In determining the boundaries of supranational legislation some courts adopt an expansionist (dynamic) line. To take a well-known regional example, the European Court of Justice (ECJ) has long been engaged in an exercise in expansionist interpretation, thus broadening the scope of European Union legislation at the expense of the political discretion of EU Member States. Though surely seeking to advance what it sees as the Union’s best interests, the ECJ sometimes “runs amok,” actively extending regional rules in ways that constrain national sovereignty beyond what the Members had originally intended. Or, as one of my Copenhagen colleagues once put it: the ECJ is “running wild.”
{"title":"Not Running Wild with the CISG","authors":"Joseph Lookofsky","doi":"10.5195/JLC.2011.27","DOIUrl":"https://doi.org/10.5195/JLC.2011.27","url":null,"abstract":"In determining the boundaries of supranational legislation some courts adopt an expansionist (dynamic) line. To take a well-known regional example, the European Court of Justice (ECJ) has long been engaged in an exercise in expansionist interpretation, thus broadening the scope of European Union legislation at the expense of the political discretion of EU Member States. Though surely seeking to advance what it sees as the Union’s best interests, the ECJ sometimes “runs amok,” actively extending regional rules in ways that constrain national sovereignty beyond what the Members had originally intended. Or, as one of my Copenhagen colleagues once put it: the ECJ is “running wild.”","PeriodicalId":319905,"journal":{"name":"LSN: Treaties & Other Sources of International Law (Topic)","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121566366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The last decade has seen an exponential growth in the formation of regional trade agreements (RTAs) and the development of regional dispute settlement mechanisms (DSMs). One of the most significant RTAs is the nascent ASEAN-China Free Trade Area (ACFTA) which has set-up its own untested DSM. There is often considerable overlap between a World Trade Organisation (WTO) Member's treaty obligations under a RTA and under the WTO covered agreements. Accordingly, it is not uncommon for a single trade dispute to give rise to claims for breaches of both regional and WTO treaty obligations. The WTO has a tested DSM for the adjudication of disputes under its multilateral agreements. Nevertheless, the rules it can and will apply to resolve jurisdictional conflicts with regional DSMs remain unclear. This paper explores the propensity for jurisdictional conflict between the WTO and ACFTA DSMs. It then examines the extent to which such conflict can be resolved by the forum selection clause of the ACFTA and the application of Article 41 of the Vienna Convention on the Law of Treaties (VCLT).
{"title":"Regional Trade Agreements and the WTO: An Analysis of the Efficacy of the Asean-China Free Trade Area (ACFTA) Forum Selection Clause in Resolving Jurisdictional Conflict","authors":"M. Lovell","doi":"10.2139/ssrn.1114770","DOIUrl":"https://doi.org/10.2139/ssrn.1114770","url":null,"abstract":"The last decade has seen an exponential growth in the formation of regional trade agreements (RTAs) and the development of regional dispute settlement mechanisms (DSMs). One of the most significant RTAs is the nascent ASEAN-China Free Trade Area (ACFTA) which has set-up its own untested DSM. There is often considerable overlap between a World Trade Organisation (WTO) Member's treaty obligations under a RTA and under the WTO covered agreements. Accordingly, it is not uncommon for a single trade dispute to give rise to claims for breaches of both regional and WTO treaty obligations. The WTO has a tested DSM for the adjudication of disputes under its multilateral agreements. Nevertheless, the rules it can and will apply to resolve jurisdictional conflicts with regional DSMs remain unclear. This paper explores the propensity for jurisdictional conflict between the WTO and ACFTA DSMs. It then examines the extent to which such conflict can be resolved by the forum selection clause of the ACFTA and the application of Article 41 of the Vienna Convention on the Law of Treaties (VCLT).","PeriodicalId":319905,"journal":{"name":"LSN: Treaties & Other Sources of International Law (Topic)","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134227019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther and contains an explicit right to "adequate provision for all persons to have due legal aid in order to secure their rights." These sources support the conclusion that the Civil Gideon right is an emerging right in international jurisprudence. International bodies have been particularly apt to recognize this right when inequalities and threats to individuals' fundamental interests are exacerbated by the lack of legal assistance. Since the United States is a participant in several of these international treaty regimes, this international jurisprudence concerning Civil Gideon is highly relevant to evaluating whether the interest of justice are adequately served by the United States' current patchwork approach to the provision of civil counsel.
本报告审查了对美国具有约束力的国际人权条约以及其他不具有约束力的国际人权文件，以确定在民事案件中请律师的权利，即所谓的"民事吉迪恩"权利的地位。负责《公民权利和政治权利国际盟约》和《消除一切形式种族歧视公约》的联合国条约监测机构都指出，为确保民事案件的公正，可能需要法律援助。美国是美洲国家组织(Organization of American States)的缔约国，《宪章》更进一步，明确规定了“为所有人提供适当法律援助以保障其权利”的权利。这些资料支持了民事吉迪恩权是国际法理学上一项新兴权利的结论。当缺乏法律援助加剧了不平等和对个人基本利益的威胁时，国际机构特别容易承认这项权利。由于美国是其中几个国际条约制度的参与者，有关民事吉迪恩的国际法理学与评估美国目前提供民事律师的拼凑方式是否充分服务于司法利益高度相关。
{"title":"In the Interests of Justice: Human Rights and the Right to Counsel in Civil Cases","authors":"Martha F. Davis","doi":"10.2139/SSRN.968473","DOIUrl":"https://doi.org/10.2139/SSRN.968473","url":null,"abstract":"This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called \"Civil Gideon\" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther and contains an explicit right to \"adequate provision for all persons to have due legal aid in order to secure their rights.\" These sources support the conclusion that the Civil Gideon right is an emerging right in international jurisprudence. International bodies have been particularly apt to recognize this right when inequalities and threats to individuals' fundamental interests are exacerbated by the lack of legal assistance. Since the United States is a participant in several of these international treaty regimes, this international jurisprudence concerning Civil Gideon is highly relevant to evaluating whether the interest of justice are adequately served by the United States' current patchwork approach to the provision of civil counsel.","PeriodicalId":319905,"journal":{"name":"LSN: Treaties & Other Sources of International Law (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114776864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, ambiguous statutes are usually interpreted to conform to international law, and statutes are usually not understood to apply outside of the nation's territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in various settings, the cost of American deference to foreign interests is less than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes so as to apply extraterritorially, or so as to conflict with international law, it should be permitted to do so. The analysis of the interpretive power of the executive follows by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to such interpretation; sometimes it operates as a valuable analogy.
{"title":"Chevronizing Foreign Relations Law","authors":"E. Posner, C. Sunstein","doi":"10.2139/SSRN.901999","DOIUrl":"https://doi.org/10.2139/SSRN.901999","url":null,"abstract":"A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, ambiguous statutes are usually interpreted to conform to international law, and statutes are usually not understood to apply outside of the nation's territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in various settings, the cost of American deference to foreign interests is less than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes so as to apply extraterritorially, or so as to conflict with international law, it should be permitted to do so. The analysis of the interpretive power of the executive follows by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to such interpretation; sometimes it operates as a valuable analogy.","PeriodicalId":319905,"journal":{"name":"LSN: Treaties & Other Sources of International Law (Topic)","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124684932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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