This paper takes a critical look at the conclusions and reasoning of the Opinion of the Advocate General in the case C-270/12 UK v Council and Parliament that, at the time of writing this paper, is pending before the Grand Chamber of the Court of Justice of the European Union. In his Opinion delivered on 12 September 2013, Advocate General Jaaskinen found, in agreement with the UK, that the Article 114 TFEU was not an appropriate legal basis for the powers granted to the European Securities Markets Authority under Article 28 of the Regulation 236/2012 on Short Selling and certain aspects of Credit Default Swaps. This paper has three aims: first, to underline the “systemic” importance of the case for the nascent system of EU financial supervision; second, to point out certain neglected dimensions in the Opinion, especially the insufficient attention paid to ex ante (political and procedural) safeguards and the problematic relationship between financial stability and financial integration; and third, to emphasise the need of the Court to find a second-best solution in order to ring-fence the damage that could be caused to the supervisory system in the event the Court were to agree with the Advocate General’s findings.
{"title":"Case C-270/12 (UK v Parliament and Council) – Stress Testing Constitutional Resilience of the Powers of EU Financial Supervisory Authorities – A Critical Assessment of the Advocate General's Opinion","authors":"H. Marjosola","doi":"10.2139/SSRN.2379348","DOIUrl":"https://doi.org/10.2139/SSRN.2379348","url":null,"abstract":"This paper takes a critical look at the conclusions and reasoning of the Opinion of the Advocate General in the case C-270/12 UK v Council and Parliament that, at the time of writing this paper, is pending before the Grand Chamber of the Court of Justice of the European Union. In his Opinion delivered on 12 September 2013, Advocate General Jaaskinen found, in agreement with the UK, that the Article 114 TFEU was not an appropriate legal basis for the powers granted to the European Securities Markets Authority under Article 28 of the Regulation 236/2012 on Short Selling and certain aspects of Credit Default Swaps. This paper has three aims: first, to underline the “systemic” importance of the case for the nascent system of EU financial supervision; second, to point out certain neglected dimensions in the Opinion, especially the insufficient attention paid to ex ante (political and procedural) safeguards and the problematic relationship between financial stability and financial integration; and third, to emphasise the need of the Court to find a second-best solution in order to ring-fence the damage that could be caused to the supervisory system in the event the Court were to agree with the Advocate General’s findings.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"234 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133361320","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 article deals with an important, but yet unexplored issue, being to what extent the anti-monopoly law of China of 2008 can be applied in an extraterritorial manner. The paper reviews first the extraterritorial application of anti-trust law in the United States and in EU competition law and then provides a critical policy analysis on extraterritoriality. Attention is specifically paid to the position of China since article 2 of the ALM, so we argue, explicitly provides for the possibility of extraterritoriality. The first decisions also show that China is apparently on its way towards an extraterritorial application of its anti-monopoly law in practice. We point at the many conflicts to which such an extraterritorial application of competition law has given rise in the EU and in the US (and more particularly between them) and hence we argue that it may be wise to draw lessons from those conflicts in order to prevent a similar scenario for China. We argue that for example joint actions between anti-trust authorities and mutual information exchange (for example on the basis of a bilateral agreement on the extraterritorial exercise of jurisdiction) may lead to avoiding potential conflicts that may arise from an extraterritorial application of the Chinese anti-monopoly law.
{"title":"Towards an Extraterritorial Application of the Chinese Anti-Monopoly Law that Avoids Trade Conflicts","authors":"M. Faure, Xinzhu Zhang","doi":"10.2139/SSRN.2361448","DOIUrl":"https://doi.org/10.2139/SSRN.2361448","url":null,"abstract":"This article deals with an important, but yet unexplored issue, being to what extent the anti-monopoly law of China of 2008 can be applied in an extraterritorial manner. The paper reviews first the extraterritorial application of anti-trust law in the United States and in EU competition law and then provides a critical policy analysis on extraterritoriality. Attention is specifically paid to the position of China since article 2 of the ALM, so we argue, explicitly provides for the possibility of extraterritoriality. The first decisions also show that China is apparently on its way towards an extraterritorial application of its anti-monopoly law in practice. We point at the many conflicts to which such an extraterritorial application of competition law has given rise in the EU and in the US (and more particularly between them) and hence we argue that it may be wise to draw lessons from those conflicts in order to prevent a similar scenario for China. We argue that for example joint actions between anti-trust authorities and mutual information exchange (for example on the basis of a bilateral agreement on the extraterritorial exercise of jurisdiction) may lead to avoiding potential conflicts that may arise from an extraterritorial application of the Chinese anti-monopoly law.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"562 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123150313","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 regulatory system has taken 150 years to develop in the US. Even today it is far from unified with four supervisory "agencies" overseeing banking organizations, i.e., 50 State Regulatory bodies, the OCC, the FDIC and the Federal Reserve, with a wide variety of individual and often overlapping powers such as in examination and supervision. The Euro-zone is at the very start of what will be a long and difficult process and whether unification is achievable across such a diverse set of economies with competing local supervisors and diverse bankruptcy laws remains to be seen. Nevertheless, the US is a useful laboratory to examine the benefits and costs of different approaches to the three "legs" of European bank union, i.e., supervision, deposit insurance and restructuring/resolution.
{"title":"Regulatory Experience in the US and It's Lessons for European Banking Union","authors":"A. Saunders","doi":"10.2139/ssrn.2353545","DOIUrl":"https://doi.org/10.2139/ssrn.2353545","url":null,"abstract":"The regulatory system has taken 150 years to develop in the US. Even today it is far from unified with four supervisory \"agencies\" overseeing banking organizations, i.e., 50 State Regulatory bodies, the OCC, the FDIC and the Federal Reserve, with a wide variety of individual and often overlapping powers such as in examination and supervision. The Euro-zone is at the very start of what will be a long and difficult process and whether unification is achievable across such a diverse set of economies with competing local supervisors and diverse bankruptcy laws remains to be seen. Nevertheless, the US is a useful laboratory to examine the benefits and costs of different approaches to the three \"legs\" of European bank union, i.e., supervision, deposit insurance and restructuring/resolution.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123705689","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}
Pub Date : 2013-11-04DOI: 10.5553/DQ/221199812013001003003
L. Enneking
On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case, including the January 2013 ruling by the The Hague district court, is interesting for a number of reasons. One of them is that it forms part of a broader, worldwide trend towards similar civil liability procedures that has come up over the past two decades in Western societies around the world.One of the main characteristics of these so-called 'foreign direct liability cases' is the inequality of arms that typically exists between the host country plaintiffs on the one hand and the corporate defendants on the other when it comes to financial scope, level of organization and access to relevant information. As a consequence, the procedural rules pertaining to the collection of evidence that apply in the forum countries in which they are pursued typically play an important part in these cases. This also means that in countries where the prospects for obtaining evidence in civil procedures are poor, this may add a potentially crucial procedural barrier for host country plaintiffs seeking to pursue foreign direct liability claims that may be difficult to overcome.The main question to be answered in this article is what the prospects are for plaintiffs in Dutch foreign direct liability claims (i.e. foreign direct liability claims pursued before Dutch courts against multinational corporations that are based in the Netherlands) when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This question is highly relevant, since the course of the proceedings in the first and (so far) only Dutch foreign direct liability case, the Dutch Shell Nigeria case, suggest that the Dutch procedural regime on the collection of evidence may pose a significant hurdle for plaintiffs seeking to pursue foreign direct liability claims before Dutch courts.
{"title":"Multinationals and Transparency in Foreign Direct Liability Cases - The Prospects for Obtaining Evidence Under the Dutch Civil Procedural Regime on the Production of Exhibits","authors":"L. Enneking","doi":"10.5553/DQ/221199812013001003003","DOIUrl":"https://doi.org/10.5553/DQ/221199812013001003003","url":null,"abstract":"On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case, including the January 2013 ruling by the The Hague district court, is interesting for a number of reasons. One of them is that it forms part of a broader, worldwide trend towards similar civil liability procedures that has come up over the past two decades in Western societies around the world.One of the main characteristics of these so-called 'foreign direct liability cases' is the inequality of arms that typically exists between the host country plaintiffs on the one hand and the corporate defendants on the other when it comes to financial scope, level of organization and access to relevant information. As a consequence, the procedural rules pertaining to the collection of evidence that apply in the forum countries in which they are pursued typically play an important part in these cases. This also means that in countries where the prospects for obtaining evidence in civil procedures are poor, this may add a potentially crucial procedural barrier for host country plaintiffs seeking to pursue foreign direct liability claims that may be difficult to overcome.The main question to be answered in this article is what the prospects are for plaintiffs in Dutch foreign direct liability claims (i.e. foreign direct liability claims pursued before Dutch courts against multinational corporations that are based in the Netherlands) when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This question is highly relevant, since the course of the proceedings in the first and (so far) only Dutch foreign direct liability case, the Dutch Shell Nigeria case, suggest that the Dutch procedural regime on the collection of evidence may pose a significant hurdle for plaintiffs seeking to pursue foreign direct liability claims before Dutch courts.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"139 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123953666","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}
Control over environmental regulation has become remarkably centralized in the European Union, with power shifting over the past few decades from Member States to EU institutions in Brussels. This chapter, part of a forthcoming ABA book -- International Environmental Law: The Practitioner's Guide to the Laws of the Planet -- analyzes both the causes and the effects of that policy centralization. It focuses on EU energy and climate change policy, including the Emissions Trading System, and also discusses EU legislation on toxic chemicals and product policy.
{"title":"The Shift in Power in the European Union and Its Consequences for Energy and the Environment","authors":"Noah M. Sachs","doi":"10.2139/SSRN.2349348","DOIUrl":"https://doi.org/10.2139/SSRN.2349348","url":null,"abstract":"Control over environmental regulation has become remarkably centralized in the European Union, with power shifting over the past few decades from Member States to EU institutions in Brussels. This chapter, part of a forthcoming ABA book -- International Environmental Law: The Practitioner's Guide to the Laws of the Planet -- analyzes both the causes and the effects of that policy centralization. It focuses on EU energy and climate change policy, including the Emissions Trading System, and also discusses EU legislation on toxic chemicals and product policy.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"281 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123987709","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 article systematically explores the application of insights from behavioral economics to international legal issues. Economic analysis has in recent years made significant inroads into the study of international law, but most of this literature relies upon assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both in its insufficient empirical grounding and in its question-begging tendency towards often unsophisticated and outdated forms of ‘Realist’ international relations theory. A behavioral approach would augment legal research by providing new hypotheses to address puzzles in international law while at the same time introducing empirically grounded concepts of real, observed bounded’ rationality, which diverge from the assumed, perfect rationality of traditional law and economics. The article addresses some possible methodological objections to the application of behavioral analysis to international law, namely: the focus of behavioral analysis on the individual; the empirical foundations of behavioral economics; and behavioral analysis’ relative lack of parsimony. It then offers indicative behavioral research frameworks for three outstanding puzzles in international law: (a) the relative inefficiency of the development of international law; (b) collegiality and dissent in international tribunals; and (c) target selection in armed conflict. Behavioral research of international law can serve as a viable and enriching alternative and complement to economic analysis and other theoretical approaches to international legal research, so long as it is pursued with academic and empirical rigor as well as intellectual humility.
{"title":"Behavioral International Law","authors":"Tomer Broude","doi":"10.2139/ssrn.2320375","DOIUrl":"https://doi.org/10.2139/ssrn.2320375","url":null,"abstract":"This article systematically explores the application of insights from behavioral economics to international legal issues. Economic analysis has in recent years made significant inroads into the study of international law, but most of this literature relies upon assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both in its insufficient empirical grounding and in its question-begging tendency towards often unsophisticated and outdated forms of ‘Realist’ international relations theory. A behavioral approach would augment legal research by providing new hypotheses to address puzzles in international law while at the same time introducing empirically grounded concepts of real, observed bounded’ rationality, which diverge from the assumed, perfect rationality of traditional law and economics. The article addresses some possible methodological objections to the application of behavioral analysis to international law, namely: the focus of behavioral analysis on the individual; the empirical foundations of behavioral economics; and behavioral analysis’ relative lack of parsimony. It then offers indicative behavioral research frameworks for three outstanding puzzles in international law: (a) the relative inefficiency of the development of international law; (b) collegiality and dissent in international tribunals; and (c) target selection in armed conflict. Behavioral research of international law can serve as a viable and enriching alternative and complement to economic analysis and other theoretical approaches to international legal research, so long as it is pursued with academic and empirical rigor as well as intellectual humility.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130584897","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}
In her book, 'International Authority and the Responsibility to Protect,' Anne Orford compellingly demonstrates how the doctrine of responsibility to protect can be seen as providing a normative foundation for international authority already exercised through 'pre-existing practices of protection' on the part of the international executive. She does so through a close historical analysis of practice on the part of the UN, and particularly the work of Secretary General Dag Hammarskjold. In doing so, she positions Hammarskjold as the 'founding father' of international executive action, and treats the expansion of international authority justified by reference to protection largely as a result of the implementation of Hammarskjold’s vision for the development of international executive rule. Focusing on Hammarskjold in this way provides the basis for an illuminating and coherent narrative of the development of the responsibility to protect concept. However, it also obscures questions of the social and institutional context within which Hammarskjold’s ideas took effect. Quite evidently, it was not Hammarskjold alone, but a whole bureaucratic machinery which performed the ‘protracted process’ of consolidating international executive power by reference to the concept of protection. But this social history of the responsibility to protect is largely missing from Orford’s narrative. As a result, Orford’s account of the ‘pre-existing…practices of protection,’ which responsibility to protect emerged to justify, is only partial, and leaves critical questions – such as the nature of those exercising international authority – unanswered. In this piece I therefore argue that Orford’s consideration of the political philosophy and intellectual history of the responsibility to protect needs to be supplemented by greater attention to its sociology, through an analysis of how practices of international executive action to 'protect life' developed through the institutional life – or 'culture' – of international bodies. Such an analysis not only offers a more complete picture of the consolidation of international executive authority based on protection, but also provides a basis for understanding how the responsibility to protect concept might affect the future practices of international institutions exercising executive power.
安妮•奥福德(Anne Orford)在她的著作《国际权威和保护责任》(International Authority and the Responsibility to Protect)中有力地论证了保护责任的原则如何可以被视为为国际权威提供了一个规范性基础，而国际权威已经通过国际执行机构的“预先存在的保护实践”得以行使。她通过对联合国的实践，特别是对秘书长达格·哈马舍尔德的工作进行了细致的历史分析。在这样做的过程中，她将哈马舍尔德定位为国际行政行为的“奠基人”，并将国际权威的扩张在很大程度上归因于哈马舍尔德对国际行政规则发展的愿景的实施。以这种方式关注哈马舍尔德为保护责任概念的发展提供了启发性和连贯叙述的基础。然而，它也模糊了哈马舍尔德的思想产生影响的社会和制度背景的问题。很明显，不仅仅是哈马舍尔德一个人，而是整个官僚机构，通过提及保护概念来执行巩固国际行政权力的“漫长过程”。但是这种保护责任的社会历史在奥福德的叙述中基本上是缺失的。因此，奥福德对“预先存在的……保护实践”的描述，即保护责任的出现是为了证明其合理性，只是部分的，并留下了一些关键问题——比如那些行使国际权威的人的性质——没有得到回答。因此，在这篇文章中，我认为，奥福德对保护责任的政治哲学和思想史的考虑需要得到对其社会学的更多关注的补充，通过分析国际机构的制度生活或“文化”如何发展国际行政行动的实践来“保护生命”。这种分析不仅提供了以保护为基础的国际行政权力巩固的更全面的情况，而且还为了解保护责任概念如何影响行使行政权力的国际机构的未来做法提供了基础。
{"title":"International Authority, the Responsibility to Protect and the Culture of the International Executive","authors":"Jacqueline Mowbray","doi":"10.1093/LRIL/LRT004","DOIUrl":"https://doi.org/10.1093/LRIL/LRT004","url":null,"abstract":"In her book, 'International Authority and the Responsibility to Protect,' Anne Orford compellingly demonstrates how the doctrine of responsibility to protect can be seen as providing a normative foundation for international authority already exercised through 'pre-existing practices of protection' on the part of the international executive. She does so through a close historical analysis of practice on the part of the UN, and particularly the work of Secretary General Dag Hammarskjold. In doing so, she positions Hammarskjold as the 'founding father' of international executive action, and treats the expansion of international authority justified by reference to protection largely as a result of the implementation of Hammarskjold’s vision for the development of international executive rule. Focusing on Hammarskjold in this way provides the basis for an illuminating and coherent narrative of the development of the responsibility to protect concept. However, it also obscures questions of the social and institutional context within which Hammarskjold’s ideas took effect. Quite evidently, it was not Hammarskjold alone, but a whole bureaucratic machinery which performed the ‘protracted process’ of consolidating international executive power by reference to the concept of protection. But this social history of the responsibility to protect is largely missing from Orford’s narrative. As a result, Orford’s account of the ‘pre-existing…practices of protection,’ which responsibility to protect emerged to justify, is only partial, and leaves critical questions – such as the nature of those exercising international authority – unanswered. In this piece I therefore argue that Orford’s consideration of the political philosophy and intellectual history of the responsibility to protect needs to be supplemented by greater attention to its sociology, through an analysis of how practices of international executive action to 'protect life' developed through the institutional life – or 'culture' – of international bodies. Such an analysis not only offers a more complete picture of the consolidation of international executive authority based on protection, but also provides a basis for understanding how the responsibility to protect concept might affect the future practices of international institutions exercising executive power.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132912317","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}
Having proposed an alternative definition of what “law” (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying “the law” (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options. Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.
{"title":"What is 'Law,' If 'The Law' is Not Something that 'Is'? A Modest Contribution to a Major Question","authors":"D. Svantesson","doi":"10.1111/raju.12022","DOIUrl":"https://doi.org/10.1111/raju.12022","url":null,"abstract":"Having proposed an alternative definition of what “law” (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying “the law” (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options. Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128822351","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}
Pub Date : 2013-06-28DOI: 10.1163/9789004289222_018
Sienho Yee
This paper briefly explains the idea of "member responsibility" for acts of an international organization, moves on to lay out the International Law Commission 2011 Articles on Responsibility of International Organizations framework on this issue, and then offers some critical observations on the ILC treatment of the topic. The 2011 articles framework on this issue can be considered to have four aspects, short-handed roughly as "independent personality", "additional acts approach", "no member responsibility", and ‘remedy-enabling obligations pursuant to the rules of the international organization’. The consolation prizes that the ILC has given to the world are article 61 on prevention of circumvention of member States’ obligations and article 40 on ensuring the fulfillment of the obligation to make reparation. Neither represents a substantial victory for member responsibility, but each can be considered a half-step forward in that direction. As to article 61, the intention to circumvent obligations may be too high a threshold and may not cover the original establishment of an international organization and thus may not completely solve the ‘beautiful for some but ugly for others’ problem, but at least it would catch the overtly villainous States, if any. As to article 40, the ‘take all appropriate measures’ obligation to enable remedies on the part of the international organization as well as its member States may not rise to the level of ‘hard obligations’ because under article 40 these obligations are supposed to be pursuant to the rules of the organization which may reject such obligations. The saving grace is probably the suggestion made in the commentary that an implied obligation to enable remedies should be read into silent or unclear rules of the organization. This can be a powerful idea because silent or unclear rules of the organizations are the norm, other formulations the exception. This ‘rule of interpretation’ may nudge the law into the direction of providing for remedies where they are due.
{"title":"‘Member Responsibility’ and the ILC Articles on the Responsibility of International Organizations: Some Observations","authors":"Sienho Yee","doi":"10.1163/9789004289222_018","DOIUrl":"https://doi.org/10.1163/9789004289222_018","url":null,"abstract":"This paper briefly explains the idea of \"member responsibility\" for acts of an international organization, moves on to lay out the International Law Commission 2011 Articles on Responsibility of International Organizations framework on this issue, and then offers some critical observations on the ILC treatment of the topic. The 2011 articles framework on this issue can be considered to have four aspects, short-handed roughly as \"independent personality\", \"additional acts approach\", \"no member responsibility\", and ‘remedy-enabling obligations pursuant to the rules of the international organization’. The consolation prizes that the ILC has given to the world are article 61 on prevention of circumvention of member States’ obligations and article 40 on ensuring the fulfillment of the obligation to make reparation. Neither represents a substantial victory for member responsibility, but each can be considered a half-step forward in that direction. As to article 61, the intention to circumvent obligations may be too high a threshold and may not cover the original establishment of an international organization and thus may not completely solve the ‘beautiful for some but ugly for others’ problem, but at least it would catch the overtly villainous States, if any. As to article 40, the ‘take all appropriate measures’ obligation to enable remedies on the part of the international organization as well as its member States may not rise to the level of ‘hard obligations’ because under article 40 these obligations are supposed to be pursuant to the rules of the organization which may reject such obligations. The saving grace is probably the suggestion made in the commentary that an implied obligation to enable remedies should be read into silent or unclear rules of the organization. This can be a powerful idea because silent or unclear rules of the organizations are the norm, other formulations the exception. This ‘rule of interpretation’ may nudge the law into the direction of providing for remedies where they are due.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"2194 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130115315","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 article discusses recent legal conflicts between state universities and conservative religious students in the United States, focusing on Christian Legal Society v. Martinez. In recent years, several universities have denied recognition to religious student organizations that discriminate on the basis of religion or sexual orientation. I argue that scholars on both sides of the issue have failed to recognize the full scope of the privilege that the universities demand. If the courts accept the universities' demands, then the courts dangerously expand the government's authority to suppress dissenters. No proponent of civil liberties should welcome this change.
{"title":"Fighting Discrimination with Discrimination: Public Universities and the Rights of Dissenting Students","authors":"J. Affolter","doi":"10.1111/raju.12012","DOIUrl":"https://doi.org/10.1111/raju.12012","url":null,"abstract":"This article discusses recent legal conflicts between state universities and conservative religious students in the United States, focusing on Christian Legal Society v. Martinez. In recent years, several universities have denied recognition to religious student organizations that discriminate on the basis of religion or sexual orientation. I argue that scholars on both sides of the issue have failed to recognize the full scope of the privilege that the universities demand. If the courts accept the universities' demands, then the courts dangerously expand the government's authority to suppress dissenters. No proponent of civil liberties should welcome this change.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124869169","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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