Non-Refoulement between 'Common Article 1' and 'Common Article 3'

This article considers whether, in the context of armed conflicts, certain non-refoulement obligations of non-belligerent States can be derived from the 1949 Geneva Conventions. According to Common Article 1 (CA1) thereof, all High Contracting Parties (HCPs) undertake to ‘respect and to ensure respect’ for the four conventions ‘in all circumstances’. It is contended that CA1 applies both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs). In turn, it is suggested that Common Article 3 (CA3) which regulates conduct in NIACs serves as a ‘minimum yardstick’ also applicable in IACs. It is widely (though not uniformly) acknowledged that the undertaking to ‘ensure respect’ in a given armed conflict extends to HCPs that are not parties to it; nevertheless, the precise scope of this undertaking is subject to scholarly debate. This article concerns situations where, in the course of an (international or non-international) armed conflict, persons ’taking no active part in hostilities’ flee from States where violations of CA3 are (likely to be) occurring to a non-belligerent State. Based on the undertaking in CA1, the central claim of this article is that, as long as risk of exposure to these violations persists, persons should not be refouled notwithstanding possible assessment of whether they qualify as refugees based on the 1951 Refugee Convention definition, or could be eligible for complementary or subsidiary forms of protection that are regulated in regional arrangements. The analysis does not affect the explicit protection from refoulement that the Fourth Geneva Convention accords to ‘protected persons’ (as defined in Article 4 thereof). It is submitted that CA1 should be read in tandem with other obligations of non-belligerent States under the 1949 Geneva Conventions. Most pertinently, all HCPs are required to take specific measures to repress ‘grave breaches’ and to take measures necessary for the suppression of all acts contrary to the 1949 Geneva Conventions other than the grave breaches. A HCP that is capable of protecting displaced persons from exposure to risks of violations of CA3 and nonetheless refoules them to face such risks is arguably failing to take lawful measures at its disposal in order to suppress acts contrary to the conventions and, consequently, fails to ‘ensure respect’ for the conventions. KEYWORDS Non-refoulement; International Armed Conflict; Non-International Armed Conflict; Common Article 1; Common Article 3

Civilian casualties and nuclear weapons: the application of the rule of distinction

This chapter considers the possible use in armed conflict of low-yield (also known as tactical) nuclear weapons. The Legality of the Threat or Use of Nuclear Weapons Advisory Opinion maintained that it is a cardinal principle that a State must never make civilians an object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. As international humanitarian law applies equally to any use of nuclear weapons, it is argued that there is no use of nuclear weapons that could spare civilian casualties particularly if you view the long-term health and environmental effects of the use of such weaponry.

Location choices of multinational firms in Europe: the role of EU cohesion policy

Using data on 5509 foreign subsidiaries established in 50 regions of 8 EU countries over the period 1991–1999, we estimate a mixed logit model of the location choice of multinational firms in Europe. In particular, we focus on the role of EU Cohesion Policy in attracting foreign investors from both within and outside Europe. We find that, after controlling for the role of agglomeration economies as well as a number of other regional and country characteristics and allowing for a very flexible correlation pattern among choices, Structural and Cohesion funds allocated by the EU to laggard regions have indeed contributed to attracting multinationals. These policies as well as other determinants play a different role in the case of European investors as opposed to non-European ones.

Building collaborative partnerships for climate change action in Maputo, Mozambique

The authors examine partnerships as a policy strategy for climate change governance in cities in the Global South. Partnerships offer the opportunity to link the actions of diverse actors operating at different scales and, thus, they may be flexible enough to deal with uncertain futures and changing development demands. However, simultaneously, partnerships may lack effectiveness in delivering action at the local level, and may constitute a strategy for some actors to legitimate their objectives in spite of the interests of other partners. Engaging with the specific example of urban governance in Maputo, Mozambique, the authors present an analysis of potential partnerships in this context, in relation to the actors that are willing and able to intervene to deliver climate change action. What, they ask, are the challenges to achieving common objectives in partnerships from the perspective of local residents in informal settlements? The analysis describes a changing context of climate change governance in the city, in which the prospects of access to international finance for climate change adaptation are moving institutional actors towards engaging with participatory processes at the local level. However, the analysis suggests a question about the extent to which local communities are actually perceived as actors with legitimate interests who can intervene in partnerships, and whether their interests are recognised.

State Political Action Committee Financing and the 2008 Presidential Election: A Detailed Look at Mitt Romney and the Commonwealth PACs

This study looks at the historical context in which PACs developed, as well as the current legal environment in which they operate. It will also briefly discuss the legal and procedural challenges that candidates face and the ways in which PACs alleviate some of these pressures in ways that presidential committees cannot. An understanding of the strategic dilemmas which cause candidates to seek extraneous structures through which to establish campaign networks is essential to extrapolating the potential future of campaign finance strategy. Furthermore, this study provides an in-depth analysis of the state Commonwealth PACs both in terms of fundraising and spending, and discusses the central issues this state PAC strategy raises with respect to campaign finance law. The study will conclude with a look into the future of campaign financing and the role these state-level PACs may play if current rules are not revised.

Soft money : private foundations of party politics

In the area of campaign financing in federal elections, one of the most controversial issues is that of soft money. Soft money refers to those funds raised by the national party organizations for use on various grassroots and party-building activities. but which are not subject to the restraints of federal campaign finance law. Critics contend that these party-building activitie, such as generic television advertising, voter registration and get-out-the vote drives, provide ancillary benefits to federal candidates and should, therefore, be subject to federal contribution and expenditure limits. Critics further argue that because these funds are not subject to federal law and do benefit federal candidates, the national parties raise monies in amounts and from sources, such as corporations and unions, that are prohibited under federal law. Efforts to gain a better understanding of soft money have been hampered by a lack of data, as the national parties were not required to disclose their soft money receipts and transactions until 1991. The purpose of this study is to analyze data recently made available in an attempt to add the import of empirical evidence to the debate over soft money. The nature, size and timing of soft money contributions are investigated and national party soft money disbursements are examined. The findings suggest that any attempts to reform the soft money system must first consider its compensatory benefits. Most prominently, this includes the extent to which soft money has promoted the resurgence of the national party organizations in the context of election politics.

O regime brasileiro de tributação de lucros auferidos por sociedades controladas e coligadas no exterior: uma visão do atual regime por meio da ótica da teoria do rent seeking

O presente trabalho tem por objetivo analisar, pela ótica da teoria do rent seeking, a evolução da legislação e da jurisprudência administrativa e judicial acerca do regime da tributação dos lucros, ganhos de capital e rendimentos auferidos por sociedades controladas e coligadas no exterior. Observar-se-á a hipótese da legislação e das suas diversas interpretações refletirem interesses predominantemente de apropriação de renda, tanto por parte da Administração Pública quanto dos agentes privados. Nesse sentido, após uma exposição da teoria do rent seeking e da sua relação com a teoria do patrimonialismo no Brasil, ela será aplicada no tema tributário proposto. Para tanto, verificar-se-á a evolução da legislação até o último diploma normativo relevante sobre o tema: a Medida Provisória nº 2.158-35/01. Neste momento, serão identificadas as principais controvérsias e os possíveis interesses nas diversas interpretações dadas às regras em questão, associando-os com os diversos problemas de rent seeking observáveis. A seguir, verificar-se-á, nas decisões do Superior Tribunal de Justiça (STJ), do Supremo Tribunal Federal (STF), e do Conselho Administrativo de Recursos Fiscais (CARF) qual a evolução do entendimento dos tribunais a respeito das referidas interpretações, verificando se algum consenso foi atingido e quais interesses estariam atingidos pelo rumo tomado pela jurisprudência sobre o tema. Neste contexto, a análise da evolução legislativa e jurisprudencial abordará os seguintes pontos controversos: (1) caracterização das regras brasileiras como CFC rules (característica antielisiva); (2) tributação de distribuição ficta ou de lucro da própria controladora ou coligada no Brasil; (3) constitucionalidade do artigo 43, parágrafo 2º, do Código Tributário Nacional, bem como do artigo 74 da Medida Provisória nº 2.158-35/01; e (4) a compatibilização com os Tratados contra a Dupla Tributação. Por fim, far-se-á uma conclusão, a partir dos resultados verificados, a respeito de como a evolução das regras tributárias em questão pode representar uma apropriação de renda sem benefícios públicos que pode favorecer indevidamente tanto o setor público como o privado.

A recepção dos tratados internacionais em matéria tributária pelo ordenamento jurídico brasileiro

A presente dissertação objetiva analisar a forma de recepção dos tratados internacionais em matéria tributária pelo ordenamento jurídico brasileiro. Para isso, é fundamental verificar a relação entre o direito internacional e o direito interno, por meio da análise das teorias monista e dualista. Apresenta-se o Direito Tributário Internacional como uma das variações do Direito Internacional Público, com o objetivo de introduzir a matéria tributária. Estudam-se os tratados como uma das principais fontes do direito internacional e o modo como o Poder Executivo e o Poder Legislativo participam de sua ratificação. Detalham-se, assim, os objetivos e os métodos dos tratados internacionais em matéria tributária, os quais visam a evitar a ocorrência do fenômeno jurídico da bitributação. Concluída a análise do procedimento de internalização desses tratados pelo ordenamento brasileiro, há a possibilidade de surgirem conflitos entre a norma internacional recepcionada e a lei interna anterior ou superveniente. E, por essa razão, apresentam-se os critérios gerais e específicos adotados pela doutrina e pelo Supremo Tribunal Federal para solucionar antinomias jurídicas.

WTO-plus commitments on the elimination of export duties: evidence of a two-tier membership?

This descriptive paper examines the prevalence of ‘WTO-plus’ commitments in accession protocols of newly acceded Members, with a focus on commitments on the elimination of export duties. It presents preliminary results of a mapping exercise carried out with respect to these commitments and seeks to answer two questions. First, can any general conclusions be drawn as to the prevalence of these commitments or are they, per definition, country-specific. Second, has the political nature of the WTO accession process allowed for the creation of a two-tier membership. The first question is answered by relying on data gathered as part of the ongoing PhD-research project conducted by the author. The project aims to construct a typology of WTO-plus commitments to allow for a more detailed analysis of the relationship between these commitments and the baseline obligations in the covered agreements. The accession of China to the WTO is commonly considered as the prime example of the inclusion of WTO-plus obligations in accession protocols. The paper tries to answer the question whether this particular accession was truly unique in nature, or whether the inclusion of “Plus” obligations is less exceptional than often assumed. Additionally, the accession protocols of other recently acceded-Members are examined to establish whether the hypothesis holds. In the PhD-research project this comparative methodology will also be applied to map WTO-plus commitments in other areas, such as anti-dumping and transparency. The second question will be answered in two stages. In a preliminary stage, international institutional law will be used to by analyzing the way in which the WTO’s Dispute Settlement Body has dealt with this type of WTO-plus commitment in its jurisprudence. The second stage deals with the question of hierarchy: Accession Protocols are negotiated with the WTO Membership, by each country willing to accede to the WTO. This poses questions as to their exact position in the system of WTO law. To establish whether evidence of a two-tier membership is present, one first has to turn back to the question whether Accession Protocols are a separate (or independent) legal instrument or an “integral part” of the WTO system of covered agreements. If newly acceded Members do not benefit from the general exceptions in order to balance their more stringent, WTO-plus, obligations, this may support the conclusion that the membership of the World Trade Organization is becoming, in fact, two-tiered.

Tipificação do crime de terrorismo no Brasil

O terrorismo contemporâneo se destaca como um dos mais discutidos tópicos da agenda política internacional. No contexto da globalização, a atuação de grupos extremistas é bem mais complexa e articulada do que jamais foi, e sua periculosidade é exacerbada pela potencial utilização de armas de destruição em massa. Se é certo que a solução para seu enfrentamento pode ser almejada pela cooperação entre as nações, é igualmente verdadeiro que o Direito pode ser um instrumento idôneo para assegurar melhor colaboração e maior efetividade das medidas. Partindo do pressuposto que o terrorismo pode ser compreendido como um instituto do Direito Criminal, apresento esta monografia, a fim de investigar como o Brasil – que notoriamente carece de normatização útil na legislação ordinária – poderia criar uma lei antiterror. A metodologia de pesquisa é primordialmente descritiva, com enfoque na compreensão do terrorismo enquanto instituto jurídico-criminal. Dedicamo-nos a um estudo crítico dos aspectos teóricos e práticos de se criar uma lei antiterror, inclusive estudando projetos de lei em tramitação, a fim de ver como o Legislativo tem abordado a matéria.

The BRICS: some historical experiences, growth challenges and opportunities

The acronym BRICS was a fad among the media and global investors. Now, the acronym sounds passé. However, the group of countries remains important, from both political and economic reasons. They have a large aggregate size, 28% of the global GDP and 42% of the world’s population, high growth potential due to the current significant misallocation of resources and relatively low stock of human capital, structural transformation is in progress and one of them, China, is taking steps to become a global power and a challenger to the US dominance. This paper provides a brief overview of the five economies, Brazil, Russia, India, China and South Africa. We focus on some aspects of their history, the Chinese initiatives in international finance and geopolitical strategic moves, their growth experience and structural transformation over the last 35 years, trade and investment integration into the global economy and among themselves, the growth challenges faced by their economies and the potential gains to the Brazilian economy from a stronger integration with the other BRICS. In association with its efforts to be a global power, China aims to become a major player in global finance and to achieve the status of global currency for the renminbi, which would be the first currency of an emerging economy to attain such position. Despite the similarities, the BRICS encompass very diverse economies. In the recent decades, China and India showed stellar growth rates. On the other hand, Brazil, Russia and South Africa have expanded just in line with global output growth with the Russian economy exhibiting high volatility. China is by far the largest economy, and South Africa the smallest, the only BRICS economy with a GDP lower than US$ 1 trillion. Russia abandoned communism almost 25 years ago, but reversed many of the privatizations of 90’s. China is still ruled by communism, but has a vibrant private sector and recently has officially declared market forces to play a dominant role in its economy. Brazil, Russia and South Africa are global natural resources powerhouses and commodity exporters while China and India are large commodity importers. Brazil is relatively closed to international trade of goods and services, in marked contrast to the other four economies. Brazil, India and South Africa are dependent on external capital flows whereas China and Russia are capital exporters. India and South Africa have younger populations and a large portion living below the poverty line. Despite its extraordinary growth experience that lifted many millions from poverty, China still has 28% of its population classified as poor. Russia and China have much older populations and one of their challenges is to deal with the effects of a declining labor force in the near future. India, China and South Africa face a long way to urbanization, while Brazil and Russia are already urbanized countries. China is an industrial economy but its primary sector still absorbs a large pool of workers. India is not, but the primary sector employs also a large share of the labor force. China’s aggregate demand structure is biased towards investment that has been driving its expansion. Brazil and South Africa have an aggregate demand structure similar to the developed economies, with private consumption accounting for approximately 70%. The same similarity applies to the supply side, as in both economies the share of services nears 70%. The development problem is a productivity problem, so microeconomic reforms are badly needed to foster long-term growth of the BRICS economies since they have lost steam due a variety of factors, but fundamentally due to slower total factor productivity growth. China and India are implementing ambitious reform programs, while Brazil is dealing with macroeconomic disequilibria. Russia and South Africa remain mute about structural reforms. There are some potential benefits to Brazil to be extracted from a greater economic integration with the BRICS, particularly in natural resources intensive industries and services. Necessary conditions to the materialization of those gains are the removal of the several sources of resource misallocation and strong investment in human capital.

WTO - Market and non market economies: the hybrid case of Chine

This article will discuss the systemic challenges of integrating hybrid economies, and their NME features, into the WTO. It will analyze how the Multilateral Trading System has dealt differently with the issue with the issue during the GATT and the WTO eras. It will then discuss the relationship between NMEs and the principles and rules of the multilateral trading system

The distortion of currencies misalignments on trade Instruments: or why currencies wars are not over

The negotiations of mega agreements between the US and the Pacific countries (TPP) and between the US and the EU (TTIP) are raising the attention of experts on international trade law and economics. TPP and TTIP are proclaimed to be the designers of the rules for the XXI Century. Old trade instruments such as tariffs are said to be no more important for TTIP because tariffs are negligible among those partners but significant to for TPP. Another relevant agreement in negotiation is between the EU and Mercosul, where tariffs are the most important issue in discussion. The main purpose of this paper is to shows that tariff are important for all these agreements, not because of its nominal value, but because the impacts of exchange rate misalignments on tariffs are so significant that all concessions can be distorted by overvalued and by devaluated currencies. The article is divided into several sections: the first gives an introduction to the issue; the second explains the methodologies used to determine exchange rate misalignments and also presents some results for Brazil, US and China; the third summarizes the methodology applied to calculate the impacts of exchange rate misalignments on the level of tariff protection through an exercise of “misalignment tariffication” and examines the effects of exchange rate variations on tariffs and their consequences for the multilateral trading system; the fourth creates a methodology to estimate exchange rates against a basket of currencies (a virtual currency of the World) and a proposal to deal with persistent and significant misalignments related to trade rules. The fifth presents some estimates for the main PTAs. The conclusions are present in the last section

Barreiras regulatórias: um novo desafio para a governança da OMC

Over the last decades, there is an increasing concern around what should be the role played by the World Trade Organization before the proliferation of preferential and plurilateral trade agreements (PTAs). Moreover, the expansion of the trade agenda through issues not encompassed by the WTO agreements, such as sustainability and global value chains led to a process of fragmentation of international trade law, strengthening the false idea that there would be a complete antagonism between preferentialism and multilateralism. As tariff preferences have diminished in importance, non-tariff measures as domestic regulation have become relatively more significant as determinants of market access and the conditions of competition. Given this equation, and regarding the importance to safeguard the progress achieved by the multilateral trade system, the present article seeks to elucidate some points considered relevant to the regulatory barriers subject and, therefore, address the role that can be attributed to the WTO as a key to effective governance of trade regulatory cooperation