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1
Zvieriev, Ie O. "Teoh’s case on legitimate expectations in interpretation of international treaties. Lessons for Ukraine". INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, n. 12 (2021): 287–92. http://dx.doi.org/10.33663/2524-017x-2021-12-48.
Testo completoAbstract (sommario):
The article provides a detailed overview of a famous Teoh’s case decided by High Court of Australia in 1995, focusing mainly on the issue of legal interpretation of legitimate expectations arising from ratified international treaties not implemented into the domestic legal system. The abovementioned case has been considered a novel approach of the court acting in dualist state. This approach was, however not upheld in further jurisprudence of the Australian High Court namely due to quite harsh response of administrative bodies and subsequent legislation which has further been adopted to specifically address this issue by Australian parliament. This does not, however deny the case’s significance in terms of scholarly attention to interpretation issues it has raised. Ukraine can view this case as an example as it does have its own problems with the status and interpretation of international treaties in domestic legal system. Unlike common law countries adhering to dualist approach to international law reception, Ukrainian Constitution recognizes ratified international treaties to be part of domestic legislation automatically, however it is silent on the status of these treaties in Ukrainian domestic legislation which at times causes certain problems with their interpretation and implementation. The article makes a try to solve the abovementioned issues by referring future interpreters to an alternative approach of international treaties’ interpretation to Article 8 of the Constitution of Ukraine dealing with the rule of law principle. It is the author’s position stipulated in the article that applying Article 8 in terms of the interpretation of international treaties in Ukrainian domestic law enriches the argumentation and shall be viewed as primary source of application to the issue. Keywords: international treaties, interpretation, legitimate expectations, priority of international treaties, Australia, migration law, children’s rights.
2
Sheehy, Jeffrey. "Law and Diplomacy, Sovereignty and Consent". Asia-Pacific Journal of Ocean Law and Policy 6, n. 1 (24 giugno 2021): 5–39. http://dx.doi.org/10.1163/24519391-06010002.
Testo completoAbstract (sommario):
Abstract This article reflects on the first-ever compulsory conciliation under the law of the sea and its significance to international law and diplomacy. The conditions for ending the dispute between Timor-Leste and Australia were only created through a genuine combination of both law and diplomacy as facilitated by an expert commission. Through successive milestones, the United Nations Convention on the Law of the Sea (unclos) conciliation framework and the conciliation commission itself, was able to successfully shift the reluctant State (Australia) from resistance, to engagement, and ultimately, to resolution. The conciliation also showed how Timor-Leste’s sovereign interpretation of maritime rights under international law was a compelling argument in the context of historical factors and its self-determination. Ultimately, a treaty was agreed through the conciliation despite competing views of international law’s relationship to diplomacy and indeed on maritime boundary delimitation methodology itself. A reflection on this triumph of the liberal international order is beneficial for both Timor-Leste and Australia as they seek further cooperation under the new treaty, and for other States facing entrenched disputes as well.
3
Tetley, William. "Canadian Interpretation and Construction of Maritime Conventions". Revue générale de droit 22, n. 1 (21 marzo 2019): 109–28. http://dx.doi.org/10.7202/1058170ar.
Testo completoAbstract (sommario):
In this article, the author first describes the essentially civilian nature and origin of maritime law in the United Kingdom, the United States and Canada, a point unfortunately overlooked in the Supreme Court of Canada’s decision in the Buenos Aires Maru case [1986] 1 S.C.R. 752, but recognized in the judgement of the same Court in Chartwell Shipping Ltd v. Q.N.S. Paper, [1989] 2 S.C.R. 683. The article touches briefly on the federal jurisdiction over maritime law in Canada, the dual jurisdiction of the Federal Court and the superior courts of the provinces in maritime matters and the mixed civilian / common law system in Quebec. Consideration is then given to the Constitution Act, 1867, as interpreted by the much-criticized Labour Conventions decision of the Privy Council [1937] A.C. 326. The decision held that although the power to conclude international treaties and conventions in Canada is vested in the federal government alone, the enactment of the domestic legislation required to secure the implementation of such international agreements is not an exclusively federal matter, but may be a question of either federal or provincial competence, depending on the subject matter of the treaty or convention concerned. The author then reviews the principal rules of statutory interpretation which are provided for by the Vienna Convention on the Law of Treaties of 1969. He points out that, notwithstanding Canada’s ratification of this Convention in 1970, Canadian courts still tend to apply traditional (and often narrow) techniques of statutory interpretation when called upon to construe treaty texts, rather than keeping the goals of the agreement and intent of the parties in view, as the Vienna Convention requires. He indicates, however, a more recent judicial trend towards a more liberal methodology, as evidenced in decisions like R. v. Palacios, (1984) 45 O.R. (2d) 269 (Ont. C.A.) The article concludes with a brief overview of the major statutory interpretation rules applied by Canadian courts in construing local laws and international agreements and some aids to such interpretation. Professor Tetley, as a last tribute, applauds what he sees to be the slowly emerging "general consensus" on statutory and treaty interpretation in Canada.
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Brown, Rebecca. "Quarantine Island: Australia’s Health Policy and Its Construction of International Law". Australian Year Book of International Law Online 41, n. 1 (23 ottobre 2023): 299–343. http://dx.doi.org/10.1163/26660229-04101020.
Testo completoAbstract (sommario):
Abstract This article explores the development of Australia’s policy approach towards communicable disease, both domestically and internationally. Drawing on archival records, it considers the methods used by federal and state governments to manage disease in Australia over time, analysing the key beliefs and priorities held by successive governments, and how these reflect Australia’s particular character and history. Against these domestic concerns, the article interrogates Australia’s approach to global health governance, with a particular focus on the state’s contributions to the drafting of major international health instruments on communicable disease. This analysis reveals the idiosyncratic nature of Australia’s health policy and the resulting impact on Australia’s contributions to the international legal system. It shows that Australia’s approach has consistently relied on the creation and preservation of an impermeable national border. This policy reflects an institutionalised belief, held continually since the early colonial period, that disease must be fully eradicated, and that this is best effected through taking advantage of the country’s geographic isolation. Domestically, this conception of disease control results in the adoption of strict quarantine requirements, immigration restrictions and broad discretionary powers regarding the entry of people and goods, while in the international context, Australia supports norms that facilitate its reification of its border. Accordingly, the article contextualises Australia’s health policy across four time periods of global health governance: the first sanitary conferences of the 19th and early-20th centuries, the post-World War II creation of the World Health Organization, the International Health Regulations 2005 revision project, and those Regulations’ operation before and during the COVID-19 pandemic. This article’s findings reveal the intrinsic connection between the unique domestic concerns of states and their approaches to international negotiations, which stymies the ability to generate effective cooperation globally. It clarifies this relationship and invites reflection on the resulting obstacles to international law’s progressive development.
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Nottage, Luke. "International Commercial Arbitration in Australia: Whats New and Whats Next?" Journal of International Arbitration 30, Issue 5 (1 ottobre 2013): 465–94. http://dx.doi.org/10.54648/joia2013031.
Testo completoAbstract (sommario):
This article argues that not much has changed since Australia amended in 2010 its International Arbitration Act, incorporating most of the 2006 revisions to the UNCITRAL Model Law as well as other reforms aimed at positioning Australia as a plausible arbitral venue in the Asia-Pacific region. There is no evidence yet of a broader 'cultural reform' that would make international arbitration speedier and more cost-effective - as urged by Australia's then Attorney-General when introducing the 2010 amendments. In fact, the article first outlines one ongoing cross-border dispute that has engendered at least five sets of proceedings, including a (thankfully unsuccessful) constitutional challenge to the Model Law regime. It then compares case disposition statistics for other Federal Court cases decided three years before and after the amendments, finding only minor differences.1 The article suggests a range of further revisions needed for the Act that emerge from the dispute including the constitutional challenge, as well as other topics for reform including measures to encourage a more internationalist interpretation of instruments such as the Model Law. Continuous improvement and continuous vigilance are needed for Australia to keep developing distinctive expertise in this complex and evolving field of law and practice.
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Kee, Christopher, e Stephen Barrett-White. "Enforcement of Arbitral Awards where the Seat of the Arbitration is Australia — How the Eisenwerk Decision Might Still be a Sleeping Assassin". Journal of International Arbitration 24, Issue 5 (1 ottobre 2007): 515–28. http://dx.doi.org/10.54648/joia2007038.
Testo completoAbstract (sommario):
This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.
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Augustyniak, Łukasz. "Keeping up Appearances: May the Law of International Responsibility be construed through the ‘Comparative Law’ Methods?" Polish Review of International and European Law 10, n. 1 (21 aprile 2021): 43–74. http://dx.doi.org/10.21697/priel.2021.10.1.02.
Testo completoAbstract (sommario):
The article analyses the possible employment of comparative law methodology for the codification, progressive development and the interpretation of the law of international responsibility. It argues that ‘comparative law’ methodology should be used during this process as it would enhance the legitimacy and understanding of the work of the International Law Commission. The use of legal English involves the reference to common law ideas whether it is consciously admitted or not by the users of legal rules drafted in that language. This concept is presented by the reference to the way the language is used in the process of creating and interpreting rules in the area of international responsibility. It also plays an important role during the construction of multicultural internationallegal concepts within that field. Last but not least, the use of ‘comparative law’ seems to be an indispensable apparatus in the codification process in the area of international responsibility consisting of general principles of law and customary law. The ‘comparative law’ methods are invaluable tools for all those who take part in creation of international responsibility rules, as well as their application and interpretation.
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Anderssen, Diana. "Indigenous Australia and the pre-legal society in HLA Hart’s The Concept of Law". Journal of Legal Philosophy 48, n. 1 (31 maggio 2023): 1–37. http://dx.doi.org/10.4337/jlp.2023.01.01.
Testo completoAbstract (sommario):
The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.
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van der Wilt, Harmen. "Domestic Courts' Contribution to the Development of International Criminal Law: Some Reflections". Israel Law Review 46, n. 2 (14 giugno 2013): 207–31. http://dx.doi.org/10.1017/s0021223713000046.
Testo completoAbstract (sommario):
This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, have they corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing and refining international criminal law?Four different approaches, reflecting the position of domestic courts vis à vis the standards and case law of international criminal tribunals, are identified and analysed: strict compliance, antagonism, judicial construction, and ‘casuistry’. The author concludes that the most important contribution of domestic courts to the development of international criminal law consists of further interpretation of open-ended norms. While this is obviously inherent in the process of ‘judicial creativity’, the feature is reinforced by the non-hierarchical nature of international criminal law. As a consequence, international criminal tribunals lack the power and authority to impose their interpretation of international criminal law on domestic courts. The risk of fragmentation is mitigated, however, by the nature of criminal law, which requires strict and clear standards, and by the increasing interactions between courts at different levels.
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Bederman, David J. "Medellín’s New Paradigm for Treaty Interpretation". American Journal of International Law 102, n. 3 (luglio 2008): 529–40. http://dx.doi.org/10.2307/20456641.
Testo completoAbstract (sommario):
Much of the scholarly attention given to the U.S. Supreme Court’s March 2008 decision in Medellín v. Texas has focused on the Court’s supposed ruling as to the presumptive nonself-execution of international agreements entered into by the United States, and the power of the president to implement such agreements without an act of Congress. Less heed has been paid to the impact and implications of the Court’s reasoning and analysis in interpreting the four international agreements at issue in the case: the 1945 United Nations Charter and Statute of the International Court of Justice, and the 1963 Vienna Convention on Consular Relations and its Optional Protocol. Although the Court’s analysis of the self-execution questions is beyond the scope of my contribution to this Agora, I acknowledge that the jurisprudence of treaty interpretation fits uncomfortably with the calculus of an international agreement’s selfexecution into U.S. law. And while it may seem obscure to view the Medellín decision through the lens of treaty interpretation, that is what truly brings its importance into focus, so that its impact may ultimately be seen as clarifying the established norms of U.S. foreign relations law, particularly in the selection of appropriate sources for treaty construction and the deference to be granted to various foreign relations actors and institutions.
11
Kreß, Claus. "The Crime of Genocide under International Law". International Criminal Law Review 6, n. 4 (2006): 461–502. http://dx.doi.org/10.1163/157181206778992287.
Testo completoAbstract (sommario):
AbstractThe article sets out the nature, the history and the general structure of the crime of genocide and provides a comprehensive analytical commentary of the elements of the crime. Against the current trend of the international case law to expand the boundaries of the definition at the risk of the crime's trivialization this article develops a strict construction even if the results may appear politically unattractive. The article starts from the premise that, for all practical purposes, the occurrence of a crime of genocide entails a collective destructive act. This collective act forms the objective point of reference of the required intent to destroy a protected group in whole or in part; the vain hope of an individual to contribute, by way of commission of one of the underlying offences, to the destruction of a group falls short of this concept of a realistic genocidal intent. The article rejects a purely subjective definition of the various categories of protected groups and cautions against the conversion of the crime of genocide into an unspecific crime of massive human rights violations based on discriminatory motive. At the same time, it is submitted that not every campaign of so-called "ethnical cleansing" is to be considered as the infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part. Regarding the mental elements of the crime it is held that, contrary to a widespread belief, it is the interpretation of the terms "destroy" and above all "part" (of a group) that determines the general scope of the crime to a much greater extent than the construction of the word "intent". The predominant narrow interpretation of the word "destroy" in its physical and biological meaning is supported while it is noted that the most recent ICTY case law reveals an inclination of re-introducing the concept of social group destruction through the backdoor of the words "in part". The extension of those words to comparatively small regional communities is probably the most conspicuous aspect of the general trend to over-expand the crime's definition. Conversely, the reference to the particularly heinous character of genocide is not good enough an argument to accept the many flaws of the prevailing purpose-based approach to the word "intent". The article suggests instead that the word "intent" means that the perpetrator commits the prohibited act with the knowledge to further thereby a campaign targeting members of a protected group with the realistic goal of destroying that group in whole or in part.
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Сафаралиева, Азиза. "The importance of legal translation in international law". Арабский язык в эпоху глобализации: инновационные подходы и методы обучения 1, n. 1 (29 dicembre 2023): 522–25. http://dx.doi.org/10.47689/atgd:iyom-vol1-iss1-pp522-525-id28633.
Testo completoAbstract (sommario):
This article examines legal translation and its role in the interpretation of international legal documents from both theoretical and practical perspectives. Regarding the theoretical aspects, legal translation from the point of view of civil law and common law systems, the status of legal translation in international law, the principles of plain language, and the equivalence of legal words are discussed. Accordingly, the interrelationship between legal translation and interpretation of international legal documents is considered
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Lazutin, L. A., e M. A. Likhachev. "Human Rights: Integrity of the Russian and International Law, Competition of Courts Decisions". Moscow Journal of International Law, n. 3 (9 ottobre 2021): 31–44. http://dx.doi.org/10.24833/0869-0049-2021-3-31-44.
Testo completoAbstract (sommario):
INTRODUCTION. The amendments to the Russian Constitution 2020 challenged de novo the international law prevalence and led the Russia’s way to find it own perception of international law. Although the amendments did not introduce drastically substantive modifications of the international law modus operandi in the national legal system nevertheless they shifted the constitutional focus. The former one was built on the presumption of the juridical consistency of the constitutional order and Russia’s international commitments. Today there’s the a priori allegation of possible conflicts between requirements of the Constitution and judgment of international courts.MATERIALS AND METHODS. The paper comprises short historical analysis of the internationally meaningful rules of the Constitution in its comparison to the current legal situation in Russia. Rather superficial but illustrative juridical overview of the relevant constitutional provisions with their domestic legal counterparts demonstrates the significance and practical efficiency of the concomitant interpretation of the constitutional rules and Russia’s international obligations.RESEARCH RESULTS. Such a shift paradigmatically is still pending new interpretation of the constitutional fundamentals. At least they need different construction to be concomitant to the refusal mechanism (as regards international judgments). Still unchanged verbatim the constitutional fundamentals provide for proliferated mechanism of the human rights protection under international las with in domestic order and still require the concordant interpretation of the international commitments and constitutional rules.DISCUSSION AND CONCLUSIONS. The modified constitutional landscape shifted drastically the international law priority in the Russian legal system. Although the international law leaves to the State’s choice to determine internally the status of its international commitments the constitutional fundamentals (left untouched verbatim) still require international law priority. The constitutionally enclosed human right protection mechanism emphasizes such priority.
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Gözlügöl, Alperen Afşin. "The Effects of Umbrella Clauses: Their Relevance in Interpretation and in Practice". Journal of World Investment & Trade 21, n. 4 (10 agosto 2020): 558–94. http://dx.doi.org/10.1163/22119000-12340184.
Testo completoAbstract (sommario):
Abstract Umbrella clauses have sparked one of the great debates in international investment law as regards their proper construction. This article argues that a particular line of reasoning and interpretation appears to be unduly focusing on the effects of such clauses in the process of construing them. In other words, what seems to occur in the interpretation of umbrella clauses is that some tribunals, frightened by the far-reaching consequences, construe such clauses more narrowly. I call this phenomenon ‘adverse effects analysis’ and demonstrate that it is inconsistent with the proper construction of umbrella clauses in accordance with the rules of interpretation in the Vienna Convention on the Law of Treaties (VCLT). In this course, the effects of umbrella clauses in practice are also put forward along with an analysis of them under ‘manifest absurdity or unreasonableness test’ pursuant to Article 32(b) of VCLT.
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Alam, Md Habib. "Application of CISG in Arbitration: A Combined Procedure or Parallel Procedure?" International Journal of Community Service & Engagement 2, n. 1 (2 marzo 2021): 50–53. http://dx.doi.org/10.47747/ijcse.v2i1.192.
Testo completoAbstract (sommario):
CISG and arbitration are connected with each other. They may work through a combined or parallel procedure. Globalization of trade desires uniformity in trade. For uniformity of trade, we require uniform law. The arbitration may not work to make it uniform, but choosing any uniform law (i.e. CISG), it may lead to deal a particular arbitration in the international standard. The international standard may be maintained while considering the uniform law. Choosing uniform law (i.e. CISG), it may minimize the risk of wrong interpretation and put the arbitral parties on “equal footing”. Parties may consider CISG as the applicable law in their arbitral agreements. As of 13 February 2021, 94 states signed the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). The frontline trading states like the USA, Australia, Israel, Canada, China, Germany, France, Russia, and Japan are contracting states of CISG. This research emphasizes providing guidelines as to how parties may apply CISG into their arbitral agreements by maintaining the international standard.
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SADAT, LEILA NADYA, e JARROD M. JOLLY. "Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25's Rorschach Blot". Leiden Journal of International Law 27, n. 3 (24 luglio 2014): 755–88. http://dx.doi.org/10.1017/s0922156514000296.
Testo completoAbstract (sommario):
AbstractThis article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.
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KIKIMBAYEV, Meiram, Kulshat MEDEUOVA e Adiya RAMAZANOVA. "MOSQUES IN POST-SOVIET KAZAKHSTAN: DISCOURSE INTERPRETATION AND REGULATORY PRACTICES". CENTRAL ASIA AND THE CAUCASUS 22, n. 4 (17 dicembre 2021): 126–39. http://dx.doi.org/10.37178/ca-c.21.4.12.
Testo completoAbstract (sommario):
The authors have analyzed the dynamics of the growth of number of mosques built by religious associations in post-Soviet Kazakhstan and noted a transition from their unregulated and chaotic construction (proliferation) to their precise association with specific maddhabs, and their construction norms conceptualized by religious institutions represented by the Spiritual Administration of the Muslims of Kazakhstan (DUMK). The types of cultic facilities and the actors are discussed and ranked according to the type of their involvement and partnership. We should note that the participation of various actors adds weight to the status of mosques as important public facilities. The authors have paid particular attention to the religious communities’ revised registration realized under the Law of the RK on Religious Activities and Religious Associations of 2011, which optimized the religious space, consolidated the positions of traditional Islam and, hence, standardized the rules related to mosque construction. Keywords: mosque, public space, post-Soviet realities, re-Islamization, re-appropriation, “mosque diplomacy,” religious communities, traditional Islam, DUMK.
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Nugmanova, A. N. "Implementation of Human Rights in International Investment Legal Relations: Selected Issues of Dispute Resolution Practice". Actual Problems of Russian Law 18, n. 8 (18 luglio 2023): 148–59. http://dx.doi.org/10.17803/1994-1471.2023.153.8.148-159.
Testo completoAbstract (sommario):
The paper covers certain provisions of a comprehensive study of the implementation of human rights in international investment legal relations. The author attempted to reveal the relevance of the ongoing research and assess the significance of the interaction between international investment law and international human rights law in modern realities. The paper reveals the main options for the interaction of international investment law and international human rights law, both in material and procedural aspects. The author focuses on the practice of resolving international investment disputes in relation to the actions of the host state with reference to the protection of human rights as one of the options for manifesting the relationship between the two branches of public international law. The author reveals the existing patterns in the practice of resolving investment disputes. As a key conclusion, the author puts forward the idea that it is possible to generalize the results of a harmonious interpretation (construction) and the formation of an appropriate unified legal framework for the norms of international public law with a view to its subsequent harmonious application.
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Du Plessis, Izelle. "Double Taxation Treaty Interpretation: Lessons from a Case Down Under". Potchefstroom Electronic Law Journal 23 (8 dicembre 2020): 1–22. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a6840.
Testo completoAbstract (sommario):
In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties.
It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.
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Williams, Peter John, e Angelique Mary Williams. "Sustainability and planning law in Australia: achievements and challenges". International Journal of Law in the Built Environment 8, n. 3 (10 ottobre 2016): 226–42. http://dx.doi.org/10.1108/ijlbe-06-2016-0008.
Testo completoAbstract (sommario):
Purpose Since 1992, all levels of government in Australia have pursued a policy of ecologically sustainable development (ESD). Crafted in response to the World Commission on Environment and Development 1987 report Our Common Future (the Brundtland Report), the principles contained in the Australian Government’s National Strategy for Ecologically Sustainable Development have been progressively implemented at the national, state and local levels of government. The purpose of this paper is not only to track the implementation of these principles, through both policy and law in Australia, but also to highlight recent challenges to the concept of ESD using the state of New South Wales (NSW) as a case study. Design/methodology/approach Beginning with a description of the Australian concept of ESD, this paper first examines the implementation of ESD through both policy and legislation at the national level. The state of NSW is then selected for more detailed assessment, with examples of key State government legislation and court decisions considered. Equal emphasis is placed on both the achievements in ESD policy development and implementation through legislation, statutory planning procedures and litigation, as well as the challenges that have confronted the pursuit of ESD in NSW. Findings Since its introduction in 1992, the concept of ESD has matured into a key guiding principle for development and environmental decision-making in Australia. However, in recent years, ESD has been the target of significant challenge by some areas of government. Noteworthy among these challenges has been a failed attempt by the NSW Government to introduce new planning legislation which sought to replace ESD with the arguably weaker concept of “sustainable development”. Apparent from this episode is strong community and institutional support for robust sustainability provisions “manifested through ESD” within that State’s statutory planning system. Originality/value This paper provides an overview of the implementation of ESD in Australia within both a broader international context of sustainable development and specific instances of domestic interpretation and application. It extends this analysis by examining recent public policy attempts to reposition sustainability in the context of statutory planning system reform in NSW.
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Afkhazava, Durmishkhan Givievich. "International Court of Justice and law on the use of force". Международное право, n. 2 (febbraio 2020): 38–55. http://dx.doi.org/10.25136/2644-5514.2020.2.32500.
Testo completoAbstract (sommario):
The goal of this research is the determination of practice on interpretation of law on the use of force by International Court of Justice. The article explores four cases: Corfu Channel, military activities in Nicaragua and against Nicaragua, oil platforms (the Islamic Republic of Iran against the United States), and armed activities on the territory of Congo (the Democratic Republic of Congo against Uganda). The author analyzes the question of legitimacy of the use of force: conclusion on nuclear weapon, and conclusion on the question of construction of the Wall. The article applies the method of synthesis for determination of general approach of the court; as well as comparative method to reflect the development of case law in the sphere of the use of force. The author advances an ides on establishment of legal institution on the use of force. The substantiation for this is traced in the decisions of International Court of Justice. Presence of the full-fledged and universal institution on the use of force would contribute to decrease of controversial grounds for the creation of new doctrines.
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Forsyth, Anthony. "Industrial legislation in Australia in 2016". Journal of Industrial Relations 59, n. 3 (22 maggio 2017): 323–39. http://dx.doi.org/10.1177/0022185617693876.
Testo completoAbstract (sommario):
After three years of trying, the Coalition Government finally succeeded in obtaining passage of several key workplace reform statutes in 2016. This followed the outcome of the federal election held on 2 July, delivering the Government a differently composed Senate and a new opportunity to secure support for its legislative program. This review article explains key aspects of the industrial legislation passed by federal Parliament in 2016, including statutes abolishing the specialist road transport industry tribunal, re-establishing the Howard-era regulator for the construction industry, and setting up a new agency to enforce enhanced governance and accountability standards for registered unions and employer organisations. Legislative amendments aimed at resolving the long-running bargaining dispute in Victoria’s Country Fire Authority are also considered, along with the Government’s muted response to the 2015 Productivity Commission review of the workplace relations framework. The article then examines developments at state level, including a major rewrite of Queensland’s industrial legislation, structural changes in New South Wales, and proposed changes to long service leave and the labour hire sector in Victoria. It concludes by noting the irony that just as the federal Government has tasted some success after a long legislative ‘dry spell’, its labour law reform agenda appears limited and piecemeal.
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Moreno-Lax, Violeta, Daniel Ghezelbash e Natalie Klein. "Between life, security and rights: Framing the interdiction of ‘boat migrants’ in the Central Mediterranean and Australia". Leiden Journal of International Law 32, n. 4 (17 settembre 2019): 715–40. http://dx.doi.org/10.1017/s0922156519000451.
Testo completoAbstract (sommario):
AbstractThis article sets out two case studies to examine the evolving reality of ‘boat migration’ and the intersecting legal frameworks at play. Our analysis takes a systemic integration approach to reflect on the complex dynamics underpinning responses to the phenomenon in Australia and the Central Mediterranean. The regime that governments purport to act under in any given instance reflects the way they choose to frame incidents and possibly exploit legal gaps in, or contested interpretations of, the relevant rules. The ‘closed ports’ strategy adopted by Italy and Malta against the MV Lifeline and the detention-at-sea policy pursued by Australia are investigated from the competing perspectives of what we call the ‘security lens’ and the ‘humanitarian lens’ to demonstrate how a good faith interpretation of the applicable (if apparently conflicting and overlapping) norms can (and should) be mobilized to save lives, and how that goal is unduly undercut when security concerns trump humanitarian interests.
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Kammerhofer, Jörg. "Taking the Rules of Interpretation Seriously, but Not Literally? A Theoretical Reconstruction of Orthodox Dogma". Nordic Journal of International Law 86, n. 2 (19 giugno 2017): 125–50. http://dx.doi.org/10.1163/15718107-08602005.
Testo completoAbstract (sommario):
For international lawyers, the Vienna Convention rules of treaty interpretation are ‘the only game in town’; they have had the whip-hand for several decades now. Yet is this belief in the power(s) of the Vienna rules justified? Behind the claim that they are the law lies a theoretically much more interesting, yet fundamentally unsustainable second argument. It is that rules of interpretation are somehow independent of – and replace – the legal epistemic process, the ascertainment of the law’s meaning-content. These rules are seen as serving a different function, i.e. to regulate the process of the applicative construction of meaning by the organs of international law. They are doctrine’s attempt to control how treaties are construed by tribunals. However, as a matter of legal theory there are severe limits to what such rules can do. Given these limits, we will reconstruct the possible meanings and uses of the Vienna Convention rules.
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FEDCHENKO, YU V. "LEGAL NATURE OF INTERNATIONAL JURISDICTION AGREEMENTS". Ser-11_2023 64, n. 5, 2023 (20 giugno 2024): 168–82. http://dx.doi.org/10.55959/msu0130-0113-11-64-5-10.
Testo completoAbstract (sommario):
The problem of the legal nature of international jurisdiction agreements is directly related to the issue of their regulation in the national legislation, since, depending on the material or procedural quali cations of this institution, particular regulatory requirements for such agreements are to be established. This article analyzes various approaches to the de nition of the legal nature and, consequently, the regulation of international jurisdiction agreements on the example of English, German and Russian legislation. The material quali cation chosen in English law means a more exible regulation of the agreements: the possibility to conclude an oral jurisdiction agreement as well as the possibility for one party to use remedies (antisuit injunctions, damages) in case of violation of the jurisdiction agreement by the other party. The procedural quali cation of jurisdiction agreements in German law presupposes the establishment of stricter formal requirements (requirements for the subjects of agreements, form (written or oral with written con rmation), time of the conclusion of the jurisdiction agreement). In Russian law, this issue has not been nally resolved and is debatable, so that the legislative 181regulation of agreements on jurisdiction is generally fragmentary and is replaced by the construction and interpretation of norms in judicial practice.
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Ponomareva, Daria, e Aleksey Kubyshkin. "Genetic discrimination in foreign legislation and law-enforcement practice". SHS Web of Conferences 134 (2022): 00071. http://dx.doi.org/10.1051/shsconf/202213400071.
Testo completoAbstract (sommario):
The article is devoted to the problematic issues of legal regulation of public relations arising from protection against discrimination based on genetic status in the legislation and law enforcement practice of a number of foreign countries (Australia, Canada, the United States of America). The authors analyzed the concept of discrimination based on genetic status, formulated in the legal acts of states; an attempt was made to present their own interpretation of this term. The article provides an overview of the international legal framework for the regulation of public relations arising from countering discrimination based on genetic status, as well as key acts of leading foreign jurisdictions. The authors paid special attention to the analysis of law enforcement (judicial) practice, illustrating the problems associated with genetic discrimination, the main directions of the development of such practice are highlighted. In conclusion, the authors contemplate on the advisability of implementing relevant foreign experience into the Russian legal system
27
Kudratov, Manuchehr, e Denis A. Pechegin. "Towards the German Doctrine Interpretation and Criticism of the Construct of Comparative Criminal Law Studies". Russian Journal of Legal Studies (Moscow) 8, n. 4 (18 gennaio 2022): 55–62. http://dx.doi.org/10.17816/rjls88179.
Testo completoAbstract (sommario):
It is difficult to deny the usefulness of the method of comparative jurisprudence. Studying the foreign experience of jurisprudence makes it possible to penetrate deeper into understanding the object of research and, accordingly, to approach the solution of a particular doctrinal problem, including taking into account the latest doctrinal approaches. However, do we realize how correctly this method is or is not used by scientists and researchers in reality? Do we see the grounds for a conclusion presented in any foreign publication made based on its conclusions that can claim the status of an objective experience, not subjective or descriptive knowledge?
The article presents an objective and scientific review of the interpretation and criticism of the construction of comparative legal studies from well-known and respected scientists and various directors of the Institute of International Law and International Criminal Law Max Planck (Freiburg, Germany).
This goal is achieved by solving tasks such as analyzing the functions, methods, and theoretical concepts of comparative criminal law and comparing them to one another. It also identifies negative aspects of a superficial attitude to this method of conducting scientific research, which aspects have consistently been paid close attention by eminent German scientists.
Research methods: method of comparative and historical analysis, method of system analysis, formal-logical method.
The results of the study: the fundamentals of the German legal doctrine of the construction of comparative legal studies on the example of the branch of criminal law are summarized, the actual problems of the comparative method of analysis are outlined, and specific criteria are presented based on which it is possible confidently to assert the scientific nature of the obtained comparative legal knowledge.
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Kinsella, Helen M., e Giovanni Mantilla. "Contestation before Compliance: History, Politics, and Power in International Humanitarian Law". International Studies Quarterly 64, n. 3 (4 giugno 2020): 649–56. http://dx.doi.org/10.1093/isq/sqaa032.
Testo completoAbstract (sommario):
Abstract Despite the common reference to international humanitarian law (IHL) in the discourse and practice of international politics, international relations (IR) scholarship has yet to consistently engage in an analysis of IHL that extends beyond the relatively narrow specifications of its regulative and strategic effects. In this theory note, we argue that this prevailing focus leaves the discipline with an impoverished understanding of IHL and its operation in international politics. We propose that the study of IHL should be expanded through a deeper engagement with the law's historical development, the politics informing its codification and interpretation, and its multiple potential effects beyond compliance. This accomplishes three things. First, it corrects for IR's predominantly ahistorical approach to evaluating both IHL and compliance, revealing the complicated, contested, and productive construction of some of IHL's core legal concepts and rules. Second, our approach illuminates how IR's privileging of civilian targeting requires analytical connection to other rules such as proportionality and military necessity, none of which can be individually assessed and each of which remain open to debate. Third, we provide new resources for analyzing and understanding IHL and its contribution to “world making and world ordering.”
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Rahayu, Nadia Saidah, Najma Imtinan Rasaf, Ghana Aldila Septiani e Penny Respati Yurisa. "Policy on Maritime Border Disputes Between Indonesia and Australia: Stephen M. Walt’s Neorealism Perspective". Journal of Islamic World and Politics 7, n. 1 (30 giugno 2023): 80–93. http://dx.doi.org/10.18196/jiwp.v7i1.8.
Testo completoAbstract (sommario):
Indonesia is a maritime country with an Exclusive Economic Zone (EEZ) covering an area of 7.81 million square kilometers. Consequently, Indonesia has numerous disputes with neighboring countries regarding maritime boundaries in the EEZ, particularly with Australia. Several incidents have strained the relationship between the two countries. For example, from December 2013 to January 2014, there were six instances of the Australian Navy unintentionally violating Indonesian waters during border operations. Other issues include illegal fishing, human trafficking, illegal transshipment, and, more recently, an Australian warship's breach of Indonesian waters on September 8, 2022. Maritime boundary disputes occur when two or more countries have overlapping claims in the same maritime territory. These disputes can be caused by differences in the interpretation of international law, conflicting economic interests, historical or cultural claims, or geopolitical tensions between the involved nations. Maritime boundary disputes can be resolved through negotiations, international arbitration, mediation, or legal processes. In this case, the neorealism theory, developed by Stephen M. Walt, provides an understanding of international relations, changes in power structures, conflicts, cooperation among nations, and the factors influencing foreign policies. By applying Stephen M. Walt's neorealism theory, this study analyzes the policy frameworks of Indonesia and Australia in managing their international relations and the factors that have led to the disputes between the two.
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Weller, Penny. "Human Rights and Social Justice: the Convention on the Rights of Persons with Disabilities and the quiet revolution in international law". Public Space: The Journal of Law and Social Justice 4 (28 novembre 2009): 17. http://dx.doi.org/10.5130/psjlsj.v4i0.1167.
Testo completoAbstract (sommario):
On the 60th anniversary of the Universal Declaration of the Human Rights (UDHR) the Commonwealth Attorney General announced a national public consultation concerning the need for better human rights protection in Australia and the viability of a federal human rights charter. Whether or not the anticipated Charter includes social, economic and cultural rights is directly relevant to questions of social justice in Australia. This paper argues that the legislative acknowledgment of civil and political rights alone will not adequately address the human rights problems that are experienced in Australia. The reluctance to include economic, social and cultural rights in human rights legislation stems from the historical construction of an artificial distinction between civil and political rights, and economic social and cultural rights. This distinction was articulated and embedded in law with the translation of the UDHR into binding international law. It has been accepted and replicated in judicial consideration of the application on human rights legislation at the domestic level. The distinction between the two forms of rights underpins a general ambivalence about the capacity of human rights legislation to deliver social justice and echoes a critical tradition in legal philosophy that cautions against the reification of law. Coming into force early in the 21st century, the Convention of the Rights of Persons with Disabilities illustrates the effort of the international community to recognize and eschew the burden of the false dichotomy between civil and political and economic, social and cultural rights. Acknowledging the indivisible, interdependent and indissociable nature of human rights in Australia is a crucial step toward achieving human rights based social justice.
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Bouvier, Gwen, e Zhonghua Wu. "A sociosemiotic interpretation of cultural heritage in UNESCO legal instruments: a corpus-based study". International Journal of Legal Discourse 6, n. 2 (22 novembre 2021): 229–50. http://dx.doi.org/10.1515/ijld-2021-2055.
Testo completoAbstract (sommario):
Abstract The past few decades have seen a plethora of interest in heritage studies in international law, as the legitimization of cultural heritage is a significant aspect of protecting the legacy of humanity’s collective memory, which is fully reflected in a series of international instruments on culture. This paper examines the meaning-making process of UNESCO legal documents on cultural heritage from a sociosemiotic perspective. The data for the corpus-based study were analyzed quantitatively and qualitatively by applying the securitization theory to heritage studies. Research findings reveal three significant shifts in cultural heritage, i.e., from property to heritage, from tangible to intangible, and from material-centered to human-centered, which embodies the harmonious coexistence of humanity and nature, a philosophical idea embedded in traditional Chinese culture. As noted, terms targeting cultural heritage in UNESCO international instruments are the sign vehicle, generally mediated and shaped by social values, cultural beliefs, and conventional wisdom, etc. as a part of the interpretant, making different categories of heritage meaningful and interpretable. Characterized by temporality and spatiality, cultural heritage is subject to multiple interpretations. The meaning-making of international instruments for consideration is a sociosemiotic operation that can be construed through contextual factors and a process of social negotiation. This paper argues that a sociosemiotic approach to heritage studies is conducive to explicating the construction and deconstruction of heritage as discursive practices while offering some implications for future research.
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Imseis, Ardi. "Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion". American Journal of International Law 99, n. 1 (gennaio 2005): 102–18. http://dx.doi.org/10.2307/3246093.
Testo completoAbstract (sommario):
I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpretation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power.
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Vidas, Davor, David Freestone e Jane McAdam. "International Law and Sea Level Rise". Brill Research Perspectives in the Law of the Sea 2, n. 3 (8 febbraio 2019): 1–86. http://dx.doi.org/10.1163/24519359-12340006.
Testo completoAbstract (sommario):
AbstractThis issue contains the final version of the 2018 Report of the International Law Association (ILA) Committee on International Law and Sea Level Rise, as well as the related ILA Resolutions 5/2018 and 6/2018, both as adopted by the ILA at its 78th Biennial Conference, held in Sydney, Australia, 19–24 August 2018.In Part I of the Report, key information about the establishment of the Committee, its mandate and its work so far is presented. Also, the background for the establishment of the Committee is explained, drawing on: (a) conclusions of the ILA Committee on Baselines and the related ILA Resolution 1/2012; (b) scientific assessments, such as by the Intergovernmental Panel on Climate Change (IPCC), regarding on-going sea level change and projections of future rise; and (c) more broadly, scientific findings regarding the profound changes taking place in the Earth system since the mid-20th century and predictions for their acceleration in the course of the 21st century. All of this has prompted the need, and provided the Committee with the relevant context, for the study of the options and elaboration of proposals for the development of international law.Part II of the Report addresses key law of the sea issues through a study of possible impacts of sea level rise and their implications under international law regarding maritime limits lawfully determined by the coastal States, and the agreed or adjudicated maritime boundaries. This includes the study of the effects of sea level rise on the limits of maritime zones, and the analysis of the subsequently emerging State practice regarding the maintenance of their existing lawful maritime entitlements. The guiding consideration in developing the proposals and recommendations by the Committee for the interpretation and development of international law regarding the maritime limits and boundaries impacted by sea level rise has been the need to avoid uncertainty and, ultimately, facilitate orderly relations between States and contribute to the maintenance of international peace and security. A related ILA Resolution 5/2018 addresses maritime limits and boundaries impacted by sea level rise.Part III of the Report addresses international law provisions, principles and frameworks for the protection of persons displaced in the context of sea level rise. The notion of ‘human mobility’ is used as an umbrella term that refers to all relevant forms of the movement of persons and, in the context of this report, covers displacement (which is forced), migration (which is predominantly voluntary), planned relocation and evacuations (which both may be forced or voluntary). This part of the report takes the form of principles entitled the ‘Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise’ with commentaries. Accordingly, ILA Resolution 6/2018, which also contains the Sydney Declaration of Principles, addresses the protection of persons displaced in the context of sea level rise and contains recommendations by the Committee to this effect.
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Eliason, Antonia, e Matteo Fiorini. "Australia – Anti-Dumping Measures on A4 Copy Paper: Opening a Door to More Anti-Dumping Investigations". World Trade Review 20, n. 4 (9 giugno 2021): 479–90. http://dx.doi.org/10.1017/s147474562100015x.
Testo completoAbstract (sommario):
AbstractThis paper analyzes the Australia – Anti-Dumping Measures on A4 Copy Paper panel report, the second recent WTO dispute to involve a challenge to Indonesia's paper industry. The Indonesian paper industry benefits from reduced-cost inputs because of the Indonesian government's influence and subsidies over the timber and pulp market. The report offers the first interpretation of ‘particular market situation’ under Article 2.2 of the WTO's Anti-Dumping Agreement. At the same time, it raises questions regarding the appropriateness of using anti-dumping measures to address what are fundamentally subsidy issues. While the panel ultimately found that Australia's measure was inconsistent with Article 2.2, the paper shows that the panel's interpretation of ‘particular market situation’ increases the relative attractiveness of using anti-dumping duties instead of countervailing measures. Two key points on the welfare implications of the decision can be made. The first relates to the motivations of the Australian paper industry and the imperfectly competitive market in which Australian Paper operates. The second is the importance of challenging subsidies rather than imposing anti-dumping duties where the subsidies in question have negative environmental effects.
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Diorditsa, Ihor, Kateryna Katerynchuk, Sergiy Kyrenko, Iryna Vasylkivska e Olha Bespal. "issues of interpretation of “health”, “pain” and “suffering” concepts in modern multidisciplinary science". Linguistics and Culture Review 5, S4 (23 ottobre 2021): 327–43. http://dx.doi.org/10.21744/lingcure.v5ns4.1579.
Testo completoAbstract (sommario):
The research given is of great scientific value since the main task of any state is to protect natural human values, namely: life, health, will, honour, dignity, and other natural rights. Therefore, their defence and protection are carried out at the state level, especially by developing effective means aimed at systematic counteraction to criminal offences against the health of an individual. The doctrinal approaches on the limits of criminal law protection of person’s health, existing today, require a detailed analysis and generalization, as well as legal drawbacks in the construction of criminal law norms on liability for various types of encroachments on health and problems arising as a result of it at criminal law assessment of relevant socially dangerous acts. However, the discussion on terminology which is not only the achievement of criminal law subjects but also medicine, forensic medicine, psychology, etc., is still taking place between the researchers in various humanitarian sciences at national and international levels. First of all, these terms and categories are the determinants, and main studies in these areas are based on them.
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Hage Chahine, Joséphine, Ettore M. Lombardi, David Lutran e Catherine Peulvé. "The Acceleration of the Development of International Business Mediation after the Singapore Convention". European Business Law Review 32, Issue 4 (1 agosto 2021): 769–800. http://dx.doi.org/10.54648/eulr2021027.
Testo completoAbstract (sommario):
The Convention on International Settlement Agreements Resulting from Mediation (hereinafter referred to as the Singapore Convention) entered into force on 12 September 2020. The States’ striking enthusiasm for the Singapore Convention since the day of its enactment and onwards seems to be an encouraging indicator of the increasing use of mediation for the settlement of international commercial disputes. More precisely, the Convention establishes an international legal framework for the enforcement of settlements reached through mediation, and provides for a very limited number of requirements thereon. Hence, and considering that the enforceability of arbitral awards is perceived as arbitration’s most important feature, the cross-border enforceability of the settlement agreements reached through mediation conferred by the Singapore Convention could somehow erode arbitration’s edge. Furthermore, the entry into force of the Singapore Convention will promote the use of mediation in the States comprised within the Belt and Road Initiative, in Europe and in the Asia- Pacific, namely within the construction sector and the shipping industry and also in investor-state disputes insofar as the wording of the Convention leaves room for an extensive interpretation that could encompass such disputes. Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
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Isaev, M. A. "International law argumentation in the national courts of the Scandinavian countries: doctrinal approaches". Moscow Journal of International Law, n. 4 (23 marzo 2020): 91–103. http://dx.doi.org/10.24833/0869-0049-2019-4-91-103.
Testo completoAbstract (sommario):
INTRODUCTION. In modern legal science the problem of the effect and implementation of international law in national legal systems is one of the most popular areas of research. This article is devoted to the consideration and critical analysis of doctrinal assessments of the application by courts of general jurisdiction of the Scandinavian countries of the international legal norms , as well as their possible approaches to resolving conflicts between the norms of international and national law.MATERIALS AND METHODS. The method of comparative law has been used in present essay as a special logical mechanism that permits us to construct a system of rules relating to conflict of laws. Especially these rules are the tertium comparationis in a case of conflict between international and domestic law in municipal courts, as it is going through the formula of induction (analogy): if A is B, and B is C, so A is C.RESEARCH RESULTS. Traditionally international law suggests two ways of solving the problem in a case of the conflict of laws: monistic and dualistic doctrines. But these doctrines are not realizable in a pure form because of their inner contradiction. The main cause of this contradiction is the impossi bility to join interests of the subjects of international law with each other. Taking the doctrine of Interessenjurisprudenz as a ground of our further reasoning we have found the third point, we were searching for: just – the mechanism of elaborating the special remedies by which the conflict of interpretations has to be solved. The main remedy is the overcoming (in a logical sense) the law of excluded the third in the form of analogy. So, we can formulate a construction of the rules relating to conflict of laws in international public law by the analogy with the international private law. The nature of these rules is coincided with the such norms as _esuetu iuris cive necessitates and general principles of law. Especially that permits us to avoid the conflict of interpretation of the two legal orders, that can be caused by the “double standards” and “soft power” doctrines.DISCUSSION AND CONCLUSIONS. The above mentioned analysis permits us to formulate some general principles to established the system of rules relating to conflict of laws. The main cause of them will be following logical premise: the conflict of laws is based on the conflict of interests. That can be evidently by the interpretation rules in a conflict. Interpretation has the aim to harmonized conflicting orders on the ground of the general principles of law relating to municipal and international law. Conflict of laws can be solved through the general principles of law, especially in the case of fundamental contradiction. Conflict of laws can be formulated by the analogy. Conflict of laws can’t be interpreted in teleological way.
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Халим-Зода, Джасмина. "Historical development of simultaneous translation". Арабский язык в эпоху глобализации: инновационные подходы и методы обучения 1, n. 1 (29 dicembre 2023): 536–39. http://dx.doi.org/10.47689/atgd:iyom-vol1-iss1-pp536-539-id28641.
Testo completoAbstract (sommario):
The historical development of simultaneous interpretation can be characterized by significant events such as the Nuremberg Trials. The establishment of the United Nations necessitated effective multilingual communication, leading to the development and refinement of simultaneous interpretation techniques to support diplomatic and international relations. These historical developments have collectively contributed to the evolution and standardization of simultaneous interpretation as a critical tool for international communication, diplomacy, and collaboration in various sectors, including politics, law, diplomacy, business, and academia
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Plant, Brendan. "SOVEREIGNTY, SCIENCE, AND CETACEANS: THE WHALING IN THE ANTARCTIC CASE". Cambridge Law Journal 74, n. 1 (marzo 2015): 40–44. http://dx.doi.org/10.1017/s0008197315000227.
Testo completoAbstract (sommario):
THE issue of whaling has been the subject of considerable controversy in recent years, as the international community remains divided as to how the world's marine resources should be managed: some states prioritise conservation, while others favour sustainable exploitation. Against this background, Australia initiated proceedings against Japan before the International Court of Justice (ICJ) in May 2010, claiming that Japan's continuing whaling activities, carried out under the guise of scientific research, were in breach of its various obligations under the International Convention for the Regulation of Whaling (ICRW). New Zealand later intervened in the proceedings, exercising its right under Article 63 of the ICJ Statute, and oral pleadings involving the three states were held in June and July 2013. On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), finding that Japan had violated three provisions of the ICRW – the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme. The decision has largely been welcomed, especially by environmental activists, for offering a measure of protection to endangered marine life, but the judgment carries broader significance for its treatment of a number of points of international law, including the standard of review exercised by international courts, the role of scientific reasoning in international dispute settlement, and the interpretation of treaties.
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Burgess, Susan R., Daniel J. Reagan e Donald L. Davison. "Reclaiming a Democratic Constitutional Politics: Survey Construction and Public Knowledge". Review of Politics 54, n. 3 (1992): 399–416. http://dx.doi.org/10.1017/s0034670500018234.
Testo completoAbstract (sommario):
It has recently been argued in this Review that public opinion research tends to favor the expert authority of elite institutions such as the courts, over the democratic authority of the people as a source of law or constitutional interpretation. In this article we introduce an alternative survey construction that allows the public to be considered as a possible source of constitutional knowledge Using this survey, we find that most respondents can clearly articulate their position on the constitutionality of abortion, and offer and recognize reasons to ground both support and opposition to their position. We argue that these findings suggest that further work with alternative survey constructions may more firmly establish public knowledge in constitutional debates, thereby forming the basis to reclaim a democratic constitutional politics.
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Teremtsova, N. V. "Interpretation in modern legal literature on the functioning of private and public law". INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, n. 12 (2021): 258–63. http://dx.doi.org/10.33663/2524-017x-2021-12-43.
Testo completoAbstract (sommario):
The article is concerned with problem of interpretation the public and private law. At the beginning of the article the author describes the imperfection of approaches to differentiation.The article examines the topical issue of general theory of law, which contains a delicate phenomenon that has existed for a long time, but during all this time has not developed a common understanding of its basic parameters, and therefore remain controversial theoretical foundations for construction and operation. Its existence raises a number of very important questions about properties for the legal community. At the moment it is not possible to assert the presence of the same understanding of the essence of separation of the right to private and public. Different scientific schools actually offer his vision within the Ukrainian legal system and traditional doctrine. It would be wise to mention here at the present stage of development of legal matter, it is necessary to make some adjustments to the traditional theory of law, as well as some provisions of the law regarding the division of law into private and public. In brief each new field studied by scientists is a legal phenomenon, but when applying general theoretical conclusions to it, it is necessary to take into account the specifics of the object under study in terms of the general theory of law. To conclude a pattern that allows to establish two objectively independent branches of law, linking them to the manifestations of public and private foundations, and to represent the spread of rights to private and public, as it is not just a classification, but conceptual, concerning the most fundamental rights of each place and role in human life, its defined values, continues in the theory of law today. Keywords: public law, private law, legal system, legal science, branches of law. References
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Churchill, R. R. "II International Tribunal For The Law Of The Sea The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan): Order For Provisional Measures Of 27 August 1999". International and Comparative Law Quarterly 49, n. 4 (ottobre 2000): 979–90. http://dx.doi.org/10.1017/s0020589300064794.
Testo completoAbstract (sommario):
Under Part XV of the 1982 United Nations Convention on the Law of the Sea, any dispute concerning the interpretation or application of the Convention which cannot be settled by the consensual means set out in section 1 of that Part, may be referred by any party to the dispute for compulsory settlement under section 2. There are four possible fora for such settlement—the International Court of Justice, the International Tribunal for the Law of the Sea (hereafter ITLOS), an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII. If the parties to a dispute have made a declaration under Article 287 (which is optional) specifying their choice of forum, and their choices coincide, that body will be the forum for the settlement of the dispute. If their choices do not coincide or if not all parties have made a declaration, the forum for settlement will be an Annex VII arbitral tribunal.1
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Feria-Tinta, Monica. "The master key to international law: systemic integration in climate change cases". Cambridge International Law Journal 13, n. 1 (19 giugno 2024): 20–40. http://dx.doi.org/10.4337/cilj.2024.01.02.
Testo completoAbstract (sommario):
This article is the first scholarly examination of the function of systemic integration in the climate change context. The article assesses the role that the notion of ‘systemic integration’ is playing in making climate change justiciable internationally, and traces the path along which it brought the principle to become a key notion in climate litigation. It explores the fundamental question of how pre-existing legal norms (to the Paris Agreement) have been used to address questions about climate change. Systemic integration is a principle of treaty interpretation enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which requires consideration of other rules of international law in the course of interpreting a treaty. Often operating ‘as an unarticulated major premise in the construction of treaties’, its function is nevertheless ‘analogous to that of a master-key in a large building’ (McLachlan 2005). The underlying premise is that international law is, in essence, a system. This article looks into how the principle is currently operating in practice in climate litigation and, in doing so, it draws some reflections on the wider significance of the principle for international law more generally. The article explores the systemic integration arguments considered in the Torres Strait Islanders case, the first international case on climate change to be adjudicated on its merits, which set in motion a wave of international climate cases, and considers the function of systemic integration in the pending advisory opinions before international courts.
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Panascì, Maria Antonia. "Unravelling Next Generation EU As A Transformative Moment: From Market Integration To Redistribution". Common Market Law Review 61, Issue 1 (1 febbraio 2024): 13–54. http://dx.doi.org/10.54648/cola2024002.
Testo completoAbstract (sommario):
This article aims to understand the extent to which Next Generation EU (NGEU) can truly be considered a substantive change without a constitutional amendment. It draws on the concept of “constitutional transformation” to unravel what kind of informal change NGEU has introduced and how this affects the interpretation of formally unaltered provisions. To this end, given the crucial importance of Article 125 TFEU in the distributive pattern of resources within the EU and its role in the ideological construction of EU intervention in the economy, the article assesses NGEU against this provision, claiming that forms and objectives of Union financial assistance have changed thanks to a new politically-accepted interpretation of Article 125 TFEU. It is submitted that this new meaning of Article 125TFEU reflects a deeper change in the fundamental political telos of the Union, namely a shift from Member States’ integration through the market to redistribution through public intervention, with material implications for Member States’ financial liabilities.
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Stammler-Gossmann, Anna. "Who is Indigenous? Construction of 'Indigenousness' in Russian Legislation". International Community Law Review 11, n. 1 (2009): 69–102. http://dx.doi.org/10.1163/187197309x401415.
Testo completoAbstract (sommario):
AbstractThe aim of this article is to identify the unique Russian conceptualisation of indigenousness and its origin in relation to state formation. First, I focus on the variety of the internationally used legal vocabulary in the Russian context. To be familiar with the understanding of 'indigenousness' in Russia also means to be familiar with its history: every modern legal, political or social interpretation of the notion of 'indigenous' in Russia refers to it. I explore the question 'What does it mean to define a people as "indigenous" inhabitants of the land' from historical, economic, social, and cultural perspectives, which preconditioned and have fostered the contradictory nature of the 'indigenousness' discourse in contemporary Russia. In doing so, I focus on the state approach in the Russian empire and the Soviet Union, determining an indigenous population as a special legal category. I then analyse how different kinds of indigenousness were produced and why some communities became 'indigenous', while others did not. Tracing the on-going construction of indigenousness and associated discourses in Russia, I introduce the legal definition of indigenous people, analysing two main criteria which differ in Russia from international understanding: the criterion of ethnicity and the criterion of population numbers. In order to understand why of the 26 recognised indigenous peoples in the USSR became 45 in the Russian Federation, I analyse the contested meaning of indigenousness taking into account geographical, demographic, cultural aspects and political circumstances. I argue that in the current situation there are strong reasons in Russian legislation that render the adoption of international legislation impossible, as we see on the example of the ILO convention 169 or the draft UN Declaration on indigenous rights.
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Dillon, Thomas. "The Human Right of Freedom of Expression in Investor-State Arbitration". Journal of International Arbitration 40, Issue 2 (1 marzo 2023): 179–210. http://dx.doi.org/10.54648/joia2023009.
Testo completoAbstract (sommario):
Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing. ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference
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Richmond, Sean. "Transferring Responsibility?" Asia-Pacific Journal on Human Rights and the Law 17, n. 2 (21 dicembre 2016): 240–56. http://dx.doi.org/10.1163/15718158-01702006.
Testo completoAbstract (sommario):
This article examines the influence and interpretation of international law in Australia’s policy and conduct regarding captured individuals during the recent Afghanistan Conflict. By critically analysing declassified government documents, Parliamentary statements, and original interview data with former Foreign Minister and Defence Minister Stephen Smith, I advance a two-pronged argument. First, contrary to what other sombre studies of the anti-torture norm might predict, Australia’s understanding of fundamental international legal rules pertaining to captured individuals in armed conflict – including the humane treatment principle and the prohibition on torture – helped regulate its policies and actions during the Afghan war. By regulate, the article posits that Australia’s policies and behaviour were governed or controlled in part by a felt sense of legal obligation among some key policy-makers. Second, like its allies Britain and Canada, Australia claimed it did not formally detain individuals during the initial years of the Afghanistan Conflict, even though it appears to have factually captured and transferred some people to United States (us) and Afghan authorities. As the war dragged on, and Australia’s troop contributions increased and local hostilities worsened, Australia – again like its allies – relied on detainee agreements and changed its conduct to try to protect captured individuals and transferees from abuse. Despite such agreements and changes, critics contend that transferred captives faced a significant risk of torture in Afghan jails, particularly those run by the country’s intelligence agency. This suggests that state and non-state views of what the prohibition on transferring to possible torture requires in practice are less settled than related shared understandings of other fundamental prisoner protections in international law and armed conflict.
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Mikanagi, Tomohiro. "ESTABLISHING A MILITARY PRESENCE IN A DISPUTED TERRITORY: INTERPRETATION OF ARTICLE 2(3) AND (4) OF THE UN CHARTER". International and Comparative Law Quarterly 67, n. 4 (13 agosto 2018): 1021–34. http://dx.doi.org/10.1017/s0020589318000209.
Testo completoAbstract (sommario):
AbstractIn its 2015 judgment in the Costa Rica v Nicaragua case, the International Court of Justice (ICJ) found that Nicaragua's establishment of a military presence in disputed territory violated the territorial sovereignty of Costa Rica. Two judges considered that Nicaragua's actions had constituted a breach of Article 2(4) of the United Nations (UN) Charter, but the majority of the judges chose not to pronounce on the issue. Whilst it has been clarified that the prohibition of the use of force applies to a disputed territory, it seems less clear as to whether such force has to be violent in nature, causing injury to human beings or damage to property, for it to be in breach of Article 2(4). The ICJ's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case strongly indicated that the construction of the wall breached Article 2(4). If a State establishes a military presence to change the status quo in a disputed territory, it would not be regarded as a ‘peaceful’ means of settling the territorial dispute. Therefore, such behaviour would violate Article 2(3), under which States shall settle their international disputes ‘exclusively’ by peaceful means. Furthermore, to constitute an unlawful use of force under Article 2(4), the establishment of a military presence in a disputed territory does not have to be violent but should involve coercion that makes it materially impossible for other claimants to restore the status quo ante without risking human injury or damage to property.
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Ekardt, Felix, e Marie Bärenwaldt. "The German Climate Verdict, Human Rights, Paris Target, and EU Climate Law". Sustainability 15, n. 17 (29 agosto 2023): 12993. http://dx.doi.org/10.3390/su151712993.
Testo completoAbstract (sommario):
The German Constitutional Court’s climate verdict provided a re-interpretation of core liberal-democratic concepts, and it is highly relevant for liberal constitutional law in general, including EU and international law—where similar issues are currently being discussed in ongoing trials before the European Court of Human Rights and the International Court of Justice. The present article applies a legal interpretation to analyse the national and transnational implications of the ruling. The results show that the verdict accepts human rights as intertemporal and globally applicable. It applies the precautionary principle to these rights and frees them from the misleading causality debate. However, the court failed to address the most important violations of human rights, it categorised climate policy as a greater threat to freedom than climate change, and the court failed to acknowledge that the Paris 1.5-degree limit implies a radically smaller carbon budget. Furthermore, little attention has so far been paid to the fact that the ruling implies an obligation for greater EU climate protection, especially since most emissions are regulated supranationally. Against this backdrop, the EU emissions trading system demands a reform, which has to go well beyond the existing EU proposals so as to enable societal transformations towards sustainability.
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Straumann, Benjamin, e Benedict Kingsbury. "The State of Nature and Commercial Sociability in Early Modern International Legal Thought". Grotiana 31, n. 1 (2010): 22–43. http://dx.doi.org/10.1163/187607510x540204.
Testo completoAbstract (sommario):
AbstractAt the same time as the modern idea of the state was taking shape, Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679) and Samuel Pufendorf (1632-94) formulated three distinctive foundational approaches to international order and law beyond the state. They differed in their views of obligation in the state of nature (where ex hypothesi there was no state), in the extent to which they regarded these sovereign states as analogous to individuals in the state of nature, and in the effects they attributed to commerce as a driver of sociability and of norm-structured interactions not dependent on an overarching state. Each built on shared Roman and sixteenth-century foundations (section I). Section II argues: 1) that Grotius's natural law was not simply an anti-skeptical construction based on self-preservation (pace Richard Tuck), but continued a Roman legal tradition; 2) that Hobbes's account of natural law beyond the state was essentially prudential, not moral (pace Noel Malcolm); and 3) that commerce as a driver of social and moral order (Istvan Hont's interpretation of Pufendorf and Adam Smith) had a substantial and under-appreciated impact on international legal order. Each contributed to the thought of later writers (section III) such as Emer de Vattel (1714-67), David Hume (1711-76), and Adam Smith (1723-90), and eventually to the empirical legal methodologies of Jeremy Bentham (1748-1832) and Georg Friedrich von Martens (1756-1821).