Cutting Global Justice Down to Size? Rights,Vulnerabilities, Immunities,Communities

This article attempts to expand the scope of the project of global justice on one parameter but to circumscribe that project on three other parameters. It is argued that the difference of level of application as between individuals and collectives should be transcended in a ‘collective turn’. But this inclusiveness must be accompanied by an insistence on the distinction between a generic or intrinsic understanding of vulnerability on the one hand, and a contingent understanding of vulnerability on the other. Another distinction that must be observed is that between private and public entities. On both dimensions the latter option is to be preferred. Only the contingent vulnerabilities of public entities are of relevance to a practical program of global justice. It is also suggested that formal distinctions in entitlements should be observed. Hohfeld’s scheme is called upon in order to distinguish between claim-rights and immunities and to advocate for the latter as better reflecting the desiderata of global justice. Frequently presupposed connections between vulnerability and rights are thus brought into question. Finally, the proposed framework for global justice enables a novel articulation with, and an illumination of, the demands of equality. For that which is private in a legal sense is constituted by the clash of wills of individual legal persons. Public interests are always shared, thus connoting spheres of equality; understood in this way equality is the stuff of global justice.

     

The Right to Development in International Law: New Momentum Thirty Years Down the Line?

The right to development (RTD) is contested in international law, politics and practice. This remains the case, despite the 30-year existence of the United Nations Declaration on the Right to Development (UNDRTD), the many substantive leads that current international law provides, and the renewed inspiration that can be drawn from Agenda 2030 and its sustainable development goals. This article explores whether there is a possible new momentum for the RTD in international law. Deep substantive and political divisions about the exact content and implications of the RTD prevail between—and within—the North and the South. Up to now these divisions have stood in the way of achieving greater normative clarity, follow-up and implementation action. This state of affairs has directed us to adopt a pragmatic approach, by which we consider the scope for revitalizing the RTD through existing provisions of international law, rather than by creating additional normative frameworks. Thus, after a short sketch of the historical evolution of the RTD, we examine the nature, substance and implications of this right as conceived in the UNDRTD. Then, we pursue the question of how existing provisions of international law could be mobilized more explicitly for the sake of revitalizing the RTD and more in particular for its actual realization in the future. Three concrete means of implementation provide at least some prospect for positive change: international cooperation for development, accountability and monitoring mechanisms, and regional and inter-regional instruments and procedures.

     

Ensuring that Regional Trade Agreements Complement the WTO System: US Unilateralism a Supplement to WTO Initiatives?

In the mid-1990s, the policy debate within the WTO focused onwhether regional trade agreements (RTAs) were building blocksor stumbling blocks for the WTO system, essentially questioningwhether regionalism was appropriate at all from an economicpolicy perspective. Given the proliferation of RTAs since thattime and the inability to roll back the clock, that policy debatehas been replaced by a search for strengthened constraints onRTA activity that might ensure it complements the WTO system.Three major controversies within many existing RTAs are theexclusion of agriculture from coverage, complex and restrictiverules of origin, and varied treatment of the application oftrade remedies. Despite some competing policy considerations,it is likely, on balance, that the WTO system would benefitif agriculture was required to be included in RTA coverage,if RTA rules of origin were simplified and liberalized, andif the controversy surrounding RTA treatment of trade remedieswas cleared up. However, the search for constraints within theWTO system to achieve these results, either through the Dohanegotiations or the dispute settlement system seems unlikelyto succeed in the near future. Accordingly, enhanced and extendedefforts by the US, either unilaterally or in conjunction withits RTA partners utilizing its negotiating leverage, may bea necessary supplement to efforts within the WTO in ensuringa more harmonious relationship between RTAs and the WTO system.     

Why are countries reluctant to exchange information on interest income? Participation in and effectiveness of the EU Savings Tax Directive

Since 1.7.2005 the EU Savings Tax Directive has ensured a minimum of taxation on foreign interest income by offering participating countries the opportunity either to apply a withholding tax or to exchange information on cross-border interest income. The aim of the paper is to examine why countries do not exchange information on interest income. The results suggest that the incentive to exchange information is weakened if the financial sector in a country is very profitable. A high profitability of the financial sector enables countries to maximize revenues from the corporation tax. A second reason for discouraging information exchange is related to the spillover effects on the domestic labor market. An inflow of financial capital is indirectly associated with the creation of employment and well-paid jobs. In its current form the savings tax directive enables individuals to avoid taxation, either by placing their income in non-participating countries or by investing in assets which are not part of the directive. Using German revenue data for 2005 and 2006 the paper shows that Germany receives significantly less revenue from countries applying a withholding tax. This result indirectly indicates that investors can take advantage of the directive's loopholes.     

Kyoto,Europe?—An Economic Evaluation of the European Emission Trading Directive

To meet its obligations accepted in the Kyoto Protocol cost effectively, the European Union introduces a scheme of Greenhouse Gas Allowance Trading for its member states. This paper evaluates the cost effectiveness, ecological accuracy and dynamic incentives of this approach.The EU-emissions trading constitutes an important shift in the paradigm of environmental policy, from command and control to a market based approach. Still, the EU-system does not fully realize the economic potential of the transferable discharge permit policy. Especially, the limited scope of trading regarding geography, pollutants, sectors and activities reduces the quality of the system. Moreover, the EU-Directive is unspecific in many respects and it leaves many decisions defining the rules of the game to the individual member state. Uncertainty and heterogeneity increase transaction cost and thereby hamper the effectiveness of the system.JEL Classification: Q54, Q58, K32     

Listen to the Judge or Listen to the Facts?——On the exclusionary rule

证据是认识的基础、证明的根据、检验的标准、思想的指南.什么能当此重任?惟有事实.证据是事实,事实不存在非法、合法的问题.事实是客观的,既不受法律调整,也不受法律制约,因而证据也没有合法性.证据不能排除.排除证据的实质是法官睁着眼睛不认事实,排除证据的法官把自己和事实的位置摆错了,这是一项根本性的错误.非法获取人证是司法警察通过刑讯逼供和指名问供这样两重罪行实现的,因而它不是程序,而是程序中的实体.     

The Right to an Impartial Hearing Trumps the Social Imperative of Bringing Accused to Trial Even ‘Down Under’

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence.     

The Duty to Protect the Victim – Or the Duty to Suffer Punishment?

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.     

Interviewing to Detect Deception: When to Disclose the Evidence?

Research shows that there are few objective cues to deception. However, it may be possible to create such cues by strategic interviewing techniques. Strategic Use of Evidence (SUE) is one such technique. The basic premise of the SUE technique is that liars and truth tellers employ different counter-interrogation strategies, and that the evidence against the suspect can be used to exploit these differences in strategies. This study examined the effect of the timing of evidence disclosure (early vs. late vs. gradual) on verbal cues to deception. We predicted that late disclosure would be most effective in differentiating between liars and truth-tellers, and that cues to deception in the gradual disclosure condition would progressively disappear due to the suspects’ realization that evidence against them exists. That is, we expected that liars in the gradual presentation condition would become more consistent with the evidence over time. A sample of 86 undergraduate students went through a mock-terrorism paradigm (half innocent, half guilty), and were subsequently interviewed using one of three disclosure strategies: early, gradual, and late disclosure. We measured statement-evidence inconsistencies as cues to deception . Results supported our predictions in that cues to deception were most pronounced in the late disclosure condition. Contrary to our expectations, the results suggested that presenting the evidence gradually may put innocent suspects at a higher risk of misclassification as they seem to adopt a strategy that is more similar to guilty suspects.     

What Are the Obstacles to Defense Counsel?

Many years ago, at a session of the USSR Supreme Soviet, Deputy I. A. Kairov uttered these words of bitter truth: "A kind of strange attitude still persists toward defense lawyers as if in some way they were impediments rather than contributors to the administration of justice."     

Power to the people? Restoring citizen participation

This article investigates a lost ideal--citizen participation in health policy. We begin by mapping the different types of participation. We then suggest what direct citizen action has achieved in the past, why it ought to be restored today, and how we might go about reviving it. A changing social environment--marked by globalization, immigration, a culture war, and managed care--could be addressed by robust, local, democratic health reforms. Finally, we contrast the top-down health sector with education and crime policies that take communities far more seriously.     

How to control interception-does the UK strike the right balance?

This Article critically analyses the regime for intercepting the content of communications under the Regulation of Investigatory Powers Act 2000 in the light of the recent ruling by the European Court of Human Rights in Kennedy v the UK. It looks at the safeguards for privacy protection provided such as the requirement for a warrant and the roles of the Investigatory Powers Tribunal and the Interception of Communications Commissioner and whether these safeguards are compliant with Article 8 of the European Convention of Human Rights.