Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users without such protections.
{"title":"User-Generated Evidence","authors":"R. Hamilton","doi":"10.2139/SSRN.3124409","DOIUrl":"https://doi.org/10.2139/SSRN.3124409","url":null,"abstract":"Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users without such protections.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43512690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite its central contribution to the construction of the global legal order, the United States has long been perceived to exclude itself from the reach of international law. Its exceptionalist image has been reinforced by statements of political leaders, federal law provisions, and court decisions. This Article argues, however, that in order to appropriately assess international law’s standing in the United States, one must consider not only the position of its formal government but also the interpretation, application, and challenge of international law by non-State actors. Moreover, it stresses the importance of studying not only elite actors’ engagement with international law but also that of individuals, groups, and organizations outside the formal bureaucracy.The Article surveys interventions by government officials, producers, consumers, and civil society representatives in the context of a U.S. policy-making process initiated pursuant to a World Trade Organization ruling. It shows that, contrary to the United States’ exceptionalist image, U.S. actors of all stripes invoked and relied on international law extensively, thereby carving a space for it as a non-negligible consideration in the decision-making process. Therefore, the Article argues that accounting for non-State stakeholders is imperative in evaluating the domestic standing of international law.
{"title":"The Domestic Standing of International Law: A Non-State Account","authors":"Tamar Megiddo","doi":"10.2139/SSRN.3191064","DOIUrl":"https://doi.org/10.2139/SSRN.3191064","url":null,"abstract":"Despite its central contribution to the construction of the global legal order, the United States has long been perceived to exclude itself from the reach of international law. Its exceptionalist image has been reinforced by statements of political leaders, federal law provisions, and court decisions. This Article argues, however, that in order to appropriately assess international law’s standing in the United States, one must consider not only the position of its formal government but also the interpretation, application, and challenge of international law by non-State actors. Moreover, it stresses the importance of studying not only elite actors’ engagement with international law but also that of individuals, groups, and organizations outside the formal bureaucracy.The Article surveys interventions by government officials, producers, consumers, and civil society representatives in the context of a U.S. policy-making process initiated pursuant to a World Trade Organization ruling. It shows that, contrary to the United States’ exceptionalist image, U.S. actors of all stripes invoked and relied on international law extensively, thereby carving a space for it as a non-negligible consideration in the decision-making process. Therefore, the Article argues that accounting for non-State stakeholders is imperative in evaluating the domestic standing of international law.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43000039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conceiving Criminality: An Evaluation of Abortion Decriminalization Reform in New York and Great Britain","authors":"Swara Saraiya","doi":"10.2139/ssrn.3184061","DOIUrl":"https://doi.org/10.2139/ssrn.3184061","url":null,"abstract":"","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68569698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The State Power to Boycott a Boycott:: The Thorny Constitutionality of State Anti-BDS Laws","authors":"T. Cuffman","doi":"10.2139/ssrn.3186369","DOIUrl":"https://doi.org/10.2139/ssrn.3186369","url":null,"abstract":"","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68569431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In June 2017, Waitrose, a top UK supermarket, pulled its cans of corned beef off the shelves after an investigation revealed that the meat might have been produced with slave labor. At the time of the recall, Waitrose was in compliance with the UK Modern Slavery Act, a 2015 law enacted to prevent human trafficking and modern-day slavery. Under the Modern Slavery Act, corporations are required to file annual reports disclosing what action they had taken to eradicate slavery and human trafficking in their supply chains. The Modern Slavery Act was a much-lauded law that is part of the growing trend of States to move the international business and human rights agenda forward. A key component of that agenda involves disseminating the U.N.’s Protect, Respect, and Remedy Framework and implementing the U.N. Guiding Principles, which have been praised by States around the world as a framing mechanism for assessing corporate accountability for negative human rights impacts caused by a corporation’s operations and relationships with its suppliers. This article analyzes whether the business and human rights agenda (as embodied by the Three Pillar Framework and U.N. Guiding Principles) is well served by national laws that focus on disclosure. The article focuses primarily on rules being implemented in the United States at both the subnational and national level; however, it also discusses approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection made necessary by business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the U.N. Guiding Principles. As such, it is appropriate to undertake an analysis regarding whether these laws are in fact effectively implementing the Guiding Principles. For decades now, disclosure has been held out as the ultimate curative for almost every corporate woe. The expansion of disclosure initiatives from mere investment-related issues to (increasingly) social-policy issues suggest that this trend will continue. Yet, as this article demonstrates, disclosure right now is at best a temporary stop gap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light.
{"title":"Hiding in the Light: The Misuse of Disclosure to Advance the Business and Human Rights Agenda","authors":"Jena Martin","doi":"10.2139/SSRN.3028826","DOIUrl":"https://doi.org/10.2139/SSRN.3028826","url":null,"abstract":"In June 2017, Waitrose, a top UK supermarket, pulled its cans of corned beef off the shelves after an investigation revealed that the meat might have been produced with slave labor. At the time of the recall, Waitrose was in compliance with the UK Modern Slavery Act, a 2015 law enacted to prevent human trafficking and modern-day slavery. Under the Modern Slavery Act, corporations are required to file annual reports disclosing what action they had taken to eradicate slavery and human trafficking in their supply chains. The Modern Slavery Act was a much-lauded law that is part of the growing trend of States to move the international business and human rights agenda forward. A key component of that agenda involves disseminating the U.N.’s Protect, Respect, and Remedy Framework and implementing the U.N. Guiding Principles, which have been praised by States around the world as a framing mechanism for assessing corporate accountability for negative human rights impacts caused by a corporation’s operations and relationships with its suppliers. \u0000 \u0000This article analyzes whether the business and human rights agenda (as embodied by the Three Pillar Framework and U.N. Guiding Principles) is well served by national laws that focus on disclosure. The article focuses primarily on rules being implemented in the United States at both the subnational and national level; however, it also discusses approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection made necessary by business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the U.N. Guiding Principles. As such, it is appropriate to undertake an analysis regarding whether these laws are in fact effectively implementing the Guiding Principles. \u0000 \u0000For decades now, disclosure has been held out as the ultimate curative for almost every corporate woe. The expansion of disclosure initiatives from mere investment-related issues to (increasingly) social-policy issues suggest that this trend will continue. Yet, as this article demonstrates, disclosure right now is at best a temporary stop gap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3028826","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45241219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
56 Columbia Journal of Transnational Law 70 (2017)
56《哥伦比亚跨国法杂志》70（2017）
{"title":"Bridging the Legitimacy Divide: The International Criminal Court's Domestic Perception Challenge","authors":"Y. Dutton","doi":"10.2139/SSRN.3016621","DOIUrl":"https://doi.org/10.2139/SSRN.3016621","url":null,"abstract":"56 Columbia Journal of Transnational Law 70 (2017)","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47881046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
D. Acosta, T. Aleinikoff, K. Banerjee, E. Barkan, P. Bertrand, J. Bhagwati, Joseph Blocher, Emma Borgnäs, Frans Bouwen, S. Cliffe, Kevin L. Cope, F. Crépeau, M. Doyle, Y. Ergas, D. FitzGerald, François Fouinat, J. Gest, B. Ghosh, G. Goodwin-Gill, Randall S. Hansen, M. Karlsson, Donald M. Kerwin, K. Koser, Rey Koslowski, I. M. Kysel, J. MacDermott, Susan F. Martin, S. Miller, Elora Mukherjee, Parvati Nair, Steven S. Nam, Daniel Naujoks, J. Ocampo, Margaret Powers, Benedita Menezes Queiroz, S. Rajan, S. Rosengaertner, Bianca Santos, S. Sassen, Peter J. Spiro, Colleen V. Thouez, J. Trachtman
People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility—the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees—has no common definition or legal framework. There does exist a well-established refugee regime based on the 1951 Refugee Convention and its 1967 Additional Protocol, both implemented by the United Nations High Commissioner for Refugees (UNHCR). As the nature of conflict has changed in recent decades, however, this regime has shown strain and weakness. Today there are more than sixty-five million displaced persons in the world, a level not seen since World War II. Mixed flows of labor migrants and refugees fleeing for safety and economic prospects have created a crisis in the asylum-seeking process. Those forced to
{"title":"Model International Mobility Convention","authors":"D. Acosta, T. Aleinikoff, K. Banerjee, E. Barkan, P. Bertrand, J. Bhagwati, Joseph Blocher, Emma Borgnäs, Frans Bouwen, S. Cliffe, Kevin L. Cope, F. Crépeau, M. Doyle, Y. Ergas, D. FitzGerald, François Fouinat, J. Gest, B. Ghosh, G. Goodwin-Gill, Randall S. Hansen, M. Karlsson, Donald M. Kerwin, K. Koser, Rey Koslowski, I. M. Kysel, J. MacDermott, Susan F. Martin, S. Miller, Elora Mukherjee, Parvati Nair, Steven S. Nam, Daniel Naujoks, J. Ocampo, Margaret Powers, Benedita Menezes Queiroz, S. Rajan, S. Rosengaertner, Bianca Santos, S. Sassen, Peter J. Spiro, Colleen V. Thouez, J. Trachtman","doi":"10.7916/D8GB3MH4","DOIUrl":"https://doi.org/10.7916/D8GB3MH4","url":null,"abstract":"People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility—the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees—has no common definition or legal framework. There does exist a well-established refugee regime based on the 1951 Refugee Convention and its 1967 Additional Protocol, both implemented by the United Nations High Commissioner for Refugees (UNHCR). As the nature of conflict has changed in recent decades, however, this regime has shown strain and weakness. Today there are more than sixty-five million displaced persons in the world, a level not seen since World War II. Mixed flows of labor migrants and refugees fleeing for safety and economic prospects have created a crisis in the asylum-seeking process. Those forced to","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71366491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article identifies an emerging regime complex in the field of international criminal law and analyzes the development of the regional criminal chamber to the African Court of Justice and Human Rights. A regime complex refers to the way in which two or more institutions intersect in terms of their scope and purpose. This Article discusses how the International Criminal Court’s institutional crisis created a space for regional innovation. It demonstrates how the development of a regional criminal tribunal in Africa is the result of intersecting factors in international criminal justice. It finds that regime complexes can form not only due to strategic inconsistencies as discussed in the literature, but also because of the influence of regional integration. It argues that the regionalization of international criminal law is a useful addition to the field of international criminal justice, which has hitherto been hampered by the limitations of both domestic and international adjudication. This Article concludes that regionalization of international criminal law is a positive development.
{"title":"Regionalism, Regime Complexes and the Crisis in International Criminal Justice","authors":"Matiangai Sirleaf","doi":"10.2139/SSRN.2293988","DOIUrl":"https://doi.org/10.2139/SSRN.2293988","url":null,"abstract":"This Article identifies an emerging regime complex in the field of international criminal law and analyzes the development of the regional criminal chamber to the African Court of Justice and Human Rights. A regime complex refers to the way in which two or more institutions intersect in terms of their scope and purpose. This Article discusses how the International Criminal Court’s institutional crisis created a space for regional innovation. It demonstrates how the development of a regional criminal tribunal in Africa is the result of intersecting factors in international criminal justice. It finds that regime complexes can form not only due to strategic inconsistencies as discussed in the literature, but also because of the influence of regional integration. It argues that the regionalization of international criminal law is a useful addition to the field of international criminal justice, which has hitherto been hampered by the limitations of both domestic and international adjudication. This Article concludes that regionalization of international criminal law is a positive development.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2016-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2293988","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68072834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, a number of variables put Macedonia at an increased risk of instability. These factors include Macedonia’s tense relationship with Greece, the strain posed by the European migration crisis, the potential for escalation of simmering interethnic conflict within Macedonia’s borders, and Macedonia’s recent government scandals. Because of the security risks that an unstable Macedonia poses to the European Union (EU), it is crucial for the EU to seek new ways to bring Macedonia closer into the fray of European institutions. This Note assesses the continued durability of existing domestic and regional legal regimes to cope with the increased strain caused by the abovementioned destabilizing factors. The Note poses several ways in which the EU can use Membership to create a more durable legal regime in Macedonia; and it discusses some of the major impediments that the EU should consider when deciding the proper incentive structure to use in Membership discussions. Given Macedonia’s baseline for rule of law and proven desire to join the EU, there is reason for cautious optimism that Macedonia’s legal regime will remain durable if the EU uses the reward of EU accession tactfully in the coming years.
{"title":"Macedonia's Ohrid Framework Agreement Reexamined in Response to Internal and External Crises: Reason for Cautious Optimism on Europe's Southeastern Border","authors":"A. Ruffer","doi":"10.2139/ssrn.2763264","DOIUrl":"https://doi.org/10.2139/ssrn.2763264","url":null,"abstract":"In recent years, a number of variables put Macedonia at an increased risk of instability. These factors include Macedonia’s tense relationship with Greece, the strain posed by the European migration crisis, the potential for escalation of simmering interethnic conflict within Macedonia’s borders, and Macedonia’s recent government scandals. Because of the security risks that an unstable Macedonia poses to the European Union (EU), it is crucial for the EU to seek new ways to bring Macedonia closer into the fray of European institutions. This Note assesses the continued durability of existing domestic and regional legal regimes to cope with the increased strain caused by the abovementioned destabilizing factors. The Note poses several ways in which the EU can use Membership to create a more durable legal regime in Macedonia; and it discusses some of the major impediments that the EU should consider when deciding the proper incentive structure to use in Membership discussions. Given Macedonia’s baseline for rule of law and proven desire to join the EU, there is reason for cautious optimism that Macedonia’s legal regime will remain durable if the EU uses the reward of EU accession tactfully in the coming years.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2016-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68300462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article sets for a framework for examining the legality of extraterritorial lethal strikes ("targeted killings") in international law.
本文为审查域外致命打击(“定点清除”)在国际法中的合法性设定了一个框架。
{"title":"Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law","authors":"M. Schmitt","doi":"10.2139/SSRN.2226359","DOIUrl":"https://doi.org/10.2139/SSRN.2226359","url":null,"abstract":"This article sets for a framework for examining the legality of extraterritorial lethal strikes (\"targeted killings\") in international law.","PeriodicalId":45475,"journal":{"name":"Columbia Journal of Transnational Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2013-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2226359","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68006079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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