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About Law, Economics and Argumentation: The Forgotten Case of Labor Concerns in Brazilian Competition Policy
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- Panel 4: Law and capitalism
- Capitalism, Economy and Foreign Investment
- Varieties of Capitalism and Market-Style Criminal Process
- 8. CRITICAL PERSPECTIVES ON CULTURE AND PRESERVATION - PRECARITY IN OUR PAST, PRESENT, AND FUTURE CULTURAL HERITAGES
- Panel 1: Contemporary Issues in Cultural Heritage Law: Underwater Cultural Heritage and Illegal Trafficking
- Bridge Over Troubled Waters Underwater Cultural Heritage, The UNESCO Convention, Past Doubts and Current Challenges
- New Means in Fighting Against Illicit Traffic of Cultural Property
- Panel 2: Cultural Property and Conflict
- ISIS: A Catalyst for Revisiting the Concept of Cultural Genocide
- Iconoclasm, Cultural Politics and Resilience: The Protection of Cultural Heritage in Post-Conflict Zones
- Panel 3: Changing the Conversation in Cultural Heritage Law: Intangible Cultural Heritage, Heritage Discourse, and Collective Memory
About Law, Economics and Argumentation: The Forgotten Case of Labor Concerns in Brazilian Competition Policy Alberto Barbosa Jr., University of Hamburg and University of Vienna - alberto.barbosa@emle.eu The perceived success of competition law in Brazil hides old inconsistencies in antitrust practice regarding an unusual topic: the interplay between merger control and labor market regulation. That policy interplay could well be seen as only an old miscarriage of “antitrust justice” in developing countries. It may not be the case, though. Past intersections of different regulatory domains, and the lack of accountability as to the reasons for abandoning labor concerns, can still affect the legitimacy of competition policy. Such failures in policy-making could also create conflicts between the Brazilian Competition Authority (CADE) and authorities responsible for enforcing labor laws. In view of those potential hurdles to antitrust implementation, this paper takes a normative stance on the question of how CADE could justify what appears to be a definitive shift in competition policy away from labor market regulation. My analysis is centered on policy justifications: instances of legal argumentation meant to support implementing decisions. Accordingly, antitrust decision-making is framed within the argumentative discourse of competition law, as a product of practical reasoning informed by legal rules and economic knowledge. However, I do not offer here a positive answer as to whether and how CADE should justify its decision to break the interplay between merger control and the regulation of labor markets. Instead, my claim is only that, in defense of such implementation choice, justifications grounded on economic theory may become, in practice, an informal fallacy. As an unusual topic in antitrust policy, the broken interplay between merger control and labor market regulation also allows me to explore the impact of economic indeterminacy on legal discourse. I demonstrate that disagreements among economists can reduce the plausibility of arguments based on economic consequences. In doing so, this paper challenges some uses of Economic Analysis of Law, as argumentation technique, in legal reasoning. Panel 4: Law and capitalism Chair: Iain Frame An Uneven and Combined Development Theory of Law Susan Dianne Brophy, St. Jerome’s University in the University of Waterloo - susan.brophy@uwaterloo.ca That various legal orders preside in any one jurisdiction has long been seen as evidence of legal pluralism; however, this approach lacks a systematic understanding of history in general, and as such, tells us little about the inner machinations of law’s relation to capitalist development in particular. What is needed instead is a dialectical materialist approach to legal development; for this reason, I tender an uneven and combined development (UCD) theory of law. Law flexes in concert with ever-changing social relations, or more plainly, law evolves in an uneven and combined manner. More than being mired in the contradictions that are the driving force of the UCD of capitalism, law boasts its own set of contradictions that, if carefully accounted for, helps distinguish the historical evolution of capitalism and better equips us to gauge what we can reasonably expect from law in the future. Capitalism, Economy and Foreign Investment Enrique Prieto-Ríos, Birkbeck and Universidad de los Andes - ea.prieto@uniandes.edu.co Capital accumulation, invasions, plunder, international trade and foreign investments have been an integral part of the capitalist economy. The modern Capitalist system came into existence in the late fifteenth century in Western Europe and America, and since then, it has been in a constant process of adaptation and expansion, reaching by the late nineteenth century the entire globe. The combination of colonialism practices with the expansion of capitalism, created an international economic uneven structure in which few states exploited and plunder colonies expropriating the surplus of the colonial societies, and transferring it from the periphery to the centre. Such economic uneven structure was deepened with the industrial revolution, broadening the economic gap between the centre and the periphery. After decolonisation processes, peripheral countries continued serving as places where capitalist seeking further profit accumulation could find cheaper material, cheaper labour, new markets for products and the place where raw materials essential for the functioning of the global market and the western life style were found. In this context, Foreign Direct Investment -FDI- was presented as the best alternative to capital importer countries (all countries under this label happened to be former colonies) to improve their socio-economic situation and to reach the promise land of development. According to the foregoing, this paper offers an analysis from a political-economic perspective of FDI. In doing that, this chapter will approach the perspective of investors and states within a global capitalist market. As it will be explained in more detail in the following pages, International Investment Law -IIL- was transformed in an international legal instrument for the protection of capitalist accumulation, based on plunder and an unequal economic relationship. Varieties of Capitalism and Market-Style Criminal Process Darryl K. Brown, University of Virginia School of Law - brownd@virginia.edu This paper would explore ways in which criminal justice systems are structured and rationalized according to prevailing ideas about political economy—that is, ideas about how states should organize and intervene in markets. Comparative studies of “varieties of capitalism” distinguish between “liberal market economies”, such as the U.S. and U.K., and the “coordinated market economies” of most continental European states. States play a smaller (and different kind of) role in private markets in the former than the latter. That choice about the state’s role and responsibility is reflected also in the structures of criminal justice. At a general level, adversary systems—which align closely with liberal-market states—place greater responsibility on the parties for accurate outcomes. Various rules partially “privatize” responsibility for public court judgments. Rules on pretrial evidence disclosure and procedural default, for example, foreclose possibilities to achieve or correct accurate judgments based on lapses of private parties. Plea bargaining law—particularly in the U.S., where it took shape contemporaneously with the rise of neoliberal ideas in the 1970s—borrows directly from the private law of contract and claims about the efficiency of private exchange. This kind of market-inspired rationality is apparent in judicial opinions, which stress personal incentives, motivations, and responsibility while minimizing the role and responsibility of the state. As it does the market sphere, the liberal market state is disinclined to guarantee a particular kind of outcome in criminal adjudication—even a fair or accurate one. The state promises only an opportunity to contribute to, or compete for, a particular outcome. The more that criminal process internalizes the norms of a liberal-market political economy, the more it turns to market-like or private-ordering mechanisms as substitute for legal standards, public duties, and judicial oversight—incrementally privatizing a public law process refining notions of the rule of law. 8. CRITICAL PERSPECTIVES ON CULTURE AND PRESERVATION - PRECARITY IN OUR PAST, PRESENT, AND FUTURE CULTURAL HERITAGES Stream organiser: Sara Ross (Osgood Hall Law School) The past few years have born witness to the destruction of places, spaces, and objects that carry unquantifiable historical, heritage, and cultural value. As the world gazes on, horrified, many critical questions arise in relation to preservation, protection, ownership, and intervention. What role can or does law have? And how is the view of law’s role shaped by critical legal and radical perspectives? Atrocities committed against relics of the past are but one aspect of the greater question of the role of preservation and protection in our globalizing world. Just as the term “culture” can capture nearly endless possibilities, so too can the question of what should be protected and preserved as “culture”. What about the destruction of that which exists intangibly within the boundaries of cultural spaces, and practices? As the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage enters its next decade, has it been successful in its goals and intentions? Questions of how to strengthen and better dedicate ourselves to the preservation of human culture go far beyond the physical and the physically destroyed. Much of what constitutes art and culture is intangible—yet these cultural aspects are as vital to human civilization as the towering ruins of the past. Alongside the question of how law should (or should not) employ preservation strategies in areas of conflict and war, the question of how law should respond to the privatization and commodification of culture within neoliberal development initiatives also arises. What about urban culture in our cities? As neighbourhoods face gentrifying forces and municipal redevelopment strategies, what important buildings and spaces should be preserved? How do we determine what to preserve? Can live music venues benefit from intangible cultural heritage protection? In the UK, can and should pubs receive protection through legal tools such as designation as an Asset of Community Value in the face of an owner’s development rights? Or, in New York City, does an otherwise unremarkable building, such as the Stonewall Inn, merit landmark designation based on past important events or the importance it carries to a community like the LGBT community? Further, if we critically deconstruct existing decisions and paradigms to provide, or not to provide, legally enforceable protection to spaces, places, and objects, will we find a replication of the architectures of hegemony, unequal valuation, or even, recolonization? Or will we find something else? Is the notion of “culture” itself something hegemonic or colonial? This stream seeks to engage the work of critical and radical scholars and perspectives working at the intersections of law, culture, preservation, and the governance of culture—municipally, domestically, and internationally—as well as those interested in tangible and intangible cultural heritage matters and our human right to culture in all of its varied forms. The goal is to create a lively critical dialogue surrounding how we will treat crucial issues in the preservation of our array of collective past, present, and future cultures moving forward. Panel 1: Contemporary Issues in Cultural Heritage Law: Underwater Cultural Heritage and Illegal Trafficking Chair: Sara Ross A Battle between Universality and Integrity: From the Point of View of the Convention on the Protection of the Underwater Cultural Heritage YinCheng Hsu, University of Glasgow (UK) - y.hsu.1@research.gla.ac.uk The fifth session of the Meeting of States Parties to the Convention on the Protection of the Underwater Cultural Heritage (hereinafter CPUCH) took place at Paris on the 27th April 2015. The main issue for discussion was how to promote its ratification. Comparing with other conventions in cultural heritage law system, the CPUCH has not been met with broad-based acceptance. After lengthy discussion, the creeping jurisdiction (mainly in the continental shelf and the Area), the application of salvage law and state immunity are main concerns to hamper the ratification. However, the CPUCH was finalized and enacted before really untying the knots. Since reservation (except Article 29) is prohibited in the CPUCH, for those states which have very little concern are pushed out of the regime. Is it a right time to rethinking the possibility of allowing reservation in order to maximize state participation as ICJ concluded in the 1951 Genocide Convention Case? Considering the pros and cons, this article argues that the CPUCH should increase the number of States Parties even if the integrity may be sacrificed to a certain degree. Three raised reasons are in favor of opening reservation. First, the new principles established in the CPUCH are the in situ preservation, non-commercial exploitation and international cooperation. The principles differ from what states mainly concern. Second, there will be more diverse practices in the international waters if the number of State Parties is low. Third, the non-States Parties may still claim preferential rights granted by the CPUCH. As a result, they enjoy rights from the CPUCH without corresponding duties. The article will also evaluate which provisions may be not appropriate to be made reservation. Bridge Over Troubled Waters? Underwater Cultural Heritage, The UNESCO Convention, Past Doubts and Current Challenges Eden Sarid, University of Toronto (Canada) - eden.sarid@mail.utoronto.ca The legal regime aimed at the protection and governance of underwater cultural heritage is presently facing substantial threats and strife. Unauthorized salvage and looting are an acute threat to this richness of humankind legacy. Alongside these, current challenges include disputes between post-colonies and post-empires over patrimony of underwater cultural heritage; WW1’s centenary, which involves dealing with sunken war-vessels and underwater gravesites; and the exploitation of underwater cultural heritage as a means to claim disputed territory (as evidenced in the South China Sea, Crimea, and the North-West Passage). Present times also mark a considerable passing of time since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (‘the Convention’), which is the international legal framework aimed at the protection of underwater cultural heritage. When the Convention was signed, notable maritime powers such as the UK, the US, and the Netherlands, were concerned that it erodes international law principles, particularly, marine jurisdiction and State vessels’ immunity. Therefore they have not joined the Convention. It is thus a timely moment to consider the Convention’s competence to face current challenges and inquire whether the maritime powers’ concerns indeed materialized in practice. These are the two questions that the paper explores. The paper maintains that the concerns expressed by the maritime powers fifteen years ago did not materialize, and that the Convention actually strengthens international law’s rules regarding jurisdiction and immunity. It also demonstrates the Convention’s success in establishing cooperation and fighting looting and unauthorized salvage. It then asserts that the Convention is seemingly also the best tool to confront the current challenges, as it allows to reconcile former colonies’ and former empires’ interests, it provides a framework well attuned to protect underwater gravesites and warship wrecks, and because it can (and should) be used to prevent abuse of underwater cultural heritage in territorial disputes. New Means in Fighting Against Illicit Traffic of Cultural Property Raffaele Aveta, Seconda Università degli Studi di Napoli (Italy) - raffaeleuni@inwind.it The intensification of the illicit trade and the growing number of disputes about the return of smuggled or illicitly exported cultural properties represents an alarming signal that shows serious questions on the real capacity of the restrictive laws to fulfill protective purposes. First of all, the question should be dealt with by the countries rich in cultural patrimony, which should carry out a role of “cultural avant-garde” and prepare new forms of struggle against the illicit traffic of cultural properties. The means, that can be used to reach this aim, can be various and require a change in the perspective compared to the traditional national policies in the field of the cultural property. In many cases it is a matter of solutions easily to be solved, which even if they require an organizational effort, they might not be a burden on the public finance. It is to be considered, for example, the opening of an international market of works of art, where States can give the works of art that are not essential to the national history, starting from the less important archeological finds and/or from the foundation of a compulsory state system of registration of high valued artefacts and their transactions. This market should involve not only the public bodies but also the private ones. In the first case, resources are removed from the black market and the illicit purchase becomes less convenient, since it exposes to the risk of obtaining not authentic materials and being involved into judicial inquiries. The decline in the demand would have a direct effect on the safeguard of archeological sites, while avoiding the non authorized excavation in new areas and the loss of scientific information. The revenues deriving from the archeological resources might be used to finance research projects, safeguard and promotion or to support a state system of cultural heritage registration. The certification of the cultural, public and private, property, should offer to the buyers the possibility of checking the legitimacy of the title before of carrying the transaction out, by rebuilding the good faith not on the base of criteria which are probable to suppose but through documentary certainties. The birth of national or international systems of cultural property registration offers a precious occasion to stabilize and implement the art market. Panel 2: Cultural Property and Conflict Chair: Kanwal DP Singh Protection of Cultural Property in the Event of a Non-International Armed Conflict: a case study of criminal prosecutions before international courts Alice Lopes Fabris, Universidade Federal Minas Gerais (Brazil) - alice.lfabris@gmail.com Cultural property has always been targeted in armed conflicts. Even though frequent, the attack against important cultural, religious, scientific and archaeological landmarks was mostly condemned. These attacks have intensified in contemporary conflicts, such as the Syrian Iraqi and Mali conflicts, even though several international instruments such as the 1954 Hague Convention and the Rome Statute are in force as well as the costumary rule that prohibits attacks directed against cultural property without military necessity. In September 18, 2015, the Trial Chamber I of the International Criminal Court have issued an arrest warrant for Ahmad Al Faqi Al Mahdi [hereinafter Al Faqi] for the destruction of the mausoleum Sidi Mahmoud Ben Omar Mohamed Aquit, the mausoleum Sheikh Mohamed Mahmoud Al Arawani, the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, the mausoleum Alpha Moya, the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, the mausoleum Sheikh Muhammad El Micky, the mausoleum Cheick Abdoul Kassim Attouaty, the mausoleum Ahamed Fulane, the mausoleum Bahaber Babadié, and Sidi Yahia mosque, located in city of Timbuktu, in Mali. Those destructions occurred in the Malian internal conflict between May and September 2012 and, since the city of Timbuktu has been listed as a World Heritage by the UNESCO since 1988, and those monuments are entitled to special protection. The engagement of individual responsibility in relation to cultural heritage crimes is not new and the Nuremberg Tribunal and the International Criminal Tribunal for the former Yugoslavia have had held individuals accountable for attacks against historic monuments and pillage, under the violation of law and customs of war. This paper proposes the analyses of the applicable law concerning protection of cultural property in the event of non international armed conflict, focusing on the individual responsibility, to understand the law applicable in the Al Faqi case. ISIS: A Catalyst for Revisiting the Concept of Cultural Genocide? Mary Kavita Dominic, The National University of Advanced Legal Studies (India) - marykavitadominic@gmail.com Since the United Nations Organization and the United Nations Educational Scientific and Cultural Organization (“UNESCO”) were formed and the Universal Declaration of Human Rights was adopted, cultural diversity, heritage and human rights have been widely researched. Most of the related research surround legal, ethical and international issues concerning tangible cultural objects, such as illicit trafficking, restitution of the looted artifacts, and destruction of historical sites. Legal systems typically providing special protection for cultural heritage that falls within their national patrimonies have recently started adopting legislative measures and creating policies regarding intangible cultural heritage, as well. Accelerating such process, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression has also encouraged policies concerning future heritage, including film industry. This paper looks at linkages between conserving future intangible cultural heritage by maintaining cultural diversity and enforcing identity and culture as a human right with specific focus on the film industry. Questioning the notion of culture itself being hegemonic or colonial, this paper documents the fear of McDonaldization, by giving examples from the trends in Turkey and China in the face of American productions taking over the global film industry. It also takes a bold approach to deconstruct existing paradigms to push for legally enforceable protection to diversity and criticizes the unequal valuation in the name of culture. Rather than another traditional retrospective analysis of the cultural heritage preservation, this paper embracing precarity introduces a prudential viewpoint towards constructing future heritage from today by preserving cultural components. Interrogating whether international community has a legal and ethical responsibility to protect diversity, this paper ultimately calls sovereigns and global society for an objective pro-polycultural intervention. Iconoclasm, Cultural Politics and Resilience: The Protection of Cultural Heritage in Post-Conflict Zones Valentina Vadi, Lancaster University (UK) - v.vadi@lancaster.ac.uk What role, if any, can international law play in situations in which a state is assisting to the deliberate destruction of cultural heritage of great significance located in its territory? Iconoclasm, that is the destruction of religious icons for religious or political motives, has been a constant feature in human history. However, how international law can prevent, address and cope with iconoclasm remains a relatively understudied domain. This article aims to address some gaps in current international law literature. After discussing the various forms of political, religious and economic iconoclasm and highlighting the complex interplay between iconoclasm and cultural politics, this article discusses the threats to the protection of cultural heritage in post-conflict zones, focusing on Afghanistan as a case study. In 2001, the Taliban destroyed two massive Buddha statues in Afghanistan’s Bamiyan Valley considering non-Islamic art as symbol of idolatry. This act brought the interplay between iconoclasm and international law to the forefront of legal debate. However, this article suggests, today, an even more impressive and significant type of iconoclasm is under way: that of economic iconoclasm that is the inexorable destruction of cultural sites yielding to economic development needs. The paper examines and critically assesses how international law governs the protection of cultural heritage in conflict societies. It then concludes that despite the extraordinary and paradoxical resilience of cultural heritage, much remains to be done 'to build peace in the minds of men' and promote the protection of cultural heritage as a mechanism to foster peace and security. Panel 3: Changing the Conversation in Cultural Heritage Law: Intangible Cultural Heritage, Heritage Discourse, and Collective Memory Chair: Valentina Vadi Directory: law law -> Law in American Society Black History Month Essay Contest law -> A brand New Image? Should Personality Rights be law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. What is a Tort? law -> Law of Delict Chapter 1: General Introduction law -> Appendix C: Federal and Minnesota Case Law Summaries Download 0.92 Mb. 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