9/11 changed the world forever: a phrase that is now considered cliche but nonetheless accurate with regard to international law. The 2001 military campaign in Afghanistan equally shocked the legal community and propelled the issue of international state responsibility to the forefront of academic debate. Since 9/11, much has been written on the legality of U.S. action in Afghanistan, with particular emphasis on the parameters of the use of force and the corresponding shift in the law of jus ad bellum. Unfortunately, the precise question of indirect state responsibility for failing to prevent terrorist attacks remains somewhat elusive to this day. In this article, I purport to delineate the parameters of this specific regime of indirect responsibility, given that the literature and jurisprudence are far from dispositive on the matter. Although little consensus has been achieved on this issue, it is widely recognized that host-states have a categorical obligation to prevent terrorist attacks emanating from their territory. However, the contours of this obligation of prevention are far more problematic, both in terms of legal content and policy. My analysis commences with a brief overview of the direct/indirect responsibility dichotomy, along with a presentation of the concept of attribution in international law. The first objective of the article is to trace the modern evolution of indirect state responsibility vis-a-vis terrorism, especially since the Beirut raid. In doing so, Professor Bowett's work on Israeli reprisals and use of force in the 1960s, along with several historical accounts, are considered as a starting point. Secondly, I identify a significant shift in international law towards a model of indirect state responsibility, evidenced by recent Security Council and state practice. Three pivotal developments assist me in ascertaining this evolution: the post-Beirut raid jurisprudence, which includes the Nicaragua, Tehran, and Tadic decisions, the ILC's adoption of the Draft articles on the Responsibility of States for Internationally Wrongful Acts in 2001, and the U.S.-led military campaign in Afghanistan. Finally, I conclude that the concept of attribution should be excised altogether from the equation of state responsibility in the context of modern terrorism. After analogizing the domestic products liability paradigm to the war on terror, I propose the implementation of a two-tiered strict liability model in assessing the responsibility of sanctuary states. The discussion, which is pervaded by a tension between upholding sovereignty and combating terrorism efficiently, ultimately leads to the exploration of the obligation of prevention.
{"title":"Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks?","authors":"V. Proulx","doi":"10.15779/Z38CK90","DOIUrl":"https://doi.org/10.15779/Z38CK90","url":null,"abstract":"9/11 changed the world forever: a phrase that is now considered cliche but nonetheless accurate with regard to international law. The 2001 military campaign in Afghanistan equally shocked the legal community and propelled the issue of international state responsibility to the forefront of academic debate. Since 9/11, much has been written on the legality of U.S. action in Afghanistan, with particular emphasis on the parameters of the use of force and the corresponding shift in the law of jus ad bellum. Unfortunately, the precise question of indirect state responsibility for failing to prevent terrorist attacks remains somewhat elusive to this day. In this article, I purport to delineate the parameters of this specific regime of indirect responsibility, given that the literature and jurisprudence are far from dispositive on the matter. Although little consensus has been achieved on this issue, it is widely recognized that host-states have a categorical obligation to prevent terrorist attacks emanating from their territory. However, the contours of this obligation of prevention are far more problematic, both in terms of legal content and policy. My analysis commences with a brief overview of the direct/indirect responsibility dichotomy, along with a presentation of the concept of attribution in international law. The first objective of the article is to trace the modern evolution of indirect state responsibility vis-a-vis terrorism, especially since the Beirut raid. In doing so, Professor Bowett's work on Israeli reprisals and use of force in the 1960s, along with several historical accounts, are considered as a starting point. Secondly, I identify a significant shift in international law towards a model of indirect state responsibility, evidenced by recent Security Council and state practice. Three pivotal developments assist me in ascertaining this evolution: the post-Beirut raid jurisprudence, which includes the Nicaragua, Tehran, and Tadic decisions, the ILC's adoption of the Draft articles on the Responsibility of States for Internationally Wrongful Acts in 2001, and the U.S.-led military campaign in Afghanistan. Finally, I conclude that the concept of attribution should be excised altogether from the equation of state responsibility in the context of modern terrorism. After analogizing the domestic products liability paradigm to the war on terror, I propose the implementation of a two-tiered strict liability model in assessing the responsibility of sanctuary states. The discussion, which is pervaded by a tension between upholding sovereignty and combating terrorism efficiently, ultimately leads to the exploration of the obligation of prevention.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122270940","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}
Introduction ....................................................... 224 I. The Constitution for Europe ................................ 226 II. Rights and Their Limits: An Overview ...................... 228 III. National Traditions: Limitations on Rights in Constitutional Law and Jurisprudence ..................................... 231 A. The United States Constitution and the Jurisprudence of the Suprem e Court ........................................ 231 B. German Basic Law and the Jurisprudence of the Federal Constitutional Court .................................... 234 IV. International Prescriptions .................................. 242 A. Universal Parameters: The International Covenant on Civil and Political Rights .................................... 242 B. The Regional Prototype: Limitations Upon Rights Under the European Convention on Human Rights and Fundamental Freedoms ................................. 248 V. Fundamental Rights in European Union Law and the Jurisprudence of the European Court of Justice ............... 261 VI. The Charter of Fundamental Rights of the Constitution for Europe: Its Rights and Limitations .......................... 265 A. Rights Under the Charter ............................... 266 B. Limitations Upon Rights of the Charter .................. 268 C. The Role of the European Court of Justice ............... 278 V II. Conclusion ................................................ 279
介绍 .......................................................224年欧洲宪法 ................................226二世。权利和限制:概述 ......................228 III。国家的传统:限制权利在宪法和法律体系 .....................................231 A。美国宪法和过大的法理学构建e法院 ........................................231 b .德国基本法和联邦宪法法院的判例 ....................................234第四。国际处方 ..................................242 A。通用参数:《公民权利和政治权利国际公约》 ....................................242 B.区域原型:《欧洲人权和基本自由公约》规定的权利限制.................................248 V。欧盟法中的基本权利和欧洲法院的判例...............261六欧洲宪法基本权利宪章:其权利和限制..........................265 A。联合国宪章赋予的权利 ...............................266 B.《宪章》权利的限制..................268 C.欧洲法院的作用...............278 v . ii .结论 ................................................279
{"title":"Rights and Their Limits: The Constitution for Europe in International and Comparative Legal Perspective","authors":"R. Pati","doi":"10.15779/Z38606K","DOIUrl":"https://doi.org/10.15779/Z38606K","url":null,"abstract":"Introduction ....................................................... 224 I. The Constitution for Europe ................................ 226 II. Rights and Their Limits: An Overview ...................... 228 III. National Traditions: Limitations on Rights in Constitutional Law and Jurisprudence ..................................... 231 A. The United States Constitution and the Jurisprudence of the Suprem e Court ........................................ 231 B. German Basic Law and the Jurisprudence of the Federal Constitutional Court .................................... 234 IV. International Prescriptions .................................. 242 A. Universal Parameters: The International Covenant on Civil and Political Rights .................................... 242 B. The Regional Prototype: Limitations Upon Rights Under the European Convention on Human Rights and Fundamental Freedoms ................................. 248 V. Fundamental Rights in European Union Law and the Jurisprudence of the European Court of Justice ............... 261 VI. The Charter of Fundamental Rights of the Constitution for Europe: Its Rights and Limitations .......................... 265 A. Rights Under the Charter ............................... 266 B. Limitations Upon Rights of the Charter .................. 268 C. The Role of the European Court of Justice ............... 278 V II. Conclusion ................................................ 279","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"301 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116560477","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}
An article on the geographic reach of human rights obligations in international law and US constitutional rights in counter-terrorism.
一篇关于国际法中人权义务的地理范围和美国在反恐中的宪法权利的文章。
{"title":"A New Geography of Abuse? The Contested Scope of U.S. Cruel, Inhuman and Degrading Treatment Obligations","authors":"Craig Forcese","doi":"10.15779/Z384W90","DOIUrl":"https://doi.org/10.15779/Z384W90","url":null,"abstract":"An article on the geographic reach of human rights obligations in international law and US constitutional rights in counter-terrorism.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116654703","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}
Recent debate concerning the use of foreign law in domestic jurisprudence in the US and elsewhere has been hampered by a fundamental misconception regarding judicial autonomy. Even in the most consolidated of democracies judges remain a part of the social and political fabric of their increasingly globalized societies, a placement that both empowers and constrains choices they make on the bench. This essay argues that the use or neglect of foreign law by judges is one aspect of these limitations: dependent upon their relationships with broader society, judges feel that they either must or must not use foreign law in their decisions. This dialectic between judge and society is fluid, explaining, at least in part, changes in the use of foreign law over time. The article examines this hypothesis via an investigation of patterns of foreign law usage in the decisions of the Indian Supreme Court, an institution similar to both the US apex court and those of many post-World War II constitutional states. Examining all judgments issued by the Court since its founding in 1950 through 2004 (approximately 15,000 cases), a clear correlation is seen between the tenor of Indian history, the growth and contraction of certain individual and group rights, and the use of foreign law. Extrapolating from the Indian case it appears that the modern use of foreign law in domestic jurisprudence in states throughout the world is not a function of simple judicial caprice - as critics have often claimed - but rather is an identifiable and predictable component of the globalization process.
{"title":"Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence - The Indian Case","authors":"Adam Smith","doi":"10.2139/SSRN.729946","DOIUrl":"https://doi.org/10.2139/SSRN.729946","url":null,"abstract":"Recent debate concerning the use of foreign law in domestic jurisprudence in the US and elsewhere has been hampered by a fundamental misconception regarding judicial autonomy. Even in the most consolidated of democracies judges remain a part of the social and political fabric of their increasingly globalized societies, a placement that both empowers and constrains choices they make on the bench. This essay argues that the use or neglect of foreign law by judges is one aspect of these limitations: dependent upon their relationships with broader society, judges feel that they either must or must not use foreign law in their decisions. This dialectic between judge and society is fluid, explaining, at least in part, changes in the use of foreign law over time. The article examines this hypothesis via an investigation of patterns of foreign law usage in the decisions of the Indian Supreme Court, an institution similar to both the US apex court and those of many post-World War II constitutional states. Examining all judgments issued by the Court since its founding in 1950 through 2004 (approximately 15,000 cases), a clear correlation is seen between the tenor of Indian history, the growth and contraction of certain individual and group rights, and the use of foreign law. Extrapolating from the Indian case it appears that the modern use of foreign law in domestic jurisprudence in states throughout the world is not a function of simple judicial caprice - as critics have often claimed - but rather is an identifiable and predictable component of the globalization process.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130114823","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}
This article explores the role authority can play in the debate over whether the sources of international law are changing. Scholars who take up the question of changing sources of international law traditionally face the dilemma that there is, as yet, no agreement on a definitive list of what sources contain the rules of international law, let alone what method or methods lead to the creation of such rules. This article argues that one way to overcome the existing stalemate is to integrate considerations of authority into sources doctrine. By going beyond traditional lines of inquiry such as what makes international law binding and where one finds it to ask who is making the law, a new perspective is presented for evaluating changes to the international legal order. To demonstrate how such an authority-based approach would operate, this article reviews non-state actor participation in treaties. Specifically, it examines whether the roles sub-state, supranational and extra-national actors play in the formation, application and interpretation of treaties has truly altered who international law authorizes to create treaty obligations. It finds that, although non-state actor treaty participation demonstrates a potential for a systemic shift, state consent still remains the operating principle of the treaty paradigm. As such, the article concludes that sources scholarship should focus more, not less, on the doctrine of consent as a source of international law, looking at who is consenting, on whose behalf, and to whom such consent is being given.
{"title":"Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law","authors":"D. Hollis","doi":"10.15779/Z38K93J","DOIUrl":"https://doi.org/10.15779/Z38K93J","url":null,"abstract":"This article explores the role authority can play in the debate over whether the sources of international law are changing. Scholars who take up the question of changing sources of international law traditionally face the dilemma that there is, as yet, no agreement on a definitive list of what sources contain the rules of international law, let alone what method or methods lead to the creation of such rules. This article argues that one way to overcome the existing stalemate is to integrate considerations of authority into sources doctrine. By going beyond traditional lines of inquiry such as what makes international law binding and where one finds it to ask who is making the law, a new perspective is presented for evaluating changes to the international legal order. To demonstrate how such an authority-based approach would operate, this article reviews non-state actor participation in treaties. Specifically, it examines whether the roles sub-state, supranational and extra-national actors play in the formation, application and interpretation of treaties has truly altered who international law authorizes to create treaty obligations. It finds that, although non-state actor treaty participation demonstrates a potential for a systemic shift, state consent still remains the operating principle of the treaty paradigm. As such, the article concludes that sources scholarship should focus more, not less, on the doctrine of consent as a source of international law, looking at who is consenting, on whose behalf, and to whom such consent is being given.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131805911","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}
In 1999, Hubert Vedrine, then Foreign Minister of France, coined a new term that has become popular among international relations commentators.1 Discarding the term "super-power" as a Cold War anachronism, Vedrine described the United States as a hyper-puissance, or "hyper-power. ' '2 No other country in the history of the world, Vedrine said, had amassed so much power so completely-militarily, politically, and culturally. 3 While it is tempting to conclude that the French Foreign Minister was expressing awe for the United States, his real purpose was to suggest that such an accumulation of power in the hands of one country presents dangers for all the rest. Vedrine feared the capacity of the United States to enforce its will on the world without reference to the opinions of its allies. France and the other "great powers," Vedrine urged, must act as a counter-weight to the hyper-power.4 Vedrine's hyper-power concept captures an essential truth: At least according to conventional measures of national power, the United States is unsurpassed and is poised to remain so for a long time to come.5 As the scholar Joseph Nye has noted, "not since Rome has one nation loomed so large above the others." 6 But, as described above, Vedrine and others view the disproportionate nature of
{"title":"Iraq: At the Apex of Evil","authors":"Allison Ehlert","doi":"10.15779/Z382D23","DOIUrl":"https://doi.org/10.15779/Z382D23","url":null,"abstract":"In 1999, Hubert Vedrine, then Foreign Minister of France, coined a new term that has become popular among international relations commentators.1 Discarding the term \"super-power\" as a Cold War anachronism, Vedrine described the United States as a hyper-puissance, or \"hyper-power. ' '2 No other country in the history of the world, Vedrine said, had amassed so much power so completely-militarily, politically, and culturally. 3 While it is tempting to conclude that the French Foreign Minister was expressing awe for the United States, his real purpose was to suggest that such an accumulation of power in the hands of one country presents dangers for all the rest. Vedrine feared the capacity of the United States to enforce its will on the world without reference to the opinions of its allies. France and the other \"great powers,\" Vedrine urged, must act as a counter-weight to the hyper-power.4 Vedrine's hyper-power concept captures an essential truth: At least according to conventional measures of national power, the United States is unsurpassed and is poised to remain so for a long time to come.5 As the scholar Joseph Nye has noted, \"not since Rome has one nation loomed so large above the others.\" 6 But, as described above, Vedrine and others view the disproportionate nature of","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124446051","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}
As the above quotes indicate, the Bush administration places great emphasis on trade, viewing it not only as a means to economic strength, but also as a way to promote national security. While past presidents have also touted the benefits of trade, Bush is in a unique position to make trade liberalization a reality. First, Bush was recently granted Trade Promotion Authority3 (TPA) or "fast track." With TPA, presidents can negotiate trade deals that Congress must then ratify or reject, but which they cannot amend. TPA makes enacting trade agreements much easier. Second, after the September 11, 2001 terrorist attacks, Bush enjoys tremendous power over all matters relating to foreign policy. By linking trade to U.S. security, Bush has effectively silenced Congressional dissent on the issue by making it much more difficult for Congress to reject such deals. Trade liberalization, therefore, should be within Bush's reach. After all, Bush's predecessor, Bill Clinton, led a multi-year WTO Round and helped bring about two large multilateral agreements without TPA and despite facing the
{"title":"NAFTA and the FTAA: Regional Alternatives to Multilateralism","authors":"Laura Altieri","doi":"10.15779/Z38JD2X","DOIUrl":"https://doi.org/10.15779/Z38JD2X","url":null,"abstract":"As the above quotes indicate, the Bush administration places great emphasis on trade, viewing it not only as a means to economic strength, but also as a way to promote national security. While past presidents have also touted the benefits of trade, Bush is in a unique position to make trade liberalization a reality. First, Bush was recently granted Trade Promotion Authority3 (TPA) or \"fast track.\" With TPA, presidents can negotiate trade deals that Congress must then ratify or reject, but which they cannot amend. TPA makes enacting trade agreements much easier. Second, after the September 11, 2001 terrorist attacks, Bush enjoys tremendous power over all matters relating to foreign policy. By linking trade to U.S. security, Bush has effectively silenced Congressional dissent on the issue by making it much more difficult for Congress to reject such deals. Trade liberalization, therefore, should be within Bush's reach. After all, Bush's predecessor, Bill Clinton, led a multi-year WTO Round and helped bring about two large multilateral agreements without TPA and despite facing the","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115235813","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}
While nation-states often possess substantial legal powers to punish transnational crimes such as money laundering, terrorism, drug trafficking, and international corruption, they frequently lack the capacity to focus such powers on the most serious offenders and threats. Power reflects a nation-state's authority to legitimately coerce individuals or organizations in an attempt to achieve some objective desired by policymakers. The hallmarks of power are expansively-worded criminal statutes that can be applied domestically or extraterritorially and extensive regulatory powers that can be imposed with minimal judicial intervention to detain people, effect forfeitures of bank accounts, freeze assets or impose civil penalties. Capacity, meanwhile, describes the nation-state's ability to detect the most serious offenders and to effectively focus its extraordinary legal powers specifically on them. This article uses the global attack on criminal finance to highlight some of the agency problems created by the separation between power and capacity in transnational law enforcement, where the public (acting as "principal") may have trouble evaluating the work of government officials (the "agent"). "Criminal finance" refers to financial activity associated with funding or profiting from crime. The global attack on criminal finance is the most ambitious legal response to transnational crime: the conduct targeted in this attack includes both willful and also merely negligent conduct, the tools used to wage the attack include criminal penalties as well as regulation, and the predicate offenses range from drug trafficking to public corruption to terrorism. While there are principled reasons to pursue a global attack on criminal finance, in practice the attack may demonstrate a pattern of separation between state power and state capacity. (1) The offenses most likely to be punished may often be the ones that can be most easily detected, which are rarely "serious" in any defensible sense. Interest groups may oppose regulatory policies designed to enhance detection capacity. (2) Given their incentives, policymakers in developing countries may adopt new laws and regulations without changing underlying patterns of non-enforcement against criminal financial activity. (3) Some kinds of criminal financial activity - whether impelled by intrinsic objectives or a craving for profits - will remain extraordinarily difficult to deter, because of offenders' motivations and their ability to substitute among different types of transactions. (4) Executive officials often have incentives not to make the investment in creating capacity. Instead they may prefer to use their powers to create an impression of greater security, even in the absence of the capacity to impose substantial costs on the most troubling offenders, or to detect them. As with other challenges in transnational law enforcement, the global attack on criminal finance evinces a trend toward growth in state legal p
{"title":"The Mismatch between State Power and State Capacity in Transnational Law Enforcement","authors":"Mariano-Florentino Cuéllar","doi":"10.2139/SSRN.474662","DOIUrl":"https://doi.org/10.2139/SSRN.474662","url":null,"abstract":"While nation-states often possess substantial legal powers to punish transnational crimes such as money laundering, terrorism, drug trafficking, and international corruption, they frequently lack the capacity to focus such powers on the most serious offenders and threats. Power reflects a nation-state's authority to legitimately coerce individuals or organizations in an attempt to achieve some objective desired by policymakers. The hallmarks of power are expansively-worded criminal statutes that can be applied domestically or extraterritorially and extensive regulatory powers that can be imposed with minimal judicial intervention to detain people, effect forfeitures of bank accounts, freeze assets or impose civil penalties. Capacity, meanwhile, describes the nation-state's ability to detect the most serious offenders and to effectively focus its extraordinary legal powers specifically on them. This article uses the global attack on criminal finance to highlight some of the agency problems created by the separation between power and capacity in transnational law enforcement, where the public (acting as \"principal\") may have trouble evaluating the work of government officials (the \"agent\"). \"Criminal finance\" refers to financial activity associated with funding or profiting from crime. The global attack on criminal finance is the most ambitious legal response to transnational crime: the conduct targeted in this attack includes both willful and also merely negligent conduct, the tools used to wage the attack include criminal penalties as well as regulation, and the predicate offenses range from drug trafficking to public corruption to terrorism. While there are principled reasons to pursue a global attack on criminal finance, in practice the attack may demonstrate a pattern of separation between state power and state capacity. (1) The offenses most likely to be punished may often be the ones that can be most easily detected, which are rarely \"serious\" in any defensible sense. Interest groups may oppose regulatory policies designed to enhance detection capacity. (2) Given their incentives, policymakers in developing countries may adopt new laws and regulations without changing underlying patterns of non-enforcement against criminal financial activity. (3) Some kinds of criminal financial activity - whether impelled by intrinsic objectives or a craving for profits - will remain extraordinarily difficult to deter, because of offenders' motivations and their ability to substitute among different types of transactions. (4) Executive officials often have incentives not to make the investment in creating capacity. Instead they may prefer to use their powers to create an impression of greater security, even in the absence of the capacity to impose substantial costs on the most troubling offenders, or to detect them. As with other challenges in transnational law enforcement, the global attack on criminal finance evinces a trend toward growth in state legal p","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126873043","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}
Competition policy is made at the national level. A great deal of the business activity that it seeks to regulate takes place at the international level. It is universally accepted that some level of international cooperation is necessary to make regulation effective under these conditions. There is, however, a considerable diversity of views on the question of how much cooperation is appropriate. The presence of international activity distorts competition policy in at least two ways. First, it causes the preferred domestic policies of states to diverge from what they would be in the absence of such activity. States that are net exporters of goods sold in imperfectly competitive markets have an incentive to weaken their antitrust rules and states that are net importers of such goods have reason to tighten theirs. Second, the choice of law rules adopted to establish the jurisdictional reach of domestic law create an additional divergence between the substantive laws actually chosen and those that would be chosen by a closed economy. States that choose to limit their laws to activities that take place within their territory are better off if they also weaken their substantive laws. States that extend the reach of their laws generate overlapping jurisdiction and force firms to run a gauntlet of legal rules that includes the strictest elements of each state's laws, leading to a de facto regulatory standard that is stricter than that of any single state. This chapter explains why these problems cannot be resolved through the sort of low levels of cooperation that dominate current international antitrust efforts. Information sharing in particular cannot address the distortions to competition policy generated by cross-border business. Choice of law strategies can improve the regulatory framework, but can only partially address the problem and even this would require a dramatic change to existing policies. What is required, then, is a deeper form of cooperation on the subject of substantive laws or international standards. Though cooperation of this sort is difficult to achieve, there is no other way to address the policy distortions created when national authorities try to regulate international competition.
{"title":"The Case for International Antitrust","authors":"Andrew T. Guzman","doi":"10.2139/SSRN.412300","DOIUrl":"https://doi.org/10.2139/SSRN.412300","url":null,"abstract":"Competition policy is made at the national level. A great deal of the business activity that it seeks to regulate takes place at the international level. It is universally accepted that some level of international cooperation is necessary to make regulation effective under these conditions. There is, however, a considerable diversity of views on the question of how much cooperation is appropriate. The presence of international activity distorts competition policy in at least two ways. First, it causes the preferred domestic policies of states to diverge from what they would be in the absence of such activity. States that are net exporters of goods sold in imperfectly competitive markets have an incentive to weaken their antitrust rules and states that are net importers of such goods have reason to tighten theirs. Second, the choice of law rules adopted to establish the jurisdictional reach of domestic law create an additional divergence between the substantive laws actually chosen and those that would be chosen by a closed economy. States that choose to limit their laws to activities that take place within their territory are better off if they also weaken their substantive laws. States that extend the reach of their laws generate overlapping jurisdiction and force firms to run a gauntlet of legal rules that includes the strictest elements of each state's laws, leading to a de facto regulatory standard that is stricter than that of any single state. This chapter explains why these problems cannot be resolved through the sort of low levels of cooperation that dominate current international antitrust efforts. Information sharing in particular cannot address the distortions to competition policy generated by cross-border business. Choice of law strategies can improve the regulatory framework, but can only partially address the problem and even this would require a dramatic change to existing policies. What is required, then, is a deeper form of cooperation on the subject of substantive laws or international standards. Though cooperation of this sort is difficult to achieve, there is no other way to address the policy distortions created when national authorities try to regulate international competition.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121644252","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}
This Article focuses on the right of informed consent to medical experimentation, the "process by which an individual voluntarily expresses his or her willingness to participate in a particular trial, after having been informed of all aspects of the trial that are relevant to the decision to participate." There are many barriers to the comprehension of risk and rational decision-making necessary for informed consent. These barriers are particularly acute in developing nations. The "short course" AZT trials in Africa are a modern example of this problem. In this paradigmatic case, science's quest for a cure has led to the erosion of principles of in-formed consent and the denigration of individual rights. Part II of this Article explains the short course AZT trials conducted on HIV-positive African subjects by U.S. physicians. In particular, Part II outlines violations of the research subject's right of informed consent. Part III describes the experiments of Nazi physicians during World War II, the trial of these physicians at Nuremberg, and the Nuremberg Tribunal's development of the Nuremberg Code, the foundation of modern international regulation of human experimentation. Part IV details the development of international regulation of human experimentation following the Nuremberg Code. Part V highlights the weaknesses of these international regulations insofar as they permitted involuntary medical experimentation with HIV-positive subjects in Africa to continue unabated. Part VI recommends the development of an international solution to guarantee the right of meaningful informed consent to each subject of medical experimentation and proposes the creation of an international convention for the protection of informed consent.
{"title":"International Protection of Persons Undergoing Medical Experimentation: Protecting the Right of Informed Consent","authors":"B. Meier","doi":"10.15779/Z38693R","DOIUrl":"https://doi.org/10.15779/Z38693R","url":null,"abstract":"This Article focuses on the right of informed consent to medical experimentation, the \"process by which an individual voluntarily expresses his or her willingness to participate in a particular trial, after having been informed of all aspects of the trial that are relevant to the decision to participate.\" There are many barriers to the comprehension of risk and rational decision-making necessary for informed consent. These barriers are particularly acute in developing nations. The \"short course\" AZT trials in Africa are a modern example of this problem. In this paradigmatic case, science's quest for a cure has led to the erosion of principles of in-formed consent and the denigration of individual rights. Part II of this Article explains the short course AZT trials conducted on HIV-positive African subjects by U.S. physicians. In particular, Part II outlines violations of the research subject's right of informed consent. Part III describes the experiments of Nazi physicians during World War II, the trial of these physicians at Nuremberg, and the Nuremberg Tribunal's development of the Nuremberg Code, the foundation of modern international regulation of human experimentation. Part IV details the development of international regulation of human experimentation following the Nuremberg Code. Part V highlights the weaknesses of these international regulations insofar as they permitted involuntary medical experimentation with HIV-positive subjects in Africa to continue unabated. Part VI recommends the development of an international solution to guarantee the right of meaningful informed consent to each subject of medical experimentation and proposes the creation of an international convention for the protection of informed consent.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129837206","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}
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