Holger Hestermeyer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552177
- eISBN:
- 9780191706936
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552177.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS ...
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This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. The highly controversial political issue of the appropriate application of international patent law to life-saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent examples also include patents on medicines for bird flu and for anthrax. The book discusses the patent law and the international human rights law involved, distinguishing between obligations under different human rights instruments. It introduces both areas of law and then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of ‘factual hierarchy’ of regimes. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO Agreements. It shows how a further integration of human rights law into the WTO regime could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.Less
This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. The highly controversial political issue of the appropriate application of international patent law to life-saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent examples also include patents on medicines for bird flu and for anthrax. The book discusses the patent law and the international human rights law involved, distinguishing between obligations under different human rights instruments. It introduces both areas of law and then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of ‘factual hierarchy’ of regimes. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO Agreements. It shows how a further integration of human rights law into the WTO regime could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.
Jan Klabbers, Anne Peters, and Geir Ulfstein
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.001.0001
- Subject:
- Law, Public International Law
Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent ...
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Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent years. This book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level, what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book provides a critical appraisal of constitutionalist ideas and of their critique. It postulates that the reconstruction of the current evolution of international law as a process of constitutionalization (against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law) has some explanatory power, permits new insights and allows for new arguments. The book does not undertake extensive empirical studies of the degree of constitutionalization in international cooperation. It rather identifies constitutional trends and challenges in establishing international organizational structures, and designs procedures for standard-setting, implementation and judicial functions.Less
Constitutional issues have century-long traditions at the national level. The relevance of constitutional questions at the international level has, however, been the subject of much debate in recent years. This book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level, what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book provides a critical appraisal of constitutionalist ideas and of their critique. It postulates that the reconstruction of the current evolution of international law as a process of constitutionalization (against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law) has some explanatory power, permits new insights and allows for new arguments. The book does not undertake extensive empirical studies of the degree of constitutionalization in international cooperation. It rather identifies constitutional trends and challenges in establishing international organizational structures, and designs procedures for standard-setting, implementation and judicial functions.
Yuval Shany
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211791
- eISBN:
- 9780191706035
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211791.003.0004
- Subject:
- Law, Public International Law
This chapter identifies and discusses two principle strategies employed by judges in national and international courts: disintegrationism and integrationism. Disintegrationism involves the division ...
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This chapter identifies and discusses two principle strategies employed by judges in national and international courts: disintegrationism and integrationism. Disintegrationism involves the division of one complex dispute into a multiplicity of mini-disputes arising under different specific legal regimes and the application of the distinct norms of one specific legal regime to one aspect of the dispute, excluding other relevant norms or circumstances; integrationism encourages judges to adopt a comprehensive approach towards different, yet closely related, disputes and to apply all relevant norms to all related circumstances. The chapter then draws an analogy between the debate over the fragmentation of international law into distinct self-contained regimes and the choice between disintegrationism and integrationism, and describes dualism (and to a lesser degree hierarchy) as a disintegrationist strategy.Less
This chapter identifies and discusses two principle strategies employed by judges in national and international courts: disintegrationism and integrationism. Disintegrationism involves the division of one complex dispute into a multiplicity of mini-disputes arising under different specific legal regimes and the application of the distinct norms of one specific legal regime to one aspect of the dispute, excluding other relevant norms or circumstances; integrationism encourages judges to adopt a comprehensive approach towards different, yet closely related, disputes and to apply all relevant norms to all related circumstances. The chapter then draws an analogy between the debate over the fragmentation of international law into distinct self-contained regimes and the choice between disintegrationism and integrationism, and describes dualism (and to a lesser degree hierarchy) as a disintegrationist strategy.
Chien-huei Wu
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198778257
- eISBN:
- 9780191823763
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198778257.003.0016
- Subject:
- Law, Public International Law
This chapter examines the relationship between the WTO and public international law in the context of the fragmentation of international law. It points to two driving forces for the fragmentation of ...
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This chapter examines the relationship between the WTO and public international law in the context of the fragmentation of international law. It points to two driving forces for the fragmentation of international law: the tendency of states to enter into international agreements with historical or geographic proximity; and diversification and specialization of international law. With the trend of ‘polycentric globalization’, functionally differentiated and specialized regimes tend to appear autonomous and isolate themselves from general public international law and thus view themselves as ‘self-contained’ regimes. However, the claim of self-containment depends largely on how one perceives international legal order: universalistic or particularistic. Universalistic general international lawyers pursue legal unity and try to avoid fragmentation of international law, while particularistic international lawyers tend to cherish their special realm. Relying on the presumption against conflicts and the principle of systemic integration, this chapter explores possible ways to defragmentize international law and pursue coherence.Less
This chapter examines the relationship between the WTO and public international law in the context of the fragmentation of international law. It points to two driving forces for the fragmentation of international law: the tendency of states to enter into international agreements with historical or geographic proximity; and diversification and specialization of international law. With the trend of ‘polycentric globalization’, functionally differentiated and specialized regimes tend to appear autonomous and isolate themselves from general public international law and thus view themselves as ‘self-contained’ regimes. However, the claim of self-containment depends largely on how one perceives international legal order: universalistic or particularistic. Universalistic general international lawyers pursue legal unity and try to avoid fragmentation of international law, while particularistic international lawyers tend to cherish their special realm. Relying on the presumption against conflicts and the principle of systemic integration, this chapter explores possible ways to defragmentize international law and pursue coherence.
James Munro
- Published in print:
- 2018
- Published Online:
- October 2018
- ISBN:
- 9780198828709
- eISBN:
- 9780191867101
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198828709.003.0002
- Subject:
- Law, Public International Law
The process of interpreting the treaties of international economic law is a key aspect of the analysis that is undertaken in this book. Of particular importance is the potential relevance of the ...
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The process of interpreting the treaties of international economic law is a key aspect of the analysis that is undertaken in this book. Of particular importance is the potential relevance of the international climate regime to interpreting international economic law—a regime recently rejuvenated by the Paris Agreement, and in fulfilment of whose aims emissions trading schemes are adopted and maintained. Chapter 2 therefore sets out the methodology of the book—namely, interpreting and applying international economic law to emissions trading schemes—and assesses whether and how the international climate regime might play a role in that process.Less
The process of interpreting the treaties of international economic law is a key aspect of the analysis that is undertaken in this book. Of particular importance is the potential relevance of the international climate regime to interpreting international economic law—a regime recently rejuvenated by the Paris Agreement, and in fulfilment of whose aims emissions trading schemes are adopted and maintained. Chapter 2 therefore sets out the methodology of the book—namely, interpreting and applying international economic law to emissions trading schemes—and assesses whether and how the international climate regime might play a role in that process.
Mónika Ambrus, Rosemary Rayfuse, and Wouter Werner
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198795896
- eISBN:
- 9780191837074
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198795896.003.0001
- Subject:
- Law, Public International Law
There is a dialectical relation between law and uncertainty, the forms of which vary from one legal field to another. This chapter identifies the three key questions which frame the examination of ...
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There is a dialectical relation between law and uncertainty, the forms of which vary from one legal field to another. This chapter identifies the three key questions which frame the examination of this dialectic in the following chapters in the book: how is the future imagined in a particular legal field; how are these imaginings translated into rights, duties and competences operating in the present; and how does the distribution of rights, duties and comeptencies affect the distribution of risks, costs and benefits?The chapter explores the involvement of international law in debates about future imaginings, the reconfiguration of risk and the impacts of those future imaginings, be they utopian or dystopian, on present and future subjects of international law.Less
There is a dialectical relation between law and uncertainty, the forms of which vary from one legal field to another. This chapter identifies the three key questions which frame the examination of this dialectic in the following chapters in the book: how is the future imagined in a particular legal field; how are these imaginings translated into rights, duties and competences operating in the present; and how does the distribution of rights, duties and comeptencies affect the distribution of risks, costs and benefits?The chapter explores the involvement of international law in debates about future imaginings, the reconfiguration of risk and the impacts of those future imaginings, be they utopian or dystopian, on present and future subjects of international law.
