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Extraterritorial Application of the Human Rights to Life and Personal Liberty, Including Habeas Corpus, During Situations of Armed Conflict
Robert K. Goldman
Chapter 6 of Research Handbook on Human Rights and Humanitarian Law
In the wake of the September 11, 2001 attacks in the United States, the US, with the assistance of its coalition partners – all parties to various human rights instruments – initiated the so-called ‘war on terror’ by invading Afghanistan, where their armed forces killed or captured hundreds of ‘terrorist suspects’. Some of those detained were taken to the US military facility at Guantanamo Bay, Cuba, while others have languished in US custody in Afghanistan. These actions raise the question whether a State is bound by its human rights obligations when its agents operate outside of national territory. And, if so, how do those obligations interrelate with the State’s other obligations under international humanitarian law when its counter-terrorism operations coincide with situations of armed conflict.
This chapter addresses these questions. In particular, it examines the extraterritorial reach of two fundamental human rights during two situations recognized in international law. These rights are the right to life and the right to liberty and the related procedural safeguard of habeas corpus. The two situations examined are: (1) international armed conflicts, including occupation; and (2) non-international armed conflicts. The paper surveys the jurisprudence on the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (American Convention) and American Declaration of the Rights and Duties of Man (American Declaration), and the European Convention on Human Rights (European Convention), and the extent to which rights in these instruments can be derogated from. It also examines how the treaty bodies supervising these instruments view the relationship between international human rights law (HRL) and international humanitarian law (IHL) in situations of armed conflict. Relevant decisions of the International Court of Justice are also referenced in this connection. The chapter also identifies certain gaps in legal protection.
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The Reform of the Governance of the IFIs: A Critical Assessment
Daniel Bradlow
The thesis of this chapter is that, despite all the governance changes that the IFIs have undergone, they still do not have adequate governance arrangements and will need to undergo further reform if they are to perform their mandates effectively. In order to establish this thesis, this chapter is divided into four parts. First, it describes the reforms the IFIs have agreed to and have implemented. Second, it sets out some benchmarks against which these governance reforms can be measured. Third, it assesses the adequacy of the reforms undertaken based on the benchmarks identified in the second section. The final section is a conclusion.
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Banks, Governments, and Debt Crises
Anna Gelpern
Financial institutions and governments the world over have been locked in mutual dependence since long before the crisis that began in 2007. Postcrisis reforms will not rid banks and governments of one another; at best, they may renegotiate the terms of engagement. This essay uses case studies from the Europe and the Americas to explore the implications of two enduring links between financial institutions and governments: first, the formal and informal public insurance that banks and a growing number of other firms enjoy in exchange for providing critical public services; second, the powerful economic, political and regulatory incentives for financial firms to hold government debt. As a result, an increase in government debt is a common by-product of large-scale bank failure, and large-scale bank failure is a common by-product of government debt default. Such links complicate loss allocation and crisis response. The essay concludes that no sovereign bankruptcy or financial resolution regime can be effective without accounting for the links between governments and financial firms.
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Presentación
David B. Hunter
Para hacer frente al daño medioambiental, que no reconoce fronteras, aparece el Derecho Internacional del Medio Ambiente como una nueva rama del derecho Internacional. Para el Perú es bastante importante trabajar en este tema ya que "basta recordar que de acuerdo al prestigioso Tyndall Centre, think tank del Reino Unido sobre el Cambio Climático, nuestro país sería el tercero en sufrir los graves estragos del calentamiento global luego de Bangladesh y Honduras", escribió Vera.
To address the environmental damage, which does not recognize borders, international law appears Environment as a new branch of international law. For Peru is very important to work on this issue as "just remember that according to the prestigious Tyndall Centre, UK think tank on climate change, our country would be the third to suffer the ravages of global warming serious after Bangladesh and Honduras "wrote Vera.
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Beyond Legal Imperialism: U.S. Clinical Legal Education and the New Law and Development
Richard J. Wilson
Clinical legal education adopted by law schools outside of the United States—as pedagogical method, as academic structure, indeed, as concept itself—is largely an export from the United States, wherein lie its roots. Clinical programs arose from social and protest movements of the 1960s and ‘70s. During that time, law school clinics received an enormous boost from the Ford Foundation-funded Council on Legal Education and Professional Responsibility (CLEPR), which served to spread the gospel and deepen the presence of clinics in US law schools. The first law and development movement came into being in parallel with the growth of clinics in the United States during those decades. The movement exported US legal education models and methods to other countries, and eventually fell prey to a devastating critique that brought it to a screeching halt, including some argue appropriately, all legal education innovations exported from the United States. This chapter attempts to determine the salience of this critique today, particularly as legal imperialism might be strongly associated with legal education methods in the United States. The author concludes that the exportation of clinical legal education cannot today be called legal imperialism and further argues that this critique is as much a function of American hubris as it is real. He next examines legal imperialism through typology, and explores the historical context of the contention. He finally examines the central premises of the legal imperialism critique as it relates to both the sweeping forced assimilation of entire legal cultures, and the narrow issue of clinical legal education.
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From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance
Padideh Ala'i
The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision dismissed by GATT panels as 'subsidiary' to the other 'substantive' provisions of the GATT. Since the creation of the WTO, Article X has emerged from obscurity, and is now viewed as creating obligations of 'fundamental importance,' such as transparency and due process. In addition, there has been an exponential increase in the number of cases asserting Article X claims before WTO panels and the Appellate Body. The resulting treatment of such claims by the WTO dispute settlement bodies reflects both the emerging role of the WTO as a supranational administrative body and the continuing discomfort of panels and the Appellate Body with applying good governance obligations.
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Conclusion: The Future of International Law and International Financial Institutions
Daniel Bradlow and David Hunter
This is the conclusion to the edited volume, International Financial Institutions and International Law. After a brief overview of the key points made in the volume, the authors offer some observations on the role that international law plays and should play in the functioning of international financial institutions and some suggestions for future research on the topic.
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Introduction: International Financial Institutions and International Law
Daniel Bradlow and David Hunter
This is the introduction to an edited volume of papers on International Financial Institutions and International Law. The introduction provides an explanation of the editors motivation for undertaking this book project and an overview of the chapters in the book.
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The Role of Copyright Law in Academic Journal Publishing
Michael W. Carroll
This comment responds to Professors Bergstrom and Rubinfeld’s chapter, Alternative Economic Designs for Academic Publishing. Their principal argument is that most prices for academic journals are inefficiently high and that open access accomplished by authors placing copies of their articles on the open Internet is one means of creating competition to improve efficiency in this knowledge market. Carroll applauds and provides supplementary support for both the normative and prescriptive elements of this claim. However, from the perspective of copyright law, which is at the root of these inefficiencies, he argues that they do not go far enough. The primary argument for open access is not to improve the efficiency of journal pricing. Instead, scholarly authors must use their copyrights to advance the normative goals of copyright law – to promote the progress of science and useful arts. In the digital environment, that goal is best promoted through open access to the scholarly literature even if journal prices were otherwise set at the efficient level. Authors of these articles do not need the lure of exclusive rights to perform research or to publish their results, and free online access serves to benefit multiple audiences.
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Imagining the Law
Christine Haight Farley
Law’s relations to art--to its creation, its production, and dissemination, its restriction as well as to commercial and contractual agreements about art works—are as multiform and complex as the category of art itself. Acknowledging that there is no discrete body of law that governs art, the author defines art law as “the survey of legal issues raised by art, artist, and the art world” and surveys four central themes: the law as art, the law of art, the law of creativity, and the collision of art and law. Any legal dispute about art usually evokes a plea for special legal rules or approaches, as in the case of Nussenzweig v. diCorcia, 878 N.E.2d 589 (2006). The author points the way toward a study of law in its relationship to creative, cultural practices, particularly to the notion of aesthetic judgment in the domains of art and law. Law typically works to promote and protect, rather than impede, artistic creation on the logic that art is a social good. Questions about art’s role in the creation of culture and the rights of the artist frequently enter the legal domain for their answers. In cases of illegal trade of art treasures, for example, the courts have had to decide whether art constitutes a specific cultural heritage, a broader human achievement, or simply a commodity. Controversies in intellectual property, though they focus on the individual artist, are similarly bound up with creative and economic interests that reveal fundamental inconsistencies between law’s stated mission to encourage the production of art as a common good and law’s so-called creativity threshold, which works to restrict innovation. The author sees in these inconsistencies a collision between art (radically transformative) and law (resistant to change) based on their fundamentally differently cultural functions, and argues that judges apply private ideas about aesthetics instead of openly acknowledging that their judgments are not neutral and nonsubjective.
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Understanding the Securitization of Worker Remittances
Heather Hughes
Is structured finance dead? Many have asked this question after the financial crisis. Or is structured finance “evil” and therefore should it be dead? This book suggests neither nor. Even if structured finance can be misused or applied under inappropriate conditions, it can also be an effective tool for reaching development objectives. The authors in this volume focus on the potential of structured finance in the aftermath of the financial crisis. They explore the conditions under which structured finance is suitable for emerging markets highlighting both its benefits and risks. The book combines professional and scientific perspectives and points towards various useful applications of structured finance in support of small and medium-sized enterprises and microfinance. This also includes activities as diverse as infrastructure development, remittances, rural livelihood, and Shari’ah-compliant Islamic finance.
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Should the Primary Locus of Government Adjudication be in the Agencies, the Courts, or in a Special Tribunal? Comparisons between the US and the UK/Australia Model
Jeffrey S. Lubbers
This comment examines and contrasts government adjudication in the US, Australia, and the UK, and concludes that the Australian system, replicated in the UK serves as a good model, but is unlikely to be used in the US, a larger and more litigious country. The US maintains a system of government adjudication within the bureaucracy itself with judicial review of agency decisions. Australia and the UK, on the other hand, respectively maintain systems whereby national tribunals and specialized courts make decisions subject to judicial review, but only with respect to issues of law. Specialized court tribunals have not emerged in the US as a popular form of adjudication because it was recognized early on that discord would be resolved through federal bureaucratic agencies in the US, particularly in 1932, when the Supreme Court upheld administrative adjudication in Crowell v. Benson, and again with the Administrative Procedure Act of 1946, which provided for administrative proceedings with oversight and adjudication by administrative law judges, and hearings with more flexible rules of evidence and limited cross-examination. These both effectively affirmed administrative adjudication as a manner of formulating regulatory policy, although rulemaking has emerged since as perhaps a more effective technique. A change in the mindset of the bureaucracy would have to occur for cases to be reviewed by independent tribunals outside of federal government agencies. Comparatively, Australia uses tribunals, including the Administrative Appeals Tribunal at the Commonwealth level. Here, an informal agency or ministry proceeding is followed by an internal review, and a decision. Aggrieved parties are able to thereafter petition for a merits review by an administrative tribunal, with the possibility of judicial review, but only on legal questions, in Australia’s courts. The United Kingdom also uses tribunals, which are now a part of their court system. Its tribunals are separated by tiers and divided by subject matter for examination. Like Australia, there is the possibility to appeal to the courts, but only on issues of law.
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Health Courts: A Modern-Day Solution for Medical Malpractice Litigation
Corrine Parver
This essay suggests the creation of specialty health courts to oversee medical malpractice cases, as an alternative to traditional tort reform. Tort reform has primarily focused on reducing litigation by creating impediments for plaintiffs to pursue medical malpractice cases. This has lessened the amount of litigation and reduced the likelihood of medical liability for defendants, but leaves uncompensated plaintiffs and has not served as a deterrence to future injuries. In this respect, specialized health courts, like other specialty courts in the United States, would be established to handle this aspect of litigation, by restoring the connection between medical liability and patient safety. The health courts would have lawyers and health-care practitioners, expedited evidentiary-based proceedings, and fully-compensated economic damages and “scheduled” non-economic damages. Additionally, neutral health experts, established precedent through opinions rendered by these health courts, and a compensation standard of avoidable medical injuries—instead of a negligence standard—would further assist physicians by creating a body of law to help them better assess risks of liability in their provision of medical care, and ultimately foment safer medical practices.
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The Inter-American Human Rights System: Selected Examples of its Supervisory Work
Diego Rodriguez-Pinzon and Claudia Martin
The goal of this chapter is to describe briefly the functions of the Commission and the Inter-American Court and provide some examples on how these organs have addressed human rights violations in regard to English-speaking States. The States of the Americas currently have a more constructive relationship with the Inter-American Commission on Human Rights (‘Commission’) and the Inter-American Court, which includes a better understanding of the complementary role that such organs play within their national institutions. This atmosphere allows for better dialogue and coordinated action between civil society, States, the Commission and the Inter-American Court in the common goal of safeguarding human rights. Several States have recently adopted national legislation and practices that broadened effective implementation of standards and decisions. The increasing growth and impact of the Inter-American system, however, has simultaneously adversely affected it. This is exemplified by the hesitance of Organization of American States (‘OAS’) members in allocating essential additional funding for the Commission and the Inter-American Court. Additionally, there is a lack of universal ratification by all of the OAS State members of the core treaties of the Inter-American human rights system, in particular, the American Convention on Human Rights (‘IACHR’). Although the Commission monitors human rights compliance in the US, Canada, and a number of Caribbean States under the American Declaration on the Rights and Duties of Man, the effectiveness of that supervision would strengthen if those States became parties to the IACHR. Furthermore, the case law developed by the Inter-American Court demonstrates that access to this tribunal would also benefit the protection of human rights in many of the English-speaking States that have not yet accepted its contentious jurisdiction. Section 2 focuses on the Commission’s powers and functions and contains an overview of the work carried out in monitoring the protection of human rights in the so-called war against terrorism. Section 3 describes the scope of the Inter-American Court’s powers and functions within its contentious jurisdiction, and there is a brief review of a group of emblematic human rights issues which the Inter-American Court addresses, in the context of cases arising from English-speaking Caribbean States.
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Anticipating de Soto: Allotment of Indian Reservations and the Dangers of Land-Titling
Ezra Rosser
This chapter uses the disastrous allotment experience of Indian tribes to question the transformative power of land-titling for the poor as advocated by Hernando de Soto. For Indians, allotment era land-titling resulted in loss of land and hardship, all reflective of non-Indian desires for the land and an unwillingness to acknowledge the rights of Indians to govern themselves. The chapter ends with a brief discussion of the champas of El Salvador and the potential loss in terms of housing for the poor if de Soto’s ideas are implemented without some protection against sales to the wealthy.
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