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.     

Options towards a global standard for the protection of individuals with regard to the processing of personal data

PurposeStates have adopted a number of international instrument dedicated in full or in part to privacy and data protection, at multilateral or regional levels, in binding or non-binding form. This article discusses the potential and context of the emergence of a possible global standard on data protection focusing on the 1981 Council of Europe Convention for the Protection of Individuals with Regard to the Processing of Personal Data, as amended (Convention 108+).AimsWith due regard being paid to the dynamic technological and business environment that surrounds policy-making in the field of personal data protection, this article attempts to look at some strengths, weaknesses, opportunities and challenges of Convention 108+ in the competition for becoming a global standard. It seeks to identify possible future directions and priorities, taking into account the evolving nature of international relations in a more multipolar world where multilateralism is less obviously the preferred approach to international issues.FindingsInformed by an in-depth study of relevant international instruments relating to the right to privacy this article explores several strengths and opportunities that may be built on to promote a global role for Convention 108+, but also some weaknesses and threats. In sum, it concludes that the Convention is relatively well placed to ambition becoming a global standard.     

The Arms Trade Treaty and international humanitarian law: a Commonwealth perspective

The entry into force of the Arms Trade Treaty (ATT) in December 2014 created an historic opportunity to reduce the human cost of the widespread and poorly regulated supply of conventional arms. The treaty establishes common standards for the international trade of conventional weapons and seeks to ensure that weapons are not used in the commission of war crimes, serious violations of international human rights law and other offences. The paper reviews the definitions and the scope of the treaty and highlights the contributions made by Commonwealth member countries. It makes recommendations to Commonwealth member countries regarding effective implementation and their obligations.     

The Impact of Technology and Communications upon International and Transnational Terrorism

The purpose of this inquiry is to examine the nature of terrorism, primarily in European and Western industrial nations. Specifically the article (1) examines the impact that has resulted from technological advances in communication and weapons and (2) discusses the necessity of international cooperation in the effort to defeat terrorism. The article documents that terrorism is a serious threat to Western democracies including the United States as well as an international threat. The conclusion of the article is that it has become more difficult to counter terrorism due to technological advances which have delivered greater destructive power into the hands of a few fanatics. The primary technological effects discussed are (1) those relating to communication which has enabled terrorists to establish a “world-wide network” and (2) the addition of toxins and nuclear weapons to the arsenal of the terrorist. As an international problem, however, the difficulty of countering terrorism is not rooted in the technological sophistication of the terrorist but in international disputes about the question, “what is terrorism”. Nations appear to be unable to mount an international assault against terrorism due to the great difficulty of arriving at a commonly accepted definition of terrorism. This article discusses the obstacles to defining terrorism encountered by the international community and the role that bilateral and multinational agreements have played in countering terrorism.     

Challenging custom: rethinking national population surveillance policy in a global public health age

This article examines the current state of disease surveillance and reporting in the United States and seeks to answer two central questions: first, whether the increasing emphasis on the global importance of public health policies compels a fundamental reexamination of the long-standing deferential approach to state power where matters of population health surveillance are concerned and, second, how the nation's long-standing deferential legal customs might be modified to address the growing emphasis on global public health policy that is undergirded by technological advances. We examine the International Health Regulations, or IHR (2005), and suggest that these regulations offer a powerful impetus for reevaluating U.S. legal custom concerning the policy and practice of population health surveillance, not only as a matter of U.S. law but also as a core dimension of U.S. legal obligations to other nations, as embodied in international agreements and treaties. We find that if the political will exists to change the domestic disease surveillance and reporting system, the federal government has the power to act. Questions remain, however, about whether the public health and legislative communities are willing to challenge current customs or even if they desire to do so.     

中国生态保护和资源开发利用的国际合作法制建设

环境问题既是中国国内的法律问题，也是国际性的法律问题，需要各国采取协调行动来解决。共同但有区别的责任和国际合作，是中国在全球生态和资源开发利用方面坚持的两个基本原则。中国目前采取了签订条约、参与国际和区域环境事务等国际合作措施，发展和完善了确认与保护、鼓励和支持、限制与禁止、敦促与制裁等方面的国际环境合作制度。虽然存在发达国家的经济和技术援助不到位、贸易壁垒隐藏在国际合作机制中、发达国家和周边国家封中国提出的环境要求过于苛刻等问题，但中国的生态保护和资源开发利用国际合作制度的实施，近年来在区域和全球层面仍然取得了很大的成效。     

The challenge of cyber attack deterrence

National security planners have begun to look beyond reactive, tactical cyber defense to proactive, strategic cyber defense, which may include international military deterrence. The incredible power of nuclear weapons gave birth to deterrence, a military strategy in which the purpose of armies shifted from winning wars to preventing them. Although cyber attacks per se do not compare to a nuclear explosion, they do pose a serious and increasing threat to international security. Real-world examples suggest that cyber warfare will play a lead role in future international conflicts. This article examines the two deterrence strategies available to nation-states (denial and punishment) and their three basic requirements (capability, communication, and credibility) in the light of cyber warfare. It also explores whether the two most challenging aspects of cyber attacks – attribution and asymmetry – will make cyber attack deterrence an impossible task.     

Member States of the Commonwealth – Their Relationship with the International Court of Justice

The removal of judicial independence from the motherland for several Commonwealth countries was fraught with difficulties. The determination of where final national appeals would lie has had a most colourful history in the Commonwealth. An extension of judicial dependence may arguably be expressed in the manner in which a state address disputes of international law and its choice of the appropriate tribunal for redress. It is argued in this article that independence did not seem to indicate that some Member States were willing to relinquish their desire to move too far away from the family of the British Commonwealth. Consequently, in accepting the Option Clause of the International Court of Justice (ICJ), a number of Commonwealth Member States entered a reservation which, inter alia, excludes disputes with the government of any country that is a Member of the British Commonwealth. Although today only eight Commonwealth Member States (including Britain) maintain this exclusionary clause, to the extent that these eight may find themselves bound by this clause presents some difficulty when there are disputes among these Member States. The author highlights these difficulties by examining the case of Mauritius and the Chagos Archipelago. Ultimately, the present day Commonwealth seeks dispute settlement through peaceful means, with an absolute respect for the rule of international law governing relations within and among its Member States.     

国际恐怖主义与国家自卫

国际恐怖主义的共同特征是 :行为关涉两个或两个以上国家 ;目标具有明确政治性 ,指向外国国家 ;主体多元 ,既有个人也有国家。国际恐怖主义属国际犯罪。国家对国际恐怖主义可以行使自卫 ,但必须有充分理由证明国际恐怖主义是由一个国家实施的或在国家支持下进行的。美国对阿富汗的军事行动可认为是自卫。     

Who’s in favour? Same-sex union laws in parliament

The article analyses which parties support registered partnership and same-sex marriage bills in parliament in Western Europe. Existing comparative research indicates that left parties back same-sex union laws. This article shows that support is not limited to the left camp. Liberal and even Christian democratic parties have expressed above-average support as well, albeit with certain exceptions. The chief opponents of same-sex union laws are Protestant parties and the parties of the far right; in terms of numbers, however, both are largely insignificant. Far more relevant for these laws’ chances of success are the positions of the large parties at the centre and at the right of the political spectrum. The analysis reveals considerable inter-country differences in these parties’ attitudes, which can be explained to a large extent with the two-worlds-of-morality-politics distinction introduced by Engeli, Green-Pedersen and Larsen: countries in which centre and right parties continue to oppose same-sex union laws are part of the religious world, with the exception of France. The results for France indicate a need for further research.     

Strategic Position Taking and Presidential Influence in Congress

The rise and fall of presidential success in Congress remains a central puzzle in the literature. We model success as two interrelated processes: presidential position taking and Congress's decision to support or oppose the president. The analysis emphasizes the importance of strategic position taking in determining presidential success. We show that presidential approval significantly influences success, not only because it affects congressional behavior, but also because it shapes presidential decisions to take positions. Moreover, we explain that legislative success during the honeymoon period is driven by presidential position taking. Our findings highlight the role of a president's strategic decisions for theories explaining congressional‐executive relations.     

Transnational convergence of public procurement policy: a ‘bottom-up’ analysis of policy networks and the international harmonisation of accessibility standards for information and communication technology

This article seeks to examine how public procurement policies for information and communication technology (ICT), aimed at improving the accessibility of ICT for persons with disabilities, have converged internationally. Convergence, in this instance, refers to the international harmonisation or acceptance of common standards and norms. Distinguishing itself from the predominant authorship in the area, this article seeks to explore convergence from a ‘bottom-up’ perspective, by examining the influence of networks of public and private actors on the design of public procurement standards for accessible ICT. Specifically, it will seek to answer how these actors and networks (varying in their level of coordination) have contributed to policy design in a unique area, public procurement of ICT goods and services. The influence of these networks will be discussed through the use of policy documents and semi-structured interviews, to provide empirical support for examining this ‘bottom-up’ analysis and distinguish it from the standard ‘top-down’ model usually employed in this field. This article also focuses on the role of policy actors in the United States and European Union that participated in the harmonisation of public procurement policy and the legal norms and instruments that give these policies their legal effect.     

WTO争端解决中“规则冲突”的概念界定

无论是在国际公法中,还是在WTO争端解决中,如何界定"规则冲突"的概念,都是一个悬而未决、难以确定的问题。在国际公法和WTO争端解决中,关于规则冲突的概念,都存在定义的广义与狭义之争。在国际公法中,比较流行的是狭义的冲突定义,不承认权利可能与义务或禁止相冲突;在WTO争端解决实践中,究竟是应该采用狭义的还是广义的规则冲突的定义,目前尚未有定论。然而,狭义的冲突定义在法律上是不恰当的,并且导致自相矛盾,因此,在WTO争端解决中,关于规则冲突的狭义定义是不可取的,必须首选一个广泛的定义,把允许与义务或禁止之间冲突的情况,即矛盾的冲突,也视为构成规则冲突。     

Implementing the principle of policy integration: institutional interplay and the role of international organizations

The implementation of the sustainable development principle of integration implies that economic laws should not be designed solely for the purpose of maximizing financial profits, but also with the object of improving human well-being, and addressing social and environmental concerns. International organizations, in which international treaties are being negotiated and created, will have to support this type of cross-disciplinary approach. International institutions, however, were not originally designed to cope with such a cross-disciplinary effort. Rather, most international institutions have emerged in line with the premise of ‘functionalism’, according to which their role is limited to supplying specialized services, usually as a solution for emerging needs and as a result of historical events. These specialized institutions have thus emerged with little coordination or common planning and have resulted in a global structure that has been referred to as an ‘accident of history’. The role that international organizations should and do fulfil with respect to the implementation of the principle of integration is reviewed in this paper. This paper concentrates on trade and investment organizations (the World Trade Organization and the Energy Charter Treaty); it reviews the channels through which non-trade/investment considerations may, or may not, penetrate the decision-making processes of these organizations; the ways these International organizations engage with interdisciplinary issues and how the objectives of other institutions are reflected in their work.     

Euthanasia and assisted suicide in the post-Rodriguez era: lessons from foreign jurisdictions

Euthanasia and assisted suicide are highly controversial subjects that have drawn much attention in Canada over the last two decades. This paper outlines how the Netherlands, the United States, Australia, and Canada have approached the practices. Jurisprudence, public opinion polls, legislative developments, and the positions of medical organizations and their members are included in the analysis. A number of arguments for and against the continued prohibition of the practices in Canada are evaluated. As well, information regarding the extent to which euthanasia and assisted suicide are performed in these countries is assessed. It will be shown that Canadians currently enjoy significant control over decisions concerning end of life. The principles of autonomy and beneficence provide the foundation necessary to justify lifting the prohibition of voluntary euthanasia and assisted suicide in Canada. With regard to the development of safeguards, the way in which foreign jurisdictions have dealt with both procedures is highly instructive. A qualified system of pre-authorization, unlike those adopted elsewhere, would prevent abuses from occurring and maintaining the prohibition of non-voluntary and involuntary euthanasia. Since legislators are in the best position to deal with the issues, change in the law should be made by the government, not the judiciary. Practical legislation is feasible and a proposal of what this should entail is presented.     

The Fate of Public International Law: Between Technique and Politics

Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has differentiated into functional regimes such as 'trade law', 'human rights law', 'environmental law' and so on that seek to 'manage' global problems efficiently and empower new interests and forms of expertise. Neither of the principal legal responses to regime-formation – constitutionalism and pluralism – is adequate, however. The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are 'imagined communities', so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a fixed nature or self-evident objectives. They are the stories we tell about them. The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.     

Not everyone strongly supports the death penalty: Assessing weakly-held attitudes about capital punishment

Polls exploring attitudes toward the death penalty typically impose a simple, dichotomous response structure: respondents are asked whether or not they support or oppose capital punishment. This polling strategy deprives respondents of expressing an indication of the strength of their opinions. When asked whether they support (or oppose) the death penalty “strongly” or “not strongly,” significant proportions of respondents select the latter category. This suggests that many proponents and opponents of the death penalty have weakly-held views regarding the issue. These respondents are of great interest because they are the individuals most likely to change their views. This article analyzes responses to two national surveys in order to explore the variables that differentiate respondents with strongly-held and weakly-held views. A theoretical account is offered to explain why some people have weakly-held views on this critical social issue.     

Still not in Force: Should States Support the 1997 UN Watercourses Convention?

On 21 May 1997, at the UN General Assembly, an overwhelming majority of States voted for the adoption of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses – a global overarching framework governing the rights and duties of States sharing freshwater systems. To date, the Convention counts 17 Contracting States – 18 short of the number required for entry into force. This article examines whether and why States should support the Convention towards ensuring its entry into force. We first look at the governance of international watercourses in order to illustrate the relevance of the Convention. The article also examines the Convention's drafting and negotiation process, the subsequent practice of States, some possible reasons slowing down ratifications and the likelihood of entry into force in the foreseeable future. Noting the widespread State support for the Convention in 1997, we conclude that, while various reasons have possibly prevented that support from translating into entry into force, the need for an effective UN Watercourses Convention has not diminished. In view of current human and environmental threats to the world's water resources, coupled with the poor governance of transboundary watersheds, the potential role that the Convention could play, once in force and widely ratified, as discussed, may in fact be more critical than ever.     

现代国际法的人本化发展趋势

Humanization is not only a new concept and value-oriented, but also an ever-increasing positive phenomena in international law. Contemporary international law has been contributing to the establishment and improvement of global peace and development order for the co-existence among States on the one hand, and making endeavors to the formation and maintenance of humanizing order, which is both “individual-oriented” and “humankind-oriented”. Such a humanizing phenomenon undoubtedly represents the advanced trend of international law, enriches its contents, updates some of its classic branches and impacts on the basic principle of reciprocity on which it is created and developed. However, the humanization of international law could not have taken shape without common accords among States by means of either treaties or customary rules; and without cooperation among States, the humanistic value of international law can never become true no matter how sublime it is. Zeng Lingliang, Ph.D, is presently a dean and professor in Faculty of Law of the University of Macau, a Cheung Kong awardee and Jean Monnet Chair of European Union Law in Wuhan University, and one of the first three individuals nominated by the Chinese government on the list of panelists in the WTO. Prof. Zeng has a lot of articles published on the WTO issues, EU law and international law, and his representative monographs, for instance, European Communities and Modern International Law (Wuhan University Press, 1992) and its revised edition European Union and Modern International Law (Zhiyi Press, 1994), Law of World Trade Organization (Wuhan University Press, 1996), International Law and China in the Early 21st Century (Wuhan University Press, 2005) and Essentials of EU Law—In the new perspective of the treaty on a Constitution for Europe (Wuhan University Press, 2007).     

Medicare program; physicians' referrals to health care entities with which they have financial relationships (Phase III). Final rule

This final rule is the third phase (Phase III) of a final rulemaking amending our regulations regarding the physician self-referral prohibition in section 1877 of the Social Security Act (the Act). Specifically, this rule finalizes, and responds to public comments regarding, the Phase II interim final rule with comment period published on March 26, 2004, which set forth the self-referral prohibition and applicable definitions, interpreted various statutory exceptions to the prohibition, and created additional regulatory exceptions for arrangements that do not pose a risk of program or patient abuse (69 FR 16054). In general, in response to public comments, in this Phase III final rule, we have reduced the regulatory burden on the health care industry through the interpretation of statutory exceptions and modification of the exceptions that were created using the Secretary's discretionary authority under section 1877(b)(4) of the Act to promulgate exceptions for financial relationships that pose no risk of program or patient abuse.