Pub Date : 2005-06-01DOI: 10.4324/9780429499715-26
Sundhya Pahuja
How are we to understand the relationship between international law and imperialism? What bearing might that have on how we see contemporary international law? According to one view, international law is simply a “cloak of legality” thrown over the subjugation of colonized peoples by the imperial powers in a distortion of international law’s true spirit. 1 According to this understanding, the contemporary task is to rid international law of the vestiges of that misappropriation. We must accept decolonization at face value and continue to broaden the scope and content of international law in a culturally sensitive way. Meeting the Symposium’s stated goal of “envisioning new orders” would therefore require the rescue of international law from the corruption of power to make good international law’s explicit promise of universality and sovereign equality. 2 At the other end of the spectrum is the belief that international law has always been encompassed by and in the service to empire. At this pole, the very doctrines and institutions of international law are understood to have been molded by the powerful in order to serve their interests. Those who hold power in the contemporary setting maintain the capacity to create and deploy international law, in turn facilitating practices of (neo)colonialism. However, most scholars engaged with the “postcolonial” in some form or other would hesitate to embrace either of these two polar positions. On the one hand, the perception of international law as an innocent victim waiting to be rescued from the corruptions of imperialism is untenable. On the other hand, the view that international law abjectly serves empire is equally unpopular with those so engaged. They are generally unwilling to accept such an encompassing frame and its attendant demand to abandon international law as a site of contestation, both historically and now. And thus there is an
{"title":"The postcoloniality of international law","authors":"Sundhya Pahuja","doi":"10.4324/9780429499715-26","DOIUrl":"https://doi.org/10.4324/9780429499715-26","url":null,"abstract":"How are we to understand the relationship between international law and imperialism? What bearing might that have on how we see contemporary international law? According to one view, international law is simply a “cloak of legality” thrown over the subjugation of colonized peoples by the imperial powers in a distortion of international law’s true spirit. 1 According to this understanding, the contemporary task is to rid international law of the vestiges of that misappropriation. We must accept decolonization at face value and continue to broaden the scope and content of international law in a culturally sensitive way. Meeting the Symposium’s stated goal of “envisioning new orders” would therefore require the rescue of international law from the corruption of power to make good international law’s explicit promise of universality and sovereign equality. 2 At the other end of the spectrum is the belief that international law has always been encompassed by and in the service to empire. At this pole, the very doctrines and institutions of international law are understood to have been molded by the powerful in order to serve their interests. Those who hold power in the contemporary setting maintain the capacity to create and deploy international law, in turn facilitating practices of (neo)colonialism. However, most scholars engaged with the “postcolonial” in some form or other would hesitate to embrace either of these two polar positions. On the one hand, the perception of international law as an innocent victim waiting to be rescued from the corruptions of imperialism is untenable. On the other hand, the view that international law abjectly serves empire is equally unpopular with those so engaged. They are generally unwilling to accept such an encompassing frame and its attendant demand to abandon international law as a site of contestation, both historically and now. And thus there is an","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"10 1","pages":"459-470"},"PeriodicalIF":0.0,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70618112","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}
Pub Date : 2005-01-01DOI: 10.1093/acprof:oso/9780195388534.003.0005
J. Salacuse, Nicholas P. Sullivan
{"title":"Do BIT's Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain","authors":"J. Salacuse, Nicholas P. Sullivan","doi":"10.1093/acprof:oso/9780195388534.003.0005","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195388534.003.0005","url":null,"abstract":"","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"46 1","pages":"67-130"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60641555","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}
Pub Date : 2003-12-01DOI: 10.1017/CBO9780511609800.059
M. Stewart
{"title":"Global trajectories of tax reform: The discourse of tax reform in developing and transition countries","authors":"M. Stewart","doi":"10.1017/CBO9780511609800.059","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.059","url":null,"abstract":"","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"44 1","pages":"139-191"},"PeriodicalIF":0.0,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.059","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57078954","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}
The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to "soft," non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives. Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a "soft" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.
{"title":"Limits of the Classic Method: Positive Action in the European Union After the New Equality Directives","authors":"D. Caruso","doi":"10.2139/SSRN.437202","DOIUrl":"https://doi.org/10.2139/SSRN.437202","url":null,"abstract":"The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to \"soft,\" non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives. Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a \"soft\" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"44 1","pages":"331-386"},"PeriodicalIF":0.0,"publicationDate":"2003-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68782602","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}
The past decade has seen an enormous expansion of the doctrine of universal jurisdiction. Universal jurisdiction is an exception to traditional rules of international jurisdiction; it allows any nation, even one with no connection to the offense, to try people suspected of extraordinarily heinous crimes. High-profile examples of universal jurisdiction include the Belgian proceedings against Israeli Prime Minister Ariel Sharon, the international tribunals for war crimes in Rwanda and Yugoslavia, and the growing docket of human rights litigation in U.S. federal courts. Courts that have joined in this expansion of universal jurisdiction, and the scholars who support them, rely on one key precedent - the law of piracy - to legitimize departing from the traditional jurisdictional requirements. For hundreds of years, piracy was the only offense that was considered universally cognizable. The new universal jurisdiction (NUJ) uses piracy as its precedential and conceptual foundation. Piracy, the argument goes, merely illustrates the broader principle that whatever offenses most shock the conscience of a given era can be prosecuted by any nation. Exercises of universal jurisdiction can have dangerous consequences because they can be seen as encroachments on another nation's sovereign prerogatives. The piracy analogy maintains that at least for heinous crimes, this concern is unfounded: the jurisdictional treatment of piracy proves that nations do not mind ceding jurisdiction over people suspected of egregiously vile offenses. This Article refutes the generally-accepted view that piracy became a universally cognizable offense because of its heinousness, and by extension, the notion that piracy law can provide a valid precedent or model for the NUJ. The Article shows that piracy existed side-by-side with privateering, a form of state-licensed piracy that was entirely legal under the law of nations. That piracy was considered acceptable when committed with sovereign authorization shows that piratical conduct was not viewed as innately heinous in the sense that NUJ crimes are. Furthermore, the Article explains that piracy is simply a species of robbery, and was never regarded as significantly more heinous than robbery is regarded today. The fallacy of the piracy analogy casts into doubt the soundness of many cases that use the analogy to justify their expansion of universal jurisdiction. It also has cautionary implications for international tribunals that might seek to exercise universal jurisdiction, such as the International Criminal Court.
{"title":"The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation","authors":"E. Kontorovich","doi":"10.2139/SSRN.385900","DOIUrl":"https://doi.org/10.2139/SSRN.385900","url":null,"abstract":"The past decade has seen an enormous expansion of the doctrine of universal jurisdiction. Universal jurisdiction is an exception to traditional rules of international jurisdiction; it allows any nation, even one with no connection to the offense, to try people suspected of extraordinarily heinous crimes. High-profile examples of universal jurisdiction include the Belgian proceedings against Israeli Prime Minister Ariel Sharon, the international tribunals for war crimes in Rwanda and Yugoslavia, and the growing docket of human rights litigation in U.S. federal courts. Courts that have joined in this expansion of universal jurisdiction, and the scholars who support them, rely on one key precedent - the law of piracy - to legitimize departing from the traditional jurisdictional requirements. For hundreds of years, piracy was the only offense that was considered universally cognizable. The new universal jurisdiction (NUJ) uses piracy as its precedential and conceptual foundation. Piracy, the argument goes, merely illustrates the broader principle that whatever offenses most shock the conscience of a given era can be prosecuted by any nation. Exercises of universal jurisdiction can have dangerous consequences because they can be seen as encroachments on another nation's sovereign prerogatives. The piracy analogy maintains that at least for heinous crimes, this concern is unfounded: the jurisdictional treatment of piracy proves that nations do not mind ceding jurisdiction over people suspected of egregiously vile offenses. This Article refutes the generally-accepted view that piracy became a universally cognizable offense because of its heinousness, and by extension, the notion that piracy law can provide a valid precedent or model for the NUJ. The Article shows that piracy existed side-by-side with privateering, a form of state-licensed piracy that was entirely legal under the law of nations. That piracy was considered acceptable when committed with sovereign authorization shows that piratical conduct was not viewed as innately heinous in the sense that NUJ crimes are. Furthermore, the Article explains that piracy is simply a species of robbery, and was never regarded as significantly more heinous than robbery is regarded today. The fallacy of the piracy analogy casts into doubt the soundness of many cases that use the analogy to justify their expansion of universal jurisdiction. It also has cautionary implications for international tribunals that might seek to exercise universal jurisdiction, such as the International Criminal Court.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"45 1","pages":"183-238"},"PeriodicalIF":0.0,"publicationDate":"2003-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.385900","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68660372","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 Spirit of the Laws","authors":"H. Koh","doi":"10.2307/j.ctv2bctf9.5","DOIUrl":"https://doi.org/10.2307/j.ctv2bctf9.5","url":null,"abstract":"","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"43 1","pages":"23-40"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68804477","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}
Emerging applications in the field of biotechnology hold great promise for promoting the health and well-being of the global community, especially in developing states. Yet significant concerns have emerged about biotechnology in the transnational sphere, concerns that no doubt will increase in decades to come. The purpose of the article is to assess the strengths and limits of existing international norms and structures designed to address these concerns, and to suggest a means for augmenting current structures to make them more effective. International law develops and regulates transnational behavior in a manner that goes well beyond the development treaty regimes. International law is driven in large part by the self-interest of states, but they also arise from the social interaction of states and non-state actors, and they ultimately must become grounded in national laws and society in order to become effective. This article accordingly emphasizes the need for coordination at different levels of state and non-state behavior as the law develops over time as well as the need for coordination across different treaty regimes. While states should continue to grapple with concerns in the area of biotechnology through incremental tinkering of existing treaty regimes - seen most recently in the adoption of a Biosafety Protocol to the Convention on Biological Diversity - the article argues that the principal emphasis of the global community on episodic and segmented intergovernmental negotiations as a means for addressing these concerns is misplaced, especially since the science in this area is changing rapidly, the behavior to be regulated is highly commercial and private in nature, and transnational regulation affects a wide variety of state and non-state actors who have complex motivations that change over time. At the same time, the many issues raised by biotechnology in the transnational sphere should not be left to the vagaries of the market, to governments alone, or to the initiatives of a few well-financed interest groups, such as biotechnology companies and environmentalists. Instead they need to be addressed by international society as a whole. One approach would be to establish a transnational forum on biotechnology, which could serve as a relatively informal and non-binding means for the transnational "bargaining" of views among a wide range of relevant non-state actors. Such a forum ultimately may be instrumental in achieving consensus on a coherent and effective legal regime to address concerns with transnational biotechnology, one that balances the tremendous opportunities of biotechnology against its potentially severe and adverse transnational effects.
{"title":"Biotechnology and International Law","authors":"S. Murphy","doi":"10.2139/SSRN.266470","DOIUrl":"https://doi.org/10.2139/SSRN.266470","url":null,"abstract":"Emerging applications in the field of biotechnology hold great promise for promoting the health and well-being of the global community, especially in developing states. Yet significant concerns have emerged about biotechnology in the transnational sphere, concerns that no doubt will increase in decades to come. The purpose of the article is to assess the strengths and limits of existing international norms and structures designed to address these concerns, and to suggest a means for augmenting current structures to make them more effective. International law develops and regulates transnational behavior in a manner that goes well beyond the development treaty regimes. International law is driven in large part by the self-interest of states, but they also arise from the social interaction of states and non-state actors, and they ultimately must become grounded in national laws and society in order to become effective. This article accordingly emphasizes the need for coordination at different levels of state and non-state behavior as the law develops over time as well as the need for coordination across different treaty regimes. While states should continue to grapple with concerns in the area of biotechnology through incremental tinkering of existing treaty regimes - seen most recently in the adoption of a Biosafety Protocol to the Convention on Biological Diversity - the article argues that the principal emphasis of the global community on episodic and segmented intergovernmental negotiations as a means for addressing these concerns is misplaced, especially since the science in this area is changing rapidly, the behavior to be regulated is highly commercial and private in nature, and transnational regulation affects a wide variety of state and non-state actors who have complex motivations that change over time. At the same time, the many issues raised by biotechnology in the transnational sphere should not be left to the vagaries of the market, to governments alone, or to the initiatives of a few well-financed interest groups, such as biotechnology companies and environmentalists. Instead they need to be addressed by international society as a whole. One approach would be to establish a transnational forum on biotechnology, which could serve as a relatively informal and non-binding means for the transnational \"bargaining\" of views among a wide range of relevant non-state actors. Such a forum ultimately may be instrumental in achieving consensus on a coherent and effective legal regime to address concerns with transnational biotechnology, one that balances the tremendous opportunities of biotechnology against its potentially severe and adverse transnational effects.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"42 1","pages":"47-140"},"PeriodicalIF":0.0,"publicationDate":"2001-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68245389","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":"\"Geographical morality\" revisited: international relations, international law, and the controversy over placebo controlled HIV clinical trials in developing countries.","authors":"D P Fidler","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"42 2","pages":"299-354"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40892034","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}
Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court's existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles.
{"title":"Subsidiarity and Self-Interest: Federalism at the European Court of Justice","authors":"E. Swaine","doi":"10.2139/SSRN.203091","DOIUrl":"https://doi.org/10.2139/SSRN.203091","url":null,"abstract":"Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court's existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"41 1","pages":"1-128"},"PeriodicalIF":0.0,"publicationDate":"2000-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67869973","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}
Pub Date : 1985-01-01DOI: 10.4324/9781315202006-10
J. Boyle
{"title":"Ideals and Things: International Legal Scholarship and the Prison-House of Language","authors":"J. Boyle","doi":"10.4324/9781315202006-10","DOIUrl":"https://doi.org/10.4324/9781315202006-10","url":null,"abstract":"","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"26 1","pages":"327-359"},"PeriodicalIF":0.0,"publicationDate":"1985-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70637228","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：