The International Criminal Court (ICC) is the first and only standing international court capable of prosecuting humanity's worst crimes: genocide, war crimes, and crimes against humanity. It faces huge obstacles. It has no police force; it pursues investigations in areas of tremendous turmoil, conflict, and death; it is charged both with trying suspects and with aiding their victims; and it seeks to combine divergent legal traditions in an entirely new international legal mechanism. International law advocates sought to establish a standing international criminal court for more than 150 years. Other, temporary, single-purpose criminal tribunals, truth commissions, and special courts have come and gone, but the ICC is the only permanent inheritor of the Nuremberg legacy. In Building the International Criminal Court, Oberlin College Professor of Politics Ben Schiff analyzes the International Criminal Court, melding historical perspective, international relations theories, and observers' insights to explain the Court's origins, creation, innovations, dynamics, and operational challenges.

/pdf/building-the-international-criminal-court-4wt0d706vh.pdf

Building the International Criminal Court

Group heterogeneity and cooperation on the geographical indication regulation: The case of the “Prosciutto di Parma” Consortium

Over the past decades, international criminal law has evolved to become the operative norm for addressing the worst atrocities. Tribunals have conducted hundreds of trials addressing mass violence in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and other countries to bring to justice perpetrators of genocide, war crimes, and crimes against humanity. But international courts have struggled to hold perpetrators accountable for these offenses while still protecting the fair trial rights of defendants. Punishing Atrocities through a Fair Trial explores this tension, from criticism of the Nuremberg Trials as 'victor's justice' to the accusations of political motivations clouding prosecutions today by the International Criminal Court. It explains why international criminal law must adhere to transparent principles of legality and due process to ensure its future as a legitimate and viable legal regime.

Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism

The authoritative introduction to the International Criminal Court, fully updated, discussing the work of the Court, its structures and institutions and current controversies.

An introduction to the International Criminal Court, sixth edition

Trial and Appeal

This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance. In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent boxes that were designed to limit income-shifting opportunities. As this article points out, these restrictions are weaker than they could have been due to EU legal constraints. Although the majority of countries involved in the OECD’s work on patent boxes were not EU Member States, they were all constrained by the ECJ’s permissive definition of tax avoidance. This article argues that the tax jurisprudence of the ECJ placed downward pressure on international tax avoidance standards and that this in turn shows that countries both within and without the European Union are losing the ability to prevent international tax avoidance to the degree that would have been possible in the absence of the ECJ’s tax jurisprudence. This article refers to this downward pressure as the Luxembourg effect. This effect is even more important in the context of the United Kingdom’s “Brexit” vote to leave the European Union since it highlights that a vote to be free of EU law may not have the desired effect if even non-EU countries are subject to the consequences of the ECJ’s jurisprudence.

/pdf/the-luxembourg-effect-patent-boxes-and-the-limits-of-4cnon5d2ji.pdf

The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2852&context=facpub

American Servicemembers' Protection Act of 2002

Behavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the provision itself must be salient, but the limits of that provision must be hidden, or low-salience. This article uses the charitable deduction to illustrate the concept of hypersalience. While the charitable deduction is extremely salient to many taxpayers, not all taxpayers who believe that they will benefit from the deduction are correct. In fact, even though many Americans are aware that donations are tax-deductible, fewer than 50% of taxpayers can take advantage of the charitable deduction. The concept of hypersalience is important for several reasons. First, it highlights the role of non-governmental actors in fostering taxpayer ignorance about the tax system. This article suggests that the hypersalience of the charitable deduction is at least partly due to marketing efforts by private third-party beneficiaries. Second, it complicates economic models, such as those of price elasticity of giving, and suggests that certain tax provisions may be more treasury efficient than previously thought. Third, it may lead to increased consumption of certain goods. This article concludes that, although hypersalience may mean that the government is able to induce greater behavioral distortions without losing revenue, the costs of this phenomenon outweigh its benefits. Because hypersalience is due to taxpayer misunderstanding and the actions of third-party beneficiaries acting in their own interest, this article proposes several possible avenues for curtailing this phenomenon.

The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience

As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without the unanimous support of all twenty-seven Member States. As the European Court of Justice strikes down Member State efforts to prevent tax avoidance, no institution can step in to replace these Member State provisions. Member States are thus losing sovereignty over policy tax avoidance, but no legislative move toward an integrated approach is possible without the support of Member States. This article proposes several solutions to the problems posed by the doctrine.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2272665_code355514.pdf?abstractid=2272665&mirid=1

Sovereignty, Integration and Tax Avoidance in the European Union: Striking the Proper Balance

Over the past few years, policymakers have argued that everything from Apple’s Irish tax deal to patent boxes to the LuxLeaks tax rulings represent “harmful tax competition.” Despite the ubiquity of this term, however, there is no internationally accepted definition of so-called harmful tax competition.

This Article uses the anti-tax-competition measures proposed and implemented over the last twenty years to reverse-engineer what policymakers believe to constitute harmful tax competition. Their different visions of harmful tax competition lead to three important lessons. First, when governments claim to be limiting tax competition, they are not leveling the playing field so much as they are shifting it in their own favor. Second, international tax competition relies on international tax avoidance, and international tax avoidance relies on international tax competition. Thus, governments are complicit in international tax avoidance, while taxpayers (usually multinational corporations) are complicit in tax competition. Finally, governments often use both anti-tax-competition measures and anti-avoidance measures not just to limit tax competition by other countries but also as an additional form of tax competition that strengthens their own competitive position.

Lilian V. Faulhaber

Papers

The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation

American Servicemembers' Protection Act of 2002

The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience

Sovereignty, Integration and Tax Avoidance in the European Union: Striking the Proper Balance

The Trouble with Tax Competition: From Practice to Theory