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Abstract

China’s free trade agreements (ftas) reveal malleability as the most striking feature. The paper analyzes the following questions: what is the trend of China’s fta approach to investment concerning malleability? Is China a rule follower, shaker or maker? How may China approach the Regional Comprehensive Economic Partnership (rcep) regarding investment? It argues first that the malleability will probably expand from investment protection to investment liberalization. China converges with deep ftas regarding investment protection and may incrementally move to investment liberalization. Second, increased malleability of China’s ftas exists in regulatory autonomy and investor-state dispute settlement. Third, China is likely to be a rule shaker in the short to medium term, and become a rule maker later if challenges are addressed. Its approach may evolve from selective adaption to selective innovation. Finally, the rcep may adopt low-level investment rules and an early harvest approach due to, inter alia, existing agreements and the nature of mega fta.

In: The Chinese Journal of Global Governance

In recent years, the un Security Council has repeatedly come under criticism for its inaction in the face of serious violations of international law. As a means to prevent further deadlocks, this article advocates the introduction of a duty to explain votes cast in the Council. In certain situations, such a duty to give reasons already exists today, although it is not implemented. We propose to extend this duty to all votes in the Security Council and to codify it in its Provisional Rules of Procedure. A comprehensive duty to give reasons has three major virtues: it increases the quality of Council decisions, it enhances legal certainty, and it improves the accountability of the Council and of its members. As opposed to structural reforms, our proposal does not necessitate amending the un Charter and thus does not depend on the consent of the Council’s permanent members.

In: International Organizations Law Review

Security Council resolutions seldom only appear only once. More often than not, they are recalled, reiterated, recognised, re-emphasised or reaffirmed in subsequent resolutions. In this article, I study some of the effects of such acts of repetition. Based on an analysis of acts of repetition in films and novels, I argue that acts of repetition are related to (a) the problem of origins, (b) the problem of authorship/authority and (c) the problem of continuity and change. Through acts of repetition, resolutions can claim that they had already begun before they were enacted, that there was something “before the beginning”. Moreover, acts of repetition help securing the continuity of the author (authority) of resolutions. Finally, acts of repetition make it possible to confirm and at the same time adapt earlier statements or rules of law.

In: Nordic Journal of International Law

States are obliged to protect the right to life by law. This article analyses the way in which states do this in the field of aviation law, maritime law and the law on migrant smuggling. A comparative description of these fields shows that states differentiate in protecting the right to life. Regular travellers benefit from extensive positive obligations to safeguard their right to life, whereas the lives of irregularised travellers are protected first and foremost by combating irregularised migration and, if the worst comes to pass, by search and rescue. The right of states to exclude aliens from their territories leads to exclusion of irregularised travellers from their main positive obligations under the right to life. This situation is analysed through Zygmunt Bauman’s notion of ‘wasted lives’. The contrast with aviation and maritime law makes clear that this situation is the outcome of human choice, which can be changed.

In: Nordic Journal of International Law

International courts have at times interpreted the customary rules on interpretation. This is interesting because what is being interpreted is: i) rules of interpretation, which sounds dangerously tautological, and ii) customary law, the interpretation of which has not been the object of critical analysis. The present paper, aims to fill this lacuna and prove that not only interpretation of customary rules of interpretation is not problematic (it is neither tautological nor impossible), but also that it is a process completely distinguishable from that of formation/identification of customary international law. Whereas the latter determines the existence of a customary rule and has to grapple with ‘practice’ and ‘opinio juris’, interpretation of customary rules concerns itself with the rules after they have come into existence. I will then demonstrate that customary rules of interpretation have consistently been interpreted in international jurisprudence and that the interpretative process bears certain similarities to treaty interpretation.

In: International Community Law Review

Abstract

An endless discussion has taken place regarding the role and function of judges ad hoc in contemporary international adjudication. In this regard, doctrine has been important through its ample contribution to the understanding of the institution of the judge ad hoc and its role and function. In fact, from these contributions it is possible to affirm the relevance of the judge ad hoc in contemporary international adjudication. Nonetheless, all these aspects have been analysed having in mind cases where both parties take part in the proceedings. Consequently, a question arises as to what is the role and function of a judge ad hoc when the appointing state fails to defend its case. This article seeks therefore to analyse the role and function of judges ad hoc in cases of partial non-appearance before the International Court of Justice.

In: The Law & Practice of International Courts and Tribunals

It is common to criticize the right to development as a confusing compilation of ideas that brings into question its progressive realisation. This article concentrates precisely on this deferring situation. However, rather than scrutinizing the reasons of failures, it aims to explore a violation-based approach to the right to development in its connection as an instrument to address development hazards. The analysis focuses on two aspects of the right to development, firstly, the entitlement to fair distribution of benefits, as the basic argument to the obligation not to cause any harm in development, and secondly, the entitlement to participation, as an instrument to prevent and combat development hazards.

In: The Chinese Journal of Global Governance

The recent years witnessed the emergence of international investment agreements (iias), such as the u.s. model bit in 2012, and more prominently, the Trans-Pacific Partnership (tpp) in 2015, which often embody provisions for state-owned enterprises (soes). The soe rules, as well as their predecessor, the oecd Guidelines on Corporate Governance of State-Owned Enterprises, aim to impose strict regulations on the soes and to exert great influence on the state-led economies. China has been seen in constant reform of its soes, and is now in the midst of negotiating a bit with, and the u.s., and a bit with the European Union. Against this backdrop, China’s soe reform will be relevant to the emerging investment rules governing soes.

In: The Chinese Journal of Global Governance