The Article offers a new perspective on the way international income tax has developed from its nascency, 85 years ago, to the present day. Its main claim is that, due to the lack of a clear normative tax agenda, trade considerations unduly eroded the income tax base. Such trade considerations highlight the importance of reducing tax obstacles on trade and investment to liberalize and integrate international markets. These considerations penetrated international income tax discourse during the Cold War period, when liberalizing trade was part of a broader western agenda to establish dominance through the liberalization of international markets. The Article demonstrates that the tax allocation conventions developed in the periods prior to the Cold War - and thereafter - were unable to counter successfully an endemic trend of tax erosion. To establish this claim, the Article frames three novel chronological phases and shows how different themes governed each phase. It then connects each theme and the relevant parallel global geo-political occurrences of that phase. The Article presents an original "macro" perspective of the development of international taxation sourcing conventions. It encapsulates this broad topic by focusing on a number of key issues arising from the conventions regarding the allocation of interest income. Access to foreign capital markets and foreign lenders is paramount to economic growth. Therefore, the tax treatment of interest income has always been a pivotal and controversial issue. The centrality of interest income allocation conventions and their modifications over the years make them a good proxy for understanding the more general evolution of international tax law. Since tax law research is the art of tying big themes with devils hiding in the details, the Article engages in an in-depth critical analysis of a number representative interest allocation mechanisms to demonstrate the dynamics of the income tax erosion it identifies. The Article builds on its historical analysis to open a wider discussion over the proper allocation method for taxing financial income. The mobility and tax sensitivity of capital assets make them the subject of tax planning (by taxpayers) and tax competition (by sovereigns). This renders the analysis important and interesting, but also more multilayered and difficult. The Article concludes with a discussion of the principled normative pillars of any future reform in the allocation of tax revenues arising from financial income. This discussion promotes the notion that, at least in the case of financial transactions within multinational enterprises, there is a need for an immediate strategic shift, if tax authorities wish to maintain the integrity of the corporate income tax.
Saturday, April 19, 2008
As the implications of anthropogenic climate change are better understood the pressure builds for more effective legal and policy responses at national and international levels. With climate change looming as an existential threat, climate change law ought not to be characterised merely as a subset of an environmental law designed to reconcile ecological and developmental imperatives in search of the amorphous objective of sustainable development. Instead it should properly be seen as a frontline defender of the social, economic and ecological foundations upon which the rule of law is built. Against the backdrop of improved climate science concerning the temperature threshold beyond which there will be dangerous interference with the climate system, and the carbon reduction pathways to avoid this tipping-point, this paper takes stock of developments in international climate change law in the lead up to the conference and meeting of the parties to UNFCCC and Kyoto in Bali in December; a meeting that will mark 10 years since Kyoto was concluded. While recognising the limitations of the Kyoto Protocol, this paper defends the Kyoto approach against concerted efforts by the Howard Government in Australia and the Bush Administration in the United States to undermine a climate change regime enshrining binding targets and timetables for reducing emissions. It argues that rolling over Kyoto into second and subsequent commitment periods for emissions reductions by developed (and ultimately developing) countries would be an appropriate combination of pragmatism and principle in the pursuit of the rule of law in international climate policy.
This paper is written as an effort to escape the dialogue of the deaf between those who believe that international law can do no wrong in the war on terrorism and those who argue its utter irrelevance. It argues that international law can be seen as a tool for governance of the suspended space between war and peace, characteristic of the so-called war on terror. Through the case of the terrorist blacklist administrated by the UN's 1267 Committee, it shows how administrative law, and not the law of war, is the paradigm of the international legal order within antiterrorist policy. International law, then, is not to be read as a matter of rights, but as a legal form, which features independent agency. It is in the legal form and its design, and not in the current obsession with compliance, where the possibilities of resistance in this new time exist.
Friday, April 18, 2008
Burke-White & Kaplan: Shaping the Contours of Domestic Justice: The ICC and an Admissibility Challenge in the Uganda Situation
In December 2003, the Government of Uganda referred the situation in conflict-torn northern Uganda to the nascent International Criminal Court. It was the first referral by a State Party under Article 14 of the Rome Statute of ICC and led to the indictment of five leaders of the Lord's Resistance Army (LRA). Four years later, Uganda found itself in the midst of promising peace negotiations with the LRA. A major obstacle to a final agreement was the refusal of the indicted leaders to face ICC justice. Seeking to peacefully resolve the conflict, the Government signed a preliminary agreement in which it would assume the prosecution of the indictees. Under the principle of complementarity embedded in Article 17 of the Rome Statute, the ICC cannot prosecute where a jurisdictional state has undertaken investigation or prosecution, unless the State's action is in an attempt to shield the accused from justice. However, with the case against the LRA leaders already deemed admissible, an admissibility challenge would be necessary to withdraw the ICC indictments. This paper examines the various and complex issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of State self-referrals. The article proposes three different visions of complementarity as a means of understanding the boundaries within which the Court may situate a decision, and applies them to the hypothetical situation of an admissibility challenge to the LRA indictments. The options of both the indictees and Uganda are explored and the prospects for a successful challenge are examined. The paper concludes by suggesting a critical role for the Court in both resolving conflict and shaping the contours of acceptable domestic efforts to bring those responsible for grave crimes to justice.
Thursday, April 17, 2008
Blair, et al.: The Roles of Standardization, Certification, and Assurance Services in Global Commerce
In this article we examine the rapid emergence and expansion of standardized product and process frameworks and a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce. This infrastructure is provided by a proliferation of performance codes and standards, many of which define acceptable social and environmental behavior, and a rapidly-growing number of privately-trained and authorized inspectors and certifiers that we call the third-party assurance industry. We offer reasons for this development, evidence of its scope and scale, and then describe the phenomenon in more detail by examining supply chain arrangements in two industries, food products and apparel, where the use of third-party standards and assurance services has expanded especially rapidly. We conclude with a discussion of the implications for the `make or buy' decision at the core of the theory of the firm. We argue that as quasi-regulatory standards are developed within various industries, and as performance to these standards can be systematically evaluated using third-party inspectors and certifiers, the costs of moving production outside of vertical firm hierarchies drop. We believe this may be an important factor in accelerating the shift to outsourcing that has been observed over the last two decades.
Diane Ring (Boston College - Law) will give a talk today at the Northwestern University School of Law Advanced Topics in Taxation Colloquium on "What's at Stake in the Sovereignty Debate? International Tax and the Nation-State."
Wednesday, April 16, 2008
The international tax problems of today are typically beyond the scope of a single nation to solve. However, the prospect of multinational problem solving, often under the auspices of an international organization, unleashes objections grounded in sovereignty. Despite widespread reliance on sovereignty arguments, little attention has been directed at what precisely is meant by sovereignty and what place it has in international tax policy. This article contends that a loss of sovereignty undermines both significant functional roles played by a nation-state (revenue and fiscal policy) and important normative governance values (accountability and democratic legitimacy). Whether these limitations are severe enough to demand that a sovereign state recall its taxing powers from an international body (or not surrender them initially) depends on the nature of the powers in question and the necessity for a coordinated global response.
Part I develops the basic nexus between sovereignty and taxation. Part II examines the use of sovereignty in the debates and analyses surrounding three international tax case studies. Drawing upon the case studies, Part III considers how sovereignty claims are manipulated in tax debates, how states think about sovereignty in taxation, and what their decisions, in turn, suggest about the future of international tax and the prospects for international cooperation.
- Rüdiger Wolfrum, Legitimacy in International Law from a Legal Perspective: Some Introductory Considerations
- Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions
- Alain Pellet, Legitimacy of Legislative and Executive Actions of International Institutions
- Anthony D’Amato, On the Legitimacy of International Institutions
- Discussion Following Presentations by Rüdiger Wolfrum, Robert Keohane, Alain Pellet and Anthony D’Amato
- Georges Abi-Saab, The Security Council as Legislator and as Executive in its Fight Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy
- Erika de Wet, The Legitimacy of United Nations Security Council Decisions in the Fight against Terrorism and the Proliferation of Weapons of Mass Destruction: Some Critical Remarks
- Discussion Following Presentations by Georges Abi-Saab and Erika de Wet
- Tullio Treves, Aspects of Legitimacy of Decisions of International Courts and Tribunals
- Rein Müllerson, Aspects of Legitimacy of Decisions of International Courts and Tribunals: Comments
- Discussion Following Presentations by Tullio Treves and Rein Müllerson
- Helen Keller, Codes of Conduct and their Implementation: the Question of Legitimacy
- Armin von Bogdandy, Codes of Conduct and the Legitimacy of International Law
- Daniel Bodansky, The Concept of Legitimacy in International Law
- Discussion Following Presentations by Helen Keller, Armin von Bogdandy and Daniel Bodansky
- Hanspeter Neuhold, Legitimacy: A Problem in International Law and for International Lawyers?
- Volker Röben, What About Hobbes? Legitimacy as a Matter of Inclusion in the Functional and Rational Exercise of International Public Power
- Kong Qingjiang, Construction of the Discourse on Legitimacy of International Institutions
This Article examines the use of alternative sanctions in international law using the exemplar of the abuses at Abu Ghraib. It argues that social sanctions like shaming have a powerful role to play in enforcing international law norms. When properly deployed, shaming activity by the international community can serve to influence the offending state to take corrective action and fill the enforcement gap in international law. This is the lesson from Abu Ghraib. There is evidence that the abuses so vividly depicted in the now infamous photographs were not an aberration, but had occurred for a considerable time despite complaints. It took a shaming campaign for expressions of regret and corrective action to ensue. The campaign forced U.S. citizens to come to terms with the fact that their government was acting in violation of internalized international norms (against torture). The coincidence of international law norms with internalized domestic norms facilitated expeditious corrective action.
This Article will attempt to explore linkages between shaming sanctions and the violation of international law norms in the Abu Ghraib case. Part II provides a brief sketch of the scholarly treatment of shame sanctions in some areas of the law and their role in strengthening social norms. In Part III, this Article elaborates on the relationship between norms and the law and addresses the costs of enforcing social sanctions. It draws on insights from behavioral economics and examines relevant experimental evidence. Part IV focuses on the deployment of shaming in targeting the abuses at Abu Ghraib. Part V presents some tentative general conclusions on the role of alternative sanctions in international law and tries to craft a basic architecture for the deployment of these sanctions.
International insolvency is a newly-established branch of the study of insolvency that owes much to the phenomenon of cross-border incorporations and the conduct of business in more than one jurisdiction. It is largely the offspring of globalization and involves looking at both law and economic rules. This book is a compendium of essays by eminent academics and practitioners in the field who trace the development of the subject, give an account of the influences of economics, legal history and private international law, and chart its relationship with finance and security issues as well as the importance of business rescue as a phenomenon. Furthermore, the essays examine how international instruments introduced in recent years function as well as how the subject itself is continually being innovated by being confronted by the challenges of other areas of law with which it becomes entangled.
- A. Tancredi, Il problema della legittima difesa nei confronti di milizie non statali alla luce dell'ultima crisi tra Israele e Libano
- L.S. Rossi, Conclusione di accordi internazionali e coerenza del sistema: l'esclusivitàdella competenza comunitaria
- G. Rossolillo, L'identità personale tra diritto internazionale privato e diritti dell'uomo
- M. Pisani, Note e commenti - Il diritto penale internazionale nelle risoluzioni congressuali dell'Association Internationale de Droit Pénal (1926-2004)
- T. Scovazzi, Note e commenti - Saint-Pierre riproposto da Rousseau
- A. Caligiuri, Note e commenti - La ricostruzione di principi generali di diritto da parte dei tribunali penali internazionali
- R. Nigro, Panorama - Il caso Al-Skeini dinanzi alla House of Lords e la nozione di giurisdizione nella Convenzione europea dei diritti dell'uomo
Kanwar: Two Crises of Confidence: Securing Non-Proliferation and the Rule of Law Through Security Council Resolutions
This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and proposes a normative framework based on the model of reciprocal confidence-building that would bridge the dissonance between legality and legitimacy in the Security Council's practice. Recent proliferation crises, concerning Iran, North Korea, and non-state proliferation networks, have led the Council draw upon various sources and resources' express and implied powers under the UN Charter, powers granted by specific treaties, international consensus' to expand its powers.
This paper attempts to transcend false choices between power politics and law, between contingency and formalism, or between deferral and escalation, whhich are often used to characterize the Security Council's resolutions. Instead, it proposes lateral and confidence-building measures developing the Council's capacity to deal with systemic crises while seeking to secure confidence in the rule of law. This paper offers three examples of lateral, but law-governed strategies that the Security Council may pursue. First, the Council may deploy generally applicable legislative measures aimed at developing the capacities of states in activities such as interdiction. Second, it discusses generally applicable resolutions aimed at developing the Council's own capacities to support and enforce multilateral commitments. Finally, it indicates the authority to pursue, through Article VI voluntary agreements, confidence-building measures which would also include objective factual triggers (crises of confidence) for enforceability though Chapter VII.
Tuesday, April 15, 2008
- Henrik Horn & Petros C. Mavroidis, Introduction
- Henrik Horn & Robert L. Howse, European Communities – Customs Classification of Frozen Boneless Chicken Cuts
- Niall Meagher, Comment: European Communities – Customs Classification of Frozen Boneless Chicken Cuts (DS269/DS286)
- Bernard Hoekman & Joel P. Trachtman, Canada – Wheat: discrimination, non-commercial considerations, and the right to regulate through state trading enterprises
- Frieder Roessler, Comment: Canada – Wheat: discrimination, non-commercial considerations, and the right to regulate through state trading enterprises
- Douglas A. Irwin & Joseph Weiler, Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS 285)
- Federico Ortino, Comment: United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services
- Chad P. Bown & Alan O. Sykes, The Zeroing Issue: a critical analysis of Softwood V
- Meredith A. Crowly, Comment: United States – Final Dumping Determination on Softwood Lumber from Canada: Recourse to Article 21.5 of the DSU by Canada (Softwood V)
- Bernard Hoekman & Robert Howse, EC–Sugar
- Paola Conconi, Comment: EC – Export Subsidies on Sugar
- André Sapir & Joel P. Trachtman, Subsidization, price suppression, and expertise: causation and precision in Upland Cotton
- Hylke Vandenbussche, Comment: Upland Cotton Case
- Joseph F. François & David Palmeter, US – Countervailing Duty Investigation of DRAMS
- Thomas J. Prusa, Comment: US – Countervailing Duty Investigation of DRAMS
- Gene M. Grossman & Jasper Wauters, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina: a cloudy sunset
- Edwin Vermulst, Comment: United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina
- Chad P. Bown & Jasper Wauters, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico: a legal-economic assessment of sunset reviews
- William J. Davey, Comment: United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico Prepared for the ALI Project on the Case Law of the WTO
- Petros C. Mavroidis & André Sapir, Mexico – Antidumping Measures on Rice
- Claudio Dordi, Comment: Mexico – Antidumping Measures on Rice
- Protocol on Explosive Remnants of War (Protocol V) to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, done at Geneva on November 28, 2003 (Treaty Doc. 109-10)
- Amendment of Article 1 of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, done at Geneva December 21, 2001 (Treaty Doc. 109-10)
- Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict signed by the United States on May 14, 1954 (Treaty Doc. 106-1)
- Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) Additional to the Convention of October 10, 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, done at Geneva October 10, 1980 (Treaty Doc. 105-1)
- Protocol on Blinding Laser Weapons (Protocol IV) Additional to the Convention on October 10, 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, done at Vienna on October 13, 1995 (Treaty Doc. 105-1)
UPDATE (4:30PM): I have added links to the written statements of the witnesses, which were made available this afternoon.
Monday, April 14, 2008
- Attila Bogdan, The United States and the International Criminal Court: Avoiding Jurisdiction Through Bilateral Agreements in Reliance on Article 98
- Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law
- Jens Dieckmann & Christina Kerll, UN Ad Hoc Tribunals Under Time Pressure - Completion Strategy and Referral Practice of the ICTY and ICTR from the Perspective of the Defence
- A.H. Guhr, Victim Participation During the Pre-Trial Stage at the International Criminal Court
- Geert-Jan Alexander Knoops, Military Criminal Responsibilities for Targeting Suspected Terrorists within (International) Armed Conflicts: Towards a Uniform Framework
- David Křivánek, Prospects for Ratification and Implementation of the Rome Statute by the Czech Republic
- Jakob Pichon, The Principle of Complementarity in the Cases of the Sudanese Nationals Ahmad Harun and Ali Kushayb before the International Criminal Court
- Harmen van der Wilt, Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court
- Jan Wouters, Sten Verhoeven, & Bruno Demeyere, The International Criminal Court's Office of the Prosecutor: Navigating between Independence and Accountability?
- Gauthier de Beco, War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?
- Stephen Eliot Smith, Inventing the Laws of Gravity: The ICC's Initial Lubanga Decision and its Regressive Consequences
Guzman & Bamberger: Keeping Imports Safe: A Proposal for Discriminatory Regulation of International Trade
The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the failure of foreign call centers to protect the privacy of U.S. consumer data all illustrate the challenge for domestic governance. Though international trade in goods and services provides clear economic benefits, it can also frustrate consumer protection efforts.
This paper provides a conceptual framework for understanding the mix of regulatory elements that govern domestic production of goods and services, and for understanding the ways in which international trade changes that mix. Specifically, it distinguishes between two types of domestic regulation - the first targeting the process by which goods are produced and services provided, and the second mandating particular outcomes. Foreign production disables the first type of regulation and weakens the second. Protecting domestic consumers in a globalized market, then, will frequently require the development of "substitutes" - including regulation by foreign governments and private regulators - for domestic forms of governance that are ineffective abroad.
We propose a novel and necessary solution for addressing the threat posed by the foreign production of goods and provision of services to consumer welfare. Specifically, we make the case that the best "substitute" for domestic regulation will often be oversight of safety issues by U.S. partners in global trade. To provide incentives to domestic firms U.S. regulators should make those firms legally accountable for harmful products that make it to the United States Furthermore, they regulations should discriminate between domestic and foreign activity in regulation requiring safe outcomes, imposing higher penalties for violations of safety norms when production has taken place abroad.
- John H. Knox, Horizontal Human Rights Law
- Nicholas DiMascio & Joost Pauwelyn, Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?
- Steve Charnovitz, Editorial Comment: The ILO Convention on Freedom of Association and Its Future in the United States
Sunday, April 13, 2008
- Tara M. Collins, The Significance of Different Approaches to Human Rights Monitoring: A Case Study of Child Rights
- Theo Gavrielides, Human Rights and Customer Satisfaction with Public Services: A Relationship Discovered
- Sahaya G. Selvam, Capabilities Approach to Youth Rights in East Africa Sahaya G. Selvam
- Gurchathen S. Sanghera, The 'Politics' of Children's Rights and Child Labour in India: A Social Constructionist Perspective
- Caroline Fleay, Engaging in Human Rights Diplomacy: The Australia-China Bilateral Dialogue Approach
- Dominic S. Depersis & Alfred Lewis, A Consideration of Three Types of Burglars: Based on the Thinking of Herbert Packer, Rawls, Norval Morris, and Samuel Donnelly
- Frédéric Mégret, The Disabilities Convention: Towards a Holistic Concept of Rights
- Dyutimoy Mukherjee, Laws For Beggars, Justice for Whom: A Critical Review of the Bombay Prevention of Begging Act 1959