Public International Law

This book offers an up-to-date juristic exposition and analysis of diplomatic protection as an institution of public international law. Diplomatic protection is primarily exercised by States towards their nationals, and exceptionally non-nationals, against violations of international law by other States, and is one of the oldest traditions of international law. The book starts with a history of the subject, and charts the development of diplomatic protection conceived as an institution of international law. It goes on to discuss the violations of international law which can trigger diplomatic protection, arrangements that are excluded from this type of protection, conflicts of interests underlying the principle and how these can be resolved, and the influence of human rights on the area. Subsequent chapters look at attempts to codify the law of diplomatic protection, and offer a critical examination of this in the light of modern policy considerations, and the recent work of the International Law Commission. The book concludes with an assessment of recent changes in the law and the importance of these from the point of view of the individual.

England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the indigenous inhabitants. The United States Supreme Court expressly adopted Discovery in 1823 in Johnson v. M'Intosh. This case and the Doctrine of Discovery has been cited and relied on by Australian, Canadian, New Zealand, and United States governments, courts, and colonists. The English colonial governments and colonists in all four countries utilized Discovery principles and arguments, and these governments continue to use Discovery today to exercise legal powers over indigenous peoples. The elements of Discovery were not applied in the exact same manner and at the exact same time periods in all four countries, but the similarities of the use of Discovery are striking and not the least bit surprising since the Doctrine was English colonial law. Viewing Australian, Canadian, New Zealand, and American history and law in light of the international law Doctrine of Discovery creates a more complete understanding of all four countries and of what colonial law has done to indigenous lands.

This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures (‘sanctions’) under Article 41 of the UN Charter, may violate international law, i.e., limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. The book then proceeds to examine how (and by whom) the engagement of this responsibility can be determined, i.e., who it is that can find the Council to have acted unlawfully. Most importantly, the book discusses how (and by whom) the responsibility of the UN for unlawful Security Council sanctions can be implemented, i.e., how (and by whom) the UN can be held to account for Security Council excesses. The central thesis is that States can react to unlawful sanctions imposed by the Security Council in a decentralized manner by disobeying the Security Council's command. In international law, this disobedience can be justified as being a countermeasure to the Security Council's unlawful act. Recent practice of States, whether undertaken by executives or, increasingly, by domestic courts, evidences an augmenting tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.

In recent years, the treaties and strategies promoting global investment have changed dramatically. The widespread liberalization of economic policy has effectively spurred an increase in foreign direct investment (FDI). By encouraging foreign investors to enter international markets, many countries are witnessing exponential growth within their economies and local industries. The surge of FDI not only brings capital for emerging or growing industries, but it is also capable of boosting the country's economy by creating greater access to financing, more job opportunities, and potential knowledge and technology spillovers. The basic purpose of concluding bilateral investment treaties (BITs) and double taxation treaties (DTTs) is to signal to investors that investments will be legally protected under international law in case of political turmoil and to mitigate the possibility of double taxation of foreign entities. But the actual effect of BITs and DTTs on the flows of foreign direct investment is debatable. This book assesses the performance of these treaties, and presents the most recent literature on BITs and DTTs and their impact on foreign investments.

International competition law has grown in importance as national economies have become more integrated, at the same time as national competition laws have proliferated and enforcement efforts have been strengthened. This system is beset with conflicts arising where States perceive that the way that another country does or does not apply its competition law adversely affects its interests. This book clarifies the nature and origin of these conflicts, and explores possible ways to reduce them. The legal and policy issues associated with the control of restrictive business practices and anticompetitive mergers in international markets are analysed. International cartels, dumping, private market access barriers, and mergers between international firms subject to multi-agency review are discussed. Topics include the harmonization and coordination of competition laws, cooperation between enforcement agencies, international judicial assistance, and the role of trade agreements and the WTO in international competition law. The problems that States have in regulating conduct beyond their borders and the merits of a variety of potential responses are also examined. It contends that there is an evolving international competition law system. States are only just beginning to see the system as a whole and are struggling to identify where their long-term interests lie. This book describes the elements of the system and their interactions, and explains how the system is evolving; suggesting what States, individually and collectively, could do to modify the system to their mutual advantage.

Networks such as cables and pipelines are essential for a functioning energy market. This book provides an overview of the legal challenges this poses in the modern world. The construction and use of these networks depends on developments in technology, policies, and legal regulation. Recently, the energy sector has been faced with considerable challenges and changes. Energy liberalization and deregulation, and the fact that traditional energy supplies like fossil fuels and large hydro plants are increasingly located far from the area of demand has drastically changed the energy landscape. The need for new sources of energy supply can therefore be found all over the world. This book investigates the challenges that face governments engaged in this renewal, particularly since in many cases these networks are, by necessity, international. The construction of new networks always involves the application of planning and environmental laws, and the complications these pose only increase as networks pass through the territory of several different countries. This book analyses the evolution of this area from several angles, both geographical and legal.

Presenting an analytical overview of the legal foundations of the EU's Common Security and Defence Policy (CSDP), this book provides a detailed examination of the law and practice of the EU's security policy. The EU's security and defence policy has long been the focus of political scientists and international relations experts. However, it has more recently become of increasing relevance to lawyers too. Since the early 2000s, the EU has carried out more than two dozen security and defence missions in Europe, Africa, and Asia. The EU institutions are keen to stress the security dimension of other external policies also, such as development cooperation, and the Lisbon Treaty introduces a more detailed set of rules and procedures which govern the CSDP. This book provides a legal analysis of the Union's CSDP by examining the nexus of its substantive, institutional, and economic dimensions. Taking as its starting point the historical development of security and defence in the context of European integration, this book outlines the legal framework created by the rules and procedures introduced by the Treaty of Lisbon. It examines the military operations and civilian missions undertaken by the Union, and looks at the policy context within which they are carried out. It analyses the international agreements concluded in this field and explores the links between the CSDP and other external policies of the Union.

For years the European Union has been looked on as a potential model for cosmopolitan governance, and enjoyed considerable influence on the global stage. The EU has a uniquely strong and legally binding mission statement to pursue international relations on a multilateral basis, founded on the progressive development of international law. The political vision was for the EU to export its values of the rule of law and sophisticated governance mechanisms to the international sphere. Globalization and the financial crisis have starkly illustrated the limits of this vision, and the EU's dependence on global forces partially beyond the control of traditional provinces of law. This book takes stock of the EU's role in global governance. It asks: to what extent can and does the EU shape and influence the on-going re-ordering of legal processes, principles, and institutions of global governance, in line with its optimistic mission statement? With this ambitious remit it covers the legal-institutional and substantive aspects of global security, trade, environmental, financial, and social governance. Across these topics this book has taken the central question of the extent of the EU's influence on global governance, providing a broad view across the key areas as well as a detailed analysis of each.

This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.

This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.