The purpose of this article is to present a critical assessment of Jurgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi‐level institutional model fares in comparison with Kant's proposal - a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The second is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi‐level model, I propose a hybrid model combining elements from Kant and Habermas.
{"title":"Kant and Habermas on International Law","authors":"K. Mikalsen","doi":"10.1111/raju.12015","DOIUrl":"https://doi.org/10.1111/raju.12015","url":null,"abstract":"The purpose of this article is to present a critical assessment of Jurgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi‐level institutional model fares in comparison with Kant's proposal - a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The second is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi‐level model, I propose a hybrid model combining elements from Kant and Habermas.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"68 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":"128968483","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}
While the Treaty objectives of the Common Agricultural Policy (CAP) as now expressed in Article 39 of the Treaty on the Functioning of the European Union may not themselves have been amended, this contribution considers whether amendments elsewhere within the Treaty, together with interpretation by the Court of Justice of the European Union (CJEU), have gone some way towards producing a broader Treaty framework, more sensitive to the numerous demands now being made of agriculture. Although there are grounds for holding that there is not full alignment between the current reform proposals and the Treaty objectives of the CAP as enshrined in Article 39(1) TFEU, together with the broader Treaty framework, some caution might be prudent before proceeding to major Treaty amendment. The original objectives as laid down in the Treaty of Rome have found a new resilience and are perhaps more relevant now than two decades ago, so any amendment might usefully take the form of expansion as opposed to deletion, as it is not difficult to conceive that each of the five original objectives will be accorded at least temporary priority over the years ahead.
{"title":"CAP Reform and the Objectives of the Common Agricultural Policy","authors":"M. Cardwell","doi":"10.2139/SSRN.2272004","DOIUrl":"https://doi.org/10.2139/SSRN.2272004","url":null,"abstract":"While the Treaty objectives of the Common Agricultural Policy (CAP) as now expressed in Article 39 of the Treaty on the Functioning of the European Union may not themselves have been amended, this contribution considers whether amendments elsewhere within the Treaty, together with interpretation by the Court of Justice of the European Union (CJEU), have gone some way towards producing a broader Treaty framework, more sensitive to the numerous demands now being made of agriculture. Although there are grounds for holding that there is not full alignment between the current reform proposals and the Treaty objectives of the CAP as enshrined in Article 39(1) TFEU, together with the broader Treaty framework, some caution might be prudent before proceeding to major Treaty amendment. The original objectives as laid down in the Treaty of Rome have found a new resilience and are perhaps more relevant now than two decades ago, so any amendment might usefully take the form of expansion as opposed to deletion, as it is not difficult to conceive that each of the five original objectives will be accorded at least temporary priority over the years ahead.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130852812","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 compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence and does not provide a clear rule for distinguishing between the two, adding to the confusion of Member States and taxpayers. The Article then surveys the Supreme Court’s Dormant Commerce Clause jurisprudence, under which the Court analyzes discriminatory state spending provisions. The Article concludes that although both the Supreme Court and the ECJ prioritize formalism over economic equivalence, the Supreme Court’s approach to tax expenditures is more defensible than that of the ECJ due to the different federal structures of the two jurisdictions.
{"title":"Charitable Giving, Tax Expenditures, and Direct Spending in the United States and the European Union","authors":"Lilian V. Faulhaber","doi":"10.2139/ssrn.2267334","DOIUrl":"https://doi.org/10.2139/ssrn.2267334","url":null,"abstract":"This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence and does not provide a clear rule for distinguishing between the two, adding to the confusion of Member States and taxpayers. The Article then surveys the Supreme Court’s Dormant Commerce Clause jurisprudence, under which the Court analyzes discriminatory state spending provisions. The Article concludes that although both the Supreme Court and the ECJ prioritize formalism over economic equivalence, the Supreme Court’s approach to tax expenditures is more defensible than that of the ECJ due to the different federal structures of the two jurisdictions.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129777522","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 state’s right to outer space is far from clear delimitation. Outer space is a typical commons, which means every sovereign state has the right to use the outer space and no state has the right to exclude others from using the outer space. The logic of tragedy of commons equally applies in outer space which means the resource of outer space will inevitably be over-used - for example, the space debris. Space debris is the collateral pollution of the exploration of outer space, which can be categorized in negative externality. The article seeks to frame the space debris problem in perspective of basic property theory.With an increasing feasible access to outer space for both states and individuals, the property rights logic underlying space treaties as a whole needs to be re-evaluated. Privatization is the way to overcome tragedy of the commons, outer space in this article. As a kind of overuse of outer space, space debris mitigation problem should be re-conceptualized reassessed in light of proper rights theory. De facto property rights of outer space resources have existed all the time despite its informal legal status. Three approaches of international community to space debris mitigation are proposed by the article along with analysis of cost thereof. As a priority issue of space exploitation, justification of limited property rights to outer space resources has been analyzed in the light of real constraints and challenges to international collective action to space debris mitigation. Despite of the prematureness of comprehensive outer space regulation framework, the advance of technology has made space debris mitigation a really pressing, if not the most emergent, issue in outer space exploitation.
{"title":"Tragedy of Commons in Outer Space - The Case of Space Debris","authors":"Peng Wang","doi":"10.2139/ssrn.2260856","DOIUrl":"https://doi.org/10.2139/ssrn.2260856","url":null,"abstract":"The state’s right to outer space is far from clear delimitation. Outer space is a typical commons, which means every sovereign state has the right to use the outer space and no state has the right to exclude others from using the outer space. The logic of tragedy of commons equally applies in outer space which means the resource of outer space will inevitably be over-used - for example, the space debris. Space debris is the collateral pollution of the exploration of outer space, which can be categorized in negative externality. The article seeks to frame the space debris problem in perspective of basic property theory.With an increasing feasible access to outer space for both states and individuals, the property rights logic underlying space treaties as a whole needs to be re-evaluated. Privatization is the way to overcome tragedy of the commons, outer space in this article. As a kind of overuse of outer space, space debris mitigation problem should be re-conceptualized reassessed in light of proper rights theory. De facto property rights of outer space resources have existed all the time despite its informal legal status. Three approaches of international community to space debris mitigation are proposed by the article along with analysis of cost thereof. As a priority issue of space exploitation, justification of limited property rights to outer space resources has been analyzed in the light of real constraints and challenges to international collective action to space debris mitigation. Despite of the prematureness of comprehensive outer space regulation framework, the advance of technology has made space debris mitigation a really pressing, if not the most emergent, issue in outer space exploitation.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"2 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132467528","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 election in 2010 of conservative Republican legislative majorities and governors in many states led to a major retrenchment in public employee collective bargaining rights in the United States. Fueling the retrenchment was the view that public employee collective bargaining was bad for the public. The common aim of the legislation enacted in numerous states following the 2010 elections was to strengthen unilateral employer control and weaken employee voice. This rebalancing of power occurred in the context of state public employee labor relations acts that are largely modeled on the National Labor Relations Act, with its classification of subjects of bargaining as mandatory, permissive and prohibited. Courts and labor relations agencies have defined mandatory subjects of bargaining much more narrowly than in the private sector. This is largely due to concerns that many terms and conditions of employment also raise issues of public policy which, the authorities reason, should be resolved in the public political process rather than at a bargaining table to which only the union and employer have access. The result of such a narrow scope of bargaining is to channel unions away from having a voice on matters that can improve the quality of public services and toward bread and butter issues of wages and benefits and protecting their members from the effects of decisions unilaterally imposed by management. Unions’ efforts to protect their members from management’s unilateral action may be seen as union obstructionism to reform. The Supreme Court of Canada (SCC) has held that the Charter of Rights and Freedoms’ right of freedom of association includes a right to collective bargaining. The U.S. Supreme Court has held that the freedom of association not only does not include a right to collective bargaining, it does not include a right of individual union members to be represented by their union in their employer’s unilaterally promulgated and administered grievance procedure. Because of such diametrically opposing perspectives on freedom of association, it is tempting to dismiss summarily Canadian jurisprudence under the Charter as having nothing to offer U.S. labor law. Such dismissal would be too hasty.In Fraser v. Ontario, the SCC held that the right to collective bargaining encompassed within the right to free association does not mandate an NLRA Act model of collective bargaining. Such decoupling of the right to a voice at work from a right to an NLRA-model of collective bargaining suggests that the evolving Canadian jurisprudence concerning freedom of association should be examined as an alternative to the present model of U.S. public sector labor law reform which increases management unilateralism while weakening employee voice. This paper explores the evolving jurisprudence under the Charter as an inspiration for reforming U.S. public sector labor law to enhance worker voice in ways that can benefit the public as well as workers.
{"title":"Collective Representation and Employee Voice in the U.S. Public Sector Workplace: Looking North for Solutions?","authors":"M. Malin","doi":"10.60082/2817-5069.1005","DOIUrl":"https://doi.org/10.60082/2817-5069.1005","url":null,"abstract":"The election in 2010 of conservative Republican legislative majorities and governors in many states led to a major retrenchment in public employee collective bargaining rights in the United States. Fueling the retrenchment was the view that public employee collective bargaining was bad for the public. The common aim of the legislation enacted in numerous states following the 2010 elections was to strengthen unilateral employer control and weaken employee voice. This rebalancing of power occurred in the context of state public employee labor relations acts that are largely modeled on the National Labor Relations Act, with its classification of subjects of bargaining as mandatory, permissive and prohibited. Courts and labor relations agencies have defined mandatory subjects of bargaining much more narrowly than in the private sector. This is largely due to concerns that many terms and conditions of employment also raise issues of public policy which, the authorities reason, should be resolved in the public political process rather than at a bargaining table to which only the union and employer have access. The result of such a narrow scope of bargaining is to channel unions away from having a voice on matters that can improve the quality of public services and toward bread and butter issues of wages and benefits and protecting their members from the effects of decisions unilaterally imposed by management. Unions’ efforts to protect their members from management’s unilateral action may be seen as union obstructionism to reform. The Supreme Court of Canada (SCC) has held that the Charter of Rights and Freedoms’ right of freedom of association includes a right to collective bargaining. The U.S. Supreme Court has held that the freedom of association not only does not include a right to collective bargaining, it does not include a right of individual union members to be represented by their union in their employer’s unilaterally promulgated and administered grievance procedure. Because of such diametrically opposing perspectives on freedom of association, it is tempting to dismiss summarily Canadian jurisprudence under the Charter as having nothing to offer U.S. labor law. Such dismissal would be too hasty.In Fraser v. Ontario, the SCC held that the right to collective bargaining encompassed within the right to free association does not mandate an NLRA Act model of collective bargaining. Such decoupling of the right to a voice at work from a right to an NLRA-model of collective bargaining suggests that the evolving Canadian jurisprudence concerning freedom of association should be examined as an alternative to the present model of U.S. public sector labor law reform which increases management unilateralism while weakening employee voice. This paper explores the evolving jurisprudence under the Charter as an inspiration for reforming U.S. public sector labor law to enhance worker voice in ways that can benefit the public as well as workers.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128589386","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 : 2013-03-31DOI: 10.3968/J.FLR.1929663020130101.179
R. Neuwirth
The past century has seen drastic changes, and the pace with which these changes occur still appears to be accelerating. It is not only us as individuals who have difficulties in following these perceptual processes and in finding the appropriate conceptual responses and actions. The international legal and institutional framework put in place by previous generations equally seems no longer to be capable of providing the efficient responses needed to tackle the imminent global challenges and to secure a sustainable development in the future. Put briefly and more generally, the gap between our perceptual processes and the corresponding conceptual responses is widening. As a result, it appears that the perennial paradoxical struggle between continuity and change, which underlies the fundamental problem of preserving the integrity of the law, has reached a new level. As a paradox, it is in view of the absence of a global platform on which a truly global debate on the future of our societies can unfold that we need first to find a commonly shared vocabulary of concepts. Such shared vocabulary helps both to establish a global forum and to frame the debate, because the procedural aspects and the substantive arguments are intrinsically linked. This also means a twofold task, namely to coin new concepts that better encompass our present perceptions, and to abandon those which no longer suit them. In positive terms, the present article therefore advocates the joint use of the novel concepts of “global governance” and the “creative economy” while, in negative terms, calls for the abandonment of the widely used “developed versus developing country” dichotomy. Global governance and the creative economy are chosen for their special features related to paradoxical modes of thinking, better to encompass change and the accelerating modes of the perception of that change. They both seem to be better suited to the complex realities that we draw up through the perceptions generated by our various sensory instruments. By contrast, the “developed versus developing country” dichotomy serves as an example of the outdated mode of [a] Mag. iur. (University of Graz), LL.M. (McGill), Ph.D. (EUI), Associate Professor, Faculty of Law,
{"title":"Global Governance and the Creative Economy: The Developing Versus Developed Country Dichotomy Revisited","authors":"R. Neuwirth","doi":"10.3968/J.FLR.1929663020130101.179","DOIUrl":"https://doi.org/10.3968/J.FLR.1929663020130101.179","url":null,"abstract":"The past century has seen drastic changes, and the pace with which these changes occur still appears to be accelerating. It is not only us as individuals who have difficulties in following these perceptual processes and in finding the appropriate conceptual responses and actions. The international legal and institutional framework put in place by previous generations equally seems no longer to be capable of providing the efficient responses needed to tackle the imminent global challenges and to secure a sustainable development in the future. Put briefly and more generally, the gap between our perceptual processes and the corresponding conceptual responses is widening. As a result, it appears that the perennial paradoxical struggle between continuity and change, which underlies the fundamental problem of preserving the integrity of the law, has reached a new level. As a paradox, it is in view of the absence of a global platform on which a truly global debate on the future of our societies can unfold that we need first to find a commonly shared vocabulary of concepts. Such shared vocabulary helps both to establish a global forum and to frame the debate, because the procedural aspects and the substantive arguments are intrinsically linked. This also means a twofold task, namely to coin new concepts that better encompass our present perceptions, and to abandon those which no longer suit them. In positive terms, the present article therefore advocates the joint use of the novel concepts of “global governance” and the “creative economy” while, in negative terms, calls for the abandonment of the widely used “developed versus developing country” dichotomy. Global governance and the creative economy are chosen for their special features related to paradoxical modes of thinking, better to encompass change and the accelerating modes of the perception of that change. They both seem to be better suited to the complex realities that we draw up through the perceptions generated by our various sensory instruments. By contrast, the “developed versus developing country” dichotomy serves as an example of the outdated mode of [a] Mag. iur. (University of Graz), LL.M. (McGill), Ph.D. (EUI), Associate Professor, Faculty of Law,","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128169215","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 paper explores the dynamics of international judicial interactions in civil cases. It proposes a positive model of court-on-court encounters based on contract theory. It argues that this model provides a superior account of these interactions compared to the prevailing account. The dialogue model developed by international relations specialists and international lawyers posits transnational judicial networks that engage judges in a constitutive and constructive project of building the global rule of law. The paper demonstrates that this model does not capture contemporary judicial practice, rests on outmodes historical judgments, and is normatively problematic. Contract theory not only explains contemporary judicial practice, but also is normatively attractive as a basis for international and transnational judicial interactions.
{"title":"Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters","authors":"P. Stephan","doi":"10.2139/SSRN.2220499","DOIUrl":"https://doi.org/10.2139/SSRN.2220499","url":null,"abstract":"This paper explores the dynamics of international judicial interactions in civil cases. It proposes a positive model of court-on-court encounters based on contract theory. It argues that this model provides a superior account of these interactions compared to the prevailing account. The dialogue model developed by international relations specialists and international lawyers posits transnational judicial networks that engage judges in a constitutive and constructive project of building the global rule of law. The paper demonstrates that this model does not capture contemporary judicial practice, rests on outmodes historical judgments, and is normatively problematic. Contract theory not only explains contemporary judicial practice, but also is normatively attractive as a basis for international and transnational judicial interactions.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130269542","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 investor-state arbitration process has been commonly used under bilateral trade and investment agreements since first adopted by the North American Free Trade Agreement (NAFTA) in 1994.This mechanism has well served the investment interests of multinational corporations. In recent times, some countries have been rethinking the special legal rights offered to foreign investors over domestic investors in dispute resolution through the investor-state arbitration process. This article examines the changing landscape in investor-state dispute resolution and its impact on bilateral trade and investment agreements.
{"title":"Investor-State Arbitration Under Bilateral Trade and Investment Agreements: Finding Rhythm in Inconsistent Drumbeats","authors":"Ling He, Razeen Sappideen","doi":"10.54648/trad2013007","DOIUrl":"https://doi.org/10.54648/trad2013007","url":null,"abstract":"The investor-state arbitration process has been commonly used under bilateral trade and investment agreements since first adopted by the North American Free Trade Agreement (NAFTA) in 1994.This mechanism has well served the investment interests of multinational corporations. In recent times, some countries have been rethinking the special legal rights offered to foreign investors over domestic investors in dispute resolution through the investor-state arbitration process. This article examines the changing landscape in investor-state dispute resolution and its impact on bilateral trade and investment agreements.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124017762","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 : 2013-01-08DOI: 10.4337/9780857934789.00028
Y. Ronen
The present chapter considers various areas of intersection between treaties and armed conflict. Section 2 addresses the role of armed conflict in the termination, withdrawal or suspension of treaties. Subsequent sections consider aspects in the relationship between armed conflict and treaties that are premised on the continuing existence of treaties. Section 3 focuses on armed conflict as a normative phenomenon, and considers the relationship between the laws of armed conflict and norm-setting treaty regimes. This section notes not only the effect of armed conflict on treaties, but also the converse, namely the effect of certain treaty regimes on the laws of armed conflict. Section 4 concerns the effect of armed conflict on the content of treaty obligations. Section 5 considers the effect of international armed conflict on the territorial scope of application, an issue that has arisen specifically with respect to human rights treaties.
{"title":"Treaties and Armed Conflict","authors":"Y. Ronen","doi":"10.4337/9780857934789.00028","DOIUrl":"https://doi.org/10.4337/9780857934789.00028","url":null,"abstract":"The present chapter considers various areas of intersection between treaties and armed conflict. Section 2 addresses the role of armed conflict in the termination, withdrawal or suspension of treaties. Subsequent sections consider aspects in the relationship between armed conflict and treaties that are premised on the continuing existence of treaties. Section 3 focuses on armed conflict as a normative phenomenon, and considers the relationship between the laws of armed conflict and norm-setting treaty regimes. This section notes not only the effect of armed conflict on treaties, but also the converse, namely the effect of certain treaty regimes on the laws of armed conflict. Section 4 concerns the effect of armed conflict on the content of treaty obligations. Section 5 considers the effect of international armed conflict on the territorial scope of application, an issue that has arisen specifically with respect to human rights treaties.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"108 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121352620","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 study first takes a normative perspective and examines the various goals that have been advanced by competition law literature on the objectives of EU competition law. A critical analysis of this literature shows the weaknesses of an economic welfare approach and the difficulties, as well as some normative objections, to incorporating non-welfare goals in the implementation of EU competition law. The normative perspective is then followed by an analysis of positive EU competition law arriving to the conclusion that the case law of the EU Courts is ambiguous as to the existence of a hierarchy of objectives in EU competition law and that the drafting of the Lisbon Treaty opens the door to a more holistic competition law, in congruent co-existence with the other Treaty provisions and policies instituted by the EU Treaties. The final part criticizes the literature on the goals of EU competition law for its monotonous emphasis on goals. I argue that the choice of a general objective as an enforcement criterion tells us little about whether any particular institution, for example the adjudicative process, should be charged with implementing that criterion. Comparative institutional analysis emphasizes the connections between issues of institutional choice and goals. The question of goals should follow and not precede that of institutional choice. Institutional choice should, however, be comparative and not proceed to choosing an institution without a proper analysis of the weaknesses of the alternative institutions on offer. The conceptualization of the role of courts, and other institutions in a holistic competition law, using comparative institutional analysis, is one of the major challenges faced by EU competition law, and new competition law regimes, in the future.
{"title":"Some Reflections on the Question of the Goals of EU Competition Law","authors":"I. Lianos","doi":"10.2139/ssrn.2235875","DOIUrl":"https://doi.org/10.2139/ssrn.2235875","url":null,"abstract":"The study first takes a normative perspective and examines the various goals that have been advanced by competition law literature on the objectives of EU competition law. A critical analysis of this literature shows the weaknesses of an economic welfare approach and the difficulties, as well as some normative objections, to incorporating non-welfare goals in the implementation of EU competition law. The normative perspective is then followed by an analysis of positive EU competition law arriving to the conclusion that the case law of the EU Courts is ambiguous as to the existence of a hierarchy of objectives in EU competition law and that the drafting of the Lisbon Treaty opens the door to a more holistic competition law, in congruent co-existence with the other Treaty provisions and policies instituted by the EU Treaties. The final part criticizes the literature on the goals of EU competition law for its monotonous emphasis on goals. I argue that the choice of a general objective as an enforcement criterion tells us little about whether any particular institution, for example the adjudicative process, should be charged with implementing that criterion. Comparative institutional analysis emphasizes the connections between issues of institutional choice and goals. The question of goals should follow and not precede that of institutional choice. Institutional choice should, however, be comparative and not proceed to choosing an institution without a proper analysis of the weaknesses of the alternative institutions on offer. The conceptualization of the role of courts, and other institutions in a holistic competition law, using comparative institutional analysis, is one of the major challenges faced by EU competition law, and new competition law regimes, in the future.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129698532","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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