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Abstract

This article argues that if and when recovery is possible for civilian property illegally destroyed during war—and there are reasons to believe that it is becoming an ever more realistic possibility—then damages should reflect not just the replacement value or market value of the items destroyed, but rather the humanitarian value, or what we refer to as the “civilian use” value. Food, medicine, and clothing should be compensated at higher levels, and according to a different calculus, than jewelry, radios, or sports equipment even though these items may cost the same to replace. For, particularly with respect to large infrastructure like grain warehouses or hospitals, international humanitarian law privileges “users” over and above “owners.” This article first explains the justifications for implementing a “civilian use” approach to damages, and then sketches a rough model of how an international court or tribunal might implement the approach.

Abstract

Policy coordination between diverse regulatory regimes in financial services ranks highly on the international political agenda because regulatory differences create impediments to growing financial activity. Efficiency-oriented theories fail to explain why coordination was achieved in some domains but not in others, while arguments linking coordination to similarities or differences in states’ substantive policy goals cannot account for coordination progress in spite of vast differences in prior domestic regimes. This Article posits that coordination success or failure depends on the interaction of two variables: whether strong competitors to U.S. firms and markets challenge U.S. dominance and whether activity is centralized at a main facility in a single jurisdiction, such as a stock exchange, or diffused around many separate jurisdictions. Strong U.S. dominance attracts more foreigners to U.S. centralized markets who voluntarily adopt U.S. laws and lobby their governments for policy coordination; yet in dispersed markets, policy coordination offers limited benefits to either the United States or to foreign countries when U.S. dominance is strong. When a competitor challenges U.S. dominance in a centralized market, U.S. policymakers will maintain regulatory barriers to prevent U.S. investors from migrating to competitors. In dispersed markets, on the other hand, the United States will promote policy coordination because it can eliminate its competitors’ advantages across all national markets. This Article provides four case studies in areas with varying degrees of U.S. dominance and market centralization to support this theoretical framework. Overall, the Article makes two contributions: it generalizes across cases to draw broad conclusions about the field of finance as a whole, and it highlights the role of politics in financial regulation, refining the concept of power, clarifying mechanisms, and providing a theory of how increased competition might shape diverse fields for regulation.

Abstract

This Article argues that in the ongoing trans-Atlantic discussion about principles-based and rules-based financial regulation, a new development has been largely overlooked. This is the rise, in the United States, of a new approach to financial regulation. The author names this new strategy “institution-based” financial regulation. In this strategy the regulators, to date the Securities and Exchange Commission and the Financial Industry Regulatory Authority, require firms to establish certain institutions. In the U.S. regulatory context these typically include: a Chief Compliance Officer, compliance policies and procedures, an annual self-assessment, access for the Chief Compliance Officer to the firm’s senior-level executives, and internal codes of ethics. The establishment of these institutions is required by rule, but the functioning of these institutions within each firm is generally left to the firms themselves, with the regulators providing interpretations, guidance, and personal statements. The author argues that institution-based regulation combines a mandatory institutional architecture with a customizable firm-specific functionality. This strategy provides regulatory solutions to a number of global issues, including: addressing firms’ competitive worries about rivals’ compliance free-riding, recognizing local regulatory choices, providing a model that is scalable to the size and resources of any firm or market, building continuous improvement into the regulatory model, and helping firms in newly emerging markets establish themselves in the international marketplace. The author concludes that the development of a global community of compliance institutions staffed by highly skilled compliance professionals holds great promise for the future, because it could enhance the mutual trust and confidence needed to forge a truly global marketplace out of the world’s current medley of regulatory regimes, while preserving local regulatory choices.

Abstract

This paper studies the different roles, impact, and operation of bilateral treaties and multilateral treaties as structures within the architecture of international law. I observe that the preference for bilateralism or multilateralism in international lawmaking is often determined not by an informed choice but by an instinctive association of political schools or bureaucratic affiliations with different forms of international regulation. This association, however, is not always founded on a just appreciation of the workings of either form in various contexts or of the way in which the two interact with each other. I set out to offer a framework for such an appreciation and assess the workings of multilateral treaties and bilateral treaties along three dimensions: the contribution of the respective instruments to the advancement of an international rule of law; the operation of the regime in terms of its effectiveness, efficiency, and compliance; and the democratic legitimacy of the making of each regime. I demonstrate that ideologies and values that seem to be almost blindly associated with one type of regulation may be actually better served, in some cases, by using the other type. Ultimately, this paper attempts to chart a course for more theoretical and empirical forays into the questions of why states join particular types of treaties and how these different types of treaties, or a combination of them, promote or obstruct the attainment of various goals within the architecture of international law.

Abstract

As a party to the International Covenant on Civil and Political Rights, the United States is required to submit periodic reports to the treaty’s supervisory body, the United Nations Human Rights Committee. The United States recently submitted its joint Second and Third Periodic Report. The Report—the United States’ first in eleven years—came in the midst of intense scrutiny over the government’s human rights record. Even in the absence of these controversies, the U.S. Report would have marked an important development in international human rights law, given the special place the United States holds as a world superpower and key human rights advocate. Further adding to the significance of the U.S. Report is the high profile of the ICCPR and the Human Rights Committee. All sides—the Committee, the U.S. government, and the human rights community—took advantage of the opportunity to voice their positions on the ICCPR’s provisions and U.S. human rights practices. For these reasons, the U.S. Report represents an important development in international human rights law, and one that relates to a broad array of topics, including treaty interpretation and enforcement, the status and content of human rights law, and domestic implementation of international law.

This Note provides a descriptive account of the U.S. Report that is situated in the wider body of scholarship on the ICCPR and international human rights treaty obligations; in addition, it offers a normative assessment of the Committee’s reaction to the U.S. Report. I argue that the Committee in several instances pressed the United States too far, and in doing so risked sacrificing its credibility and alienating states parties. I point to the debate over the territorial application of the ICCPR and the United States’ reservation to the treaty’s prohibition on the juvenile death penalty to illustrate my argument.

Abstract

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights (“ECHR”). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region’s innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article analyzes this trend and uses it to develop three distinct paradigms to identify the proper place of intellectual property issues in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.