PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)最新文献

{"title":"Uniformity Versus Specialisation: A Uniform Regime of Treaty Interpretation?","authors":"M. Waibel","doi":"10.2139/ssrn.2353833","DOIUrl":"https://doi.org/10.2139/ssrn.2353833","url":null,"abstract":"Fragmentation of international law can occur at two levels: at the level of substantive rules (applicable law), and, at the level of interpretive method. Whereas the substantive aspect of fragmentation has spawned an enormous literature over the last decade, interpretive fragmentation has received less attention. The focus of this chapter is on this second dimension: does international law know a single, unified method, or equivalently, regime or approach to treaty interpretation? Articles 31-33 VCLT purport to set out a unified approach to interpretation. Yet this chapter contends that the VCLT constrains treaty interpreters only on the margins, and that varieties of treaty interpretation lurk behind the veneer of the VCLT’s general interpretive framework. On closer inspection, interpretive practices in international law diverge, just like in national law. The emergence of specialised interpretive methodologies in international law mirrors the earlier development of statutory and contract varieties of interpretation in domestic law.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123186579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Constructive Coordination between the ICJ and the Investor-State Dispute Resolution: The ICJ Diallo Judgment and Beyond","authors":"Peng Wang","doi":"10.2139/ssrn.2244106","DOIUrl":"https://doi.org/10.2139/ssrn.2244106","url":null,"abstract":"This Article analyzes the core issues of the Diallo Judgment concerning investment protection and disputes resolutions and proposes the best approach for the ICJ in the light of institution interaction between the ICJ and the specialized investor-state dispute resolution mechanism. The potential jurisdiction overlap between the ICJ and the ICSID exists in two aspects: concurrency of jurisdiction and inconsistent substantive decision. As a system, international courts and tribunals have a duty to coordinate to promote the coherent development of international law in general and international investment law in particular. The coordinated mode should be based on the comparative advantages of both system and preserve moderate competition. In particular, the judicial supporting function of the ICJ to the ICSID is proposed in three aspects: Jurisdiction comity, Substantive protection coordination, and Supervision, Interpretation and enforcement of award.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125656103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Searching for Coherence in Trade and Investment Arbitration: Domestic Policies Under Siege","authors":"J. Alvarez","doi":"10.2139/ssrn.2102665","DOIUrl":"https://doi.org/10.2139/ssrn.2102665","url":null,"abstract":"In this paper, I highlight that international investment law, as a subsystem, should evolve to accept rules from other subsystems of law, e.g., human rights, trade (WTO law and RTA law), and environmental. This proposed evolution would need to include the acceptance of new tools that would help to expand the traditional sources of international law when dealing with fragmentation problems. Those tools would be used as connecting rules (Drive-Chains) among the fragmented subsystems when reviewing justifications not provided in investment treaties, giving coherence, predictability and legitimacy to the investment subsystem with others subsystems of law.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"189 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123329652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regional Judicial Institutions and Economic Cooperation: Lessons for Asia?","authors":"E. Voeten","doi":"10.1515/9780804789301-005","DOIUrl":"https://doi.org/10.1515/9780804789301-005","url":null,"abstract":"Why is Asia lagging behind other regions in creating regional judicial institutions? What lessons from the operation of such institutions elsewhere could be valuable to Asian regional economic integration? I show that Asian states are not unusually averse to refer inter-state disputes over trade, investment, and territory to global judicial institutions. Moreover, Asian states are not unique in their reluctance to resolve regional inter-state disputes through judicial means: Regional judicial institutions elsewhere have also rarely been used to resolve inter-state disputes. The most valuable lesson for Asia from experiences elsewhere is the role that regional courts can play in resolving disputes between administrative agencies and private parties about the implementation of international law. While Asia lacks an extensive set of regional laws and regulations that create rights and obligations for private parties, there is a broad body of international law that already applies in many Asian countries. National administrative agencies or courts may not always be well-equipped to interpret this law. I suggest the creation of a regional judicial institution that contributes to the uniform application of this law and that may help signal the commitment of states to their international obligations. The proposed institution provides incentives for harmonization without creating new obligations, thus recognizing the diversity among Asian states.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134424568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Somali Piracy Problem: A Global Puzzle Necessitating a Global Solution","authors":"M. Sterio","doi":"10.2139/ssrn.1576708","DOIUrl":"https://doi.org/10.2139/ssrn.1576708","url":null,"abstract":"Over the past few years, piracy has exploded off the coast of Somalia. The Somali pirates congregate on a mother ship and then divide into smaller groups that sail out on tiny skiffs. Using potent weapons like AK-47’s and hand-propelled grenades, the Somali pirates then attack civilian ships carrying cargo through the Gulf of Aden, toward South Africa or Asia. Once they have overtaken the victim vessel, pirates typically hijack the vessel’s cargo and crewmembers. The former is often resold to willing buyers (some of which include terrorist organizations like Al Qaeda). The latter are taken to the Somali shore and kept hostage, until multi-million dollar ransoms are paid by either the hostages’ home country or the ship owners themselves. In most instances, crew members have been released unharmed, but those held hostage by the Somali pirates describe a horrific ordeal, and specify that they were held at gun point during most of their captivity. The pirates themselves routinely go unpunished: once they release the hostages, they simply return to their ships to plan yet another lucrative capture.The reasons for such a high success rate for the Somali pirates are relatively simple. First, the Somali pirates operate for the most part in the Gulf of Aden, a narrow strait of water where thousands of ships sail every year; thus, the number of potential victim vessels is higher in these waters than elsewhere. Second, because these pirates operate in such a narrow body of water, they are able to haul captured cargo and victims quickly and easily onto the Somali mainland. Thus, pirates do not have to risk capture by sailing for long stretches of time on open seas with the hijacked cargo and crewmembers on their own ships, which would be the case if they operated elsewhere. Third, Somalia is a failed state with no central government and no effective police force; thus, pirates are able to operate with impunity from Somali coastal towns. In fact, news accounts confirm that entire towns on the coast of Somalia happily live off the proceeds of piracy. Fourth, piracy is a lucrative business: reports indicate that a single seizure of a ship can earn each individual pirate up to $150,000! In a country like Somalia, where average yearly earnings amount to about $600, this amount seems more than staggering. Finally, piracy in Somalia has been thriving because of a lack of global cooperation in suppressing pirate attacks. Pirates work at a supra-national level: they attack a vessel owned by a company headquartered in country A, which flies the flag of country B and employs crewmembers coming from countries C, D, E, and F. Thus, no particular country’s interests are harmed through the pirate attack. Moreover, crewmembers typically come from the developing world, and the major maritime powers like the United States and the United Kingdom have shown relatively little interest in working toward the release of pirate-held non-native hostages. The lack of global cooperatio","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130624278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Civilians, Terrorism, and Deadly Serious Conventions","authors":"Jeremy Waldron","doi":"10.2139/SSRN.1346360","DOIUrl":"https://doi.org/10.2139/SSRN.1346360","url":null,"abstract":"This paper asks how we should regard the laws and customs of armed conflict, and specifically the rule prohibiting the targeting of civilians. What view should we take of the moral character and significance of such rules? Some philosophers have suggested that they are best regarded as useful conventions. This view is sometimes motivated by a \"deep moral critique\" of the rule protecting civilians: Jeff McMahan believes for example that the existing rules protect some who ought to be liable to attack (on account of their having voluntarily contributed to the injustice or aggression being resisted). He thinks we would be better off with a different principle of discrimination in warfare. But McMahan acknowledges that for the time being we must stick with the rules that we have. The present paper does five things: (1) it explores and takes further some of McMahan's insights about the importance of existing positive law in this area; (2) it argues that some of the features that philosophers find problematic with the rule offering blanket protection to all civilians have to do with administrability; (3) it raises some questions about whether the rule protecting civilians can really be regarded as a convention (and it argues that certainly it cannot be regarded as a \"Lewis-convention\" in a strict sense); (4) to the extent that the rule can be regarded as conventional, the paper argues that it remains a deadly serious moral rule, partly because of the circumstances of death and destruction in which it operates and which it tries to ameliorate, and partly on account of its fragility. The fifth point is the most important. (5) The rule protecting civilians does not operate in circumstances in which, apart form positive law, civilians like everyone would be liable to attack. The rule operates against a moral background in which all deliberate killing is to be regarded as murder; some deliberate killings (of combatants) are privileged in warfare; but the rule about civilians reflects the fact that this is a strictly limited privilege and that those who target civilians do not get the benefit of it. Changing our view of the default position in this way enables us to better understand the distinctive work that this rule does.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123279474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Equity 'Club Deals' and European Competition Policy: A Primer","authors":"Faysal Barrachdi","doi":"10.2139/ssrn.1137085","DOIUrl":"https://doi.org/10.2139/ssrn.1137085","url":null,"abstract":"In the US, private equity 'club deals' have raised controversy as to potential risks of price fixing by consorting private equity firms. Surprisingly in Europe, private equity has managed to slip through the notorious far-reaching hand of the European Commission. This purpose of this paper is to shed an initial light on the issue of private equity consortia and how they fit in the contemporary European competition regime. Two essential competition concerns that have been brought up (1) private equity consortia entail a Monopsony setting. In an auction, the number of bidders are restricted, as a result that the bidding prices will drop below the competition price. (2) Private Equity consortia members share sensitive information in an auction in order to rig the bidding process (bid-rigging). Both concerns are examined against the background of the current European competition law framework. The first concern is examined in the light of the contemporary E.C. Merger Control regime. The second competition concern is subjected to article 81 §1 EC. The outcome of this paper is that there are, hitherto, no genuine competition impediments by private equity consortia. It appeared that the counterfactual used in a Monoposony setting did not apply in the case of private equity consortia. Similar to the US, in Europe private equity consortia operate in a plural market. The trend of private equity consortium is often compensated by other players that also participate (strategic players). Regarding the bid-rigging concerns, there was no actual empirical data available to determine the activities in Europe. We therefore assume that these practices have not (yet) occurred in the European situation.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133903260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Treaty Design, Implementation, and Compliance Benchmarking Economic Benefit - A Framework as Applied to the Cape Town Convention","authors":"Jeffrey Wool","doi":"10.1093/ulr/17.4.633","DOIUrl":"https://doi.org/10.1093/ulr/17.4.633","url":null,"abstract":"This article provides an overview of the design and implementation of the Convention on International Interests in Mobile Equipment and its Protocol on Matters specific to Aircraft Equipment, as well as compliance with these instruments, in each case, benchmarking economic benefit. It proposes a framework designed to maximise prospects that international commercial law treaties will produce economic benefits.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133806773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Consistent: The Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea","authors":"C. Forrest, Vincent P. Cogliati-Bantz","doi":"10.7574/CJICL.02.03.120","DOIUrl":"https://doi.org/10.7574/CJICL.02.03.120","url":null,"abstract":"The Convention on the Protection of the Underwater Cultural Heritage, adopted in 2001, addresses rights, jurisdiction and duties of States in the various maritime zones set out in the United Nations Convention on the Law of the Sea. This article argues that the manner in which the Convention on the Protection of the Underwater Cultural Heritage does so is compatible and consistent with the United Nations Convention on the Law of the Sea and that there exists, in this respect, no international barrier hindering broad state participation in this important protective regime.","PeriodicalId":285786,"journal":{"name":"PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114870469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}