Maurizio Ragazzi
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298700
- eISBN:
- 9780191707513
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298700.001.0001
- Subject:
- Law, Law of Obligations
In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations ...
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In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating obligations erga omnes in light of state practice and court decisions (including the South West Africa and the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of aggression and genocide, and the protection from slavery and racial discrimination. From this analysis, the book infers five common elements of obligations erga omnes, including their reflecting basic moral values. The book then examines these common elements in light of other candidates of obligations erga omnes proposed in the international literature and state practice. Before drawing general conclusions, the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and actio popularis.Less
In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating obligations erga omnes in light of state practice and court decisions (including the South West Africa and the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of aggression and genocide, and the protection from slavery and racial discrimination. From this analysis, the book infers five common elements of obligations erga omnes, including their reflecting basic moral values. The book then examines these common elements in light of other candidates of obligations erga omnes proposed in the international literature and state practice. Before drawing general conclusions, the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and actio popularis.
Jorun Baumgartner
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198787112
- eISBN:
- 9780191829185
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198787112.003.0004
- Subject:
- Law, Public International Law
Heralding the legal analysis of the practice of treaty shopping in Part II of the book, Chapter 3 sets out to analyse the (customary) international law of diplomatic protection as relevant for the ...
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Heralding the legal analysis of the practice of treaty shopping in Part II of the book, Chapter 3 sets out to analyse the (customary) international law of diplomatic protection as relevant for the question of changes of nationality. Investment arbitral tribunals, when having to decide on whether a claim involving treaty shopping is valid or not, are often tasked to determine whether certain leading cases referring to customary international law may be applied in the investment context. Chapter 3 examines the concept of nationality under international law both for natural and legal persons, discusses in depth the implications of the Nottebohm, Barcelona Traction, and Diallo decisions of the International Court of Justice for international investment law, and assesses the relevance of the (customary) continuous nationality requirement for the practice of treaty shopping in international investment law.Less
Heralding the legal analysis of the practice of treaty shopping in Part II of the book, Chapter 3 sets out to analyse the (customary) international law of diplomatic protection as relevant for the question of changes of nationality. Investment arbitral tribunals, when having to decide on whether a claim involving treaty shopping is valid or not, are often tasked to determine whether certain leading cases referring to customary international law may be applied in the investment context. Chapter 3 examines the concept of nationality under international law both for natural and legal persons, discusses in depth the implications of the Nottebohm, Barcelona Traction, and Diallo decisions of the International Court of Justice for international investment law, and assesses the relevance of the (customary) continuous nationality requirement for the practice of treaty shopping in international investment law.
MAURIZIO RAGAZZI
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298700
- eISBN:
- 9780191707513
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298700.003.0001
- Subject:
- Law, Law of Obligations
This introductory chapter examines the distinction between ratio decidendi and obiter dictum, as a starting point of his subsequent consideration of the background and aftermath of the dictum on ...
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This introductory chapter examines the distinction between ratio decidendi and obiter dictum, as a starting point of his subsequent consideration of the background and aftermath of the dictum on obligations erga omnes. The International Court's pronouncement on obligations erga omnes addressed arguments put forward by the parties in the pleadings of the Barcelona Traction case, was unanimously endorsed by the International Court's members, and has been acquiring increasing influence ever since. The characteristic feature of universality of these obligations identified by the International Court (in addition to the element of solidarity in that every state has a legal interest in their protection) raises the complex theoretical question of how to reconcile the consensual nature of relations among states with the existence of obligations erga omnes, which bind states irrespective of consent. This aspect is a principal subject of investigation in this book.Less
This introductory chapter examines the distinction between ratio decidendi and obiter dictum, as a starting point of his subsequent consideration of the background and aftermath of the dictum on obligations erga omnes. The International Court's pronouncement on obligations erga omnes addressed arguments put forward by the parties in the pleadings of the Barcelona Traction case, was unanimously endorsed by the International Court's members, and has been acquiring increasing influence ever since. The characteristic feature of universality of these obligations identified by the International Court (in addition to the element of solidarity in that every state has a legal interest in their protection) raises the complex theoretical question of how to reconcile the consensual nature of relations among states with the existence of obligations erga omnes, which bind states irrespective of consent. This aspect is a principal subject of investigation in this book.
Doreen Lustig
- Published in print:
- 2020
- Published Online:
- July 2020
- ISBN:
- 9780198822097
- eISBN:
- 9780191861185
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822097.003.0007
- Subject:
- Law, Private International Law
Chapter 7 traces a ‘road not taken’ in the history of regulating global corporations in pursuit of economic democracy, the conditions that led to its failure, and the emergence of the contemporary ...
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Chapter 7 traces a ‘road not taken’ in the history of regulating global corporations in pursuit of economic democracy, the conditions that led to its failure, and the emergence of the contemporary regime that separates market and politics. The late 1960s saw a rare moment of unity in the struggle over the regulation of corporations among decolonized nations, which together formed the New International Economic Order and civil society of the Global North in a bid to defy unruly corporations. While North–South opposition to corporate power gained traction, the tensions between capital-exporting countries were augmented. These conditions opened a window of opportunity for a new international policy regime to regulate global corporations. But this window would not remain open for long. In the aftermath of the Barcelona Traction Case (1970), capital-exporting countries sought an alternative legal framework of a new regime of international investment law and redefined the normative content of corporate responsibility in human rights terms.Less
Chapter 7 traces a ‘road not taken’ in the history of regulating global corporations in pursuit of economic democracy, the conditions that led to its failure, and the emergence of the contemporary regime that separates market and politics. The late 1960s saw a rare moment of unity in the struggle over the regulation of corporations among decolonized nations, which together formed the New International Economic Order and civil society of the Global North in a bid to defy unruly corporations. While North–South opposition to corporate power gained traction, the tensions between capital-exporting countries were augmented. These conditions opened a window of opportunity for a new international policy regime to regulate global corporations. But this window would not remain open for long. In the aftermath of the Barcelona Traction Case (1970), capital-exporting countries sought an alternative legal framework of a new regime of international investment law and redefined the normative content of corporate responsibility in human rights terms.
Filippo Fontanelli and Giuseppe Bianco
- Published in print:
- 2018
- Published Online:
- February 2019
- ISBN:
- 9780198798200
- eISBN:
- 9780191858642
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198798200.003.0011
- Subject:
- Law, Public International Law
This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story ...
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This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story of a Canadian company, with Spanish subsidiaries, whose shares were mainly owned by Belgian citizens. Second, it reminds lawyers of the dispute between Belgium and Spain before the International Court of Justice, in the matter of the corporate hijacking of the company at the hands of Francisco Franco’s cronies. Third, it evokes to international jurists controversial technicalities like the nationality of transnational corporations and the nature of state obligations owed erga omnes, that is, to the international community. The chapter illustrates how a piece of paper has—within a certain epistemic circle—quasi-mystical connotations, speaking to the promises and the unfulfilled potential of international law.Less
This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story of a Canadian company, with Spanish subsidiaries, whose shares were mainly owned by Belgian citizens. Second, it reminds lawyers of the dispute between Belgium and Spain before the International Court of Justice, in the matter of the corporate hijacking of the company at the hands of Francisco Franco’s cronies. Third, it evokes to international jurists controversial technicalities like the nationality of transnational corporations and the nature of state obligations owed erga omnes, that is, to the international community. The chapter illustrates how a piece of paper has—within a certain epistemic circle—quasi-mystical connotations, speaking to the promises and the unfulfilled potential of international law.
Malgosia Fitzmaurice
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199653218
- eISBN:
- 9780191747922
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653218.003.0015
- Subject:
- Law, Public International Law, Legal Profession and Ethics
This chapter examines the Court's contribution to the development of international environmental law. It begins by reviewing two cases that, while not directly concerning issues of environmental law, ...
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This chapter examines the Court's contribution to the development of international environmental law. It begins by reviewing two cases that, while not directly concerning issues of environmental law, provide a conceptual basis for its development: Corfu Channel and Barcelona Traction. It then discusses subsequent cases brought before the ICJ. The ICJ's jurisprudence on environmental issues can perhaps best be seen as a gradual rapprochement: after cautious beginnings, the Court has embraced international environmental law and today can be seen as one of its advocates.Less
This chapter examines the Court's contribution to the development of international environmental law. It begins by reviewing two cases that, while not directly concerning issues of environmental law, provide a conceptual basis for its development: Corfu Channel and Barcelona Traction. It then discusses subsequent cases brought before the ICJ. The ICJ's jurisprudence on environmental issues can perhaps best be seen as a gradual rapprochement: after cautious beginnings, the Court has embraced international environmental law and today can be seen as one of its advocates.
Doreen Lustig
- Published in print:
- 2020
- Published Online:
- July 2020
- ISBN:
- 9780198822097
- eISBN:
- 9780191861185
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822097.001.0001
- Subject:
- Law, Private International Law
This book presents a historical study of the international law of the private business corporation. The literature on corporations and international law typically concentrates on the failure to ...
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This book presents a historical study of the international law of the private business corporation. The literature on corporations and international law typically concentrates on the failure to regulate corporations. This book challenges this ‘failure’ narrative and presents an alternative historical reading: a history of its facilitative role in constituting an economic order. This study draws inspiration from scholarship on the history of international trade law, international investment law, the history of global governance, and political economic analysis of international law, and connects these specialized fields in a single lens: the corporate form. The point of departure for this history is the simultaneous emergence of international law as a modern legal discipline and the turn to free incorporation in corporate law during the last third of the nineteenth century. The book demonstrates how the sovereign veil of the state and the corporate veil of the company were applied in tandem to insulate corporations from responsibility. Nevertheless, less powerful states invoked the same prevailing conceptions of the corporation, the sovereign state, and the relation between them, to curtail corporate power in struggles associated with decolonization. Reacting to these early victories, capital exporting countries shifted to a vocabulary of human rights and protected companies under a new regime of international investment law, which entrenched the separation between market and politics.Less
This book presents a historical study of the international law of the private business corporation. The literature on corporations and international law typically concentrates on the failure to regulate corporations. This book challenges this ‘failure’ narrative and presents an alternative historical reading: a history of its facilitative role in constituting an economic order. This study draws inspiration from scholarship on the history of international trade law, international investment law, the history of global governance, and political economic analysis of international law, and connects these specialized fields in a single lens: the corporate form. The point of departure for this history is the simultaneous emergence of international law as a modern legal discipline and the turn to free incorporation in corporate law during the last third of the nineteenth century. The book demonstrates how the sovereign veil of the state and the corporate veil of the company were applied in tandem to insulate corporations from responsibility. Nevertheless, less powerful states invoked the same prevailing conceptions of the corporation, the sovereign state, and the relation between them, to curtail corporate power in struggles associated with decolonization. Reacting to these early victories, capital exporting countries shifted to a vocabulary of human rights and protected companies under a new regime of international investment law, which entrenched the separation between market and politics.