After the UN Guiding Principles on Business and Human Rights were adopted in 2011, an international treaty has been being negotiated since 2014. The two instruments reveal similarities and also conflicts regarding the adequate organization of the global economy based on human rights. The focus in this article will be on the processes leading to these instruments, because they themselves mirror different understandings of governance in the field of business and human rights as well as the struggle over the (...) power of definition and legitimacy. The UNGPs were developed on the basis of global multi-stakeholder consultations, underlining legitimacy through broad inclusion. There are varying judgements as to the success of this approach. The process towards the treaty follows the traditional path of negotiations at UN level. These negotiations reveal a struggle for recognition of the legitimacy of the process itself. Both procedures have shortcomings with regard to legitimacy and show the need for a revision concerning the inclusion of stakeholders. The complementarity of a soft and hard law instrument may enhance the creation of a level playing field in the global economy, thereby strengthening human rights. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 265-276.

This study investigates the determinants of the ratification of International Covenant on Economic, Social, and Cultural Rights (ICESCR). To do so, it proposes an explanation that postulates that states employ treaty ratification as a device to signal their resolve to implement polices required by the treaty at issue in order to appease demanding domestic constituencies, predicting that states with lower compliance capacity tend to commit faster than states with higher compliance capacity. Applying this explanation to the ICESCR leads to (...) two expectations. First, the larger government spending a proxy of high compliance capacity is hypothesized to delay the ratification process. Second, states with the unitary system are expected to ratify the ICESCR more promptly because the centralized power structure in unitary states significantly restricts the pursuit of the policy autonomy by minorities at local level that the right to self-determination entails. The Cox proportional hazard analysis lends support to both hypotheses. (shrink)

This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures have referred to (...) the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights. (shrink)

This article conceptualizes corporate accountability under international law and introduces an analytical framework translating corporate accountability into seven core elements. Using this analytical framework, it then systematically assesses four models that could be used in a future business and human rights treaty: the United Nations Guiding Principles on Business and Human Rights model, the Universal Declaration of Human Rights model, the progressive model, and the transformative model. It aims to contribute to the BHR treaty negotiation process by clarifying different (...) options and possible trade-offs between them, while taking into account political realities. Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporate accountability, which combines ambitious development of international law with realistic prospects of state support. (shrink)

The article focuses on the overlooked volume of Henry Sumner Maine's corpus, the posthumously published International Law and uses it to respond to the general critical difficulty in establishing Maine's posture. Maine, of course, makes it difficult with the numerous contrapuntal moves of this book and others. For example, he strongly criticizes the predominant view of international law as an accretionary process of commentary by one theorist following another and yet he places tremendous value on Grotius, "whose works (...) acted on the spirit of belligerency like a charm," and other early international legal theorists. He sees his contemporary environment as marked by increasing militarization, even of militarization of society during time of peace, while he describes the relative humanity of the present over the distant past.Ultimately, Maine is a realist who focuses on late nineteenth-century manuals of war rather than the idealism of the Anglo-American peace movement, and recognizes the importance of Czar Alexander II over any of nineteenth-century international legal theorists. If J.W. Burrow has identified social evolution as providing Victorians an "intellectual resting-place" between theoretical clarity and social diversity, Maine's broad social evolution allows him to mediate between the moral amelioration in international life and the practical realities of that life. (shrink)

This article traces the history of the earliest bilateral tax treaties which were concluded prior to World War I. There are currently over 3000 bilateral tax treaties in existence and their fundamental concepts and terms can be traced back to the earliest treaties. This article explores the political and economic context of the early treaties to understand why countries entered into tax treaties. Tax treaties play an important role in facilitating economic integration and as (...) the European Union and other regional blocs seek to establish a single market, the historical context of tax treaties can assist in understanding their role in modern international economic relations. (shrink)

While human rights treaties provide a formidable set of principles on education and values, domestic Courts often tend to adjudicate claims in terms of local arguments for or against each particular educational practice. This article explores how international human rights law could inspire the interpretation of domestic law and educational practice, without neglecting specific cultural aspects. Firstly, the article reviews the sociological debate on values in education and shows its importance for the legal discussion. Secondly, some critical contestations (...) of international cultural human rights are outlined, as well as certain arguments to justify the importance of this model. The study of international law follows: the UN, the European Court of Human Rights, and three relevant African Charters, as well as every reference to education made by the African Commission on Human and Peoples’ Rights and by the African Court is examined. Lastly, a comparative section reveals a certain cultural commonality inspired by the UN treaties, but also reflects some cultural and institutional differences between the European and the African regional systems. (shrink)

Treaty Norms and Climate Change MitigationDarrel MoellendorfCurrently the international community is discussing the regulatory framework to replace the Kyoto Protocol after 2012. The unveiling of the new framework is scheduled to occur at the December 2009 COP in Copenhagen. The stakes are high, since any treaty will affect the development prospects of per capita poor countries and will determine the climate change–related costs borne by poor people for centuries to come. Failure to arrive at an agreement would have grave (...) effects on the development prospects of poor countries, many of which will experience the most severe effects of climate change. The original UNFCCC treaty recognizes these kinds of concerns and requires that further treaty negotiation pay them heed. Any agreement will be required to conform to UNFCCC norms related to sustainable development and the equitable distribution of responsibilities. In this paper I argue that UNFCCC norms tightly constrain the range of acceptable agreements for the distribution of burdens to mitigate climate change. I conclude that any legitimate treaty must put much heavier mitigation burdens on industrialized developed countries. Of the various proposals that have received international attention, two in particular stand out as possibly satisfying UNFCCC norms regarding the distribution of responsibilities. (shrink)

It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or (...) reject genetically modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law. (Please download the full paper from SSRN at the link on this page). (shrink)

In this paper I argue that there is objectivity in international human rights law, against which the justifiability of arguments can be determined, and which could advance the universality versus relativity of human rights debate. Revisiting the three schools of treaty interpretation and applying the three elements of Radbruch’s rule of law, I discuss how the interpreter’s job of balancing those schools has limited room for manoeuvre. I further propose an approach to help jurists detect unjustifiable arguments in treaty (...) interpretation, often in the disguise of relativism. That approach consists of: a non-justifiable argument contradicts all three schools of treaty interpretation; or ignores all three; a justifiable argument is supported by at least one of these schools; a better argument is a more balanced argument, i.e. supported by more elements of interpretation. Finally, I argue that there is a degree of objectivity in each school of treaty interpretation, which is supported by shared intention and speech act theory, and can therefore be held to apply to the whole process of treaty interpretation. I illustrate above arguments with a case, a doctrine, and a country. (shrink)

Various advocacy groups and primarily domestic-focused firms in developed countries have been pushing governments to include a "social clause" in trade treaties with less developed countries. Such a clause is designed to link trading access to markets in developed countries with improvements in working conditions in poor nations. The implications of such a clause for internationally-focused firms and how managers can effectively deal with human rights issues in their foreign operations are examined. Various constituencies in this debate are identified (...) and an integrated response system on the part of firms is presented. It is suggested that the best policy for firms to adopt would be to acknowledge the relevance of the social clause in today's global economy and work closely with the various advocacy groups to ensure continuing public support while avoiding overly restrictive clauses in international trading agreements. (shrink)

Bilateral investment treaties constitute an important instrument to facilitate global investment. Recent discussions in political theory have highlighted several normative concerns raised by bilateral investment treaties. One worry is that investment treaties undermine national self‐determination as they grant investors far‐reaching protections that can be legally enforced. Another worry is that the benefits and burdens entailed in bilateral investment treaties are distributed unfairly in a way that benefits investors at the expense of states and disadvantaged groups within (...) states. Instead of critiquing bilateral investment treaties from a perspective of global (distributive) justice, in this article I develop a class‐based critique. This involves a twofold departure. First, the article shifts the focus from distributions to the power relations that are built into the global capitalist economy and that come into sharp relief in the practice of global investment. Second, rather than focusing on the relation between states and investors, I claim that in a class‐based critique the relation between workers and investors should take centre stage. I argue that bilateral investment treaties are effectively an instrument of class domination, insofar as they reproduce and increase the power of transnational corporations while at the same time decreasing the power of workers. (shrink)

International Law in Context is a pedagogy-forward textbook. It reflects the recent paradigm shift in legal education, which focuses more on what students actually learn rather than the material to which they are exposed. The text aims to prepare the next generation of U.S. lawyers to engage with our interconnected world and to critically evaluate the U.S.'s role within the international legal order. The work is divided into three parts that accomplish these goals. Part One lays a foundation. (...) It covers the various actors within the system, the theories that help explain their behavior, and the principles and sources of law they create. Part Two turns to the fora that define and support the international order, the historical and political contexts that impacted their design, and their efficacy. Part Three is a capstone section that asks students to weave together everything they have learned in Parts One and Two. Students will engage in normative development regarding climate change, including the existing international treaty regime and U.S. implementation options, and the law of war in the modern age. The cornerstone of this book is its organization. The text groups material into conceptual frameworks that promote understanding and retention. For example, rather than consider the various dispute resolution fora in isolation, Part Two asks students to consider them in the context of what types of disputes arise and what legal rules can be employed to resolve them in various international and domestic fora. The institutions also are presented in chronology. In this way, students are encouraged to chart the developmental progression and to make connections and comparisons between various institutions. The use of conceptual frameworks continues within each part. For example, Chapter Six covers the sovereign State as a conflict resolution forum. Under this umbrella, the author discusses (a) State Jurisdiction; (b) The Reception of International Law into the Domestic Sphere; (c) The Qualification as a State Forum or State Litigant (i.e., Recognition of States & Governments); and (d) Protections Afforded Within the Forum: Sovereign, Diplomatic, and Consular Immunity. A typical coursebook might locate this material in four different chapters. The conceptual framework approach, however, allows students to see the big picture and the relationship between concepts. In addition to the frameworks, there are several other innovative pedagogical devices that support student learning. There are Foundation Questions that initially direct readers through the material and cumulatively help students confirm whether they have grasped key takeaways from each section. There also are Assessment Sets in each section, which provide students with immediate opportunities to apply material and gauge their understanding, and "Why Is This Important (a/k/a WITI Moment)" prompts designed to delve deeper into the underpinnings and consequences of various rules. Finally, there are directed reading notes before some more complex readings and margin annotations to keep readers oriented. (shrink)

In this article I want to consider whether the authority of the United States to enter into treaties in a global environment is limited by constitutional constraints. The issue arises because a reasonable interpretation of the language of Article VI would place the treaty power on the same status-footing as the Constitution of the United States. But if that is the case, then presumably a treaty might be designed that could delegate constitutional powers to bodies like the United Nations, (...) the North Atlantic Treaty Organization (“NATO”), the International Monetary Fund, the World Trade Organization (“WTO”), or other international organizations. Or, a treaty might be designed to reserve particular constitutional rights – like the Sixth Amendment right to trial by jury in criminal cases – from operating within certain contexts as might concern areas over which the United States exercises territorial jurisdiction, for example, Guam, Puerto Rico, and in other contexts where only international agreements apply. (shrink)

B a c k g r o u nd. The article critically examines the concept of peace in the context of the Sino-Soviet Treaty of Friendship, Alliance and Mutual Assistance. This study delves into the historical, diplomatic, and philosophical dimensions of the Treaty between the Soviet Union and the People's Republic of China in the mid-twentieth century. M e t h o d s. The study is based on a systematic analysis of the original documents of the Sino-Soviet Treaty and (...) other primary sources that record the context and content of the agreement. The article uses a comprehensive analysis of primary sources, diplomatic correspondence, political discourse, and philosophical narrative to illuminate various interpretations and implementations of the treaty's peace provisions. Analyzing the philosophical basis of the agreement, it is taken into account how the ideas and concepts of friendship, union and mutual assistance were interpreted in the philosophical context of both countries. The article uses methods of comparative analysis to establish common and distinctive features between the ideology of the Sino-Soviet Treaty. Re s u l t s. The study provides valuable information about the geopolitical dynamics of the 20th century, shedding light on how the two major communist powers managed their diplomatic relations. By examining the ideological underpinnings and practical implications of the Treaty's peace-oriented provisions, the article contributes to understanding the broader landscape of international relations in this dynamic period. C o n c l u s i o n s. The study provides important information about the geopolitical dynamics of the 20th century, revealing how the two leading communist states managed their diplomatic relations. The article also considers the prospects for the development of dynamics between the Soviet Union and the People's Republic of China, examining the difficulties and problems that arose in maintaining peaceful relations between powerful states with common political ideologies based on the principles of Marxism. Analyzing the ideological foundation and practical consequences of the peacekeeping principles in the treaty, the article contributes to a better understanding of the broad context of international relations and philosophical narrative. (shrink)

The Patent Cooperation Treaty (PCT) is an international treaty that was concluded in 1970 as a special agreement under the 1883 Paris Convention for the Protection of Industrial Property. It establishes an international system for the filing and examination of patent applications and the conduct of “prior art” (technical literature) searches that is administered by a network of national and regional patent offices acting as Receiving Offices, International Searching Authorities and/or International Preliminary Examining Authorities. Its specific (...) purpose is to help inventors obtain a patent for the same invention in two or more PCT countries by allowing them to assert their claim internationally have it subjected to preliminary assessment before committing to one or more local applications. It thus reduces the risk of wasted expenditure by enabling an applicant to postpone the decision to pursue an application to grant until confident of its success. By creating a series of pre-grant procedures with recognised validity in each of the PCT’s nearly 140 countries, it also provides a basis for the harmonisation of patentability standards and facilitates the move toward the creation of an international patent. (shrink)

Various advocacy groups and primarily domestic-focused firms in developed countries have been pushing governments to include a "social clause" in trade treaties with less developed countries. Such a clause is designed to link trading access to markets in developed countries with improvements in working conditions in poor nations. The implications of such a clause for internationally-focused firms and how managers can effectively deal with human rights issues in their foreign operations are examined. Various constituencies in this debate are identified (...) and an integrated response system on the part of firms is presented. It is suggested that the best policy for firms to adopt would be to acknowledge the relevance of the social clause in today''s global economy and work closely with the various advocacy groups to ensure continuing public support while avoiding overly restrictive clauses in international trading agreements. (shrink)

Militairy technology is developing at a rapid pace and we are seeing a growing number of weapons with increasing levels of autonomy being developed and deployed. This raises various legal, ethical, and security concerns. The absence of clear international rules setting limits and governing the use of autonomous weapons is extremely concerning. There is an urgent need for the international community to work together towards a treaty not only to safeguard ethical and legal norms, but also for our (...) shared security. This article explains why a treaty on autonomous weapons is needed and achievable. It goes into what a treaty could consist of to establish an international norm and set rules and limits on autonomy in weapon systems. (shrink)

This book investigates whether treaty interpretation at the ECtHR and WTO, which are sometimes perceived as promoting 'self-contained' regimes, could constitute a means for unifying international law, or, conversely, might exacerbate the fragmentation of international law. In this regard, the practice of the ICJ on treaty interpretation is used for comparison, since the ICJ has made the greatest contribution to the development and clarification of international law rules and principles. Providing a critical analysis of cases at the (...) ICJ, ECtHR and WTO, both prior to and since the adoption of the 1969 Vienna Convention on the Law of Treaties, the book reveals how the ECtHR and WTO apply the general rules of treaty interpretation in patterns which are similar to those used by the ICJ to address difficulties in interpreting the text of treaties. Viewed in the light of the ECtHR's and WTO's interpretative practices, both the VCLT's general rules of interpretation and the ICJ's interpretative practice serve to counteract the fragmentation of international law.. (shrink)

Equity is a foundational concept for the new World Health Organization (WHO) Pandemic Treaty. WHO Member States are currently negotiating to turn this undefined concept into tangible outcomes by borrowing a policy mechanism from international environmental law: “access and benefit-sharing” (ABS).

Antimicrobial resistance (AMR) is one of the defining global health threats of our time, but no international legal instrument currently offers the framework and mechanisms needed to address it. Fortunately, the actions needed to address AMR have considerable overlap with the actions needed to confront other pandemic threats.

In this article the author analyses specific reservations that are being done to the international documents for the protection of human rights and whether Vienna Convention on the Law of the Treaties applies to those human rights treaties or not. Also, the author analyses if reservations, which are incompatible with object and purpose of the treaty, can be done or not and what consequences they might bring. For this reason the author describes the practice of the state (...) members under the Convention on the Elimination of All Forms of Discrimination against Women and International Covenant on Civil and Political Rights. These treaties were chosen not only because they laid down the most significant principles of the protection of human rights, but also due to the great number of reservations made to the fundamental provisions of these treaties. The importance of the topic is that in the human rights treaties the implementation of Vienna Convention on the Law of Treaties provisions on reservations brings several issues, even though on theoretical level the regulation of reservations seems unproblematic. Firstly, there is a major group of states (especially Islamic countries, which base their explanation on the incompatibility with Islamic law), which want to become parties to the treaties that protect human rights and make reservations to fundamental provisions of them at the same time. Secondly, the state parties that make objections to the reservations have to decide if the reservation is compatible with the object and purpose of the treaty or not. The regulation that is laid down in Vienna Convention on the Law of Treaties creates difficulties for the state parties and withdrawal of reservations seems to be more problematic in reality than it is in theory. In order to find the solutions for the above mentioned issues, the author analyses whether the Vienna Convention on the Law of the Treaties regime works properly within the mechanism of making reservations to the human rights treaties or not, what reservations should be kept invalid under the human rights treaties and what could be the solutions for the most effective protection from the invalid reservations that address fundamental rights of human beings in the human rights law. (shrink)

I contend that to be politically feasible a global climate treaty must satisfy the International Paretian principle (IP). I begin by defending IP as a principle of instrumental rationality that reflects the fact of extremely limited altruism vis-à-vis foreigners. I then address two objections to my thesis. One holds that an IP treaty is either economically infeasible or, contrary to its proponents’ claim, does not require side payments from poor states to rich ones. The other holds poor states will (...) reject any climate treaty that requires such side payments because it ignores or exacerbates their unjust treatment by rich states. (shrink)

The Commentary on the Vienna Convention on the Law of Treaties provides an in-depth article-by-article analysis of all of the Vienna Convention's provisions. Each provision's analysis consists of (I) Purpose and Function of the Article, (II) Historical Background with Negotiating History, (III) Elements of the Article and finally (IV) Treaties of International Organizations. In short, the present Commentary contains a comprehensive legal analysis of all aspects of the international law of treaties. Furthermore, where the law (...) of treaties reaches into other fields of international law, e.g. the law of state responsibility, the relevant interfaces are discussed and contextualized. With its focus on international practice, the Commentary is an invaluable reference for both academia and practitioners of international law. (shrink)

This book provides a critique of current international law-making and draws on a set of principles from Persian philosophers to present an alternative to influence the development of international law-making procedure. The work conceptualizes a substantive notion of democracy in order to regulate international law-making mechanisms under a set of principles developed between the twelfth and seventeenth centuries in Persia. What the author here names 'democratic egalitarian multilateralism' is founded on: the idea of 'egalitarian law' by Suhrawardi, (...) the account of 'substantial motion' by Mulla Sadra, and the ideal of 'intercultural dialectical democracy' developed by Rūmī. Following a discussion of the conceptual flaws of the chartered and customary sources of international law, it is argued that 'democratic egalitarian multilateralism' could be a source for a set of principles to regulate the procedures through which international treaties are made as well as a criterion for customary international law-ascertainment. (shrink)

SummaryThis study focuses on the cultural and political context from which stemmed the French translation of the British Merchant. The paratextual and macrostructural interventions that characterised Le négotiant anglois clearly demonstrate that the translator, Véron de Forbonnais, used his work to set out his own epistemological method and his way of looking at inter-state relations. With the book, Forbonnais had distanced himself from Gournay by rejecting the idea that in order for France to prosper in a situation of international (...) competition the government needed to adopt a muscular strategy that included the adoption of a navigation act modelled on the one enacted by Britain in 1660. At the same time, Forbonnais warned French decision-makers that signing commercial treaties with the maritime powers might also be prejudicial to national economic interests. Forbonnais supplied qualified French readers not only with an annotated edition of the British Merchant but also with a translation of Davenant's Of the Use of Political Arithmetick. In so doing, he proposed to his audience a type of governance based on a competent use of statistics. In conclusion, I will argue that in Le négotiant anglois Forbonnais anticipated the key political and economical tenets of his project of ‘monarchie commerçante’, which he later set out in the Principes et observations æconomiques in order to counter the rise of the epistemology and plans for a ‘royaume agricole’ put forward by the physiocratic movement. (shrink)

Obstacles to achieving a global climate treaty include disagreements about questions of justice raised by the UNFCCC's principle that countries should respond to climate change by taking cooperative action "in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions". Aiming to circumvent such disagreements, Climate Change Justice authors Eric Posner and David Weisbach argue against shaping treaty proposals according to requirements of either distributive or corrective justice. The USA's climate envoy, Todd Stern, takes (...) a similar position. In this article I explain the practical and theoretical drawbacks of Posner & Weisbach's welfarist perspective and propose an alternative. I show that their arguments fail to rule out John Rawls' non-utilitarian, political conception of international justice and human rights, the Law of Peoples. On this basis I develop a conception of climate justice that highlights implications of some of Rawls' principles and adds a principle for determining fair shares of climate -treaty-related benefits and burdens. I propose this conception as a moral framework for negotiating a treaty that would promote human welfare consistently with requirements of justice, and I argue that a treaty proposal satisfying these requirements could best satisfy Posner & Weisbach's own feasibility criteria. (shrink)

Historical political entities differ in their understanding of sovereignty. This paper studies how conceptualizations of sovereignty clashed during the peace negotiations between the Spanish Monarchy and the United Provinces of the Low Countries held during the 1640s. It argues that these different understandings of sovereignty posed a significant obstacle to the signing of the peace and, once signedm remained a potential source of instability in the relationship not only between both polities but also for the internal equilibrium of the Dutch (...) Republic. (shrink)

Genetic engineering for purposes of human enhancement poses risks that justify regulation. I argue, however, that it is inappropriate to use human rights treaties to prohibit germ-line genetic engineering whether therapeutic or for purposes of enhancement. The scope and weight of human rights make them poor tools for regulating a rapidly developing technology such as genetic engineering. On the other hand, international treaties are appropriate regulatory tools as long as prohibitions are not put in terms of human (...) rights. (shrink)

This book contains a collection of treaty documents and soft law on health care rights and health ethics which are used in health law training programs. Regional documents and explanatory reports on health care rights, which are derived from international human rights law, provide a way of "unwrapping" government obligations in health care, making rights more specific, accessible, and (judicially) accountable. In addition, soft law declarations and medical ethics contribute to understanding the moral meaning of human rights in health (...) care. As such, the principles and standards provide practical guidance for States when dealing with equal access to health care services, the rights of patients, biomedical research, organ donations and transplants, genetics, and public health. The book covers the basic documents, while general comments and explanatory reports amplify the principles embodied in the human rights treaties. The authoritative interpretations clarify a 'European approach' on a State's obligations concerning health care rights and ethics. (shrink)

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might (...) stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in. (shrink)

As political theorists address the parochial foundations of their field, engagement with the Indigenous traditions of Turtle Island is overdue. This article argues that theorists should approach such engagement with caution. Indigenous nations’ politics of knowledge production may differ from those of de-parochializing political theorists. Some Indigenous communities, in response to violent histories of knowledge extraction, have developed practices of refusal. The contemporary movement of resurgence engages Indigenous traditions of political thought toward the end of promoting Indigenous intellectual and political (...) sovereignty and self-determination. These practices demonstrate a commitment to epistemic justice that is imperfectly aligned with, and potentially opposed to, inclusion-oriented projects like comparative political theory. If political theorists are to de-parochialize political theory by incorporating Indigenous traditions, they must do so in ways that are respectful of Indigenous peoples’ own struggles for epistemic justice. This can be achieved by drawing on and deepening practices of reflexivity exhibited in leading comparative political theory scholarship, and by allowing Indigenous treaty relationships to set the terms of the encounter. (shrink)

This chapter contains sections titled: The Subject Matter of International Law The Sources of International Law Conclusion References.

Mobilising International Law for 'Global Justice' provides new insights into the dynamics between politics and international law and the roles played by state and civic actors in pursuing human rights, development, security and justice through mobilising international law at local and international levels. This includes attempts to hold states, corporations or individuals accountable for violations of international law. Second, this book examines how enforcing international law creates particular challenges for intergovernmental regulators seeking to manage (...) tensions between incompatible legal systems and bringing an end to harmful practices, such as foreign corruption and child abduction. Finally, it explores how international law has local resonance, whereby, for example, cities have taken it upon themselves to give effect to the spirit of international treaties that national governments fail to implement, or even may have refused to ratify. (shrink)

Consistent with Article 38 of the Statute of International Court of Justice, the primary sources of international human rights law can be identified as treaty, custom, and general principles of law derived from national legal systems. Treaty provisions in human rights law are often textually fairly open‐ended and hence will need to be read in the light of institutionalized practices of interpretation, such as the jurisprudence by regional human rights courts and international human rights treaty bodies. Despite (...) the universal acceptance of human rights treaties and the recognition of human rights as norms of customary international law, human rights violations do occur in all parts of the world and are often systematic. Major shortcomings of the international monitoring mechanisms for human rights treaties are their underresourcing, lack of visibility, and ineffectiveness. Even if human rights treaties have become universally accepted, compliance control remains underdeveloped. (shrink)

_ Source: _Volume 37, Issue 1, pp 43 - 60 Unequal treaties have become synonymous with the imperial practice of Western states in East Asia during the nineteenth century. They have also become a popular subject of study for historians of international law. A neglected feature of the history of unequal treaties is the way they were used and theorised upon as instruments of informal empire before the nineteenth century, in the early-modern age. Hugo Grotius in particular (...) wrote extensively on unequal treaties and alliances through his familiarity with the Dutch East India Company’s exploits in the East Indies, where the conclusion of treaties with indigenous rulers formed the cornerstone of Dutch imperialism. This article delves into the early-modern roots of unequal alliances and discusses how the Grotian analysis of unequal alliances influenced other authors of the classic law of nations. (shrink)

In the Netherlands, access to healthcare has been guaranteed by social health insurance legislation. But since the introduction of the Health Insurance Act in the 1960s, the health insurance system has been in a state of flux. Numerous reforms have changed the system gradually, of which the latest is the introduction of a competitive health insurance scheme for the entire population.Cutting across the various reforms has, however, been the goal of access to healthcare services as defined by international treaty (...) law, including European Union law. In particular the leverage of Community law in strengthening the patient’s right to healthcare is remarkable. Since the European Court of Justice has accepted that healthcare should be considered as a service in terms of the EC Treaty, rights to healthcare have become inextricably linked with the free movement principles and are no longer restricted to the jurisdiction of the country of origin. (shrink)

Public international law is entirely a product of consensualism. The State, which is both the legislator and subject of the world juridical order, only agrees to comply with exterior norms to the extent that it approves of their content. Any treaty, in its contractual nature; any custom, in its consensual nature; any decision of an international organization, in its ability to be en forced, expresses the agreement of the concerned States, whether on a case by case or global (...) basis. National sovereignty is in this way safeguarded. Nothing can be imposed on those who govern without their consent. Indeed, until the middle of the twentieth century, States had succeeded in juridically protecting their free will; or more precisely, their free willfulness. International law required no behavioral norms, and no obligation of tolerance, in regard to a State's own nationals. (shrink)

ABSTRACT This essay analyses French literature on protectorates that was published in the late nineteenth and early twentieth centuries. Firstly, I examine French understanding of protectorates with a focus on contrasting views about whether or not a protectorate treaty warrants the intervention of the protector in the internal affairs of the protected. In doing so, I attempt to delineate specific ways legal scholarship engaged with the ideological construction of a supposedly uncivilized other. Then I move on to trace the development (...) of a type of argument employed by the French to justify their colonialism that had to do with protectorate treaties. In the discussion, I explain the particular role the ‘violation’ argument played within French colonial discourse, both in the absence of the ‘territorium nullius’ argument, and in the face of critics of empire. Lastly, I place under scrutiny the relationship between the ‘violation’ argument and the distinction of two kinds of coercion – coercion of a state, and coercion of its representative. (shrink)