Architects of the State: International Financial Institutions and the Reconstruction of States in East Asia

For international financial institutions (IFIs), it is a continuing puzzle why the global norms they propagate are enacted either reluctantly or not at all. This article shows that failures of enactment and implementation frequently occur because many IFI‐initiated law reforms go far beyond changing the law; they amount to a restructuring of the state itself and the accompanying redistributions of power. This article demonstrates how state restructuring can occur in a technical area of commercial law by reanalyzing the ways global and transnational designs of corporate bankruptcy regimes fared between 1998 and 2006 in three countries variously affected by the Asian financial crisis: China, Indonesia, and South Korea. State restructuring occurred by (1) shifting the boundary between the market and state, (2) shifting power inside the state, and (3) vesting new powers in the state. The article identifies the recursive dynamics through which the changes unfolded and shows how variations in the efficacy of international architects of the state can be attributed to the interplay of four sets of factors: the coherence of global norms, the relative power of global versus state actors, domestic demand and mobilization for restructuring, and the extent of state restructuring that reforms will induce.     

The Russian Far East’s illegal timber trade: an organized crime?

Transnational environmental crime is a global problem encompassing not only criminal violations of the law, but harms against the environment and the people reliant upon it as a natural resource. Grounded in the green criminological theory of eco-global criminology, this paper explores the transnational environmental crime of the illegal timber trade in the Russian Far East unpicking the threats to ecological well-being and the global nature and impacts of this crime. In researching transnational environmental crime, it is crucial to uncover the distinct local and regional variations of the forces at play; for this paper that means analyzing the role of organized crime and corruption in Russia’s timber black market. This information was obtained by using the current literature and interviews with Russian and international experts in order to uncover the role of these actors in the harvesting, smuggling and selling of timber. From this exploration, a structure of the illegal timber trade in this region is proposed including at which points along the black market chain organized crime and/or corruption are involved. Additionally, from an eco-global criminological foundation this paper analyzes the consequences to Russia’s people, its environment and the global community if the illegal timber trade is to continue in its current state.     

The perspective of “justice” of international law in the global context

After the Cold War and the quick development of globalization, non-state acts by international organizations, transnational corporations and nongovernmental organizations (NGOs), etc., are becoming more active. Global issues with regard to, inter alia, environment, human rights, terrorism are constantly emerging, which bring great challenge to the Westphalia System that is based on state sovereignty and centered on the national state. At the same time, the values, which include “individualism” and “global justice,” are constantly casting impact on international legal system. Doubtlessly, in the current context of international relations, “justice among states” is still the reasonable positioning of the value of modern international law. However, making “individualism” and “global justice” compatible and modifying “justice among states” is an inevitable trend. At the same time, the rule brought about by the modification on the value of justice must be handled properly.     

Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law

States routinely provide support and assistance to their corporate nationals in their global trade and investment ventures. While states may not intend to allow corporate nationals to violate human rights in their extraterritorial operations, by their actions or omissions, states may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur. This article investigates the extent to which the extraterritorial activities of transnational corporations (TNCs) that violate international human rights law can give rise to home state responsibility. The analysis shows that home states of TNCs have obligations under international law in certain situations to regulate the extraterritorial activities of corporate nationals or the latter's foreign subsidiaries and can incur international responsibility where they fail to do so.     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

The International Criminal Court and United States opposition

While the International Criminal Court (ICC) has been touted as the most fundamental development in international society to date, there has been relatively little criminological research examining the potential influence of the ICC. Additionally, criminologists have neglected the United States' responses to the ICC. Our purpose is to fill that gap by examining the United States' role in the development of, and subsequent reactions to, the ICC. Moreover, we draw upon Chambliss' Structural Contradictions Model to explicate processes within the development of International Law, thereby expanding its utility. We begin with a brief discussion of the most contentious elements of the ICC for the United States, sovereignty and jurisdiction, followed by a review of the theoretical model utilized in our analysis. We then discuss the role of the United States in the development of the ICC followed by the proceeding actions taken against the Court. We suggest how US withdrawal and legislative undermining of the ICC not only reflects the US ambiguous relationship with international law but also reveals some of the inherent limitations placed on the ICC as an international institution of formal social control. We conclude with a criminological analysis of the Court's potential based on the existing Rome Statute and the recent efforts of the U.S. to thwart its efficacy.Dawn L Rothe is an Assistant Professor of Criminology at the University of Northern Iowa. She earned her Ph.D. in Sociology from Western Michigan University. Her main research interests focus on White-Collar-Crime (state and transnational crimes), international law and institutions of social control, and criminological theory. Her recent work has appeared in Critical Criminology and Social Justice, and is the author of the forthcoming book Symbolic Gestures and the Generation of Social Control: the International Criminal Court published by Lexington.Christopher W. Mullins is an Assistant Professor of Criminology in the department of Sociology, Anthropology, and Criminology at the University of Northern Iowa. His research focuses on violence, especially interconnections between street culture, gender and street violence, as well as violence by corporations and nation-states. His work has appeared in Criminology, Critical Criminology, and Criminal Justice Review and is the author of two forthcoming books and several book chapters.     

Neoliberalism,Transnational Education Norms,and Education Spending in the Developing World, 1983–2004

Using the case of education, we consider how global cultural and economic forces affect national education spending policies. Our analysis includes both an historical analysis of the construction and transformation of ideas about education at the global level and a statistical assessment of the implementation of conflicting approaches to state education funding within countries. In the historical analysis, we show how the idea of free education, although institutionalized in international law, was subject to powerful challenges from international financial institutions, which advocated user fees for public services, including education. Ultimately, the principle of free education prevailed despite the financial clout behind the opposing view. Using data from poor‐ and middle‐income countries from 1983 to 2004, we also show that the presence of international nongovernmental organizations (INGOs) advocating child rights was linked to an increase in the levels of state funding for education. This suggests that embeddedness in global discourses, as evidenced by country‐specific linkages to INGOs, is critical in making governments more accountable for supporting institutionalized ideas concerning education.     

Examining the Ruggie Report: Can Voluntary Guidelines Tame Global Capitalism?

In recent years many academics, social activists and NGOs have turned to international bodies in an attempt to hold corporations accountable for their harmful and illegal acts. Significant amongst these is the UN Special Representative of the Secretary-General on issues of human rights and transnational corporations. In 2008, following extensive research and consultation with states, corporations and civil society groups, the Special Representative released a series of guidelines outlining the responsibilities of states and corporations to respect human rights, and of both to ensure access to effective judicial and non-judicial remedies for victims. This paper argues that the UN guidelines fail to recognize or incorporate the empirically and historically demonstrated imperatives that guide transnational global capitalism. While global capitalism is complex and rife with contradictions, its raison d’etre is rooted in profit maximization. The paper sets out alternative provisions with, we argue, greater potential to subject global capital to the rule of law.     

Laws without teeth: An overview of the problems associated with corruption in Ukraine

This paper presents an overview of the current problems of corruption in Ukraine. It provides an example of specific corruption practices in the country and describes the general provisions related to the fight against corruption in Ukraine. The paper presents preliminary results of a pilot study of corruption in Ukraine to examine the impact of corruption on thefinancial markets. We support the proposition of Claessens, Djankov, andKlingebiel (2000) that the development of financial institutions and the improvement of financial market services in a nation can be viewed as indicators of the effectiveness of the economic, political, and legal reforms and the dedication of the government to these reforms. The paper ends with a discussion of the role of the international community in the fight against corruption in Ukraine.     

系统重要性金融机构监管的国际法制构建与中国回应

作为金融市场的一类特殊参与主体,系统重要性金融机构(SIFIs)具有负外部性,容易引发系统性风险与巨大政府救助成本。在传统的微观审慎监管体制之下,SIFIs的负外部性得不到充分处置,由此导致金融体系乃至实体经济的稳定受到严重威胁,2008年的全球金融危机充分暴露出传统金融监管法制的重大缺陷。在后危机时代,国际社会正在力图构建新型法制,对SIFIs实施专门监管,以防范金融系统性风险和危机。新型监管法制的构建围绕SIFIs的合理识别、强化监管以及有效处置这三个方面展开。我国应积极参与SIFIs监管的国际法制构建工作,同时积极构建与我国金融业现实情况相符的对SIFIs监管的国内法律制度。     

知识产权国际造法新趋势

在 TRIPs 协议产生后十余年的时间里,知识产权国际造法活动明显加快。在WTO 体制之外,不少国际组织、机构和论坛围绕着如何处理保护知识产权与维护生物多样性、合理开发植物基因资源、促进公共健康、维护人权之间的关系等问题,对 TRIPs 协议所确立的一系列高标准的知识产权规则提出了批判,探讨和制订了一系列软法性质的、倡导人权和维护社会公共利益的知识产权新规则。这些活动打破了 WTO 和 WIPO 在国际法层面上对知识产权立法权的垄断,反映了国际社会对知识产权私权利之外的人权、公共健康等社会权益的日益重视,势必对未来知识产权国际立法和国内立法产生深远影响。     

Piercing the Legal Veil: Commercial Arbitration and Transnational Law

The contemporary search for new forms of international governance, of which the debate around lex mercatoria is but an example, should attentively build on the lessons on public and private ordering learned in the nation state. Sophisticated commercial practices on a transnational scale, while necessitating adaptive and flexible procedures within an adequate institutional framework, involve many of the same normative questions posed by economic law in the nation state. The following article critically discusses the claims made in the lex mercatoria debate as to the rise of a transnational private law society ('Privatrechtsgesellschaft') in which political problems of exclusion and freedom have allegedly been resolved by the universal spread of private autonomy. Against similar images of a world exclusively made up of independent, self-relying market citizens, it is argued that if a conception of rights is to be rescued from the deathbed of the traditional nation state, then the learning experiences made within its confines are well worth considering in light of the pressing legitimacy needs of emerging institutions and polities.     

Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

This article analyzes the everyday interpretive practices of corporations and bureaucrats that shape the meaning and force of international economic law. To understand how common practices such as public consultation submissions, corporate threat letters, and external legal assistance influence regulators' understanding of their “legally available” policy space, we study the contested introduction of a pioneering nutrition labeling regulation in Chile. The transnational food industry powerfully challenged the regulation's legality under World Trade Organization law. But Chilean health bureaucrats, in coordination with segments of the country's legally highly competent economic bureaucracy, effectively defended the legality of their proposed regulatory measure. Drawing on data from freedom-of-information requests and in-depth interviews, the article argues that the outcomes of such interpretive contests are substantially shaped by participants' knowledge of the entitlements created by international economic law and thus by the international legal expertise they have access to. This often but not always puts transnational corporations at an advantage over national regulators in the strategic interpretation of international economic law.     

The legal geographies of transnational cyber-prosecutions: extradition,human rights and forum shifting

This article describes legal and human rights issues in three cases of transnational online offending involving extradition requests by the United States (US). These cases were selected as all suspects claimed the negative impacts of autism spectrum disorders (ASDs) were sufficient to deny extradition on human rights grounds. We demonstrate how recent developments in UK and Irish extradition law raise human rights and prosecutorial challenges specific to online offending that are not met by established protections under domestic and internationally sanctioned approaches to extradition or human rights law. In these cases, although the allegedly unlawful conduct occurred exclusively online and concurrent jurisdiction enables prosecution at both the source and location of harm, we demonstrate why national courts hearing extradition challenges are extremely reluctant to shift the trial forum. We conclude by discussing the implications of the new geographies of online offending for future criminological research and transnational criminal justice.     

欧盟跨国拐卖人口犯罪管控研究

跨国拐卖人口犯罪是当今世界共同面临的重大犯罪问题,已成为全球第三大非法获利来源,被国际刑警组织称为“世界上增长最快的犯罪”。欧洲,长期以来已经成为世界人口贩卖的最大目的地。跨国拐卖人口这种21世纪的奴役形式严重损害了受害人的身心健康和人格尊严,严重地干扰了国际社会的正常社会秩序。上世纪八十年代末,跨国拐卖人口对国际组织和各国政府尚属边缘问题时,欧盟就开始对其进行研究,并积极考虑遏制对策、开展具体实践。几十年来,打击跨国拐卖人口犯罪已成为欧盟人权战略的一个重要特征。欧盟致力于在国内和世界各地使用“3P”做法来打击跨国拐卖人口犯罪：起诉贩运者,保护受害者以及预防未来犯罪。在打击、预防跨国拐卖人口犯罪过程中务实高效,立法和机制建设也比较成熟。近些年来,我国急剧上升的拐卖人口犯罪出现了一些新的特点。欧盟的做法为我国有效预防、依法打击拐卖人口犯罪,积极救助、妥善安置被拐卖受害人提供了样板和借鉴。     

Good guys, bad guys: transnational corporations, rational choice theory and power crime

While its scope and scale can be exaggerated, the power transnational corporations (TNCs) exert in the contemporary world is considerable. This is often at the expense of states, or at least is exercised in a way that can undermine states. Some interactions between corporations and states or their officers constitute prime examples of power crime. A blatant form is where corporations either offer or else agree to pay bribes to state officials in order to secure a major contract. This capacity to corrupt state officials via large scale bribes gives corporations significant potential power. This article begins by citing allegations of active corruption of state officials by TNCs, as well as counter-examples (i.e. where TNCs have taken a stand against rent-seeking officials). It then argues that active corruption by corporations constitutes a major dimension of power crime, and seeks to explain apparently contradictory behaviours by TNCs, relating these to rational choice theories and neo-liberalism. It is argued that recent changes in corporate governance and behaviour have made rational-choice models and simplistic neo-liberalism either questionable or redundant. Bu at the same time, globalisation and its stable mate neo-liberalism encourage improper behaviour–various forms of power crime-by corporations.     

In the Mirror: The Legitimation Work of Globalization

This essay examines the legitimation work of globalization by bringing into dialogue the authors' research on immigration, finance, and intercountryadoption. It is concerned with the practices that produce, define, and preclude both movement and connection, such as "naturalizing" some border crossings while criminalizing others; denying the histories and policies that allow some parents to "choose" babies while others must abandon them; and challenging the practices through which small states tweak transnational financial systems while allowing multinational corporations privileges denied small states. Legitimation work (re)configures jurisdictionality, transparency, and sovereignty–the constructs on which debates over globalization's consequences hinge. Examining how these constructs order, include, and exclude persons, goods, and practices sheds light on the boundaries, slippages, and connections between the legitimate and the illegitimate within global processes.     

“一带一路”倡议与中国企业承担人权责任策略探析

在经济全球化浪潮面临挑战和"一带一路"倡议方兴未艾的复杂国际背景下,中国企业面临发展机遇与人权相关风险的双重挑战。国际工商业与人权议程尤其是联合国《工商企业与人权:实施联合国"保护、尊重和补救"框架指导原则》蕴含着丰富的企业人权责任。我国可从政府与企业两个层面采取应对措施。在政府层面,可以制定并执行相关法律与政策;制定工作指引,建立监管体系;制定工商业与人权行动计划。在企业层面,应当把尊重人权原则纳入公司治理;主动发布人权履责报告,加强对话与合作。     

美国企业法人在宪法上的权利考察

美国宪法实施以后，法人的宪法地位问题很快就提到了联邦最高法院。进入二十世纪以后，美国法人的宪法权利进一步扩展，法人又拥有了免于双重危险、陪审团审判、政治言论自由等一系列权利。在美国之外，法人的宪法权利也有不同程度的发展。德国在宪法文本中直接规定了法人的宪法权利，日本宪法文本虽无关于法人的明文规定，但在理论和实践中法人都享有一定的宪法权利。法人的宪法权利一直伴随着争议，尤其是法人的政治言论自由更是引发了热烈的争论。赋予法人宪法权利体现了宪法适用的价值，是法人对抗法律侵权的手段，客观上促进了经济发展，但是法人对政治活动的参与也可能引发金钱政治的危险。     

后危机时代下国际金融监管法律规制比较研究——兼及对我国之启示

后危机时代下,世界主要经济体的主要任务开始由采取短期政策措施以遏制危机蔓延和深化转向金融监管立法制度改革,以此修复现行金融监管体系的根本性缺陷。美英及欧盟世界三大经济体先后颁布多项金融监管改革法案,折射出国际金融监管立法改革的新动向。其中加强系统性风险监管和加大金融消费者保护力度成为改革重点。为完善我国金融监管体制,突出解决系统性风险监管薄弱和金融消费者权益保护缺失提供了借鉴。