Over recent years, the global diffusion of legal and regulatory regimes has dramatically increased. Much of the increase is the direct result of initiatives funded in the name of ‘law and development’. The world over, domestic legislation and regulatory reforms borrow heavily from international and foreign legal systems, and legal transfers have become the main inspiration for change. And yet after decades (if not centuries, if the colonial projects are included) of law reform projects, there is mixed evidence that legal transfers induce recipients to change in the ways envisaged by legal donors. Much has been written about the failures of law reform by law and development, comparative law and regulatory perspectives. This chapter is the introduction to an edited book titled 'Law and Development and the Global Discourses of Legal Transfers', to be published by Cambridge University Press in 2012. The book is significant because it brings together leading scholars from different disciplinary backgrounds to assess the strengths and weaknesses of these different disciplinary approaches. It aims to demonstrate how a synthesis of law and development, regulatory theory and legal transplantation theory – disciplines which have, to date, remained intellectually isolated from each other – can produce a more nuanced understanding about the types of legal transfers that are most likely to succeed.
{"title":"Interpreting Legal Transfers: The Implications for Law and Development","authors":"P. Nicholson, J. Gillespie","doi":"10.2139/ssrn.1914841","DOIUrl":"https://doi.org/10.2139/ssrn.1914841","url":null,"abstract":"Over recent years, the global diffusion of legal and regulatory regimes has dramatically increased. Much of the increase is the direct result of initiatives funded in the name of ‘law and development’. The world over, domestic legislation and regulatory reforms borrow heavily from international and foreign legal systems, and legal transfers have become the main inspiration for change. And yet after decades (if not centuries, if the colonial projects are included) of law reform projects, there is mixed evidence that legal transfers induce recipients to change in the ways envisaged by legal donors. Much has been written about the failures of law reform by law and development, comparative law and regulatory perspectives. This chapter is the introduction to an edited book titled 'Law and Development and the Global Discourses of Legal Transfers', to be published by Cambridge University Press in 2012. The book is significant because it brings together leading scholars from different disciplinary backgrounds to assess the strengths and weaknesses of these different disciplinary approaches. It aims to demonstrate how a synthesis of law and development, regulatory theory and legal transplantation theory – disciplines which have, to date, remained intellectually isolated from each other – can produce a more nuanced understanding about the types of legal transfers that are most likely to succeed.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130220152","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 critically assess the level of “uniformity” created by the Convention on Contracts for the International Sale of Goods ("CISG", Vienna, 1980).
{"title":"Critical Assessment of the Level of 'Uniformity' Created by the Convention on Contracts for the International Sale of Goods (Vienna Convention)","authors":"Garry Trillet","doi":"10.2139/ssrn.2340892","DOIUrl":"https://doi.org/10.2139/ssrn.2340892","url":null,"abstract":"This paper critically assess the level of “uniformity” created by the Convention on Contracts for the International Sale of Goods (\"CISG\", Vienna, 1980).","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126037997","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 attempts to define international economic law and its role in the international legal regime. After describing various options for the definition of international economic law, the article discusses the history of policy developments that led to the creation of international economic law as a field of legal scholarship. The article then discusses the role that various academics have played in the development of scholarship in this area and notes that international economic law garnered high popularity in the early 1980s because of a treatise written by Pieter VerLoren van Themaat. The article concludes by considering the relationship of international economic law to other fields of international law, such as environmental law and labor law.
本文试图界定国际经济法及其在国际法律制度中的作用。在描述了国际经济法定义的各种选择之后，本文讨论了导致国际经济法作为一个法律学术领域诞生的政策发展历史。文章随后讨论了各种学者在这一领域的学术发展中所扮演的角色，并指出，由于Pieter VerLoren van Themaat撰写的一篇论文，国际经济法在20世纪80年代初获得了很高的知名度。文章最后考虑了国际经济法与其他国际法领域，如环境法和劳动法的关系。
{"title":"What is International Economic Law?","authors":"S. Charnovitz","doi":"10.1093/JIEL/JGR008","DOIUrl":"https://doi.org/10.1093/JIEL/JGR008","url":null,"abstract":"This article attempts to define international economic law and its role in the international legal regime. After describing various options for the definition of international economic law, the article discusses the history of policy developments that led to the creation of international economic law as a field of legal scholarship. The article then discusses the role that various academics have played in the development of scholarship in this area and notes that international economic law garnered high popularity in the early 1980s because of a treatise written by Pieter VerLoren van Themaat. The article concludes by considering the relationship of international economic law to other fields of international law, such as environmental law and labor law.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122320384","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}
Bilateral Investment Treaties (BITs) or International Investment Agreements (IIAs) - often perceived as admission tickets to investments - are agreements signed between two countries under which each country binds itself to offer treaty based protection to investments and investors of the other country. This treaty based protection includes not expropriating foreign investment unless there is a public purpose and accompanied by compensation; national treatment; most favoured nation treatment; treating investors and investments in a fair and equitable manner; allowing free repatriation of profits; and providing an investor-state dispute settlement system (also known as investment treaty arbitration) under which foreign investors can directly bring a case at an international arbitral tribunal like the International Convention for the Settlement of Investment Disputes (ICSID) without the consent of their state if the investor feels that the host country violated the BIT or IIA. Large numbers of BITs/IIAs are being signed with great alacrity by developing countries, like India and other developing countries, in a bid to attract more FDI inflows. The rationale behind signing these treaties is that it is believed by these countries that they will result in increased foreign investment flows into the country. This paper attempts to see if there is a positive and direct correlation between signing BITs/IIAs and foreign investment inflows in developing countries like India, South American and Asian countries. This hypothesis would be either proved or disproved by the researcher. Data would be collected for this purpose from the Ministry of Trade and Commerce, Foreign Ministry of the respective countries. Further, even after assuming that there is a direct and positive relationship, it would also be studied whether it is prudent for developing economies to be overly-enthusiastic in signing BITs/IIAs given the restriction on policy space accorded to the host nations because majority of BITs/IIAs are structured purely from the perspective of foreign investors, granting them extensive rights without recognizing the right of sovereign states to regulate in the national interest leaving limited manoeuvrability to the host state. This warrants a detailed discussion in order to understand the serious consequences of the investment treaty obligations on host countries. This need has been augmented in light of the increasing number of investor-state treaty disputes and arbitrations at the ICSID and how it has become important for these developing countries to learn lessons and be cautious while negotiating their BITs or IIAs by considering adding adequate safeguards that will allow them to deviate from their treaty obligations in case a situation arises and thus, avoid potential protracted litigations that could cost millions as in the famous CMS v. Argentina case in the 1990s. Thus, the paper would conclude by not only understanding whether the hypothesis proposed
{"title":"Relationship Between FDI Inflows and Bilateral Investment Treaties/International Investment Treaties in Developing Economies: An Empirical Analysis","authors":"A. Padmanabhan","doi":"10.2139/ssrn.1764342","DOIUrl":"https://doi.org/10.2139/ssrn.1764342","url":null,"abstract":"Bilateral Investment Treaties (BITs) or International Investment Agreements (IIAs) - often perceived as admission tickets to investments - are agreements signed between two countries under which each country binds itself to offer treaty based protection to investments and investors of the other country. This treaty based protection includes not expropriating foreign investment unless there is a public purpose and accompanied by compensation; national treatment; most favoured nation treatment; treating investors and investments in a fair and equitable manner; allowing free repatriation of profits; and providing an investor-state dispute settlement system (also known as investment treaty arbitration) under which foreign investors can directly bring a case at an international arbitral tribunal like the International Convention for the Settlement of Investment Disputes (ICSID) without the consent of their state if the investor feels that the host country violated the BIT or IIA. Large numbers of BITs/IIAs are being signed with great alacrity by developing countries, like India and other developing countries, in a bid to attract more FDI inflows. The rationale behind signing these treaties is that it is believed by these countries that they will result in increased foreign investment flows into the country. This paper attempts to see if there is a positive and direct correlation between signing BITs/IIAs and foreign investment inflows in developing countries like India, South American and Asian countries. This hypothesis would be either proved or disproved by the researcher. Data would be collected for this purpose from the Ministry of Trade and Commerce, Foreign Ministry of the respective countries. Further, even after assuming that there is a direct and positive relationship, it would also be studied whether it is prudent for developing economies to be overly-enthusiastic in signing BITs/IIAs given the restriction on policy space accorded to the host nations because majority of BITs/IIAs are structured purely from the perspective of foreign investors, granting them extensive rights without recognizing the right of sovereign states to regulate in the national interest leaving limited manoeuvrability to the host state. This warrants a detailed discussion in order to understand the serious consequences of the investment treaty obligations on host countries. This need has been augmented in light of the increasing number of investor-state treaty disputes and arbitrations at the ICSID and how it has become important for these developing countries to learn lessons and be cautious while negotiating their BITs or IIAs by considering adding adequate safeguards that will allow them to deviate from their treaty obligations in case a situation arises and thus, avoid potential protracted litigations that could cost millions as in the famous CMS v. Argentina case in the 1990s. Thus, the paper would conclude by not only understanding whether the hypothesis proposed","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122291573","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 begins with the discussion of Hinduism and the concept of dharma, widely translated as way of righteousness. The paper further traces the analogical deductions of the origin of the international humanitarian law from the ancient Indian texts. The paper also tries to trace back to the ancient Indian warfare methods and techniques to establish the correlation and roots of international law and international humanitarian law with the concept and philosophy of Hinduism. The paper tries to prove that war as an art as well as a science was equally well understood in ancient India. The sources of ancient India, which are the sources of Hinduism, support the statement that the Indian civilisation was the first to discover the means and the laws of war. The ancient Indian texts established rules for the conduct of rulers towards their people, including, for example, the obligation to treat the vanquished humanely and the prohibition of poisoned weapons.
{"title":"International Humanitarian Law: An Ancient Indian Perspective","authors":"Bhumika Modh","doi":"10.2139/ssrn.1738806","DOIUrl":"https://doi.org/10.2139/ssrn.1738806","url":null,"abstract":"This paper begins with the discussion of Hinduism and the concept of dharma, widely translated as way of righteousness. The paper further traces the analogical deductions of the origin of the international humanitarian law from the ancient Indian texts. The paper also tries to trace back to the ancient Indian warfare methods and techniques to establish the correlation and roots of international law and international humanitarian law with the concept and philosophy of Hinduism. The paper tries to prove that war as an art as well as a science was equally well understood in ancient India. The sources of ancient India, which are the sources of Hinduism, support the statement that the Indian civilisation was the first to discover the means and the laws of war. The ancient Indian texts established rules for the conduct of rulers towards their people, including, for example, the obligation to treat the vanquished humanely and the prohibition of poisoned weapons.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129057935","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}
Whereas in 1920 there was the solitary Permanent Court of International Justice (PCIJ), today there is a multitude of international tribunals. The effect that this has on the impact of international human rights and international criminal law cannot be underestimated; although regional and ad hoc courts may result in more culturally relevant justice, they may also run the risk of unintentionally importing bias, profiling justice-seekers as in the Kunerac case, and may also result in "forum shopping". This paper seeks to examine the extent to which international human right law is included and implemented in newly created courts, specifically the international criminal tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. This paper will discuss whether the same standard of human rights can or should be applied by each or whether justice is more adequately served for the individual or group depending on the court that hears the case. In instances of international criminal law, where can an individual or a group take their claim to redress injustices and criminal human rights failures? Moreover, has such a proliferation allowed a more relevant and precise method of judicial recourse for such parties or has it rather blurred the lines of what constitutes an international crime?I intend to debate the implications of the different mandates given to the ICTR, ICTY and the ICC and the discerning inclusion of international human rights law. The mandates of each slightly differ in which acts are specifically criminalized and I intend to scrutinize the distinct differences in detail before discussing whether tailor-made mandates for international criminal courts amounts to moving the goalposts. I will also examine whether a by-product of the proliferation of international tribunals is not the selective rejection of international human rights law that is not applicable in each particular case. I will then discuss if this is the right choice to be made and if it is setting a dangerous precedent for future judicial processes. Given that international criminal law was intended to end acts carried out with impunity, is the proliferation of courts setting an example that crime may no longer be a crime depending on where it has been perpetrated?This paper will conclude by finding that there indeed exists a need for a more uniform interpretation of international criminal law and that such an interpretation would ensure that the standard of international human right law is universally maintained in practice just as in theory. Whilst some may raise concerns about a Western hegemony and forced implementation of human rights values foreign to non-Western cultures and traditions, I surmise that by altering the parameters, thresholds and definitions of what constitutes an international crime would be a constant shift of legal values tantamount to a violation of the nullen crimen principle itself.
{"title":"The Proliferation of International Criminal Law Courts: Multiple Standards or Different Angles of International Criminal Law?","authors":"Sherif A. Elgebeily","doi":"10.2139/ssrn.1738348","DOIUrl":"https://doi.org/10.2139/ssrn.1738348","url":null,"abstract":"Whereas in 1920 there was the solitary Permanent Court of International Justice (PCIJ), today there is a multitude of international tribunals. The effect that this has on the impact of international human rights and international criminal law cannot be underestimated; although regional and ad hoc courts may result in more culturally relevant justice, they may also run the risk of unintentionally importing bias, profiling justice-seekers as in the Kunerac case, and may also result in \"forum shopping\". This paper seeks to examine the extent to which international human right law is included and implemented in newly created courts, specifically the international criminal tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. This paper will discuss whether the same standard of human rights can or should be applied by each or whether justice is more adequately served for the individual or group depending on the court that hears the case. In instances of international criminal law, where can an individual or a group take their claim to redress injustices and criminal human rights failures? Moreover, has such a proliferation allowed a more relevant and precise method of judicial recourse for such parties or has it rather blurred the lines of what constitutes an international crime?I intend to debate the implications of the different mandates given to the ICTR, ICTY and the ICC and the discerning inclusion of international human rights law. The mandates of each slightly differ in which acts are specifically criminalized and I intend to scrutinize the distinct differences in detail before discussing whether tailor-made mandates for international criminal courts amounts to moving the goalposts. I will also examine whether a by-product of the proliferation of international tribunals is not the selective rejection of international human rights law that is not applicable in each particular case. I will then discuss if this is the right choice to be made and if it is setting a dangerous precedent for future judicial processes. Given that international criminal law was intended to end acts carried out with impunity, is the proliferation of courts setting an example that crime may no longer be a crime depending on where it has been perpetrated?This paper will conclude by finding that there indeed exists a need for a more uniform interpretation of international criminal law and that such an interpretation would ensure that the standard of international human right law is universally maintained in practice just as in theory. Whilst some may raise concerns about a Western hegemony and forced implementation of human rights values foreign to non-Western cultures and traditions, I surmise that by altering the parameters, thresholds and definitions of what constitutes an international crime would be a constant shift of legal values tantamount to a violation of the nullen crimen principle itself.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123095330","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 : 2011-01-04DOI: 10.1163/ej.9789004172838.3-1032.21
Tamás Hoffmann
Even though the law of armed conflict traditionally recognizes only the dichotomy of international and non-international armed conflict applicable in the normative framework regulating armed hostilities, reality presents situations that do not readily fit into these categories. Foreign State involvement is almost habitual in contemporary conflicts and a significant number of conflicts rage between States and non-State actors not necessarily remaining within the confines of a country.The present paper attempts to examine the legal classification of ‘transnational armed conflicts’, i.e. armed hostilities with a transboundary character that involve non-State actors and thus seemingly escape the classic division of international and non-international armed conflict. After a perusal of legal doctrine and State practice, it concludes that contemporary international humanitarian law is capable of regulating such conflicts and calls for an overhaul of the present system are premature.
{"title":"Squaring the Circle? – International Humanitarian Law and Transnational Armed Conflicts","authors":"Tamás Hoffmann","doi":"10.1163/ej.9789004172838.3-1032.21","DOIUrl":"https://doi.org/10.1163/ej.9789004172838.3-1032.21","url":null,"abstract":"Even though the law of armed conflict traditionally recognizes only the dichotomy of international and non-international armed conflict applicable in the normative framework regulating armed hostilities, reality presents situations that do not readily fit into these categories. Foreign State involvement is almost habitual in contemporary conflicts and a significant number of conflicts rage between States and non-State actors not necessarily remaining within the confines of a country.The present paper attempts to examine the legal classification of ‘transnational armed conflicts’, i.e. armed hostilities with a transboundary character that involve non-State actors and thus seemingly escape the classic division of international and non-international armed conflict. After a perusal of legal doctrine and State practice, it concludes that contemporary international humanitarian law is capable of regulating such conflicts and calls for an overhaul of the present system are premature.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123385472","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 Basel Convention is inarguably a noble effort to combat the grave threat to human and environmental health posed by hazardous wastes, but it has failed in at least one of its fundamental objectives: to minimize the movement of hazardous waste across international borders. Is the framework of the Convention sufficient to achieve its goals as well tackle emerging issues in international trade?The first half of the paper provides generous background information about the Basel Convention including: - its origins and purpose - a case study of the infamous Khian Sea incident - the organization and scope of the treaty - how the treaty employs trade measures to minimize trade in hazardous waste - how the Convention approaches compliance and dispute resolution - the future implementation of the Convention via the New Strategic Framework to be addressed at COP10 - proposed provisions including the Basel Ban Amendment and the Protocol on Liability and Compensation.The second half of the paper discusses the Basel Convention's strengths and analyzes its shortcomings. It also suggests improvements for the Convention to succeed in its original and assumed objectives. Topics addressed include: - the incorporation the Precautionary Principle into the treaty - inconsistent standards in Annex IX - the circumvention of the convention by traders of e-waste and ship breaking - hazardous wastes outside of the Convention such as ship wastes and radioactive waste - the failure of the treaty's trade measures to achieve its objectives - the potential conflict of the treaty's trade measures with the WTO Agreements - inadequacies of the Basel Compliance Mechanism - the lack of a dispute settlement system.After 20 years, the purpose of the Basel Convention remains as relevant as ever, but its framework, while not ill-conceived, has proven insufficient. Unfortunately, the New Strategic Framework fails to adequately address most of Convention’s most significant weaknesses. Ratification of the Ban Amendment and Liability Protocol in addition to significant tweaks, particularly in the arena of compliance, will likely afford the Basel Convention an opportunity to position itself to face the emerging issues of international trade and achieve a reduction in the transboundary movement of hazardous waste over its third decade.
{"title":"Still Up to the Challenge? International Trade Issues Facing the Basel Convention as it Enters its Third Decade","authors":"R. Powell","doi":"10.2139/SSRN.1758853","DOIUrl":"https://doi.org/10.2139/SSRN.1758853","url":null,"abstract":"The Basel Convention is inarguably a noble effort to combat the grave threat to human and environmental health posed by hazardous wastes, but it has failed in at least one of its fundamental objectives: to minimize the movement of hazardous waste across international borders. Is the framework of the Convention sufficient to achieve its goals as well tackle emerging issues in international trade?The first half of the paper provides generous background information about the Basel Convention including: - its origins and purpose - a case study of the infamous Khian Sea incident - the organization and scope of the treaty - how the treaty employs trade measures to minimize trade in hazardous waste - how the Convention approaches compliance and dispute resolution - the future implementation of the Convention via the New Strategic Framework to be addressed at COP10 - proposed provisions including the Basel Ban Amendment and the Protocol on Liability and Compensation.The second half of the paper discusses the Basel Convention's strengths and analyzes its shortcomings. It also suggests improvements for the Convention to succeed in its original and assumed objectives. Topics addressed include: - the incorporation the Precautionary Principle into the treaty - inconsistent standards in Annex IX - the circumvention of the convention by traders of e-waste and ship breaking - hazardous wastes outside of the Convention such as ship wastes and radioactive waste - the failure of the treaty's trade measures to achieve its objectives - the potential conflict of the treaty's trade measures with the WTO Agreements - inadequacies of the Basel Compliance Mechanism - the lack of a dispute settlement system.After 20 years, the purpose of the Basel Convention remains as relevant as ever, but its framework, while not ill-conceived, has proven insufficient. Unfortunately, the New Strategic Framework fails to adequately address most of Convention’s most significant weaknesses. Ratification of the Ban Amendment and Liability Protocol in addition to significant tweaks, particularly in the arena of compliance, will likely afford the Basel Convention an opportunity to position itself to face the emerging issues of international trade and achieve a reduction in the transboundary movement of hazardous waste over its third decade.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133238063","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 : 2010-06-10DOI: 10.1163/EJ.9789004206007.I-516.40
C. Rogers
Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, as retarding legal developments, as undermining democratic lawmaking, and ultimately as imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration produces public goods and has the potential to go beyond simply resolving disputes. It can promote international cooperation, improve transnational governance and contribute to the development of an international rule of law.
{"title":"International Arbitration's Public Realm","authors":"C. Rogers","doi":"10.1163/EJ.9789004206007.I-516.40","DOIUrl":"https://doi.org/10.1163/EJ.9789004206007.I-516.40","url":null,"abstract":"Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, as retarding legal developments, as undermining democratic lawmaking, and ultimately as imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration produces public goods and has the potential to go beyond simply resolving disputes. It can promote international cooperation, improve transnational governance and contribute to the development of an international rule of law.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127641664","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 overwhelming majority of working children in India in the unorganized, agricultural and allied sectors work primarily due to socio-economic factors. Poverty, unemployment/under-employment and illiteracy, are the most important factors that contribute to child labour in India. Given the complex socio-economic dimensions of the problem, improvement in the living and working conditions of parents and in their economic conditions as well as education is crucial to the elimination of child labour. International trade has been one of the pillars of growth for developing countries. The formation of the WTO provides a threat as well as an opportunity for labour movements and their working conditions. Within this context, India has not ratified ILO Conventions 138 and 182 as yet. The international community is extremely keen that India does so as to abide by international core labour standards. However, given the complexity of the problem, the socioeconomic scenario and the availability of resources in India, a sequential, progressive, integrated and multidimensional as well as a multilateral approach towards the gradual elimination of child labour. In this paper, the author wishes to discuss the endemic issue of child labour in India, the relevant legislations to deal with it and how they have been inadequate so far, including the non-ratification of the ILO Conventions 138 and 182. The author tries to explain that this issue can only be resolved with the cooperation of the international community based on the fundamental principle of the Social clause as espoused in the WTO. Only with this multilateral framework can India be bolstered and complemented to progressively embark on strategies and policies to eradicate this menace which is so intricately twined with the socio-economic and political fabric of the country.
{"title":"India’s Child Labour Policies: Its Implementation Within the ILO Framework with Emphasis on Conventions 138 and 182 and the Multilateral Framework with Emphasis on the Social Clause of the WTO","authors":"A. Padmanabhan","doi":"10.2139/SSRN.1627656","DOIUrl":"https://doi.org/10.2139/SSRN.1627656","url":null,"abstract":"The overwhelming majority of working children in India in the unorganized, agricultural and allied sectors work primarily due to socio-economic factors. Poverty, unemployment/under-employment and illiteracy, are the most important factors that contribute to child labour in India. Given the complex socio-economic dimensions of the problem, improvement in the living and working conditions of parents and in their economic conditions as well as education is crucial to the elimination of child labour. International trade has been one of the pillars of growth for developing countries. The formation of the WTO provides a threat as well as an opportunity for labour movements and their working conditions. Within this context, India has not ratified ILO Conventions 138 and 182 as yet. The international community is extremely keen that India does so as to abide by international core labour standards. However, given the complexity of the problem, the socioeconomic scenario and the availability of resources in India, a sequential, progressive, integrated and multidimensional as well as a multilateral approach towards the gradual elimination of child labour. In this paper, the author wishes to discuss the endemic issue of child labour in India, the relevant legislations to deal with it and how they have been inadequate so far, including the non-ratification of the ILO Conventions 138 and 182. The author tries to explain that this issue can only be resolved with the cooperation of the international community based on the fundamental principle of the Social clause as espoused in the WTO. Only with this multilateral framework can India be bolstered and complemented to progressively embark on strategies and policies to eradicate this menace which is so intricately twined with the socio-economic and political fabric of the country.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"50 11","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131751884","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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