bluuebunny/crossref_metadata_2025_split huggingface dataset:
Two Kinds of Retributivism
Authors: Berman Mitchell N 
Published: May 2011

Abstract
This chapter argues that the dominant classificatory framework of theories of punishment that had become orthodox by the latter decades of the 20th century is in peril. That taxonomy was centred on a two-part distinction between consequentialist and retributivist justifications for punishment. Consequentialist theories justify punishment by the good that punishment produces, whereas retributivist theories see punishment as justified by reference to the wrongdoers' supposed ill-desert — the claimed fact that wrongdoers deserve to suffer, or to be punished, or something of this sort. This framework is no longer accurate because retributivism has increasingly morphed into an account that rests upon a justificatory structure that is plainly consequentialist. That is, it seems increasingly fitting to view retributivism as a subtype of consequentialist justifications for punishment — a ‘retributivist consequentialism’ that can be meaningfully contrasted with varieties of ‘non-retributivist consequentialism’ — rather than as an alternative to them. Some will think this a contradiction in terms, that retributivism is non-consequentialist by definition. On this view, ‘retributivist consequentialism’ is oxymoronic. It is argued that that is not so.
Criminal Law and Morality at War
Authors: Haque Adil Ahmad 
Published: May 2011

Abstract
This chapter identifies the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, and justifiably or unjustifiably depart from them. Section 1 explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side effect. It defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. It argues that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The remainder of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Section 2 identifies the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity.
Events, Phrases, and Questions
Authors: Truswell Robert 
Published: May 2011

AbstractThis book proposes a novel, interface-based analysis of patterns of wh-movement in English in which constraints are stated over both syntactic and semantic representations. Firstly, a theory is presented of the internal structure of events as perceptual and cognitive units. The key question concerns the circumstances in which multiple smaller events, or subevents, can be perceived as jointly forming a single macroevent. Macroevent formation is possible if the subevents in question are perceived as related by one of two contingent relations, namely direct causation and enablement, where the latter is a relation holding among events that form part of an agent's plan. There is no single phrase-structural configuration which corresponds to enablement, so cognitive and semantic representations of event structure differ from syntactic representations of phrase structure in nontrivial ways. Certain patterns of extraction from adjuncts in English are amenable to simple descriptions stated over event-structural units and relations, but exhibit substantial differences from the patterns typically described by syntactic theories of locality. However, syntactic locality theories, as elaborated over the past 50 years, remain essential to an accurate description of the distribution of movement relations. The central challenge addressed by this work is therefore to allow syntactic and nonsyntactic factors to act jointly to constrain the syntactic operation of wh-movement without vitiating necessary assumptions about the modularity of the language faculty.
Nonlinear and nonstationary models
Authors: Teräsvirta Timo , Tjøstheim Dag , Granger W. J. 
Published: May 2011

AbstractLong memory, unit root models and cointegration are important in linear modelling of nonstationary processes, not the least in econometrics. Recently, nonlinear generalizations of these concepts have been attempted. The framework is mathematically demanding, requiring tools that can handle both nonstationarity and nonlinearity. Two such tools are local times and null recurrent Markov chains. These are reviewed in parametric and non‐parametric cases.
Building nonlinear models
Authors: Teräsvirta Timo , Tjøstheim Dag , Granger W. J. 
Published: May 2011

AbstractThe topic of this chapter is nonlinear model building. Building non‐parametric models is considered first, followed by building various types of parametric nonlinear models. The latter include smooth transition, switching regression, and artificial neural network models. The three stages of model building: specification, estimation and evaluation, are illustrated by a number of empirical examples involving both economic and non‐economic time series and data sets.
The Fight for Inclusion: Non-State Actors and International Law
Authors: Bianchi Andrea 
Published: May 2011

Abstract
This chapter argues that the debate on non-State actors mirrors the difficulties that international law is currently facing in terms of redefining the boundaries of its own discipline. The traditional view, which hinges on the doctrine of subjects and on its flexible reading provided by the ICJ in the Reparation for Injuries case, lays claim to be able to accommodate all necessary adjustments by granting relative personality to additional entities, if the need arises. Yet a widespread sentiment exists, among international lawyers, that the traditional subjects doctrine is no longer able to provide a satisfactory account of the social realities underlying international law. Hence, the need to rethink afresh the fundamental tenets of international law theory, including the doctrine of subjects. Alternative theoretical frameworks have been put forward, but so far they have failed to impose themselves as accepted terms of reference in international legal scholarship. Meanwhile, the discourse about non-State actors continues to be carried out in a myriad of different contexts.
Transnational Democracy
Authors: Bryde Brun-Otto 
Published: May 2011

Abstract
This chapter argues that the international rule of law has to be completed by transnational democracy. This is an imperative both from the perspective of a community-oriented conception of international law and from the perspective of democratic theory. Obviously this is an ambitious agenda: the dogmatic defenders of national sovereignty will challenge even the premises of this approach and there are only very modest beginnings in realizing transnational democracy in practice. It appears even more important to defend the most advanced example of this project — the European Parliament — against its detractors, the most prominent of which is the Second Senate of the Court.
The Responsibility to Protect: Spelling out the Hard Legal Consequences for the UN Security Council and its Members
Authors: Peters Anne 
Published: May 2011

Abstract
Bruno Simma has made important contributions, as a scholar and as a practitioner, both to the legal regimes of the protection of civilians (human rights law, humanitarian law, international criminal law, and refugee law), and to the law on the use of force. The new concept ‘responsibility to protect’ (R2P) constitutes a synthesis of these regimes. This chapter spells out the legal consequences of R2P, postulated as a binding legal principle of international law, for the Security Council and its members. The chapter is a thought experiment, because the binding legal force of R2P is not settled. It is argued that, once R2P is accepted as a fully fledged legal principle, the Security Council (and its members) would be under a legal obligation to authorize, namely to take sufficiently robust action in R2P situations. The chapter then discusses the problems engendered by the acceptance of such a material obligation and suggests a procedural obligation to justify inaction instead.
Individual States as Guardians of Community Interests
Authors: Tams Christian J 
Published: May 2011

Abstract
This chapter addresses a topic that has been one of Bruno's main concerns both as an academic and as a judge: the potential for decentralized responses against infringements of community interests. This is one of international law's perennial topics underlying pieces on obligations erga omnes, actio popularis, and jus cogens, but also humanitarian intervention, third-party countermeasures, and transnational litigation. The chapter provides a broader — and necessarily cursory — perspective on their structural features: what is provided is a comparative evaluation of how the international legal system responds to assertions, by individual States, of a right to defend community interests and thereby to act as guardians of an international public order. It reviews a heterogeneous range of enforcement measures (legal proceedings before international courts, the exercise of national jurisdiction, and forcible as well as non-forcible coercive measures), and takes account of general international law as well as treaty-specific enforcement regimes. The overarching purpose of this exercise is to evaluate the potential, under contemporary international law, for what might be called ‘public interest enforcement’, and to assess the common features and weaknesses of the different legal concepts used to justify it.
Human, All Too Human Rights: Humanitarian Ethics and the Annihilation of Sodom and Gomorrah
Authors: Ben-Naftali Orna 
Published: May 2011

Abstract
Our ideas of justice, core humanitarian principles, and the foundations of human rights are not merely traceable to Biblical narratives, but also endow them with their enduring quality. Thus, it may well be worth our while to re-read and reflect on them. This chapter offers such reflection. Such thought is particularly warranted at times when the validity of basic humanitarian values is challenged. Over the past few years the notion of ‘asymmetric war’ has been advanced to suggest the anachronism of some of the most fundamental humanitarian principles. The story of the destruction of Sodom and Gomorrah, wrought by the archetypal asymmetric use of unconventional force, invites us to reconsider the merits of this suggestion. The basic principles underlying our current jus ad bellum, jus in bello, and jus post bellum regimes are foretold in this story of ‘brimstone and fire . . . out of heaven’. This fire is not a beacon to follow; it is a warning light to beware.
Denunciation of Human Rights Treaties and the Principle of Reciprocity
Authors: Klein Eckart 
Published: May 2011

Abstract
It is generally agreed that human rights treaties have a special character distinguishing them from other treaties. The decisive difference is usually based on the argument that in the context of human rights treaties the principle of reciprocity is not working at all, or at least not in the same way as for other treaties, essentially influencing neither the establishment nor the performance of a human rights treaty. While the problem has been widely discussed under the aspects of reservations, succession, and reprisals, it has rarely been dealt with from the viewpoint of a unilateral termination by denunciation or withdrawal. This chapter focuses on this issue.
Human Security and International Law
Authors: Owada Hisashi 
Published: May 2011

Abstract
The discourse of human security often neglects to situate the concept within the existing international legal order, a linkage which is essential to the realization of human security. Rather, international law is often presented as an obstacle to the realization of human security, or as a separate system, with different goals and motivations. In particular, the legal norm of State sovereignty is often considered a barrier to the full implementation of human security. In examining the development of international law, it becomes apparent that the goals of international law are not distinct from those of human security. The principles underlying human security have been latent in international law and are evolving with increasing dynamism to encompass many of the basic principles of human security.
The Relationship Between Human Rights and the Rights of Aliens and Immigrants
Authors: Pisillo Mazzeschi Riccardo 
Published: May 2011

Abstract
This chapter first briefly describes the traditional international law on the treatment of aliens and immigrants. It then looks in greater detail at the issue of the impact produced on that law by the theory of human rights. It distinguishes between the effect of substitution, on the one hand, and the effect of transformation and modernization, on the other.
New Bearings in Social Rights? The Communications Procedure Under the ICESCR
Authors: Riedel Eibe 
Published: May 2011

Abstract
When the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were drawn up in 1966, nearly twenty years of intensive discussion had taken place. It had all started with the Universal Declaration of Human Rights (UDHR) in December 1948, which had embraced all civil, cultural, economic, political, and social rights in one single document, and thereby had stressed that all human rights are universal, indivisible, interdependent, and interrelated. Agreement on this exemplary list of human rights guarantees was made easier by the fact that the legal character of that document was merely a declaration of the United Nations (UN) General Assembly, and no modalities of implementation were contained in that document. As a result, the UDHR could be adopted unanimously, with no votes against and only eight abstentions. For the next twenty years, human rights protection at the universal level depended almost entirely on the few generic UN Charter provisions on human rights.
Self-Determination, Human Rights, and the Attribution of Territory
Authors: N Shaw Malcolm 
Published: May 2011

Abstract
The question of title to territory in international law represents a nuanced relationship between land, people, and the international community or, to put it another way, between the rights of the relevant people and the rights of States within the context of international legal regulation. Between the two extremes of the legal irrelevance of the views and rights of persons within the territory and the simple determinative character of such views, the concept of the attribution of title to territory has evolved through several distinct stages. In each stage the sophistication of the process may be seen as rather more evident than is often proposed.
The Function of Law and the Codification of International Law in a Changing World
Authors: Kamto Maurice 
Published: May 2011

Abstract
The exaltation of the importance, or simply of the real or symbolic use, of legal norms in international relations is reassuring and worrying all at once. It reassures because it reflects a priori a high level of legal development of contemporary international society: is not a commitment to law as the preferred means of regulating social relations an indicator of the degree of socialization and civilization of a community? But it may also cause concern because of a probable overestimation of the role of law in international society. Law means the mandatory rules of conduct. This is a definition from the product, from the result. But one also says that law is the result of power relations in a given society. This is a definition of the law envisaged in terms of the process of its creation. It is through this prism that one can consider codification. Codification involves the mediation of the human will, even if man acted on behalf of the legal abstraction that is the State as a legal person. It is also — maybe even especially — a process of selection between what is considered inappropriate and what is considered effective. This efficiency consists either in that the pertinent norm produces the desired results, or in the potential to achieve these results.
The Community Interest in the Law of Treaties: Ambivalent Conceptions
Authors: Klabbers Jan 
Published: May 2011

Abstract
One of the characteristic elements of the work of Bruno Simma consists of his exploration of the community interest in international law, and perhaps more particularly in the law of treaties. His early article on material breach in the then still pending Vienna Convention on the Law of Treaties (VCLT) already pays some attention to this, and even more so his path-breaking work on objective regimes. This chapter delves a little into the genesis of the VCLT, with a view to exploring whether the founders of the VCLT were aware of several issues and to what extent they aspired to come to terms with them. This is of some relevance, needless to say, since it has become clear that the law of treaties ‘has issues’ when it comes to its application to normative multilateral instruments. In this light, it is potentially valuable to see what the founding fathers thought, and whether the VCLT might be said to contain secret ‘trapdoors’ which would facilitate its application to normative multilateral instruments.
Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights
Authors: Cannizzaro Enzo , I Bonafé Beatrice 
Published: May 2011

Abstract
The relationship between the legal regime of sovereign immunity and international human rights law has been quite a hot topic in recent years. Not infrequently, domestic courts have been requested to lift sovereign immunity and to determine civil or criminal consequences of conduct allegedly in breach of international rules protecting fundamental values. These requests have prompted a conspicuous, yet not always fully consistent, pattern of case law and an endless scholarly debate. The traditional view tends to maintain that sovereign immunity is expressed by procedural rules, and that therefore such rules are structurally of such a nature as to preclude conflicts with rules prohibiting egregious violations of human rights, which are substantive law by nature. At the other end of the spectrum, some authors have argued that rules granting immunity have the effect of preventing fundamental human rights law from attaining its full effect. Consequently, it is argued, rules of immunity ought to be disregarded on the basis of the superior rank of rules protecting such rights. An infinite variety of intermediate opinions have also been expressed, highlighting either the traditional inter-State character inspiring the rules on immunity, or the universal character of the emerging law of human rights. This chapter analyzes this topic from a particular methodological angle. It maintains that the difficulty in dealing with that issue mainly lies in the asymmetry in the development of the international law of human rights which has created individual substantive rights without creating a corresponding set of remedies.
Competition among International Tribunals and the Authority of the International Court of Justice
Authors: Dupuy Pierre-Marie 
Published: May 2011

Abstract
At a time of globalization reputed to be also a time of a so-called ‘fragmentation’ of international law, it is no doubt true that the absence of coordination between the numerous international jurisdictions existing at the universal and regional levels creates a danger of conflicts of international case laws. In an ideal model of vertical organic integration, the International Court of Justice (ICJ) would statutorily occupy the top of an effective international judicial system, but today this is still not in existence. Even if the ICJ remains the only jurisdiction with general competence, thus giving it an unquestionable moral authority, its primacy over other courts is far from being unquestionable. As a result, when faced with potentially conflicting views from other courts, as is more and more frequently the case, the Court tries to avoid any conflict. General principles of law in the field of the procedural articulation of legal decisions can sometimes be a guide for the Court. However, they cannot in most situations be the basis for the establishment of systematically effective coordination between international judges. Empiricism and ‘courtesy’ between tribunals is thus necessary in order to allow the parties to a dispute adequately to choose the forum conveniens when several area of law are concerned. But, more than that, it is an extremely subjective element therefore fragile, that will best guarantee the coherence of the system, namely the culture of international judges and the extent to which they believe that they are part of one and the same international legal order (Section IV).
International Law in Recession? The Role of International Law When Crisis Hits: Food, Finance, and Climate Change
Authors: Kaufmann Christine 
Published: May 2011

Abstract
This chapter attempts to bring international law back to the table when current crises are addressed in international forums. Given the crisis-inherent urgency and complexity of the problems, a core consensus on the role of international law needs to be established. In essence, international law derives its right to exist from its mandate to protect human dignity. This mandate cannot be suspended in times of crisis. Only its focus will temporarily shift from substantial guarantees to a more process-oriented model of securing participation and inclusion in decision-making.
The International Law Commission's Articles on State Responsibility and the German Federal Constitutional Court
Authors: Schweisfurth Theodor 
Published: May 2011

Abstract
This chapter deals with the critical appraisal of the decision which the Second Senate of the German Federal Constitutional Court (FCC) handed down on 26 October 2004. With respect to the question of the relevance of the International Law Commission's (ILC) Draft Articles on State Responsibility to the practice of UN member States, and especially the practice of their domestic courts, this decision is so far the most important as well as the most problematic decision of the German Federal Constitutional Court.
When the State is the Owner—Some Further Comments on the Court of Justice ‘Golden Shares’ Strategy
Authors: Biondi Andrea 
Published: May 2011

Abstract
This chapter draws on the arguments presented in Chapter 4 and takes the view that the golden shares case law reflects exclusively the desire to reduce state prerogatives in companies. However, even here, the Court of Justice might exaggerate it: as always, the risk is that every action attributable to the state might be caught by its scrutiny, leaving the Member States not enough leeway to act. One should get inspiration from the law on state aids, in particular with reference to the test known as the ‘market investor principle’: the Court will not qualify a loan or an acquisition of equity as ‘aid’ when a private market participant would have acted similarly.
Deviations from Ownership–Control Proportionality—Private Benefits and the Bigger Picture
Authors: Reisberg Arad 
Published: May 2011

Abstract
This chapter comments on the study of the one share/one vote (OSOV) debate presented in Chapter 10. It attempts to clarify some issues by presenting three ‘hidden truths’ revealed by the study. The first ‘hidden truth’ relates to private benefits of control. The second highlights the changing landscape of the business world and the implications this has on the issues discussed. The third interesting issue is the question of what difference it would make if one opted for describing the current situation as one of ‘important changes over time’, or as ‘trends’.