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The chapter begins by examining why the EU regulates, beginning with how the EU attempts to justify its regulatory power before exploring the main principles underlying EU regulation. We will then focus on who regulates in the EU, that is, the institutions, such as agencies and committees, that assist the EU in achieving its regulatory goals. The remaining sections will focus on the questions of how the EU regulates, distinguishing between the main legal and non-legal tools by which the EU regulates, and the judicial routes available to enforce or challenge the validity of such regulatory choices. Throughout, the focus will lie on the tension between efficiency and diversity that drives EU regulatory choices.
This is a general presentation of the book. The central thesis of the book is that the law of neutrality remains relevant in contemporary international law because of in an armed conflict, third non-participating States do not remain unaffected. There is a presentation of the basic argument in each chapter.
This chapter begins by explaining why international lawyers typically begin discussions about the sources of public international law by referencing Article 38 of the Statute of the International Court of Justice (ICJ). It then introduces treaties and custom, which are the two main sources of law in this field, before discussing other sources, namely general principles of law, decisions of international organizations, unilateral declarations, as well as judicial decisions and the teachings of international legal experts. The chapter ends with a discussion of non-binding instruments, which do not contain binding legal rules, but are nonetheless significant in the international legal field, as they contain norms that impact the behavior of states.
This chapter focuses on the rules set out in the 1969 Vienna Convention on the Law of Treaties (VCLT). The chapter begins with the concept of a treaty, before discussing treatymaking, with a particular focus on the conclusion of treaties, their entry into force, and reservations to treaties. The chapter then delves into how treaties operate -- namely, their scope of application and their interpretation. Finally, this chapter looks at the invalidity, suspension, and termination of treaties.
The starting point is the observation that some states are and have been unhappy with certain BITs that include ISDS provisions. Based on a dataset on renegotiated and terminated BITs, the authors ask if this is the case. The initial evidence indicates that states have not made a systematic effort over the years to recalibrate their BITs for the purpose of preserving more regulatory space. In fact, most renegotiations either leave ISDS provisions unchanged or render them more investor-friendly. Nevertheless, the authors find that this is beginning to change, as recent renegotiations are more likely to circumscribe ISDS in ways that preserve more state regulatory space.
International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and counter-claims about the regime's legitimacy. The result is a nuanced picture about many of the critiques lodged against the regime, whether they be bias in arbitral decision-making, close relationships between law firms and arbitrators, absence of arbitral diversity, and excessive compensation. The book comes at a time when several national and international initiatives are under way to reform international investment arbitration. The authors discuss and analyse how the regime can be reformed and ow a process of legitimation might occur.
This chapter considers why, in light of globalisation, it is necessary to move beyond the domestic sphere to consider the role of international mechanisms when seeking to achieve the twin goals of enhancing corporate decision-making surrounding fundamental rights and developing the substantive content of corporate obligations. Where existing mechanisms are not silent concerning those obligations, they either tend to read off corporate obligations directly from state obligations or to conflate impacts with violations. Most current structures are ‘soft’ and thus have limited authority to issue guidance. I make proposals for reforms to existing initiatives – including the United Nations Guiding Principles - and for establishing new institutional mechanisms that would be capable of providing relatively authoritative guidance in relation to corporate obligations. The multi-factoral model is proposed as a basis for structuring the reasoning of those mechanisms around and deepening our understanding of those obligations.
This chapter seeks to provide an analysis of how norms of public international law were received into Thai legal system through the exploration of the Thai history beginning from early Rattanakosin era to present. Thailand, (formerly known as Siam), has long been involved in making international law since early Rattanakosin period. The first well-known treaty was a treaty of comity and commerce concluded in 1826 between Kingdom of Siam and the United Kingdom of Great Britain and Ireland (Burney Treaty). Twenty nine years later, the 1855 Treaty of Friendship and Commerce between Siam and Great Britain (Bowring Treaty) was signed. With great impact that those two treaties had in the context of the Siamese, this chapter will analysis ways in which these two treaties have exerted its influenced on the its domestic legal culture. Given the fact that reception of international law into domestic legal system is largely a matter of constitutional law, Thai constitution remains silent about the issue of how customary international law can be incorporated as part of Thai law. However, the Thai domestic courts have ever dealt with this situation when they were asked to render the judgements concerning the doctrine of hot pursuit and the immunity from jurisdiction. This chapter will describe the approach that the courts employed in order to draw a conclusion of how customary international law is received into the Thai legal system.
What should be the interface of the United Nations Guiding Principles on Business and Human Rights (UNGPs) with other regulatory regimes in the business and human rights (BHR) universe? This article explores this issue in relation to two specific contexts. First, the interface of ‘social norm’ with evolving ‘legal norms’: relation of Pillar II of the UNGPs and mandatory human rights due diligence (HRDD) laws as well as parent companies’ direct duty of care for negligence. Second, the interface of ‘soft norms’ and evolving ‘hard norms’: how the UNGPs should inform the proposed BHR treaty. It is argued that legal norms should align with Pillar II only in a ‘loose manner’. They should draw from and build on the HRDD concept under Pillar II, but not be constrained by it, because a hard alignment of Pillar I laws with Pillar II could undercut the independent but complementary status of the two pillars. Moreover, the UNGPs should serve only as a ‘starting point’ and not the ‘end point’ in the evolution of other hard or soft norms in the future. Such an approach would be desirable because the UNGPs alone are unlikely to be enough to challenge or confront the existing structure of irresponsibility and inequality.
The sixth session of the United Nations (UN) open-ended intergovernmental working group (IGWG) tasked with ‘elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’1 (BHR Treaty) took place virtually during 26–30 October 2020.2
Swaine examines the relationship between domestic constitutions and treaties. He notes that states frequently seek to interpose reservations, understanding, declarations or other “treaty conditions” that seek to change the international legal effect of a treaty for the state. The chapter considers three ways in which conditions based on constitutional claims can describe the relationship between the domestic and international domains: by establishing walls, windows or doors, paying particular attention to the “reservations dialogue” described by the International Law Commission in its Seventeenth Report on Reservation to Treaties. That dialogue reveals different dispositions toward such conditions, including as between the United States, which has employed them heavily, and European states, which have been the most innovative in assessing them. While that dialogue continues to evidence the walls, or barriers, that persist between constitutions and treaties, it remains possible to renovate.
In this chapter, I begin by discussing the legal definitional differences between treaty accession and ratification. Accession differs from ratification in that states commit via accession after the treaty has already been negotiated and signed by other states. Acceding states, in general, are states that come to the treaty later and were not involved in the lengthy negotiations to craft the laws. I argue that this difference in involvement is an important distinction that has been overlooked. I argue that participating in treaty negotiation socializes states towards optimal human rights standards. Building on my argument of the importance of involvement and lack of involvement in negotiations, I focus on this history of treaty negotiations of the ICCPR treaty. I highlight how states involved in negotiations shaped the breadth and strength of the law and those not involved lacked that important contribution to the law. Then, I quantitatively test accession versus ratification for effects on human rights behavior after committing to the ICCPR and CEDAW treaties. I find that states that acceded had worse rights practices than ratifying states.
In this chapter, I review the international relation and international law literature on treaty commitment and treaty compliance highlighting the prominent arguments and findings. In doing so, I unpack the implications of the dominant and central focus on ratification. In this critical review, I recognize the many contributions of existing research and focus on how prominent studies conceptualized and operationalized "commitment" and "ratification." I argue that expanding these concepts will widen and deepen our understanding of the role international human rights plays.
In this chapter, I begin by covering the legal definitional differences between treaty signature and treaty ratification. I discuss the two-step legal nature of signing and ratifying international treaty law and present an argument of when and why signature is important. I posit that states confronting domestic legislative barriers to ratification place an importance on the act of signature, as it is easier for these states to sign than it is to ratify. I examine the case of the United States and the historic hurdles confronted ratifying human rights law. Then, I statistically test the effect of signing human rights treaties on human rights behavior on the ICCPR and CEDAW treaties. I find that for states confronting domestic legislative barriers to ratification, signature is a significant indicator of improved human rights. This finding does not hold for states without such barriers.
In the conclusion, I revisit the findings from the earlier chapters and begin to discuss how the findings apply to international law and outside of the human rights area. I address how the four different commitment types fare in the future of international law.
Few have interrogated the seeming inevitability of the Westphalian or modern system of international relations. The starting point of enquiry for this project is to question our Westphalian reality historically. It locates the birth of the modern international relations system in the death and erasure of its last viable alternative – the East Asian tribute system, which I call Eastphalia. The analytical focal point of this article is a critical case study of the 1875 Un'yō crisis between Japan and Korea. Like many other systemic changes, East Asia’s induction into Westphalian international relations is most legible retrospectively. The kind of “systems encounter” of interest to this chapter comprises a collision between two constitutive sets of interlinked conceptual and legal regimes, institutional apparatuses, and bureaucratic protocol. Often moving at a glacial pace, such systemic changes are not easily visible to a human eye in the midst of unfolding events, partly because our capacities for observation are not calibrated to appreciate changes that occur at such speeds. I consider these frustrated instances of misrecognition as the fricative encounter of two different systems of knowledge and power. I have specifically chosen a confrontation between two East Asian neighbors with a long history of relations, rather than one between an Eastern and a Western entity in order to reveal the Westphalian transition as a systemic harmonization. Such an approach rejects a triumphant modernist narrative of the so-called “West” and Western values over the East.
The infinite variety of ephemeral arbitral tribunals may well use abuse of right as a high-sounding phrase to justify their intuitions, but it takes more than that to establish a general principle of international law under the Statute of the International Court of Justice. The Court itself has never decided a case on the basis of abuse of right. In one of its judgments in 2018, its prudence with respect to such abstract notions was illustrated by refusal to accept ‘legitimate expectations’ as a general principle.
Chapter 2 conceptualizes constitutional properties in both domestic and international settings. Drawing on domestic experiences, it defines constitutions, whether written or unwritten, as a special category of institutions that provide fundamental rules (of recognition and change) as well as rules that regulate a community of members, their relations, and their rights and duties (rules of conduct). It then identifies corresponding constitutional properties in the international setting, acknowledging the limits of this analogy. While still embryonic, international rules with constitutional relevance are especially apparent in those binding treaties of public international law that are universal in intended participation, global in scope, and of substantive importance. These rules are underpinned by the principle of sovereignty, which provides for their stability and superiority. International constitutional rules define states as the prime members, organize inter–state relations in an anarchical environment by concentrating authority in circumscribed domains, and lay out rights and duties that enable collective action and set standards of appropriate behavior.
Operating against anarchy rather than hierarchy, international constitutionalization is a highly contested but unintended political process. It is a by–product of international treaty making, which is intended to create fairly specialized rules within issue–specific domains. Approximating the evolutionary pathway, this process nonetheless generates a less unified international constitutional framework than in the national setting. An examination of international constitutional developments (along the five core constitutional elements) reveals that formalization of international rules through treaties has become standard in the post–1945 period. Sovereignty has developed into the fundamental international principle, extending the circle of members to include newly emerging states. Relations among states have deepened to enhance inter–state cooperation, and rights and duties have further reproduced inequalities among states. The chapter concludes by stressing the inadvertent constitutional consequences of international treaty making, which leads to the constitutionalization trap.
The elusive ideal of a world constitution is unlikely to be realized any time soon – yet important steps in that direction are happening in world politics. Milewicz argues that international constitutionalization has gathered steam as an unintended by-product of international treaty making in the post-war period. This process is driven by the logic of democratic power, whereby states that are both democratic and powerful – democratic powers – are the strongest promoters of rule-based cooperation. Not realizing the inadvertent and long-term effects of the specialized rules they design, states fall into a constitutionalization trap that is hard to escape as it conforms with their interests and values. Milewicz's analysis will appeal to students and scholars of International Relations and International Law, interested in international cooperation, as well as institutional and constitutional theory and practice.