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1
Hayward, Benjamin, Bruno Zeller, and Camilla Baasch Andersen. "THE CISG AND THE UNITED KINGDOM—EXPLORING COHERENCY AND PRIVATE INTERNATIONAL LAW." International and Comparative Law Quarterly 67, no. 3 (May 23, 2018): 607–41. http://dx.doi.org/10.1017/s0020589318000088.
Анотація:
AbstractThe United Kingdom remains one of the world's last industrialized nations not to have adopted the CISG. The UK CISG debate has endured for decades, with existing analysis largely focusing on competition, assessing the relative merits of the CISG and English law. This article's analysis is complementary; focusing instead on coherence, and the private international law implications of UK accession. This article assesses contractual interpretation, and commodity sales, within an overarching private international law framework. Recognizing the necessity of existing competitive analyses, it makes the case for UK CISG accession on the basis of its complementary coherency perspective.
2
Gerner-Beuerle, Carsten, and Esin Küçük. "CONSISTENCY AND COHERENCE IN ADJUDICATING THE ECB'S UNCONVENTIONAL MONETARY POLICY." International and Comparative Law Quarterly 70, no. 4 (October 2021): 859–93. http://dx.doi.org/10.1017/s0020589321000270.
Анотація:
AbstractFew court cases in the history of European integration have been more controversial than the decisions of the Court of Justice of the EU and the German Federal Constitutional Court on the European Central Bank's public sector asset purchase programmes. This article regards consistency and coherence in the case law as uncontroversial minimum conditions that have to be satisfied for the decisions to gain legitimacy. It assesses the case law against this benchmark and determines the limits of asset purchase programmes under a consistent and coherent application of the legal tests developed by the courts.
3
Trachtman, Joel P. "Fragmentation, Coherence and Synergy in International Law." Transnational Legal Theory 2, no. 4 (December 2011): 505–36. http://dx.doi.org/10.5235/tlt.2.4.505.
4
Benson, Simon A. "Fragmentation or Coherence? Does International Dispute Settlement Achieve Comprehensive Justice?" International Journal of Law and Public Administration 3, no. 1 (May 24, 2020): 77. http://dx.doi.org/10.11114/ijlpa.v3i1.4873.
Анотація:
The debate about whether international law is fragmented or coherent is no arid discussion. If fragmentation is in the ascendancy, many commentators argue that something needs to be done. It is, of course, vital for the success of any legal system to achieve some level of predictability and certainty and to consistently deliver comprehensive justice. A legal system must, first and foremost, be a justice system, if there is any point to its existence. If it is not, then there may be another debate about whether it may be called a ‘legal’ system or a ‘justice’ system at all. I will review the debate between various leading commentators and analyse their proposals. My review of a number of different aspects and areas of international law shows that although fragmentation is apparent, the level of coherence in international law is far more surprising than fragmentation, which is inevitable, just as it is in the development of national law in, say, a federal polity. Just when international law seems to be fragmented somewhere, coherence is being achieved elsewhere. The result may be characterised as a kind of ‘equilibrium’ in which antagonistic and cohesive forces in international law keep one another in check, somehow balancing the other out. International law is capable of delivering comprehensive justice even if, at times, it may seem unlikely or elusive.
5
Mensi, Andrea. "The Case Western Sahara Campaign UK and the International and Institutional Coherence of European Union External Action. Opening Pandoras Box?" European Foreign Affairs Review 23, Issue 4 (December 1, 2018): 549–63. http://dx.doi.org/10.54648/eerr2018041.
Анотація:
The article explores the recent Case Western Sahara Campaign UK and the consequencesarising from the Court’s findings on European external action and trade policies. The Case represents a landmark decision on the relationship between the European Union and principles of customary international law. In assuming that the territory of Western Sahara is not part of the Kingdom of Morocco, the Court reaffirms its role in interpreting whether international agreements concluded by the Union are compatible with the Treaties and the rules of public international law. What makes the Court’s decision particularly interesting is that the Case concerns a controversial international law principle, such as the right to self-determination. This opens many questions on the future approach of the external action with self-determination claims in European Union trading partners. The article comes to the conclusion that the Case shows an evident lack of coherence of European external action, both in its international and institutional dimensions.
6
Crossley, Noele. "Conceptualising Consistency: Coherence, Principles, and the Practice of Human Protection." Global Responsibility to Protect 12, no. 4 (October 5, 2020): 440–63. http://dx.doi.org/10.1163/1875-984x-01204010.
Анотація:
Abstract ‘Consistency’ has a range of meanings in the context of human protection practice. This article conceptualises consistency – a basic premise for the legitimacy of norms, both procedurally as well as substantively. First, ‘consistency’ can refer to the coherence of the human protection framework. Second, consistency can refer to the degree to which protection responses adhere to international law and conform with international norms. Third, ‘consistency’ can mean the absence of variability and unevenness in the application of norms. I argue that consistency understood as coherence facilitates protection responses in line with international law, and, second, that a coherent protection framework encourages the even and invariable application of norms of protection by assigning responsibilities to individual protection agents. However, the international human protection regime remains incoherent: it is ambiguous and it is insufficiently integrated with other regimes and across institutions.
7
Wiśniewski, Adam. "International Courts and Legalism in International Law." Polish Review of International and European Law 5, no. 1 (July 6, 2017): 9. http://dx.doi.org/10.21697/priel.2016.5.1.01.
Анотація:
In this article, I argue that legalism, understood as a stronger commitment of states (and other subjects) to the observance of the rules of international law, was fostered by the dynamic development of international courts and tribunals, which started in the 1990s. This contribution has manifested itself in various ways, both external and internal. The multiplication of international courts, coupled with the widespread compulsory jurisdiction, has been crucial to strengthening state commitment to adhere to their international obligations. The interpretation and application of international norms ceased to depend solely on the subjective discretion of states. Therefore, judicialisation is rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. The problem of legalism in the context of international courts can, and should, also be examined in its “internal” aspect. This entails the examination of a number of issues connected with the courts’ status, competence, function, case law coherence and stability, judgment implementation, etc. Despite the problems and risks involved, the proliferation of international courts and tribunals can be perceived as one of the most important components of the dynamic transition of international law in recent decades. In this sense, one might argue that Hart was right in claiming that the functioning of courts, endowed with compulsory jurisdiction, is one of the conditions for recognising international law as genuine law. Another important effect of the judicialisation on international law is that, at the very least, certain international norms have acquired “objective” nature, detached from the will of states. This is due to the interpretation and application of these norms no longer depending solely upon the subjective discretion of states, but rather becoming subject to consideration and examination by an independent judicial body.Judicialisation is, thus, rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. Beyond any doubt, this process and its consequences markedly change the face of international law. The multiplication of international courts results in expanding the judicial institutional layer, making international law less horizontal. Additionally, in consequence of growing case law, the system of international law becomes more complex, developed, and mature. The development of international law is a natural aspect of the judicial function. This is due to the fact that international norms are, in many cases, incomplete and unclear, necessitating their interpretation, adaptation, and development in particular cases.
8
Zarra, Giovanni. "Orderliness and Coherence in International Investment Law and Arbitration: An Analysis Through the Lens of State of Necessity." Journal of International Arbitration 34, Issue 4 (August 1, 2017): 653–78. http://dx.doi.org/10.54648/joia2017031.
Анотація:
The article addresses the need for orderliness and coherence in international investment law. It does so by reference to Argentina’s various claims to necessity in CMS, LG&E, Continental Casualty Co., Enron and Sempra. After having analysed the various doctrinal positions regarding orderliness of international investment law and the need for coherence in this area of international law (both from the perspective of the consistency among investment awards and from the perspective of the integration of other areas of international law within investment disputes), the work reaches the conclusion that arbitrators should endorse an approach according to which, on the one hand, they should not ignore what is done by other tribunals (we can talk of investment arbitration as a network needing internal coherence) and, on the other hand, they should always take into consideration values protected by other areas of international law and general international law (in which investment arbitration is fully integrated).
9
Fernández Liesa, Carlos R. "Questions on Theory of Law in International Human Rights Law." Age of Human Rights Journal, no. 15 (December 15, 2020): 1–25. http://dx.doi.org/10.17561/tahrj.v15.5838.
Анотація:
The objective of this paper is to examine some specific question on the theory of law in international human rights law. International human rights law has played an important role in the evolution of International law. There are different ways of approaching and understanding International law, different schools and certain central theoretical questions. This paper tackles theoretical questions within international law in the light of International law of human rights, such as the questions of hierarchy, unity, coherence, structure, time, power, justice and legitimacy. Furthermore, analyse theoretical horizons, like the question evolution/revolution, progression/regression, justiciability, sustainability and efficacity.
10
RADI, YANNICK. "Standardization: A Dynamic and Procedural Conceptualization of International Law-Making." Leiden Journal of International Law 25, no. 2 (May 2, 2012): 283–307. http://dx.doi.org/10.1017/s0922156512000039.
Анотація:
AbstractThe paper analyses the dynamic procedures that work during the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making that works for normative coherence in contexts characterized by co-operation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue that is crucial to reach normative coherence. Drawing on the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Also, the paper points out the predominance of normative coherence, as well as that of its ‘guarantor’, namely procedure that its author considers the cornerstone of legal certainty in the co-operative context of the international society.
11
MORIN, JEAN-FRÉDÉRIC, and AMANDINE ORSINI. "Policy coherency and regime complexes: the case of genetic resources." Review of International Studies 40, no. 2 (June 17, 2013): 303–24. http://dx.doi.org/10.1017/s0260210513000168.
Анотація:
AbstractThis study argues that ‘regime complexes’ and ‘policy coherence’ are two faces of the same integrative process. The development of regime complexes co-evolves with the pressures on decision makers to coordinate their policies in various issue-areas. Conceptually, we introduce a typology of policy coherency (erratic, strategic, functionalistic, and systemic) according to its procedural and substantive components. Empirically, by triangulating quantitative and qualitative data, we use this typology for the case of the genetic resources' regime complex to illustrate the links between regime complexes and policy coherency. Our results suggest that a coherent policymaking process favours integrated regime complexes, while greater exposure to a regime complex increases the pressure to have a coherent policymaking. This study fills a gap in the literature on regime complexes by providing a micro-macro model linking structure to agency.
12
Giliker, Paula. "CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT." International and Comparative Law Quarterly 70, no. 2 (March 26, 2021): 271–305. http://dx.doi.org/10.1017/s0020589321000087.
Анотація:
AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.
13
Savarese, Eduardo. "THE COHERENCE OF EU LAW: THE PROMOTION OF INVESTMENTS VS. THE PROTECTION OF HUMAN RIGHTS." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 91–112. http://dx.doi.org/10.1163/22116133-90230039.
Анотація:
Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.Among the challenging legal questions which the new competence of the European Union (EU) in the field of investments abroad raises, one deserves particular attention, namely coherence between the protection of investments and the promotion of human rights and democracy within EU law. After examining general EU policy, the paper then examines the normative and procedural relationship between investment law and human rights law that emerges from arbitral case law. While areas of convergence exist, these two regimes appear to operate within a legal framework of mutual indifference. However, human rights law and related concerns represent both general principles of EU law and EU policy of paramount importance in the development of external relations. As a result, EU institutions must ensure the coherence of investment policy with human rights law and policy. The issue of coherence may be viewed from a policy perspective, with particular regard to the specific powers entrusted to the Commission, the Parliament and the Council of Europe and the current exercise of such powers. In this regard, the more the standards of investors’ protection under investment agreements are premised on clear definitions, exceptions and limitations, the more the adoption of State measures for the protection of human rights will fall within the circumstances precluding wrongfulness. In addition, the coherence issue has a normative component which concerns the compatibility of future EU International Investment Agreements (IIAs) with primary and secondary EU law. Conflicts between future EU IIAs and EU law may undermine the uniform application of EU law. Similarly, these conflicts may lead the assertion of the supremacy of EU law resulting in the violation of EU IIAs. Normative conflicts can and ought to be minimized.
14
Blutman, László. "IN THE TRAP OF A LEGAL METAPHOR: INTERNATIONAL SOFT LAW." International and Comparative Law Quarterly 59, no. 3 (July 2010): 605–24. http://dx.doi.org/10.1017/s0020589310000242.
Анотація:
AbstractInternational soft law as a legal metaphor has become part of legal discourse. The author argues not only that the term itself is misleading and contradictory, but that the terminological problem indicates deeper doctrinal difficulties which soft law theories should overcome. Identifying two main streams of these theories, the article provides a short review of the fundamental arguments for the existence of soft law. It distinguishes between two lines of arguments, ie functional arguments and proximity arguments, evaluates their coherence and explanatory power, and finds that these arguments fail to lay a coherent and persuasive foundation for international soft law. The author concludes by pointing out that non-legal norms may have essential regulatory functions in international relations but the law and non-law distinction should be maintained, and separating soft law as a distinct category is unwarranted.
15
Zhang, Shijun, Qian Wu, Muhammad Murad Zaib Butt, (Judge) Yan-Ming Lv, and (Judge) Yan-E-Wang. "International Legal Framework for Joint Governance of Oceans and Fisheries: Challenges and Prospects in Governing Large Marine Ecosystems (LMEs) under Sustainable Development Goal 14." Sustainability 16, no. 6 (March 21, 2024): 2566. http://dx.doi.org/10.3390/su16062566.
Анотація:
Sustainable Development Goal 14 (SDG 14) was launched in 2015 to provide an overarching governance framework for long-term sustainable ocean development. This research paper analyzes the extent to which global and regional organizations are coherent with SDG 14 under the existing frameworks of international law. This research paper further assessed Multilateral Environmental Agreements (MEAs) under the framework of the United Nations Convention on Law of the Sea (UNCLOS) and International Environmental Law (IEL) in the context of joint governance of ocean and fisheries as Large Marine Ecosystems (LMEs). According to its objectives, the research indicated that coherence across governing instruments should be increased for the governance of LMEs, leading to the development of a mechanism representing consistency with SDG 14. As a result, a mechanism that demonstrates the coherence of SDG 14 with Agenda—2030 is made, which indicates that, in order to govern fisheries and oceans as LMEs jointly, coherence among governing instruments must be increased. The conclusion followed SDG 14’s recommended actions, which are sly in line with UNCLOS and IEL, although the current initiatives of the regional organizations should be updated.
16
Hjelmeng, Erling J. "Competition law remedies: Striving for coherence or finding new ways?" Common Market Law Review 50, Issue 4 (August 1, 2013): 1007–37. http://dx.doi.org/10.54648/cola2013106.
Анотація:
This article discusses current EU Competition law remedies in light of the key parameters termination, compensation, restoration and deterrence. Both public remedies available under Regulation No 1 and private remedies under national law are examined. A first aim is to test the ability of the current body of remedies to achieve effective enforcement, measured against the aforementioned parameters. A second aim is to examine whether there are tensions between different forms of remedies and their respective functions which may impact adversely on effective competition law enforcement. The article identifies several shortcomings, both with regard to the development of specific remedies and coordination between different forms of remedies. It is argued that Article 7 decisions may fill a flexible and prospective function, and that these aspects remain under-developed, partly because of the increased use of Article 9 commitment decisions. Moreover, the author points to a pressing need for better coordination between remedies with different functions. It is particularly argued that private enforcement should be more limited than currently reflected in the ECJ case law, and that it should be better integrated with public enforcement.
17
Warbrick, Colin. "Current Developments: Public International Law." International and Comparative Law Quarterly 49, no. 4 (October 2000): 944–53. http://dx.doi.org/10.1017/s0020589300064769.
Анотація:
The process of constitutional reform in the United Kingdom instituted by the present Labour government has been considerable but it has proceeded on a piecemeal basis. Its aim is to reinforce accountability for the exercise of public power but, in the absence of a comprehensive scheme of reform, the achievement of this ambition has the same lack of coherence as the reform programme itself. Some matters remain untouched by the process, centrally and crucially the domination of the House of Commons and therefore effectively the legislature, by the Executive, a condition exaggerated by the massive majority enjoyed by the government.1 The justification for this arrangement, which so infringes the separation of powers, lies in the claim that it produces effective, stable and accountable government. This is not the place to assess the accuracy of these claims but to note the importance of recognising the particular relationship between executive and legislature which characterises the British Constitution when considering the likely impact of proposals for its reform.
18
Teklè, Tzehainesh. "Labour Rights and the Case Law of the European Court of Justice." European Labour Law Journal 9, no. 3 (August 23, 2018): 236–62. http://dx.doi.org/10.1177/2031952518791831.
Анотація:
This article examines the role of International Labour Standards (ILS) adopted by the International Labour Organisation (ILO) in the case law of the Court of Justice of the European Union (CJEU) within a global context characterised, on the one hand, by a multiplicity of domestic, supranational and international legal sources and adjudicator and supervisory bodies operating in the labour law field; and, on the other, by an increasing use of ILS by domestic and regional courts. These are, thus, building bridges between the plurality of legal systems and fostering coherence in the interpretation of labour rights. Based on a thorough examination of the case law of the CJEU and against the broader background of the EU legal and policy approach to labour rights and ILS, this article shows that despite the above-mentioned general trend the CJEU has been making a limited use of ILS and these have been having a limited bearing on its judgments. The article highlights why this is problematic and identifies the underlying causes. Finally, it presents arguments in favour of, and legal and methodological avenues to achieve, a greater reliance by the CJEU on ILS and the work of the ILO bodies supervising their application.
19
Beyer, Cornelia. "The European Union as a Security Policy Actor: The Case of Counterterrorism." European Foreign Affairs Review 13, Issue 3 (August 1, 2008): 293–315. http://dx.doi.org/10.54648/eerr2008024.
Анотація:
This article examines the actorness of the European Union in the security policy field. Applying and adapting criteria developed by Bretherton and Vogler – namely criteria regarding structure, effect and international status – the European Union is described as a ‘collective actor’. Collective actorness is dissimilar to that of a classical international unit, i.e. the state, but implies that some coherence, cooperation and a certain amount of collective action can be expected. Also, of relevance for the measurement of actorness is the extent of participation in global governance and recognition in international law. After testing the EU on seven criteria, it can be discerned that a certain collective actorness is present, even if problems regarding a ‘common voice’ and the coherence of internal policies still exist.
20
Delimatsis, Panagiotis. "The Fragmentation of International Trade Law." Journal of World Trade 45, Issue 1 (February 1, 2011): 87–116. http://dx.doi.org/10.54648/trad2011004.
Анотація:
The fragmentation of general international law is not a new phenomenon. Nevertheless, it is a sign of our era and essentially results from the legal pluralism that characterizes it. Increasing adjudication also makes the study of this concept even more fascinating. The phenomenon of fragmentation manifests itself with particular tension in international trade law. Private interests and commercial transactions can be irreversibly affected by the absence of legal security or, worse, by the existence of contradictory rulings delivered by adjudicating bodies, which constantly compete for increasing jurisdiction and thus influence. This article reviews the discussion of fragmentation of international law and critically analyses the problem of absence of coherence in regulating trade. By focusing on adjudication, permissible sources of law, and interpretation, it argues for more openness towards non-trade law when interpreting trade rules.
21
Koskenniemi, Martti, and Päivi Leino. "Fragmentation of International Law? Postmodern Anxieties." Leiden Journal of International Law 15, no. 3 (September 2002): 553–79. http://dx.doi.org/10.1017/s0922156502000262.
Анотація:
Successive ICJ Presidents have expressed concern about the proliferation of international tribunals and substantive fragmentation of international law. This is not a new phenomenon. International law has always lacked a clear normative and institutional hierarchy. The problem is more how new institutions have used international law to further new interests, especially those not predominant in traditional law. The anxiety among ICJ judges should be seen less as a concern for abstract “coherence” than a worry about the demise of traditional principles of diplomatic law and the Court's privileged role as their foremost representative. As jurisdictional conflicts reflect divergent political priorities, it is unclear that administrative co-ordination can eliminate them. This does not, however, warrant excessive worries over fragmentation; it is an institutional expression of political pluralism internationally.
22
Deplano, PhD, Rossana. "Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law." International Organizations Law Review 14, no. 2 (December 5, 2017): 227–53. http://dx.doi.org/10.1163/15723747-2017002.
Анотація:
On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.
23
Gstöhl, Sieglinde, and Jonathan Schnock. "Towards a Coherent Trade-Environment Nexus? The EU’s Critical Raw Materials Policy." Journal of World Trade 58, Issue 1 (January 1, 2024): 35–60. http://dx.doi.org/10.54648/trad2024002.
Анотація:
This article contributes to the debate on the policy coherence of the trade-environment nexus by analysing the recent critical raw materials (CRM) policy of the European Union (EU). Critical raw materials are crucial for the green and digital transitions but face significant risks in their supply. This raises the question to what extent the EU can ensure a coherent approach in an era of geopolitics. The analysis proceeds in three steps: what does coherence mean (problem definition), how coherent are the EU’s policy objectives, and how coherent are its policy instruments designed for CRMs? The article finds that the EU’s problem definition of the trade-environment nexus has over the past two decades become more coherent. However, the rise of geopolitics has added foreign policy considerations to the understanding of this nexus. As the case of CRMs shows, open strategic autonomy, which aims to reduce strategic dependencies, generates incoherence among the policy objectives. The many existing or proposed EU policy instruments can, so far, be assessed as being relatively more coherent yet also with a mixed record. Future research will have to confirm this preliminary finding and also address the coherence of the policy implementation and outcomes of the EU’s CRMs policy. critical raw materials, European Union, geopolitics, Green Deal, open strategic autonomy, policy coherence, sustainability, trade-environment nexus, trade policy, twin transition
24
DEL MAR, MAKSYMILIAN. "System Values and Understanding Legal Language." Leiden Journal of International Law 21, no. 1 (March 2008): 29–61. http://dx.doi.org/10.1017/s0922156507004712.
Анотація:
AbstractThis paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.
25
Shongwe, Musa Njabulo. "The Fragmentation of International Law: Contemporary Debates and Responses." Palestine Yearbook of International Law Online 19, no. 1 (July 22, 2020): 177–219. http://dx.doi.org/10.1163/22116141_019010007.
Анотація:
Abstract The fragmentation of international law is an undeniable issue in contemporary international law, which has received some considerable critical attention this past decade. Regardless of the fact that this is an age-old problem, its recent manifestations have sparked a debate in which two groups of international scholars (positivists and realists) have expressed contesting views on whether fragmentation is a real problem to be solved, or simply a pure academic anxiety about the future of international law. This paper describes why and how fragmentation is a problem of international law, through case law examples of substantive and procedural aspects of fragmentation. The paper then analyses the value of international law mechanisms of dealing with normative conflicts, as well as the shortcomings of those tools. The paper reviews the ongoing debate as to whether fragmentation is a negative or a positive force in the international legal order. The paper contributes to the academic debate by arguing that because of the structural make-up of the international legal system, fragmentation is inevitable, but at the same time, it is a manageable phenomenon. It is argued that fragmentation is a permanent feature of the international legal system, and as such, its relevance to the future of international law must not be undermined. The paper also argues and recommends that the ever-important goal of ensuring unity and coherence of the international legal system should never be lost, and this argument is advanced in view of contemporary academic scholarship that seeks to put the matter of fragmentation to rest.
26
Kim, Rakhyun E., and Klaus Bosselmann. "International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements." Transnational Environmental Law 2, no. 2 (June 24, 2013): 285–309. http://dx.doi.org/10.1017/s2047102513000149.
Анотація:
AbstractOur point of analytical departure is that the state of the global environment is deteriorating despite the accumulating body of international environmental law. By drawing on the recent Earth system science concept of interlinked planetary boundaries, this article makes a case for a goal-oriented, purposive system of multilateral environmental agreements. The notion of ‘goal’ is used here to mean a single, legally binding, superior norm – agrundnorm– that gives all international regimes and organizations a shared purpose to which their specific objectives must contribute. A bird’s eye view of the international environmental law system reveals how the absence of a unifying goal has created a condition that is conducive to environmental problemshiftingrather than problemsolving. We argue that a clearly agreed goal would provide the legal system with a point of reference for legal reasoning and interpretation, thereby enhancing institutional coherence across Earth’s subsystems. To this end, this article concludes by observing that the protection of the integrity of Earth’s life-support system has emerged as a common denominator among international environmental law instruments. Accordingly, we suggest that this notion is a strong candidate for the overarching goal of international environmental law.
27
Mathisen, Gjermund. "Consistency and Coherence as Conditions for Justification of Member State Measures Restricting Free Movement." Common Market Law Review 47, Issue 4 (August 1, 2010): 1021–48. http://dx.doi.org/10.54648/cola2010045.
Анотація:
Consistency and coherence have become increasingly visible in the 2000s as substantive preconditions for the justification of Member State measures restricting free movement. In particular, the ECJ has lately taken to insisting that restrictive national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it “in a consistent and systematic manner”. In substance, similar exigencies are however also found in earlier case law. Consistency, in this context, may be understood to mean that nothing is allowed to counteract the attainment of the objective (purportedly) pursued by the restrictive measure, whilst coherence may be used to describe that a measure is intelligible as a means to attain the objective. On this basis, it is argued that a requirement of consistency and coherence is neither fundamentally new nor separate from a traditional EU law model for justification, whereby a restrictive measure must pursue a legitimate objective and be suitable, necessary and proportionate stricto sensu. The analysis carried out also shows that some inconsistencies might frequently have to be accepted and do not necessarily thwart justification of a restrictive measure. At the same time, consistency makes even relatively restrictive measures easier to justify; and the better the coherence between a restrictive measure and its objective, the better chances are that a Member State will gain acceptance for it.
28
Smits, Jan. "Dutch Report: Coherence and Fragmentation of Private Law." European Review of Private Law 20, Issue 1 (February 1, 2012): 153–67. http://dx.doi.org/10.54648/erpl2012008.
Анотація:
Abstract: Legal rules increasingly flow from different (national, European, and supranational) sources. This multiplication of sources deeply disturbs our idea of law as a coherent and unitary system. The aim of this contribution is to explore this increasing fragmentation of law. It pays special attention to how fragmentation of private law is perceived in the Netherlands and which strategies are adopted to remedy the problems it causes. The approach of the Dutch legislature in dealing with this fragmentation is to try to re-establish a coherent system. This is apparent from both the way in which European directives are implemented and from the Dutch efforts to deal with the increasing complexity of private international law. However, it seems no longer in the power of a national legislature to create a coherent system through legislation. We should therefore seek new strategies to deal with the various legal regimes that exist on a national territory. Résumé: On n'ignore pas, en général, que les sources des règles de droit sont de plus en plus diverses (nationale, européenne et supranationale). Il est également bien établi que cette multiplication de sources perturbe profondément notre idée d'un système coherent et unitaire du droit. Le but de la présente contribution est d'explorer cette complexité croissante dans le domaine du droit privé. Un aspect de cette complexité est une indéniable fragmentation du droit. Cet article accorde une attention spéciale à la manière dont la fragmentation en droit privé est vue aux Pays-Bas et quelles strategies sont adoptées pour remédier aux problèmes qu'elle cause. L'approche du pouvoir législatif néerlandais dans le traitement de cette fragmentation est de tenter de réétablir un système cohérent. Ceci apparaît aussi bien dans les procédés de transposition des directives européennes que dans les efforts, aux Pays-Bas, de traiter la complexité croissante du droit international privé. Les directives européennes sont transposées le plus possible dans le Code civil néerlandais afin de garder intact le système de droit privé, même si cela ne peut toutefois supprimer les causes d'une incohérence croissante. De même, les règles éparses de droit international privé sont structurées dans un nouveau Livre du Code civil, même si néanmoins, le pouvoir législatif national n'a plus le pouvoir de créer un système cohérent. Cette stratégie du pouvoir législatif néerlandais est clairement inappropriée parce qu'il n'est plus dans le pouvoir d'une assemblée législative nationale de créer un système cohérent à travers la législation. C'est pourquoi nous devrions chercher de nouvelles stratégies pour traiter les différents régimes légaux qui existent sur un territoire national. Cet article analyse plusieurs de ces stratégies.
29
Kleinlein, Thomas. "Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law." German Law Journal 12, no. 5 (May 1, 2011): 1141–74. http://dx.doi.org/10.1017/s2071832200017259.
Анотація:
In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.
30
SEGURA-SERRANO, ANTONIO. "International Economic Law at a Crossroads: Global Governance and Normative Coherence." Leiden Journal of International Law 27, no. 3 (July 24, 2014): 677–700. http://dx.doi.org/10.1017/s0922156514000260.
Анотація:
AbstractInternational economic law (IEL) is now at a crossroads regarding the reconfiguration of the international economic order. Many scholars regard the multilateral trading system as a major legal achievement and agree that the World Trade Organization (WTO) has performed as expected with respect to the 2008 crisis. By contrast, the recent financial crisis has demonstrated the inability of the international financial architecture to ensure financial stability. However, this article will review the strength of the multilateral trading system and the challenges that it now faces regarding its main goal (the stability of trade relations). A material reform in the mode of a horizontal expansion in order to protect societal values other than trade liberalization seems to be needed if we want the WTO to be up to the tasks and demands flowing from global governance. Similarly, this article will analyse the current structure of the international financial system as well as the elements that would need to be changed in order to achieve the aim of financial stability. To accomplish that end, an institutional reform in the mode of a vertical expansion of IEL is proposed. Global governance and normative coherence have been used as the theoretical tools to unveil the similarities stemming from the functions performed and the need for transformation that both areas of IEL have in common. The reform proposals submitted for both areas of law would introduce a meaningful step from negative regulation towards a more positive approach to regulation.
31
Kwiecień, Roman. "Universality and Coherence under the Experiences of the League of Nations." International Community Law Review 17, no. 2 (May 8, 2015): 175–88. http://dx.doi.org/10.1163/18719732-12341301.
Анотація:
This article explores the relationship between the coherence of the League of Nations’ (ln) actions and universality, conceived both as an ideal of ‘universalism’ and universal membership. Universality in international institutional law essentially means the principle of open and comprehensive membership of international organizations. As popularly known, the ln failed to secure comprehensive membership. Such membership is thought to be a condition sine qua non of coherent and effective actions of organizations. This article takes a different stance, arguing that it was not lack of such membership that was responsible for the constitutional crisis within the ln and the incoherence of its actions. Rather, the ln suffered from a constitutional crisis almost from the very beginning, preventing it from gaining universal membership. It was the fragile awareness of the common aims and values embodied in the ln that affected the ln’s membership and the universality and coherence of its mission.
32
Foster, Caroline E. "Why Due Regard Is More Appropriate than Proportionality Testing in International Investment Law." Journal of World Investment & Trade 23, no. 3 (June 17, 2022): 388–416. http://dx.doi.org/10.1163/22119000-12340252.
Анотація:
Abstract Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.
33
Reinold, Theresa. "The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law." Global Responsibility to Protect 6, no. 3 (July 24, 2014): 269–94. http://dx.doi.org/10.1163/1875984x-00603002.
Анотація:
In this article I argue that the concept of secondary rules provides a useful tool for analysing the interplay of politics and law in the evolution of the ‘responsibility not to veto’, which represents an attempt to subject the Security Council to the rule of law. Secondary rules help to maintain the law’s overall coherence, thereby bolstering its legitimacy and hence its ability to effectively govern human conduct. Most accounts of secondary rule-making overstate the role of power while underestimating the need for powerful states to argue within the parameters set by the law itself. This contribution, by contrast, explores the interaction of power and law, and the role of secondary rules therein. It shows that the international legal order currently lacks coherence as there is no consensus on overarching principles. Hence, the legitimacy crisis of the Security Council is at the same time a legitimacy crisis of international law.
34
Milanov, Momchil. "A Lauterpachtian Affair: Security Exceptions as ‘Self-Judging Obligations’ in the Case Law of the International Court of Justice and Beyond." Journal of World Investment & Trade 22, no. 4 (August 16, 2021): 509–60. http://dx.doi.org/10.1163/22119000-12340217.
Анотація:
Abstract Although Sir Hersch Lauterpacht never dealt with security exceptions during his time at the International Court of Justice (ICJ), his entire body of work formed the intellectual premise for the approach of the Court towards security exceptions and the way in which the ICJ manoeuvers in the larger debate on the relationship between law, politics and the proper discharge of the judicial function. The Lauterpachtian approach is understood as a particular attitude towards the judicial function in which the Court serves as an instrument for the protection of peace, as a guardian of the coherence and unity of the international legal system and as a driving force for the development of international law. However, in some other important elements of its reasoning, the Court seems to remain more Lauterpachtian in spirit than in letter. Despite these inconsistencies, the Court arguably exerted significant (albeit somehow uneven) influence over World Trade Organization panels and investment tribunals.
35
Higgins, Rosalyn. "The ICJ, the ECJ, and the Integrity of International Law." International and Comparative Law Quarterly 52, no. 1 (January 2003): 1–20. http://dx.doi.org/10.1093/iclq/52.1.1.
Анотація:
The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the OctoberHuman Rights Law Journal.2
36
AKSENOVA, MARINA. "Symbolism as a Constraint on International Criminal Law." Leiden Journal of International Law 30, no. 2 (January 3, 2017): 475–99. http://dx.doi.org/10.1017/s0922156516000741.
Анотація:
AbstractInternational criminal law is being pulled in different directions by various conflicting considerations – deterrence, retribution, justice for victims, reconciliation, and setting the historical record. This trend is detrimental to the survival of the system as it erodes coherence and undermines its legitimacy. One may suggest that international criminal law needs a principle objective to bring order to the system. This article argues that while this statement may be true, it is equally important to have a discussion about pragmatic policy choices underlying the system. Acknowledging that the role of international criminal law is symbolic assists with constraining over-ambition implicit in the discipline. Treating symbolism as a policy consideration places necessary checks on other goals proclaimed by international courts and UN executive bodies and also serves as a tool informing the exercise of discretion in international criminal law.
37
RUOZZI, Elisa. "The Obligation to Undertake an Environmental Assessment in the Jurisprudence of the ICJ: A Principle in Search of Autonomy." European Journal of Risk Regulation 8, no. 1 (March 2017): 158–69. http://dx.doi.org/10.1017/err.2016.23.
Анотація:
AbstractThe practice of carrying out an environmental impact assessment (EIA) has gained strength in international law and jurisprudence, finding application in the case law of the International Court of Justice (ICJ). If, on the one hand, the ICJ has recognized the customary nature of this principle, on the other its application poses a set of challenges, mainly linked to the autonomy of this obligation from other international environmental law norms. More precisely, the obligation at issue has been applied in connection with the due diligence and notification principles, creating uncertainty about its scope, as well as about its substantive or procedural nature. Likewise, the autonomy of the obligation to perform an EIA has been challenged in relation to the definition of the content and scope of the obligation itself, which in turn is linked to the existence of applicable treaty provisions or of soft law. This article discusses the impact of these elements on the reasoning of the Court in the cases at issue, in order to demonstrate how such lack of autonomy can undermine the coherence of the reasoning itself and, therefore, an effective application of the principle.
38
Harpaz, Guy. "The Dispute over the Sovereignty of Jerusalem: EU Policies and the Search for Internal Legal Coherence and Consistency with International Law." European Foreign Affairs Review 17, Issue 3 (August 1, 2012): 451–82. http://dx.doi.org/10.54648/eerr2012033.
Анотація:
This article examines the EU's post-1967 conflict resolution policies pertaining to the dispute over sovereignty over Jerusalem. Analytically, it provides the first in-depth, genealogical analysis of the evolution of the EU policies, distilling four 'generations' of them, while normatively, it offers a critique of the consistency, coherence and legal cogency of such policies and their compatibility with international law. Yet the importance of this article lies beyond the particular case-study of Jerusalem, as it establishes that EU conflict resolution policies may, drawing on the work of Aggestam, be contextualized within the conceptual in the EU's self-perceived role, from 'what it is' to 'what it does', from passively representing 'power of attraction' to adopting the proactive role of an 'ethical power'. In such a role, international legal norms upon which the EU strives to premise its contribution to the resolution of disputes over sovereignty serve it in both a constitutive and an instrumentalist manner. However, and as the article has striven to demonstrate, the EU faces significant difficulties when attempting to assist in solving disputes over contested territories, based on rule-based diplomacy and strict commitment to international law, while having to face well-entrenched realities and accommodate realpolitik considerations. Consequently, the EU cannot ensure at all times its strict compliance with international law as such compliance ignores political realities and such ignorance mitigates, in turn, the already compromised centrality and effectiveness of the EU as a Normative Power in the Middle East and elsewhere. Thus, the EU will have to continue to seek the via media between international legality and political reality, strict observance of international law and effectiveness, lex ferenda and lex lata and between Constructivist-led, universalistic, value-based conflict resolution policies and more Realist-led, self-interest, security-based and hegemony-motivated policies.
39
Akhavan, Payam, and Eirik Bjorge. "Between Consent and Coherence: Incidental Questions in an Imperfect World." AJIL Unbound 116 (2022): 164–69. http://dx.doi.org/10.1017/aju.2022.26.
Анотація:
International courts and tribunals must maintain a delicate balance between consent and coherence when they consider incidental questions as part of their dispute settlement function. There are compelling reasons, in the contemporary world of unprecedented complexity and interdependence, to instill coherence into dispute settlement procedures, so as to avoid the denial of justice. The exercise of jurisdiction over an “incidental question,” however, must not be forced to the point that it undermines the willingness of states to give their consent to such procedures.
40
Xu, Dong, Mohamed Abdou Moindjie, and Manjet Kaur Mehar Singh. "Assessing Narratives in the Translation of Chinese Political Discourse: A Perspective from the Narrative Paradigm." International Journal of English Linguistics 14, no. 2 (March 24, 2024): 62. http://dx.doi.org/10.5539/ijel.v14n2p62.
Анотація:
This research employs the narrative paradigm to assess the translation of Chinese political discourse, with the goal of enhancing the effective narrative comprehension of such translations for international communication. It applies Fisher’s narrative paradigm and Baker’s assessing narratives to investigate the application and impact of the principles of narrative coherence and fidelity in the translation of Chinese political discourse for international audiences. Employing a qualitative research approach, it conducts an analysis based on translations from volumes III and IV of Xi Jinping: The Governance of China, as primary case studies. The research finds that translations of Chinese political discourse face specific challenges and opportunities in maintaining narrative coherence and fidelity. The principle of narrative coherence emphasizes the importance of creating coherent, accessible narrative structures in translation, while the principle of fidelity demands fidelity to the source’s cultural information and political connotations, reflecting distinctive Chinese characteristics. Highlighting the significance of adopting the narrative paradigm in the international communication of Chinese political discourse, this research provides theoretical and practical insights for assessing narrative comprehension of Chinese political discourse translation. Moreover, the results offer a new perspective on narrative assessment for comprehension in cross-cultural and international communication, pointing directions for future research.
41
Sulistyani, Diyana, Januarius Mujiyanto, and Suwandi Suwandi. "An Analysis of Rhetorical Structures of Introduction Sections in International Conference Papers." English Education Journal 12, no. 2 (June 20, 2022): 234–51. http://dx.doi.org/10.15294/eej.v12i2.56500.
Анотація:
Producing a well-organized and coherent text remains a significant problem in EFL context writing. Cognitive demands and low exposure to the language contribute to this issue. Numerous researches are available to tackle EFL learners’ texts by using various ways such as Theme/Rheme and thematic progression. Some studies attempt to uncover EFL texts’ coherence by using rhetorical moves and structure. This study attempted a novel method to reveal text coherence called Rhetorical Structure Theory (RST) by Mann and Thompson (1988). The data were the introduction sections of ten articles taken from the International Conference on Science, Education, and Technology (ISET) 2019, and they were analyzed by considering 23 relations in RST. The findings reveal that the Subject Matter relations category overpowers the number of Presentational relations. Elaboration ranks at the top with 72 data, followed by Background (19 times) and Purpose (18 times). However, there is no datum for Volitional Result, Otherwise, Interpretation, and Sequence relations. It suggests that the article writers preferred to provide information by giving a detailed explanation, a background of the case, and the study purposes. The results are expected to encourage future researchers to utilize various ways of tackling text coherence and to provide an alternative to analyzing text for educators.
42
JANČIĆ, Davor. "Transatlantic Regulatory Interdependence, Law and Governance: The Evolving Roles of the EU and US Legislatures." Cambridge Yearbook of European Legal Studies 17 (November 11, 2015): 334–59. http://dx.doi.org/10.1017/cel.2015.16.
Анотація:
AbstractThis article analyses the roles of the European Parliament and the US Congress in addressing regulatory interdependencies arising in the EU–US strategic partnership. It examines their international actorness as a potential remedy for the problems of democratic participation, executive dominance, and opaqueness in the shaping of transatlantic relations. It shows that legislatures significantly contribute to regulatory discrepancies and trade disputes and that the adverse consequences thereof justify more intensiveex antecooperation between them. The analysis conducts two groups of case studies to demonstrate how the EP and Congress influence law and policy in areas of transatlantic regulatory and foreign policy divergence. The first group of case studies analyses parliamentary involvement in the making of international agreements (TTIP and ACTA). The second group of case studies inspects legislative action with extraterritorial effects (US Helms–Burton and Sarbanes–Oxley Acts). The article argues that the EP and Congress have so far frequently acted against the spirit of the strategic partnership in ways that are injurious to the interests of the other side, and discusses whether an interparliamentary early warning mechanism could reduce legislative and political frictions and increase the coherence of transatlantic lawmaking.
43
Ross, Hamish. "Judicial Responses to Violations of the Emotional, Physical, Psychological and Sexual Integrity of the Child." International Journal of Children’s Rights 27, no. 2 (May 10, 2019): 373–409. http://dx.doi.org/10.1163/15718182-02702004.
Анотація:
This article examines the use of limitation laws in the context of civil law claims under English law and Scots law brought by adult claimants in relation to allegations of historical abuse in childhood. Using case law as a barometer of judicial attitudes towards such claimants and, by extension, towards the child victims of abuse themselves, differences in judicial approach between the two jurisdictions are critically assessed, entailing some weighing and evaluation of the argumentative coherence and persuasive force of the judicial decision-making in question. Key aspects of the discussion are framed in terms of recurrent issues that have arisen in relevant case law. The overall aim is to inform a wider debate about the success or failure of civil law mechanisms of redress in rendering justice to those whose right to emotional, physical, psychological or sexual integrity has been violated in childhood.
44
Boulanger-Bonnelly, Jérémy, and Louise Otis. "In Search of Coherence: Burden and Standard of Proof in International Administrative Law." International Organizations Law Review 18, no. 3 (December 20, 2021): 507–39. http://dx.doi.org/10.1163/15723747-18030009.
Анотація:
Abstract The authors explore the rules governing the burden and standard of proof in international administrative law, both from a general perspective and in specific contexts such as termination for misconduct, harassment, retaliation, performance and promotions, and service-incurred illnesses. They compare the rules applied by various international administrative tribunals with those applied by courts in domestic jurisdictions. They conclude that some international organizations should review their rules in the interest of coherence, and revert back to a contextualized application of the usual civil standard of proof instead of applying different standards depending on the circumstances.
45
Myburgh, Paul. "Uniformity or Unilateralism in the Law of Carriage of Goods by Sea?" Victoria University of Wellington Law Review 31, no. 2 (May 1, 2000): 355. http://dx.doi.org/10.26686/vuwlr.v31i2.5953.
Анотація:
The ideal of international uniformity has always been regarded as particularly important to maritime law. However, over the past decade or so, the uniformity of the law of international carriage of goods by sea has increasingly been undermined by the unilateral adoption by maritime jurisdictions of "hybrid carriage regimes" which depart from the established international uniform rules.In this article Paul Myburgh argues that this trend towards adoption of divergent carriage regimes is highly problematic, not merely because of their detrimental effects on international uniformity and the coherence of maritime law and international transport law in general, but also because of more fundamental concerns about the validity of these regimes at international law, the practical conflict of laws problems that that they will generate, and their distorting effects on multimodal transport. The article concludes with some suggestions for future reform in this area.
46
Einhorn, Talia. "Reconciling Israeli Antidumping Law With WTO/GATT International Trade Law Rules." Israel Law Review 32, no. 1 (1998): 81–138. http://dx.doi.org/10.1017/s0021223700015600.
Анотація:
Dumping is defined, basically, as the sale of goods to an export market at a price below that charged for comparable goods in the exporter's home market. The General Agreement on Tariffs and Trade (GATT) does not forbid such action, not even when injurious to the competing domestic industry. However, it has taken the view that dumping constitutes an unfair trade practice. Under GATT, Article VI Contracting Parties (or Members, as they are now termed in the GATT 1994 Agreements) are authorized, as an exception to other GATT obligations, to unilaterally impose antidumping (hereinafter: AD) duties to counteract the effects of dumping. The duties should create a level playing field in which producers all over the world will be able to compete fairly with each other. The principles sound simple and straightforward, yet their application is one of the most contentious topics in international trade law.The economic coherence of AD rules is controversial. In international trade, price discrimination between national markets is typically made possible when the exporter has a powerful position in the home market and re-exportation to that market is not feasible. In the domestic arena price discrimination is countered by the laws of competition and antitrust. International trade law offers states a very different remedy, that first and foremost protects the competing local industry, regardless of the procompetitive or anticompetitive effects of dumping on the market as a whole.
47
Haslehner, Werner. "Consistency and fundamental freedoms: The case of direct taxation." Common Market Law Review 50, Issue 3 (June 1, 2013): 737–72. http://dx.doi.org/10.54648/cola2013083.
Анотація:
Consistency,as coherence, is a central requirement of justice, and, consequently, a central requirement for any legal system. The concrete conditions to achieve it, are, however, less evident. The potential reach of the concept as it appears in the case law of the ECJ, is still mostly unexplored in academic literature. This article thus undertakes to analyse and pinpoint its significance, taking direct tax law as an example of a subject matter falling squarely within the competence of the Member States. As such, direct taxation provides a prime example for the conflicting principles of national parliamentary sovereignty and quasi-constitutional supranational limits to this sovereignty and thus an ideal case for such analysis. It is shown how many of the peculiarities of the ECJ decisions on tax discrimination can bereconceptualized and understood in terms of the idea of consistency. Through the discussion of the main justifications unique to direct tax cases the article also reveals the inconsistency of the ECJ in respect of its application of that central idea and advocates a more stringent approach to improve the transparency of the case law and thus, in turn, its consistency. This approach is explained in more detail by reference to different tests for consistency to be employed on each stage of the proportionality analysis, and defended against possible objections to different standards of the concept.
48
Snell, Jukka. "The Notion of Market Access: A Concept or a Slogan?" Common Market Law Review 47, Issue 2 (April 1, 2010): 437–72. http://dx.doi.org/10.54648/cola2010020.
Анотація:
The internal market case law of the European Court of Justice often invokes the term market access, and recently the notion has been given a key role in defining the reach of the four freedoms of the TFE – free movement of goods, persons, services, and capital. Unfortunately the precise content of the term remains elusive. The use of the notion in (European Union) competition law and WTO law does not provide reliable guidance, due to the fundamentally different contexts. Further, it is not clear what the normative justification for distinguishing formally between access and exercise or direct and indirect effects is. The case law also lacks coherence. In some decisions the Court indicates that the impact on market access is the decisive criterion for the application of free movement provisions, but in others it is prepared to find a restriction or dismiss a case without even mentioning the term. In its most recent rulings the Court has focused on the magnitude of the effects of national measures (which erect barriers to entry), yet it has consistently rejected arguments based on the minor or slight impact of national rules. The article argues that, when pressed, the notion of market access collapses into economic freedom or anti-protectionism, and obscures the need to choose between the competing paradigms of free movement law.
49
Chamon, Merijn. "Implied exclusive powers in the ECJS post-Lisbon jurisprudence: The continued development of the ERTA doctrine." Common Market Law Review 55, Issue 4 (August 1, 2018): 1101–41. http://dx.doi.org/10.54648/cola2018094.
Анотація:
Already early on in the EU integration process the ECJ accepted the idea of implied exclusive powers: in ERTA, it ruled that Member States may lose the power to conclude international agreements if and when the EU has acted internally on the matter. This idea of “supervening exclusivity” was further developed in subsequent ECJ case law and finally recognized in primary law through codification in Article 3(2) TFEU. The present article reconstructs the Court’s pre-Lisbon jurisprudence using different building blocks: the telos and nature of supervening exclusivity, the species of “common rules” and the notion of “affecting”. Reconceptualizing the ERTA doctrine, the article argues that the ERTA effect is a form of obstacle pre-emption. In a second part, the article looks at the (dis)continuity of the application of the ERTA doctrine in the Court’s post-Lisbon case law, finding that there is coherence in the sense that obstacle pre-emption is still a valid prism through which to look at the ERTA doctrine but at the same time the threshold for finding an EU exclusive competence has been lowered.
50
Lambrecht, Sarah. "Bringing RightsMoreHome: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?" German Law Journal 15, no. 3 (May 1, 2014): 407–36. http://dx.doi.org/10.1017/s2071832200018976.
Анотація:
This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.