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Journal articles on the topic 'Sovereign dispute'
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1
Stewart, David P. "Blue Ridge Investments, L.L.C. v. Republic of Argentina (2D CIR.)." International Legal Materials 53, no. 1 (February 2014): 237–49. http://dx.doi.org/10.5305/intelegamate.53.1.0237.
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When does an agreement to arbitrate a commercial dispute constitute a waiver of sovereign immunity? This question has assumed increasing importance over the past decades in direct proportion to the extent that sovereign states and their agencies, entities, and instrumentalities have agreed to arbitrate their disputes with investors and under commercial contracts. On August 19, 2013, the United States Court of Appeals for the Second Circuit considered this issue in the context of a petition to confirm an arbitral award, when it ruled that by becoming a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), Argentina had waived its sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).
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THIRLWAY, HUGH. "Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice." Leiden Journal of International Law 31, no. 1 (December 10, 2017): 117–46. http://dx.doi.org/10.1017/s0922156517000553.
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AbstractThe workload of the International Court of Justice in recent years has increasingly featured cases of disputes classified either as ‘territorial disputes’ or as ‘boundary disputes’, or otherwise involving the Court in considerations of the law relating to acquisition or transmission of territory, or to the creation, location and effect of territorial frontiers. The present survey analyzes the contributions to international law of the Court's decisions in these recent cases. Matters examined include the significance of the terms ‘boundary dispute’ or ‘territorial dispute’; the definition of what constitutes sovereign territory; titles andeffectivitésas bases for territorial claims; decolonization and theuti possidetis juris; use of natural features or of straight lines as boundaries; and relations across a frontier once established.
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Hertogen, An. "Sovereignty as Decisional Independence over Domestic Affairs: The Dispute over Aviation in the EU Emissions Trading System." Transnational Environmental Law 1, no. 2 (October 2012): 281–301. http://dx.doi.org/10.1017/s204710251200012x.
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AbstractA crucial question for international law is how to allocate regulatory jurisdiction over transboundary problems between sovereign states. Insufficient clarity can trigger disputes such as that regarding the legality of the EU Directive that extends its ETS to all flights taking off from or landing at an EU airport, including those by non-EU carriers. This article uses this dispute as the vehicle to examine sovereignty in an increasingly interdependent world. It argues that a state’s decisional inviolability is central to sovereignty. Decisional sovereignty allows a state to regulate actors or activities with a link to its territory when these affect the state’s domestic affairs, rather than leaving the state at the mercy of an actor’s home state or of other states from the territory of which the problem emerges. Moreover, allocation of regulatory jurisdiction in conformity with decisional sovereignty reduces the incentives to free-ride on other states’ regulatory efforts and incentivizes international cooperation.
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Khan, Ali Nawaz, Naveed Ahmad, and Bakht Munir. "Jurisdictional Determinants Of Investor-State Dispute Settlement: A Contemporary Critique." Global Economics Review V, no. IV (December 30, 2020): 47–57. http://dx.doi.org/10.31703/ger.2020(v-iv).05.
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International Convention for the Settlement of Investment Disputes (ICSID) has incorporated a specialized jurisdiction under the auspicious of the World Bank Group. The convention has promulgated a standing offer for the investors of the contracting states to invoke ICSID jurisdiction on the fulfilment of some determinants. ICSID tribunals have amplified the application of these determinants to the extent to overshadow the legitimate rights of sovereign states. The magnification of standards of determinants of investor-state dispute settlement has caused unpredictability of ICSID jurisdiction. Uniform and predictable standards of determinant have the potential to strengthen and promote this mechanism of institutional settlement of investment disputes.
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Tamlander, Matias. "Proposed Regulation of Third-Party Funding in Investor-State Dispute Settlement." Helsinki Law Review 14, no. 1 (February 8, 2021): 74–87. http://dx.doi.org/10.33344/vol14iss1pp74-87.
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Third-party litigation funding is increasingly used to finance legal claims in investor-state dispute settlement, with financiers funding investor claims against sovereign states in exchange for a share of potentially substantial compensation rendered in eventual arbitral awards. A chiefly unregulated phenomenon, third-party funding has been perceived especially controversial in the context of the investment arbitration regime, a system some allege is already ingrained with inequities. Third-party funding raises numerous policy questions, such as conflicts of interests, disclosure, costs of the proceedings, and even the entire permissibility of the practice in investor-state dispute settlement. This review raises various issues and concerns related to third-party funding in investor-state dispute settlement and presents the regulatory efforts and criticism thereof with regards to the reform of rules of both the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.
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PILLAI, RAJESH. "National Treatment and WTO Dispute Settlement." World Trade Review 1, no. 3 (November 2002): 321–43. http://dx.doi.org/10.1017/s147474560200126x.
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The tension between the WTO and its constituent States and the conflicting impulses of trade liberalization and domestic regulatory autonomy is well documented. This phenomenon is brought into stark relief by the perceived interference from WTO dispute settlement panels into fiscal and regulatory policy-making within States. It is clear that the GATT and GATS agreements do in fact mandate a high degree of policing by WTO panels in areas that were traditionally seen as the exclusive sovereign preserve of States.
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Meagher, Niall. "Regulatory convergence and dispute settlement in the WTO." Journal of International Trade Law and Policy 14, no. 3 (September 21, 2015): 157–62. http://dx.doi.org/10.1108/jitlp-11-2015-0041.
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Purpose – This paper aims to examine the issues faced by the World Trade Organization (WTO) dispute settlement system in disputes involving questions of regulatory convergence. The traditional focus of the WTO has been on increasing market access and eliminating discrimination in trade. Now, as tariffs have been all but eliminated and Members rarely impose obviously discriminatory trade barriers, attention increasingly turns to questions of regulatory convergence. Leaving aside questions as to the overall benefits of regulatory convergence between markets, these developments pose a significant challenge to the organs of the WTO dispute settlement – and it is here that this paper focuses. Design/methodology/approach – While General Agreements on Tariffs and Trade (GATT)/WTO law has fairly well-developed tools for identifying discrimination in trade, the tools necessary for assessing whether regulatory measures maintain the requisite balance or proportionality between sovereign/domestic concerns and trade concerns are less clear. The paper discusses this latter point. Findings – The WTO agreements are frequently not clear on where or how this balance between sovereign/domestic concerns and trade concerns is to be determined. To date, WTO panels and the Appellate Body have preferred to focus on whether they can identify any discriminatory aspects of a measure. However, they will increasingly be called to pronounce on non-discriminatory regulatory policy choices of Members. Originality/value – This paper contributes to the literature on the Appellate Body, and argues that Members will need to develop a credible and consistent balance between policy space and trade restrictiveness.
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Rashadat Majidli, Jamila. "THE INTERNATIONAL CASES CONCERNING JOINT DEVELOPMENT AGREEMENTS (The Case of Saadia Arabia- Bahrain, Japan-South Korea, Thailand-Malaysia)." ANCIENT LAND 04, no. 02 (April 21, 2021): 35–38. http://dx.doi.org/10.36719/2706-6185/04/35-38.
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This article is dedicated to analysing the joint development agreements resolving or temporarily suspending maritime boundary disputes cases between Japan-South Korea, Saadia Arabia-Bahrain, and Thailand-Malaysia. Regardless of whether any delimitation line exists or not, international law allows the parties to agree on delimitation by consulting on the most appropriate conditions or jointly operate on the disputed zone, field or maritime border. If the cross-border dispute on hydrocarbon resources exists, the conclusion of a unitization agreement is not ruled out by the international practice as much. This article identifies the features of the joint development agreements, divides them into the three models recognized internationally, analyzes the main characteristics of each model of the joint development agreements through historical important precedents. Furthermore, the research lets daylight into the essential statements that regulate the fiscal regime, share proportion issues, the sovereign right, and the right to use subsoil and the seabed, within the agreements. Key words: Maritime boundary disputes, joint development agreements, unitization agreements, delimitation, joint development zone, international cases, demarcation of the continental shelf, seabed, disputes on petroleum reservoir, oil fields, production share agreements
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Popović, Dejan, and Gordana Ilić-Popov. "Arbitration in international tax law: legal obstacles to agreeing." Anali Pravnog fakulteta u Beogradu, no. 2/2018 (July 14, 2018): 47–69. http://dx.doi.org/10.51204/anali_pfub_18202a.
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Article 25 (5) of the OECD Model Convention contains a provision that defines the failure of the mutual agreement procedure to solve a dispute whether a person has been taxed in a manner that is not in accordance with the provisions of the Convention within two years as a deferred condition for activating the arbitration clause. The parties in arbitration are the Contracting States rather than the taxpayer who initiated it. Despite the advantages of the arbitration dispute resolution, numerous developing countries do not accept the arbitration clause stating that it would violate their fiscal sovereignty from two reasons. Firstly, the authors point out that relying on the „baseball arbitration“ would diminish the relevance of the objection that arbitration jeopardises administrative independence. Secondly, the objection that the state cannot renounce its right to tax is also untenable since it overlooks the difference between the state’s sovereign inalienable right to introduce tax and its right to collect a disputed amount. Neither remaining two constitutional-law arguments are valid. From the point of view of the rule of law principle, there is no justification to confine arbitration only to the issues concerning the interpretation of facts. From the point of view of the principle of equality, the constitutional courts will not require symmetrical access to arbitration in domestic tax disputes since they tend to interpret this principle in the manner that it applies to the persons in the same or similar legal situations – namely, to those who meet the requirements for arbitration stipulated in a tax treaty. The authors conclude that Serbia should reassess its negative attitude on tax arbitration, which will make it easier for her to deal with the obligation emerging in the accession negotiations to adopt the EU Arbitration Convention as a part of the acquis.
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Benarrivo, Renaldo, and Nala Nourma Nastiti. "DIPLOMACY AND DEFENSE SPATIAL PLANNING." Jurnal Dinamika Global 5, no. 02 (December 10, 2020): 171–88. http://dx.doi.org/10.36859/jdg.v5i02.236.
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The border issue is one of the important aspects related to the main elements for the establishment of a state. From a defense point of view, the unclear physical and juridical boundaries of the territory will make it even more difficult to carry out border security. Therefore, efforts are needed to resolve land border disputes. The relationship between Indonesia and Timor Leste was marked by land border disputes following Timor Leste, which became a sovereign state. Diplomacy needs to be carried out by the two states, especially for Indonesia to support the ideal defense spatial arrangement. This paper analyzes the relationship between diplomacy and defense spatial planning by taking lessons from the settlement of land border disputes between Indonesia and Timor Leste.
Keywords: Defense diplomacy, military diplomacy, border dispute.
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Lavranos, Nikolaos. "Protecting Its Exclusive Jurisdiction: The Mox Plant-judgment of the ECJ." Law & Practice of International Courts and Tribunals 5, no. 3 (2006): 479–93. http://dx.doi.org/10.1163/157180306778938737.
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AbstractIn the judgment in Case C-459/03, Commission v Ireland, the ECJ for the first time explicitly determined the scope of its exclusive jurisdiction based on Article 292 EC. The ECJ interpreted its jurisdiction very expansively in order to protect its exclusive jurisdiction to interpret and apply Community law. Accordingly, EU Member States involved in a dispute that potentially raises issues of Community law are not allowed to bring the case before a dispute settlement body other than the ECJ. Furthermore, Member States have the duty to inform and consult the Community institutions prior of bringing a case before another dispute settlement body. Otherwise, the ECJ claims, the danger arises that the autonomy of the Community legal order and its exclusive jurisdiction may adversely be affected by rulings of other international courts or tribunals in disputes that also touch on EC law. With this judgment the ECJ substantially restricted the right of the EU Member States to select a dispute settlement system of their choice. Moreover, this expansive interpretation by the ECJ of its exclusive jurisdiction limits the exercise of the jurisdiction of other international courts and tribunals that are called upon to adjudicate on a dispute that possibly involves Community law.It is submitted that with this extensive understanding of its exclusive jurisdiction, the ECJ is unduly restricting the sovereign right of the Member States to select the dispute settlement system of their choice as well as interfering in the exercise of the jurisdiction of the other international courts and tribunals.
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Anisimov, Igor, and Elena Gulyaeva. "Evolution and content of the principle of peaceful settlement of international disputes in International Law." Revista Justiça do Direito 34, no. 3 (December 30, 2020): 164–80. http://dx.doi.org/10.5335/rjd.v34i3.12302.
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This article introduces a brief outline of the inter-State conflict types. The evaluation considers the principle of peaceful disputes’ settlement evolution from antiquity to the present based on the legal analysis of historical and international legal sources. The article looks at the content of this principle and a comparative legal study of peaceful dispute resolution laid down in the UN Charter and other international legal instruments. The authors conclude that the peaceful international disputes settlement is a complex, integrated principle with several interrelated elements and the content incorporated in various international legal instruments. The article highlights the vital role of appropriate freedom of States to choose the remedies of settling their disputes. This right is a corollary to two interrelated international law principles – the sovereign equality of states and non-interference in matters within their domestic jurisdiction.
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Geddes, Andrew, and Andrew Taylor. "Those Who Knock on Europe’s Door Must Repent? Bilateral Border Disputes and EU Enlargement." Political Studies 64, no. 4 (July 5, 2015): 930–47. http://dx.doi.org/10.1111/1467-9248.12218.
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This article explores a neglected aspect of the wider debate about EU enlargement: bilateral disputes between a member state and an applicant, where the former uses, or threatens to use its membership status to block the applicant’s progress in order to resolve a bilateral dispute. Through analysis of three cases – Italy and Slovenia, Slovenia and Croatia, and Greece and Macedonia – we show that the EU’s transformative power does not always flow ‘outwards’ towards the state seeking membership. This raises interesting questions about enlargement as a process of international bargaining between sovereign states filtered via a supranational entity formally responsible for negotiations. The cases suggest limits to the EU’s transformative power in the context of disputes that are linked to the meaning and significance of borders. It is not surprising that the European Commission prefers disputes to be resolved bilaterally or via a third party.
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M. Zulhafiz, Wan, ., and . "The Role of Asian International Arbitration Centre (AIAC) as a regional Hub for Oil and Gas Sector." International Journal of Engineering & Technology 7, no. 3.21 (August 8, 2018): 345. http://dx.doi.org/10.14419/ijet.v7i3.21.17185.
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Hydrocarbons projects involve multiple parties, including sovereign states and corporations, to operate expensive, complex and high-risk activities. Alternative dispute resolution (ADR) is often preferred more by the parties than litigation to ensure the smooth running of the projects. ADR refers to all mechanisms of dispute settlement other than litigation such as negotiation, mediation, adjudication, and arbitration. The Asian International Arbitration Centre (AIAC) or formerly known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the main institution that administers and resolves all commercial arbitration disputes in Malaysia. This research argues that, due to the technicalities and complexity of operations in the oil and gas sector, there is a need to set up a special arbitration centre for oil and gas under the AIAC to handle and resolve the industrial disputes. Furthermore, by establishing the centre, it can help to promote the AIAC as the choice of arbitration hub, especially within the Organization of the Petroleum Exporting Countries (OPEC). In doing so, it is necessary to pass a special legal framework to enable the establishment of the centre. It may function as a roadmap by the key players of the oil and gas sector to recourse in resolving disputes. The methodology employed by this research is carried out in a prescriptive, comparative and analytic manner.
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ORTOLANI, PIETRO. "Are Bondholders Investors? Sovereign Debt and Investment Arbitration afterPoštová." Leiden Journal of International Law 30, no. 2 (February 28, 2017): 383–404. http://dx.doi.org/10.1017/s0922156517000176.
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AbstractAs a result of the 2010 sovereign debt crisis and the subsequent restructuring operations, bondholders have pursued different dispute resolution strategies. Litigation before US courts has proved to be a viable option, as demonstrated by the Argentine cases. State court litigation, however, is not the only available forum: in some cases, bondholders have commenced arbitration proceedings against the issuing state.Arbitral case law has been consistent in concluding that the holders of sovereign bonds issued by the host state qualify as investors and thus have standing to bring investment treaty-based claims. The recentPoštováaward, however, casts doubts over whether holders of sovereign bonds qualify as investors for the purposes of international investment law.This article illustrates the main problems revolving around the qualification of sovereign bonds as investments for the purposes of international investment law. The article summarizes the relevant legal framework and the solutions adopted by arbitral case law so far. Subsequently, the contents of thePoštovádecision are addressed in detail and the consequences of this decision are scrutinizsed.
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Wilkes, Guy. "CURRENT DEVELOPMENTS: II. Enforcing Anti-Suit Injunctions Against Sovereign States." International and Comparative Law Quarterly 53, no. 2 (April 2004): 512–18. http://dx.doi.org/10.1093/iclq/53.2.512.
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The Court of Appeal (Pill and Waller LJJ and Sir Martin Nourse) has considered interesting jurisdiction issues arising out of a projects dispute between a Pakistani company (‘Sabah’) and the Government of Pakistan (the ‘GOP’). The Court gave welcome guidance on the principles underlying the grant of anti-suit injunctions in cases where the parties have agreed to the non-exclusive jurisdiction of the English courts. However, questions of how an anti-suit injunction obtained against a State may be enforced largely remain unanswered.
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Edmond, Patrick, Kristof Titeca, and Erik Kennes. "The DRC–Angola Offshore Oil Dispute: How Regime (In)Security Outweighs Sovereign Claims." Journal of Southern African Studies 45, no. 5 (September 3, 2019): 841–57. http://dx.doi.org/10.1080/03057070.2019.1656962.
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Mauro, Maria Rosaria. "SOVEREIGN DEFAULT AND LITIGATION: NML CAPITAL V. ARGENTINA." Italian Yearbook of International Law Online 24, no. 1 (October 22, 2015): 249–68. http://dx.doi.org/10.1163/22116133-90000081a.
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In recent times private creditors have increasingly begun to resort to litigation against States in case of sovereign debt default. One of the most complex recent cases concerns the legal proceedings brought against Argentina by NML Capital Limited before the courts of the United States (US). The plaintiffs are primarily “vulture funds”, seeking profit by buying heavily discounted distressed debt, that have rejected the restructuring terms accepted by the majority of Argentina’s creditors. There are two main questions at the heart of the present dispute: sovereign immunity and the alleged breach of the US Foreign Sovereign Immunities Act (FSIA), and the interpretation of the pari passu clause. The US Supreme Court held that the FSIA does not limit the scope of discovery against foreign sovereign assets and rejected Argentina’s petition for certiorari to review the Second Circuit decision upholding the injunction orders that required Argentina to pay NML Capital and the other plaintiffs whenever it pays the holders of its restructured debt. This comment assesses the approach of the US courts in relation to discovery and their interpretation of the pari passu provision. In particular, it argues that the outcome of this legal battle threatens future sovereign debt restructurings and confirms the gravity of the lack of a binding central restructuring mechanism.
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Scobbie, Iain. ""Une hérésie en matière judiciaire"? The Role of the Judge ad hoc in the International Court." Law & Practice of International Courts and Tribunals 4, no. 3 (2005): 421–64. http://dx.doi.org/10.1163/157180305774859596.
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AbstractIn international law, the unfolding of the principle of the equality of the litigants — the sovereign equality of the litigant States — has resulted in their ability to nominate a judge to participate in the decision of the dispute by the International Court of Justice on terms of complete formal equality with the regular, or titular, judges. The institution of the judge ad hoc, appointed by the parties after a dispute has been submitted to the International Court, is alien to domestic systems of adjudication, but essential differences between municipal and international litigation must be given their due. The article questions, however, whether there is any solid basis for the continuation of the system of judges ad hoc.
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Grund, Sebastian. "The Quest for a European Safe Asset—A Comparative Legal Analysis of Sovereign Bond-Backed Securities, E-Bonds, Purple Bonds, and Coronabonds." Journal of Financial Regulation 6, no. 2 (August 13, 2020): 233–69. http://dx.doi.org/10.1093/jfr/fjaa009.
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Abstract The European sovereign debt crisis and, more recently, the COVID-19 pandemic have revealed the European Economic and Monetary Union’s fragility, which essentially emanates from the inherent tension between a single monetary policy and decentralized fiscal policies. To cushion economic and financial shocks and sever the sovereign-bank doom loop, different proposals to create a common public debt security have been put forward, although none of them has so far seen the light of day. Building on pertinent economic and finance scholarship, this article reviews four promising safe asset proposals from a legal perspective: Sovereign bond-backed securities (SBBS), E-bonds, Purple bonds, and Coronabonds. Rather than focusing on their feasibility under EU law or national constitutional law, this article compares the proposals from an investor perspective against the backdrop of the following formal and functional legal characteristics that render assets ‘safe’: governing law, dispute settlement forum, investor protection, and investor representation in sovereign debt restructurings. Against this backdrop, targeted recommendations on critical design elements of safe assets, with the aim of reconciling the economic policy objectives with the pertinent legal constraints, are advanced.
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Ishikawa, Tomoko. "Extraterritorial Discovery in Aid of Execution and State Immunity: Case Comment on Republic of Argentina v. NML Capital, Ltd., 573 U.S. ___ (2014)." Accounting, Economics and Law - A Convivium 5, no. 2 (July 1, 2015): 173–92. http://dx.doi.org/10.1515/ael-2014-0016.
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AbstractOn 16 June 2014, the Supreme Court of the United States rejected the petition for a writ of certiorari stemming from the dispute over the meaning of the pari passu clause in the Argentine sovereign bonds. This decision had a dramatic impact on Argentina’s sovereign debt restructurings (SDR) – indeed, it arguably led to Argentina’s second default in 13 years on 30 July 2014. On the same day that the petition for certiorari was rejected, the Supreme Court rendered a judgment on the issue of the relationship between discovery in aid of execution against the debtor state’s extraterritorial assets and the law of state immunity. In Republic of Argentina v. NML Capital, Ltd., judgment of 16 June 2014, the Supreme Court affirmed the Second Circuit’s conclusion that the extraterritorial assets discovery against two non-party banks in aid of executing the judgments stemming from Argentina’s default of its external debt did not offend Argentina’s sovereign immunity. This comment addresses this judgment on extraterritorial discovery which, although less headline grabbing than the decisions on the pari passu clause, also marks a victory for holdout creditors. It first provides a summary of the background of the case and the judgment, and then considers its implications on the future SDR. Regarding the implications of the case on the future SDR, this comment also describes the developments of law concerning the relationship between the law on foreign investment and SDR (in investment arbitration) and the relationship between investment arbitration awards and sovereign immunity (in US courts). First, it examines the recent decisions in ICSID arbitration concerning the disputes arising from the Argentina’s default and subsequent SDR (Abaclat v. Argentina (decision on jurisdiction and admissibility of 4 August 2011) and Ambiente v. Argentina (decision on jurisdiction and admissibility of 8 February 2013)). In essence, these decisions opened the door to investment treaty arbitration for holdout creditors of international sovereign bonds, for the first time in the history of investment arbitration. It then describes the Second Circuit’s recent decision in Blue Ridge v. Argentina (judgment of 19 August 2013) in which the court concluded that the defendant state in an ICSID arbitration was considered to have waived its jurisdictional immunity under the Foreign State Immunity Act of 1976 (FSIA). It argues that the combination of: (a) Argentina v. NML, (b) Blue Ridge v. Argentina, and (c) the openness of ICSID arbitration to disputes arising from SDR will have potentially serious consequences for future SDR.
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Sheehy, Jeffrey. "Law and Diplomacy, Sovereignty and Consent." Asia-Pacific Journal of Ocean Law and Policy 6, no. 1 (June 24, 2021): 5–39. http://dx.doi.org/10.1163/24519391-06010002.
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Abstract This article reflects on the first-ever compulsory conciliation under the law of the sea and its significance to international law and diplomacy. The conditions for ending the dispute between Timor-Leste and Australia were only created through a genuine combination of both law and diplomacy as facilitated by an expert commission. Through successive milestones, the United Nations Convention on the Law of the Sea (unclos) conciliation framework and the conciliation commission itself, was able to successfully shift the reluctant State (Australia) from resistance, to engagement, and ultimately, to resolution. The conciliation also showed how Timor-Leste’s sovereign interpretation of maritime rights under international law was a compelling argument in the context of historical factors and its self-determination. Ultimately, a treaty was agreed through the conciliation despite competing views of international law’s relationship to diplomacy and indeed on maritime boundary delimitation methodology itself. A reflection on this triumph of the liberal international order is beneficial for both Timor-Leste and Australia as they seek further cooperation under the new treaty, and for other States facing entrenched disputes as well.
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Koulouris, Nikolaos. "The Exclusive Economic Zone is in reality a sovereign right of a State? The dispute over the Southeastern Mediterranean natural gas fields." Journal of World Energy Law & Business 13, no. 3 (June 1, 2020): 260–69. http://dx.doi.org/10.1093/jwelb/jwaa024.
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Abstract The notion of Exclusive Economic Zone (EEZ) is a relatively new one. Its gestation during the second half of the 20th century was slow and arduous. But, after its birth, it gained a very important and crucial place within the sector of International Law and especially the branch of the Law of the Sea. Furthermore, it implicates strong and unprecedented geopolitical issues, emerged between a lot of neighbouring states. Pursuant to the rule establishing its notion, the EEZ confers upon a State a sovereign right, subject to a number of restrictions, which do not, nevertheless, affect the core of its integrity. But, in real international life this integrity is seriously jeopardized. International Law, because of its particularity, cannot be equipped by and enjoy the means of forced execution, which are inherent to the national legal system of every sovereign State. The EEZ, as it is provided by the International Law and especially the United Nations Convention on the Law Of the Sea, is not in reality a sovereign right of a State. It depends on the consensus of the State with adjacent coast and overlapping EEZ, which is a ‘prerequisite’ legally not existing.
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Kades, Eric. "History and Interpretation of the Great Case of Johnson v. M'Intosh." Law and History Review 19, no. 1 (2001): 67–116. http://dx.doi.org/10.2307/744212.
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At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on “[t]he great case of Johnson v. M'Intosh,” which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Yet both legal and historical scholarship on this “great case” is surprisingly thin. There are no studies examining the litigants or the actual acreage under dispute (surprising for a real property dispute). There are also a number of unanswered legal questions surrounding Chief Justice Marshall's opinion in M'Intosh, perhaps none more glaring than the failure to pin down the legal basis for the decision. This article endeavors to fill in these gaps.
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Dahal, Girdhari. "Nepal and India Relation After 12 Points Understanding." Journal of Political Science 20 (October 4, 2020): 61–75. http://dx.doi.org/10.3126/jps.v20i0.31795.
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With multidimensional aspects, Nepal India relation is historical, social, political and culturally embodied. Both countries adhere to a unique relationship of friendship and cooperation characterized by open borders and deep-rooted people-to-people contacts of kinship and culture. Pedestal on secondary data this article aims to discuss the major developments in Indo-Nepal relation after 12 points understanding. Nepalese and Indian governments, in order to review the past treaties and agreements between the two countries, made EPG of four members each from both countries. Similarly, Nepal and India exchanged high level visits between them. Nepal made a new constitution in 2015 and promulgated it. However, India was not satisfied with some of the content of it, so India imposed unilateral blockade. Later, Nepal India relation was normalized, and again, Nepal and India have a dispute on Limpiyadhura-Lipulekh border. The vital concern is what has happened to the relations built on historical ties? This paper looks at the relations India once had with Nepal, and where it stands today. There have been many ups and downs in Nepal India relation after 12 points understanding and even during the present border dispute. However, all problems and disputes can be solved through diplomatic dialogues at various levels. Bilateral relations can grow further with unfaltering commitment to the doctrines of peaceable coexistence, sovereign equality, and understanding of each other’s aspirations and sensitivities.
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Ceriman, Jelena, and Aleksandar Pavlovic. "Beyond the territory principle: Non-territorial approach to the Kosovo question(s)." Filozofija i drustvo 31, no. 3 (2020): 340–62. http://dx.doi.org/10.2298/fid2003340c.
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This article presents an attempt to approach the dispute over Kosovo between Serbs and Albanians from a non-territorial perspective, with particular focus on the preservation of the Serbian cultural and religious heritage. First, we argue that the Kosovo issue is at present commonly understood as an either-or territorial dispute over sovereignty and recognition between Serbian and Kosovo Albanian politicians. However, we claim that a lasting resolution to the Kosovo issue actually needs to account for at least three separate aspects: 1) status of Northern Kosovo which is ethnically Serbian and still maintains various ties with the Serbian state, 2) status of Serbian cultural and religious heritage, chiefly UNESCO world heritage Serbian medieval monasteries and churches and 3) the fact that the Serbian population in central Kosovo, i.e. south of the river Ibar, where most of the mentioned monasteries and churches are located, are located in small municipalities or enclaves of Serbs surrounded by vast Albanian populations. We examine the applicability of the non- territorial approach (NTA) to the Kosovo issue by analyzing the normative framework directly regulating the Serbian cultural and religious heritage in Kosovo, its preservation and protection, particularly of Serbian Orthodox monasteries, churches and other historical and cultural sites, while comparing these regulations to the existing normative NTAs in Croatia and Montenegro. Arguably, since most Serbian monasteries and churches are not included in any sovereignty negotiations, we point to the potential to combine territorial and non-territorial approaches, regardless of the continued obstacles in implementation arising from continued contestation of Kosovo?s sovereign status.
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Criddle, Evan J., and Evan Fox-Decent. "Mandatory Multilateralism." American Journal of International Law 113, no. 2 (April 2019): 272–325. http://dx.doi.org/10.1017/ajil.2019.3.
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AbstractThis Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. International law often mandates multilateralism to ensure that state laws and practices are compatible with sovereign equality and joint stewardship. The Article maps mandatory multilateralism's domain, defines its requirements, and examines its application to three controversies: the South China Sea dispute, the United States’ withdrawal from the 2015 Paris Agreement, and Bolivia's case against Chile in the International Court of Justice.
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Parchomiuk, Jerzy. "Judical review of discretionary powers in the activity of historical monuments protection bodies. The experience under the case law of Polish administrative courts." Bratislava Law Review 2, no. 2 (December 31, 2018): 6–29. http://dx.doi.org/10.46282/blr.2018.2.2.101.
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The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities, all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to analyze how Polish administrative courts approach the problem. What methodology of the review of discretion margin they use? How they solve the dilemma: who makes the final decision – the body or the court? Do they retain the judicial self-restraint or rather they are willing to interfere in the merits of the decision?
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Parchomiuk, Jerzy. "Judicial Review of Discretionary Powers in the Activity of Historical Monuments Protection Bodies in the Polish Legal System." Baltic Journal of Law & Politics 12, no. 1 (June 1, 2019): 87–114. http://dx.doi.org/10.2478/bjlp-2019-0004.
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Abstract The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities – all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is the judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to show how Polish administrative courts approach the problem. What methodology of the review of discretion margin do they use? How do they solve the dilemma: who makes the final decision – the body or the court? Do they retain judicial self-restraint or are they ready and willing to interfere in the merits of the decision?
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Rhodes, Carolyn. "Reciprocity in trade: the utility of a bargaining strategy." International Organization 43, no. 2 (1989): 273–99. http://dx.doi.org/10.1017/s0020818300032914.
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Recent works in international relations theory have focused on the value of reciprocity as a means of achieving cooperation in international politics. They argue that even in an anarchic setting in which self-help typifies the behavior of sovereign nation states, the strategy of matching comparable responses to the actions of other nations may educate them over time to cooperate. This article empirically confirms that this assumption is correct. It examines the use of flexible reciprocal bargaining strategies between the United States and its major trading partners in key sectors in which surplus capacity and domestic adjustment difficulties have made commercial conflicts apparent. The outcomes of most of the disputes demonstrate that reciprocity is an effective means of eliciting cooperation from trading partners. Results also illustrate that this cooperation is usually consistent with the General Agreement on Tariffs and Trade (GATT) norms of liberal trade and dispute settlement, even when it is inconsistent with the GATT principle of nondiscrimination.
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Zellmer, Sandra. "Waiving Federal Sovereign Immunity in Original Actions Between States." University of Michigan Journal of Law Reform, no. 53.2 (2020): 447. http://dx.doi.org/10.36646/mjlr.53.2.waiving.
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There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the federal government to an original action before the Supreme Court. This Article shows how federal sovereign immunity stands in the way of comprehensive resolution of interstate water rights and highlights the need for reforms to facilitate meaningful participation by the United States. In particular, it investigates the merits of a waiver of federal sovereign immunity in original actions between the states. Although federal immunity is a staple of our nation’s jurisprudence, it has no constitutional basis and it serves little purpose in this context. The Article concludes that a congressional waiver of federal sovereign immunity would be appropriate and would have few downsides, at least in the case of original actions between states before the U.S. Supreme Court.
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KESSLER, OLIVER. "The same as it never was? Uncertainty and the changing contours of international law." Review of International Studies 37, no. 5 (October 28, 2011): 2163–82. http://dx.doi.org/10.1017/s0260210511000386.
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AbstractInternational law has changed significantly since the end of the Cold War. As long as the international was thought to be populated by sovereign states predominantly, international law was conceived of as a means for peaceful dispute settlement. That is: the reference to state sovereignty not only divided public from private international law, but structured most of public international law itself; from the very definition of and associated rights and duties to the attribution of responsibility. With the emergence of the post-national constellation, a reduction of law to questions of states' practices is increasingly problematic. At the same time, the post-national constellation denotes more than just a structural shift in the world polity. It challenges established dogmas rooted in an individualistic philosophy of science and thereby calls for a different understanding of how the world is (made) known. What uncertainty has to offer is the provision of a different vocabulary detached from the state through which we can reconsider some changes in international law.
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Ku, Julian G. "Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile): Preliminary Objection (I.C.J.)." International Legal Materials 55, no. 1 (February 2016): 74–91. http://dx.doi.org/10.5305/intelegamate.55.1.0074.
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On September 24, 2015, the International Court of Justice (ICJ) released its judgment on the preliminary objection filed by Chile in Obligation to Negotiate Access to the Pacific Ocean.1 Chile had objected to the ICJ’s jurisdiction arguing that Bolivia’s application raises a dispute that had already been settled by the 1904 Peace Treaty Between Bolivia and Chile. The ICJ, however, rejected this jurisdictional objection and agreed to consider the merits of Bolivia’s claim that Chile has an obligation to negotiate in good faith the issue of Bolivia’s sovereign access to the Pacific Ocean.
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Borodkin, Stanislav. "Legislation on Foreign Investments and Practice of Investment Dispute Resolution." Journal of Russian Law 4, no. 4 (April 11, 2016): 0. http://dx.doi.org/10.12737/18702.
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Russian companies doing business outside of the Russian Federation require special protection of their rights and lawful interests. Several methods of protecting foreign investor rights are available under the international law, including national courts and tribunals and commercial arbitrations (both institutionary and ad-hoc). International Center for Settlement of Investment Disputes is a special institution established to resolve the controversies related to foreign investments. It was created under an international treaty and its decisions are not subject to sovereign immunity. The article considers ICSID practice regarding the definition of an investment, since disputes are related to an investment activity, which is a topical question when dealing with the determination of the Center competence. While the analyzed cases do not have the power of binding precedents, when the arbiters elaborate on the definition of a foreign investment they use specific criteria that could be relevant for the national law. Since international practice has a more specific definition of foreign investments than the Russian law, the author suggests that the former be taken into consideration when a foreign investment is defined in Russian legal texts. It could ensure better protection of the rights of Russian legal entities abroad.
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Tanaka, Yoshifumi. "Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case." Law & Practice of International Courts and Tribunals 20, no. 2 (August 17, 2021): 367–93. http://dx.doi.org/10.1163/15718034-12341450.
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Abstract The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.
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Leventhal, Alexander G. "Threading the Sovereign’s Needle." Brill Research Perspectives in International Investment Law and Arbitration 3, no. 4 (June 28, 2021): 1–59. http://dx.doi.org/10.1163/24055778-12340010.
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Abstract An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.
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Kucik, Jeffrey, and Krzysztof J. Pelc. "Do International Rulings have Spillover Effects?" World Politics 68, no. 4 (August 30, 2016): 713–51. http://dx.doi.org/10.1017/s0043887116000113.
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How influential are international courts? Can their rulings reach beyond a given case and affect the behavior of countries not party to the dispute? International law is clear on the matter: rulings have no formal authority beyond the case at hand. This tenet is consistent with the incentives of sovereign states wary of delegating too much authority to courts. By contrast, the authors claim that even in the absence of formal authority, the rulings of international courts can affect behavior by mobilizing pro-compliance groups in countries not party to a dispute. They test these beliefs in the context of the World Trade Organization (WTO) through a novel approach. Because WTO rulings have implications for the fortunes of publicly traded firms, they examine whether financial markets bet on there being spillover effects beyond the case at hand. They rely on two quantitative case studies to test for a cross-border and a cross-industry spillover effect: can rulings have effects in countries and on industries other than those at issue in the initial dispute? The results suggest that the answer is a tentative yes. The spillover effects of international rulings may be a matter of scholarly contention, but their existence is something that financial markets appear willing to bet on.
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Abashidze, Aslan Khuseinovich, Vladimir Mikhailovich Filippov, and Alexander Mikhailovich Solntsev. "Belarusian Ostrovets nuclear power plant: the challenge of cross-border negotiations to balance economic development and environmental protection†." Journal of World Energy Law & Business 13, no. 2 (April 1, 2020): 157–68. http://dx.doi.org/10.1093/jwelb/jwaa016.
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Abstract States have sovereign rights that allow them to construct nuclear power plants. Moreover, engaging with nuclear power generation makes possible the achievement of the Sustainable Development Goals (2016–30) in combatting climate change, paramount to the Paris Agreement’s initiatives. In the same vein, however, constructing and operating power plants pose strict dangers to both general safety of the public and to national security. Thus, plant operations should strictly abide by the International Atomic Energy Agency (IAEA) standards and international law. As a result, it is important to consider the potential transboundary impacts of nuclear power plants and to conduct an appropriate transboundary environmental impact assessment (EIA). The article examines the construction of the Ostrovets Nuclear Power Plant by Belarus, close to the border of the Republic of Lithuania. The question in focus, however, is as follows: what international procedure can be used to coordinate issues of potentially negative transboundary impacts? Lithuania, in order to avoid the operation of the nuclear power plant, thus sought peaceful settlement of the dispute making use of the dispute resolution mechanisms based on international environmental agreements. The authors of this study show that the treaty bodies, established on the basis of international environmental agreements, provide important assistance in this matter in coordination with the IAEA. The use of these quasi-judicial means of resolving interstate disputes proves effective in pursuing a compromise between economic development and environmental protection. In the absence of such mechanisms at a universal level, one should consider utilizing such mechanisms in other regions of the world.
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Ansori, Faruq, Zhang Guo Ping, and Melda Ria Juwita. "Chinese Silk Road and Indonesian Maritime Axis Harmony in The Sovereign Law Perspective." Research, Society and Development 8, no. 9 (June 26, 2019): e31891296. http://dx.doi.org/10.33448/rsd-v8i9.1296.
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This study aimed to know the implication of legal sovereignty in bilateral agreements as the intersection consequences of the political economy interests of the Chinese Silk Road and Maritime Axis of Indonesia. Also aimed to explain other further issues in bilateral relations between Indonesia and China, such as; effort in enorcing legal equality, provisions regulate effort to avoid abuse of power, rules on environmental issues, human rights regulation, also regulations in international matters. This study used descriptive qualitative as the methodology. The results showed that the choice of Chinese companies in the Jakarta-Bandung fast train project was purely an economic consideration, the government seems passive in responding to the surge in the number of foreign workers, especially China, which is not accompanied by the local labor absorption, several ethnic Chinese companies are still indicated to pollute the environment, the Government is still cautious in addressing human rights issues in Uyghur, the government is firm about violating illegal fishing of foreign and independent vessels in the dispute over the South China Sea.
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Beatrice, Omodanisi Kemi. "How Sovereign Is a State From Foreign Intervention? Gambia as a Case Study." International Journal of Law and Public Administration 2, no. 2 (August 13, 2019): 10. http://dx.doi.org/10.11114/ijlpa.v2i2.4155.
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This paper examines to what extent is Gambia sovereign from foreign intervention. It considers the legality or otherwise of ECOWAS’ military intervention in the recent post-election/ political crisis in Gambia. Bearing in mind that national sovereignty in international law is not absolute as International Humanitarian Law, Human Right and International Criminal Law have provided exceptions, this paper highlight situations which permit foreign intervention in a state and considers the various argument of writers on the legality/illegality of ECOWAS’ military intervention in Gambia. The paper argues that ECOWAS’ military intervention lacks the requisite authorisation of the UN Security Council who by its resolution permitted the application of political measures only. ECOWAS also failed to meet the requirement for the application of Responsibility to Protect (R2P) in Gambia. More so, intervention on the basis of restoring democracy is void of legal backing as the enabling protocol permits ECOWAS to apply sanctions on member-state where democracy is abruptly brought to an end. On the whole, this paper concludes that though ECOWAS’ military intervention is justifiable in view of the situation in Gambia, it however lacked the requisite legal backing. The paper recommends that in situations where intervention is not based on humanitarian reason to necessitate the application of R2P, military intervention should have the requisite authorisation of the UN Security Council and the application of force should be the last option having exhausted all other means of dispute resolution.
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Lee, Yong-Shik. "Regulatory Autonomy under the WTO Agreement on Sanitary and Phytosanitary Measures: Implications of Korea–Import Bans, and Testing and Certification Requirements for Radionuclides." World Trade Review 20, no. 3 (April 14, 2021): 321–42. http://dx.doi.org/10.1017/s147474562100001x.
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AbstractThe recent WTO dispute case, Korea–Import Bans, and Testing and Certification Requirements for Radionuclides, illustrates complex legal issues and significant political implications associated with the regulatory autonomy of a sovereign country under the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). There has been constant tension between the sovereign right of a WTO member state to determine its own appropriate level of protection (ALOP) and the regulatory constraints imposed under the SPS Agreement to prevent abuse and disguised trade protection. The case emerged from this tension and raises questions on the extent of the regulatory autonomy in the application of an SPS measure. This article addresses these questions and examines the criteria for the qualitative standards for the ALOP, the question that the Appellate Body decision did not fully resolve. The criteria for the qualitative ALOP standards affect the regulatory autonomy significantly under the current SPS rules as they determine the manner and the extent to which a Member may meet the sensitive public interests in the application of an SPS measure. The article proposes a rational basis test to restrain abuse of SPS measures while preserving the regulatory autonomy protected under the SPS Agreement.
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Gelin, Evelyne. "La fin de la guerre froide et les États membres du Conseil de l'Europe." Études internationales 26, no. 1 (April 12, 2005): 113–34. http://dx.doi.org/10.7202/703428ar.
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Although the entry of Central Europe's new democracies into the Council of Europe proceeded rapidly and met little resistance, the Soviet federation's breakup has provided an opportunity to specify the criteria for admission to this organization. In regard to new candidacies for membership, it is worth recalling that member states must be sovereign states that respect fundamental rights and freedoms. Here, we have states whose independence was open to dispute, lying at the outermost limits of Europe, and seeking to free themselves from seventy-four years of "socialist democracy". This being the case, the Council of Europe must arbitrate between the particularises of its status, the necessities of diplomacy, and its willingness to open it self up.
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Maulaya, Mahbi. "Achieving Consensus in the South China Sea: Explaining Bilateralism's Bane and Multilateralism's Boon." Nation State Journal of International Studies 3, no. 2 (January 8, 2021): 169–94. http://dx.doi.org/10.24076/nsjis.2020v3i2.331.
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A prolonged debate arises whether bilateralism or multilateralism is the most effective path to achieve mutual consensus among parties in the South China Sea dispute. This study identifies bilateral approach negativity to settle such a complex and overlapping dispute existed in that area grounded by two considerations. First, bilateralism is a non-transparent scheme of bargaining process. Due to bilateral implementation only conducted by two states, the more powerful actor will escape from the scrutiny of others, thus making it possesses the opportunity to put forward discriminatory bid and robust sphere to suppress other party’s stance. The bilateral approach would result in a non-consensus agreement for less powerful parties. Second, the conflictual area draws the involvement of more than three sovereign parties with overlapping claims. Multilateralism, negotiation framework for multi-parties, is the most, perhaps the only, promising path to ease the existing tension numerous parties into the stage of consensus. Moreover, multilateralism may present positive norms – transparency and non-unilateralism – that could guide the involving parties to create consensus. The analysis of this paper obtained from utilization of qualitative data, library research methods, and by the comprehension of three conceptual frameworks, bilateralism, multilateralism, and consensus.
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Chen, Siyuan. "Re-assessing the Evidentiary Regime of the International Court of Justice: A Case for Codifying Its Discretion to Exclude Evidence." International Commentary on Evidence 13, no. 1 (January 1, 2015): 1–40. http://dx.doi.org/10.1515/ice-2016-0001.
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AbstractLike many international tribunals, the International Court of Justice subscribes heavily to the principle of free admissibility of evidence. Neither its statute nor rules impose substantive restrictions on the admissibility of evidence, whether by way of exclusionary rules or an exclusionary discretion. Instead, the court’s practice has been to focus on evaluating and weighing the evidence after it has been admitted. There are certainly features of the ICJ that sets it apart from domestic courts and arguably justify such an approach: the ICJ is for settling disputes between sovereign states; it does not use a typical fact-finding system; its rules and practices reflect a mix of civil and common law traditions; and traditional exclusionary rules were not conceived with inter-state dispute resolution in mind. Yet for any judgment to have legitimacy, the evidential foundations must be strong and there should be a coherent and principled mechanism to sieve out problematic evidence at an early stage. Having this mechanism can also ensure that resources are not wasted and rights protected. Through an examination of the court’s rules and jurisprudence and the rules and practices of other international tribunals, this article makes the case for the codification of a provision that gives the ICJ an exclusionary discretion.
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Todorović, Vladica. "Bosnian Muslims and Serbs: Reasons for dispute from 1918 to the present day." ПОЛИТЕИА 10, no. 19 (2020): 93–114. http://dx.doi.org/10.5937/politeia0-25206.
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The paper provides an analysis of political relations of Bosnian Muslims (officially Bosniaks since 1993) and Serbs, lasting for almost a century. Firstly, the author deals with their relations in the Kingdom of Serbs, Croats, and Slovenes and the Kingdom of Yugoslavia from 1918 to 1941, all the way through World War II from 1941 to 1945, then in the Communist Yugoslavia from 1945 to 1990, followed bythe period after the break-up of Socialist Federal Republic Yugoslavia, when Bosnia and Herzegovina became sovereign state, and, finally,with their current relations We believe that the main cause of the dispute is that Bosnian Muslims historically always abandoned Serbs at critical times and sought the support of other states and nations for their state-building goals. In wars, they supported their enemies, often forming alliances with other states or nations. As religious idea among the Bosnian Muslims grew from 1918, so did their numbers as well as their aspirations for Serbian territories. Similarly, as the number of Bosnian Muslims grew, so did the interest of great powers and political parties as well as their military support. Most importantly, with the rise of numbers of Bosnian Muslims, their policies and their stance towards the state changed. Hence, when they became majority in Bosnia and Herzegovina, they wanted to turn the Republic of Bosnia and Herzegovina into their national state.
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Bungenberg, Marc. "The Scope of Application of EU (Model) Investment Agreements." Journal of World Investment & Trade 15, no. 3-4 (July 28, 2014): 402–21. http://dx.doi.org/10.1163/22119000-01504004.
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The contribution examines the personal and material scope of application of future eu International Investment Agreements. Therefore the notions of 'investor' and 'investment' are discussed. The scope of application of iias is one of the most important issues in investment law, as it determines the application of material standards as well as the possibility of investor state dispute settlement. On a comparative basis, the chapter examines the eu approach to this issue. Also the coverage of State owned Enterprises as well as Sovereign Wealth Funds is paid specific attention to. Especially the draft investment chapter of the EU-Canada Comprehensive Economic and Trade Agreement (ceta) is taken as a first orientation for possible wording and structure as well as intention of the scope of application of future eu iias.
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Abib, Agus Saiful. "Penyelesaian Perselisihan Antara Negara Dengan Warga Negara Asing Mengenai Penanaman Modal Berbasis Pancasila." Hukum dan Masyarakat Madani 8, no. 1 (May 19, 2018): 70. http://dx.doi.org/10.26623/humani.v8i1.1388.
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<p>Indonesia adalah negara hukum (<em>rechtsstaat</em>), oleh karena itu hukum nasional harus berdaulat dan menjadi panglima dalam menyelesaiaikan seluruh permasalahan bangsa. Akan tetapi penyelesaian perselisihan antara negara dengan warga negara asing mengenai penanaman modal dalam hegemoni hukum arbitrase internasinal, dimana pemerintah menyerahkan mekanismenya kepada <em>International Centre for Settlement of Investment Disputte</em> (ICSID). Fokus permasalahan makalah ini adalah Bagaimanakah keuntungan dan kerugian pemerintah Indonesia dalam penyelesian perselisihan antara negara dengan warganegara asing mengenai penanaman modal melalui ICSID? Bagaimanakah konsep penyelesian perselisihan antara negara dengan warga negara asing mengenai penanaman modal dalam sistem hukum nasional berbasis Pancasila. Metode yang digunakan dalam makalah ini adalah Analisa kualitatif dengan menggunakan paradigma postpositivisme (Guba & Lincoln) yang disinergikan dengan pendekatan sosiolegal. Penulisan makalah ini mengungkapkan Hukum nasional merupakan hukum yang dibangun oleh bangsa Indonesia sendiri berdasarkan nilai ketuhanan, nilai kemanusiaan dan nilai kemasyarakatan yang merupakan nilai agung Pancasila sebagai pandangan hidup bangsa Indonesia guna mewujudkan tujuan negara. Indonesia mengalami kerugian sangat besar ketika penyelesaian perselisihan antara negara dengan warganegara asing mengenai penanaman modal diserahkan kepada ICSID, Oleh karena itu, perselisihan penanaman modal sebaiknya diselesaikan oleh badan arbitrase ASEAN.</p><p>Indonesia is a state of law (rechtsstaat), therefore the national law must be sovereign and be the commander in solving all the problems of the nation. However, the settlement of disputes between the state and foreign citizens concerning investment in the hegemony of the international arbitration law, in which the government submits its mechanism to the International Center for Settlements of Investment Disputes (ICSID). The focus of this paper issue is how are the gains and losses of the Indonesian government in settling disputes between the state and foreign citizens on investment through ICSID? What is the concept of dispute settlement between state and foreign citizen regarding investment in national legal system based on Pancasila? The method used in this paper is qualitative analysis using postpositivism paradigm (Guba & Lincoln) synergized with sociolegal approach. The writing of this paper reveals the national law is a law that was built by the Indonesian people themselves based on the value of divinity, humanitarian values and community values which is the great value of Pancasila as a view of life of the Indonesian nation in order to realize the purpose of the state. Indonesia suffers enormous losses when the settlement of disputes between the state and foreign citizens concerning investment is left to ICSID. Therefore, investment disputes should be resolved by the ASEAN arbitration body.</p><pre> </pre>
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Kilby, Charles. "China's Rare Earth Trade: Health and the Environment." China Quarterly 218 (March 18, 2014): 540–50. http://dx.doi.org/10.1017/s0305741014000320.
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AbstractRare earth elements (REE) captured a startled world's attention during the 2010 Diaoyu/Senkaku Islands crisis, when it appeared that China withheld access to them during its border dispute with Japan. China asserts that its sovereign right to environmental regulation and national production quotas is unassailable. However, China's trade measures appear to be inconsistent with WTO rules, as well as with environmental protection and conservation, since they incentivize illegal mining and smuggling practices. In an upcoming case (DS431), the United States, the European Union, Japan and 16 third parties will argue before the WTO that China's trade measures on rare earths, tungsten and molybdenum constitute discriminatory behaviour and are illegal. This raises the question of whether China is inappropriately using the environment as a defence against allegations that its rare earth trade policies are in violation of its WTO obligations.
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Rameau, Rose. "The African Perspective: The Development of Investment Laws, the Pan-African Investment Code (PAIC), and the African Continental Free Trade Area in the “New Economic World Order”." Proceedings of the ASIL Annual Meeting 114 (2020): 62–67. http://dx.doi.org/10.1017/amp.2021.24.
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Bilateral investment treaties (BITs) containing traditional clauses such as Most Favorite Nation (MFN), National Treatment (NT), and Free and Equitable Treatment (FET) have been used as old tools to protect Foreign Direct Investments (FDI) throughout the African continent. African states have formed different economic blocks in order to facilitate intra-Africa investment trades and FDI protection. However, investment laws in the continent remain very fragmented. In 2005, African states enacted the Pan-African Investment Code (PAIC), which did not include provisions for traditional Investor State Dispute Settlement (ISDS) but included exceptions to MFN and NT while omitting FET. The PAIC is a classic example of the African perspective in using old tools in new ways to promote more economic nationalism and sustainable development in Africa while maintaining a balance between investors’ protection and states’ sovereign right to regulate.
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Dromgoole, Sarah. "2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage." International Journal of Marine and Coastal Law 18, no. 1 (2003): 59–108. http://dx.doi.org/10.1163/157180803x00025.
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AbstractThe UNESCO Convention on the Protection of the Underwater Cultural Heritage, adopted in November 2001, is designed to create a legal framework to regulate interference with underwater cultural heritage (UCH) in international waters. This article briefly considers the background to the Convention and discusses its main provisions. These relate to the scope of application of the Convention; its objectives and general principles; its approach to private rights; its treatment of state vessels and the question of sovereign immunity; and its relationship with the UN Convention on the Law of the Sea 1982. The article then goes on to examine in detail the control mechanisms that the Convention adopts in respect of each maritime zone and the sanctions that contracting states will be required to impose for violations. Finally, dispute settlement procedures are briefly considered, before the article concludes with comments on the Convention's likely impact and effectiveness.