This article investigates European constitutional competence to harmonize those provisions of direct taxes of Member States which are incidental to the functioning of the single European market. Explicitly, the EU law, since its inception to date, does not confer powers to the Union to harmonize income taxation of Member States. The sole express reference to income taxes in EU law was an Article of the Treaty establishing the European Community (Article 293 EC) that was repealed during the Lisbon revision. The repealed provision urged the Member States to abolish double taxation by using tools of public international law, that is, outside the EU legal framework. The study explores the potential implications this repeal may have for EU tax mandate: (a) whether it implies an end to the EU tax powers at all in the realm of direct taxes? (b) Whether it is a neutral amendment with no consequences to what-so-ever EU tax authority was already put in place? Or, (c) whether the deletion of the sole income tax reference meant for Member States to proceed under the public international law in effect enhances implicit “federal” competence of the Union to intervene in national tax codes for establishment of a true European economic market? The article analyses the demise of the clause in a legal evolutionary paradigm at the interface of international law and EU law. In metaphor, I describe the changing evolutionary relationship between the European and international law regimes as a tale of romance and divorce. The two laws meet curiously during the 1950s; feelings grow and a bond develops between the two regimes; the romance between the two legal regimes attains its peak during the Maastricht phase; strains appear in their relationship after the Amsterdam revision; the split goes deeper after the Nice amendments and the two finally divorce at the Lisbon revision. Based on this ever-changing relationship framework between the two legal regimes, the article concludes (a) that the deletion of Article 293 EC indicates growing reliance of the integration project on European legal order rather than trusting inter-state treaties based on public international law and (b) an inherent growth in the European “federal” mandate to take broad-range actions to harmonize direct taxes in single market during the post-repeal period.
{"title":"Romance and Divorce between International Law and EU Law: Implications for European Competence on Direct Taxes","authors":"Khan Niazi, U. Shafi","doi":"10.2139/SSRN.2685021","DOIUrl":"https://doi.org/10.2139/SSRN.2685021","url":null,"abstract":"This article investigates European constitutional competence to harmonize those provisions of direct taxes of Member States which are incidental to the functioning of the single European market. Explicitly, the EU law, since its inception to date, does not confer powers to the Union to harmonize income taxation of Member States. The sole express reference to income taxes in EU law was an Article of the Treaty establishing the European Community (Article 293 EC) that was repealed during the Lisbon revision. The repealed provision urged the Member States to abolish double taxation by using tools of public international law, that is, outside the EU legal framework. The study explores the potential implications this repeal may have for EU tax mandate: (a) whether it implies an end to the EU tax powers at all in the realm of direct taxes? (b) Whether it is a neutral amendment with no consequences to what-so-ever EU tax authority was already put in place? Or, (c) whether the deletion of the sole income tax reference meant for Member States to proceed under the public international law in effect enhances implicit “federal” competence of the Union to intervene in national tax codes for establishment of a true European economic market? The article analyses the demise of the clause in a legal evolutionary paradigm at the interface of international law and EU law. In metaphor, I describe the changing evolutionary relationship between the European and international law regimes as a tale of romance and divorce. The two laws meet curiously during the 1950s; feelings grow and a bond develops between the two regimes; the romance between the two legal regimes attains its peak during the Maastricht phase; strains appear in their relationship after the Amsterdam revision; the split goes deeper after the Nice amendments and the two finally divorce at the Lisbon revision. Based on this ever-changing relationship framework between the two legal regimes, the article concludes (a) that the deletion of Article 293 EC indicates growing reliance of the integration project on European legal order rather than trusting inter-state treaties based on public international law and (b) an inherent growth in the European “federal” mandate to take broad-range actions to harmonize direct taxes in single market during the post-repeal period.","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2015-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A recurring debate in foreign affairs law focuses on the appropriate level of congressional and judicial deference to the President. In answering that question, most scholars focus on the Constitution, Supreme Court precedent, and historical practice for guidance, or evaluate the expertise and strategic incentives of Congress, the President, and the courts. For these scholars, the inquiry exclusively centers on domestic, internal constraints on the President. But this analysis is incomplete. Determination of the appropriate level of deference has consequences for how the President can pursue U.S. interests abroad. If the United States wants to be successful in achieving its foreign policy goals, it requires some consideration of the external world in which the President acts. This Article challenges the conventional wisdom by arguing that the appropriate level of constraint on the President requires an evaluation of both internal constraints from domestic sources and external constraints from international politics. It provides a framework to integrate both sets of constraints, develops a theory of external constraints, and describes the normative implications of this approach for foreign affairs law. The Article argues that the failure to account for both internal and external constraints and to recognize their relationship might yield a deference regime that either does not provide the President with sufficient freedom to pursue U.S. interests (over-constrained), or leaves the President free to act without sufficient congressional and judicial oversight (under-constrained). It further explains the conditions under which higher and lower levels of constraints are preferable and moves us closer to determining the appropriate level of deference to the President in foreign affairs.
{"title":"The Global Determinants of U.S. Foreign Affairs Law","authors":"Daniel Abebe","doi":"10.2139/SSRN.2120639","DOIUrl":"https://doi.org/10.2139/SSRN.2120639","url":null,"abstract":"A recurring debate in foreign affairs law focuses on the appropriate level of congressional and judicial deference to the President. In answering that question, most scholars focus on the Constitution, Supreme Court precedent, and historical practice for guidance, or evaluate the expertise and strategic incentives of Congress, the President, and the courts. For these scholars, the inquiry exclusively centers on domestic, internal constraints on the President. But this analysis is incomplete. Determination of the appropriate level of deference has consequences for how the President can pursue U.S. interests abroad. If the United States wants to be successful in achieving its foreign policy goals, it requires some consideration of the external world in which the President acts. This Article challenges the conventional wisdom by arguing that the appropriate level of constraint on the President requires an evaluation of both internal constraints from domestic sources and external constraints from international politics. It provides a framework to integrate both sets of constraints, develops a theory of external constraints, and describes the normative implications of this approach for foreign affairs law. The Article argues that the failure to account for both internal and external constraints and to recognize their relationship might yield a deference regime that either does not provide the President with sufficient freedom to pursue U.S. interests (over-constrained), or leaves the President free to act without sufficient congressional and judicial oversight (under-constrained). It further explains the conditions under which higher and lower levels of constraints are preferable and moves us closer to determining the appropriate level of deference to the President in foreign affairs.","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2013-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67922516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-01-01DOI: 10.1142/9789814635721_0013
J. Trachtman
The only universal consequence of a legally binding promise is that the law makes the promisor pay damages if the promised event does not come to pass. According to conventional wisdom, it is a waste of time and money for developing countries to invoke the WTO's dispute settlement procedure against industrial countries.
{"title":"The WTO Cathedral","authors":"J. Trachtman","doi":"10.1142/9789814635721_0013","DOIUrl":"https://doi.org/10.1142/9789814635721_0013","url":null,"abstract":"The only universal consequence of a legally binding promise is that the law makes the promisor pay damages if the promised event does not come to pass. According to conventional wisdom, it is a waste of time and money for developing countries to invoke the WTO's dispute settlement procedure against industrial countries.","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1142/9789814635721_0013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64070454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International law scholars often assume that the best way to enforce human rights is by establishing strong international institutions that develop the law progressively and enforce it independently. Political realists counter that such institutions are only as useful as powerful states permit them to be, and discourage expansive visions of their mandate. Partisans of the recently created International Criminal Court (ICC) must come to terms with the realist challenge. They must work to adapt the institution accordingly, without abandoning hope for the project altogether. Although the ICC will be constrained by the state support it commands, it can make a difference in the enforcement of human rights law by encouraging and assisting national authorities in upholding and enforcing international law. The ICC and its supporters must decide how the institution will use the powers it has. This Article argues that if the Court pursues a path of centralization and insularity, it will encounter resistance from member states and from the United States and bring about few of the benefits of reconciliation and institution-building that its founders envisioned. If the Court engages in joint investigations and trials with national authorities, along the model of mixed courts already in use in Sierra Leone and East Timor, enforcement of international criminal law will become more agreeable to the participating states, who will feel a sense of ownership and control over the process. In this new, less dominant role, the Court might even become acceptable to the United States whose support is critical for the Court's effectiveness. The mixed-court model for the ICC holds out the promise of strengthening local capacities and contributes to the rebuilding of the rule of law in nations around the globe. It would move international human rights law in directions that its true friends must admit are ultimately wise and necessary - toward a system of law that is better informed, more widely accepted, and better enforced.
{"title":"Nationalizing International Criminal Law","authors":"J. I. Turner","doi":"10.2139/SSRN.487102","DOIUrl":"https://doi.org/10.2139/SSRN.487102","url":null,"abstract":"International law scholars often assume that the best way to enforce human rights is by establishing strong international institutions that develop the law progressively and enforce it independently. Political realists counter that such institutions are only as useful as powerful states permit them to be, and discourage expansive visions of their mandate. Partisans of the recently created International Criminal Court (ICC) must come to terms with the realist challenge. They must work to adapt the institution accordingly, without abandoning hope for the project altogether. Although the ICC will be constrained by the state support it commands, it can make a difference in the enforcement of human rights law by encouraging and assisting national authorities in upholding and enforcing international law. The ICC and its supporters must decide how the institution will use the powers it has. This Article argues that if the Court pursues a path of centralization and insularity, it will encounter resistance from member states and from the United States and bring about few of the benefits of reconciliation and institution-building that its founders envisioned. If the Court engages in joint investigations and trials with national authorities, along the model of mixed courts already in use in Sierra Leone and East Timor, enforcement of international criminal law will become more agreeable to the participating states, who will feel a sense of ownership and control over the process. In this new, less dominant role, the Court might even become acceptable to the United States whose support is critical for the Court's effectiveness. The mixed-court model for the ICC holds out the promise of strengthening local capacities and contributes to the rebuilding of the rule of law in nations around the globe. It would move international human rights law in directions that its true friends must admit are ultimately wise and necessary - toward a system of law that is better informed, more widely accepted, and better enforced.","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2004-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The illegality of abortion in Mexico.","authors":"Corene T Kendrick","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24599840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A proposal for the effective international regulation of biomedical research involving human subjects.","authors":"K M King","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":44155,"journal":{"name":"Stanford Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25614449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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