A Global Perspective on the Regulation of Free Speech – Is there a Duty to Weigh the Rights of “Others”?

The controversial cartoons of the prophet Muhammad, published by the Danish journal Jyllands-Posten and the French Charlie Hebdo, raise fundamental legal questions concerning the global reach of laws regulating speech: Should state prosecutors and courts take into account the effects of the speech on those who find it offensive, even if the latter are foreigners who live thousands of miles away?

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Switzerland 1 – 0 FIFA

On 12 December 2014 Swiss politicians have passed a law that strengthens the oversight of more than 60 sports associations based there, including the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee (IOC). Thus far sports bodies based in Switzerland were not obliged to register with the state or to publish their accounts. They benefitted from tax breaks, autonomy to govern their own affairs, and exemption from Swiss anti-corruption laws.

The so-called “Lex FIFA” will now designate the top officials of the sports associations residing in Switzerland as “Politically Exposed Persons” (PEPs) who, according to the Financial Action Task Force (FATF) rules could be subjected to corruption investigations.

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How Should States as “Trustees of Humanity” Respond to an Armed Attack? Reflections in Light of the Gaza War 2014

The recent war in Gaza poses an important challenge to the claim that countries must act as “trustees of humanity” rather than as trustees of their own citizens only, and must therefore take the interests and concerns of affected foreigners seriously into account. This claim is reflected in several aspects of international law but not, at least not sufficiently, in the laws that regulate warfare. The traditional laws on the use of force (jus ad bellum) and on the conduct of hostilities (jus in bello) impose several restrictions on states engaging with their enemies, but what informs those traditional requirements and prohibitions is the premise that states are entitled to ensure maximum safety for their citizens regardless of the costs to all the rest. Continue reading

States as “Supreme and Multiple Organs of Humanity” in the Fight against Genocide

We Syrians are human beings of this world” (Yassin al-Haj Saleh, Sept. 9, 2013)

What is the basis for states’ exercise of universal jurisdiction to adjudicate crimes against humanity? What is the source of the right and even the duty of the UN Security Council or perhaps also groups of states to use force to end genocide perpetrated by a foreign regime against its own people? Given the lack of explicit state consent to such powers, the answer must be that these obligations stem from an underlying concept of trusteeship toward humanity; that all states are subject to certain pre-state norms, Continue reading

Quixotic Altruism or an Effective Investment? On Unilateral Measures to Mitigate Climate Change

On June 23, 2014, the U.S. Supreme Court endorsed the authority of the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gas (GHG) emissions as a “permissible interpretation” of the Clean Air Act. Unless Congress intervenes, the EPA may now continue to issue standards that seek to mitigate climate change, in line with President Obama’s Climate Action Plan. In determining these standards, the EPA undertakes cost-benefit analyses that count the benefits of the restrictions for the entire world, not just the U.S. This policy decision is based on a 2010 report issued by a U.S. Government Interagency Working Group on Social Cost of Carbon, which concluded that “a global measure of the benefits from reducing U.S. emissions is preferable.”

Why should a national agency decide to take the global effects of climate change into account and thereby impose burdens domestically? Why would the U.S. Supreme Court indirectly acknowledge that such a policy might be legally required? Continue reading

Should Host States Resist “Brain Gain”? Other-Regarding Obligations of States that Attract Foreign Health Personnel

Eyal Benvenisti

Should states take foreign communities’ interests when they recruit doctors and nurses in developing countries? Should they invest more in education and training of their own citizens thereby reducing demand to foreign health personnel? These and others have become acute questions due to the growing global demand for health workers. The current North/South imbalance in the availability of health providers, which is already characterized as “extreme,” is expected to grow and to further disadvantage the poor and less healthy societies. In 2010 the OECD reported that in top Anglo-American destination countries, migrant doctors make up 22.5–39% of the national physician workforce. Between 2001 and 2008 the number of foreign-trained fully registered medical doctors has increased by 70% in the US, 50% in Australia and 40% in Canada*. The imbalance is also economic, as the remittances sent home by the foreign health providers do not compensate for the public investment in medical training in the countries of origin.

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Gandhi, Trusteeship and Intellectual Property Law

by R. Neethu

In 1939 Gandhi wrote: “My Trusteeship concept will survive all other theories” (Harijan, 16-12-1939, p. 376). Though his concept was articulated in reference to colonialism and independence, it has managed to survive the passage of time, becoming revitalized in this twenty-first century. The root of the Gandhian doctrine is equal distribution of resources. The resources of the world are held in common, and hence anyone who secures the bridle to control the use of resources needs to be reminded about the ‘trusteeship role’ that she has in the exploitation and utilization of such resources.  Continue reading

The Bali WTO Ministerial Conference’s decision on public stockholding for food security and the impact on others

By An Hertogen

The WTO 9th Ministerial Conference in Bali was billed in the media as the WTO’s last chance saloon to demonstrate its relevance in an era where the spotlight shines brightest on high-profile regional trade liberalization negotiations such as the TPPA and the TTIP. With the stakes raised, WTO Members agreed on December 7–one day past the original deadline as is so often the case at international negotiations–on the Bali Package that included, amongst others, a decision on public stockholding by developing countries for food security purposes.

The central question on public stockholding is whether developing countries can, in a WTO compatible way, stockpile food staples such as rice and wheat to ensure stable incomes for their farmers while at the same time guaranteeing those on low incomes access to basic foods at affordable prices. Lurking beneath the surface is the tension between trade liberalization commitments with the right to food. Continue reading

The ICJ as Trustee of Humanity? Analyzing the Court’s Attention to the Human Factor in Boundary Delimitations and Boundary Regimes

“Good fences make good neighbors” — the old saying takes on new meaning as increasing demands on dwindling natural resources require transboundary sharing regimes. Other questions about “good fences” arise with globalization and the attendant need for international regulation of national policies for managing the trans-border movement of goods, services, capital and, of course, people. Even more challenging for the traditional notion of sovereignty are questions concerning the normative constraints on the delineation of boundaries and on boundary regimes. One of the most sensitive questions is how much weight states should assign to the human factor, namely to the needs of populations affected by the delimitation of the boundary. In April 2013, the International Court of Justice demonstrated acute sensitivity to the human factor. In a delimitation dispute between Niger and Burkina Faso, the court offered fresh insights on how to integrate the human factor into states’ boundary delimitation agreements and the regulation of cross-border movement of people affected by the borders. This sensitivity may reflect more generally the court’s increased willingness to intervene in the exercise of sovereign discretion. Continue reading