情况下作出。本文试图通过审查有助于当代难民定义的常规和习惯国际法来解决文献中的这一缺陷。此外,它将试图以一种不偏不倚的方式做到这一点,得出结论认为,该定义在某些方面扩大了有利于索赔人,但实际上在其他方面缩小了不利于索赔人。首先,本文将审查《难民公约》下的难民定义,特别是解释《公约》的不断演变的技术,以确定该定义是否已经超出其传统的外壳。其次,本文将对这一问题的国家实践和法律意见进行全面分析,考察最新的资料来源。特别是,它将反映特别感兴趣或特别受影响的国家在习惯国际法的形成和“附属”保护的增长中的作用。本文还将在当代国际法对国际组织所能作出的贡献的理解的框架内,考虑国际组织的实践和法律意见的贡献。最后,本文将探讨硬币的反面:习惯国际法可能将定义缩小到《难民公约》规定之外的方式。最后,它将根据调查结果提出根据常规国际法和习惯国际法对难民的新定义。
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引用次数: 21
期刊
Berkeley Journal of International Law
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