Search Results

Due to globalization, States are increasingly affected by external factors, whilst at the same time influencing the behaviour of individuals and firms, including foreign investors. Their decisions produce binding effects, for example, when an authorization is issued or refused. The question thus arises whether procedural safeguards aiming at achieving due process of law may be regarded as minimum standards that must be observed. This chapter first looks at the history of ideas and argues that the works of Montesquieu, Smith, and Tocqueville show that the idea of general principles of law is not necessarily in contrast with the recognition of particularities. Then, it observes that, as far as administrative adjudication is concerned, some common standards emerged within the OECD, both as a result of common developments and as a consequence of the action of multilateral institutions. It suggests, therefore, that an ‘echelle des garantie’ may be identified.

This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general international law. It also examines the territorial scope of the non-conventional right to life. It argues that, today, the jus cogens character of the right to life has become virtually unassailable. Outside the conduct of hostilities, even a single targeted killing carried out by State agents in deviation from the normative paradigm of law enforcement constitutes an unjustifiable violation of international jus cogens.

This chapter begins by identifying the various elements that together define modern and post-modern law. It explains how legal principles function within each of these legal models, for both international and municipal law, with particular attention to the role they assume in the field of environmental law. It highlights the distinction that must be made between General Principles of Law, which are characteristic of modernity, and directing principles, which are better suited to adapting to the shifting forms that characterize current public policies including environmental policy. It demonstrates that directing principles do not represent a complete break with modernity, since they eventually result in the rediscovery of the same values upon which modernity is based. It explains that post-modernity is not merely a chaotic system composed of anti-modern elements; rather, it is a system whereby chaotic elements are ordered differently from modern law.

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.

The system of international jurisdiction allows for the exercise of concurrent jurisdiction by more than one State. Especially in the field of economic law, this system may yield unsatisfactory outcomes. Because restrictive or fraudulent practices may wreak worldwide havoc, several States that have some connection to the practice may start exercising jurisdiction and may claim regulatory primacy. A rule may therefore have to be devised on the basis of which jurisdiction is conferred on the State with a strong, or even better, the strongest link with the matter to be regulated — a rule of jurisdictional reasonableness derived from international comity. This rule has most forcefully been set out in § 403 of the U.S. Restatement (Third) of Foreign Relations Law, although the customary law status of that provision is unclear.

This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.

This chapter sets out the role of the general principles in the Union legal order and the sources of those principles. A discussion of the anti-discrimination provisions of the European Convention on Human Rights and the Charter of Fundamental Rights precedes an analysis of the general principle of non-discrimination on the grounds of age as developed in the Mangold case law and the more established general principle of non-discrimination on the grounds of sex.

This introductory chapter provides a definition of some key terms: ethics, morality, reflexive awareness, and affordance. Studies that focus on virtues, values, and ways of life tend to fall under the rubric of ethics. Those that focus on obligations, prohibitions, general principles, systematicity, and momentary decisions are treated as morality. There is a great deal of overlap and interaction between these. Cutting across the distinction between ethics and morality is another one, that between the tacit and the explicit—those background assumptions, values, and motives that go without saying or are difficult to put into words, on the other hand, and those that easily lend themselves to conscious reflection, on the other. Meanwhile, ethical affordance is any aspects of people's experiences and perceptions that they might draw on in the process of making ethical evaluations and decisions, whether consciously or not.

This chapter addresses one of Ashworth's key methodological and substantive contributions to criminal law scholarship, Principles of Criminal Law. It sets Ashworth's book within the context of a longer tradition of positing ‘general principles’ of criminal law, drawing out various distinctive features of his approach. It then argues that it is those distinctive features — and notably the way in which Ashworth's principles are derived not merely from the substantive criminal law but also from an understanding of the criminal process as a complex social and political institution — which underpin their intellectual strength and practical utility. This part of the argument presents both an assessment of the range of principles and a more detailed analysis of some key examples. In conclusion, the chapter traces connections between Ashworth's book and the recent revival of criminalization scholarship in the United Kingdom and the United States. It makes some suggestions about how best his approach can be interpreted so as to allow us to make sense of criminal law in an era of pragmatically driven criminalization in which it is sometimes tempting to regard the criminal law as ‘a lost cause’.

This chapter discusses various bases of mechanical philosophy generally known as virtual work, virtual speeds, and explanations why some machines can lift heavy loads with small force. This chapter further explains the theory of the five simple machines and the general statistical principle or GSP. Finally this chapter explains how physics grew out of the trunk of mechanics. Finally this chapter explains that theoretical mechanics depends on physics as its nomological foundation which in turn depends on metaphysics. The chapter ends concluding that it has always been normal to include Descartes' laws of nature, as part of the story of the evolution of modern mechanics.

The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified in Article 25 of the ILC Articles on State Responsibility in situations of economic emergency. This chapter examines the emergency regimes of national legal systems for additional insights that might assist in more closely delineating a State's emergency powers in times of (economic) crisis; more particularly concerning the conditions governing the adoption of emergency measures and the consequences thereof. This is done with reference to four representative legal systems — two from common law jurisdictions and two from those under civil law: the British, French, German, and US systems.

This chapter provides more extended consideration to the place of arguments from general principles of law in legal reasoning. It has been suggested that the place of such arguments depends on a postulated requirement of ‘coherence’ in the law; ‘coherence’ in the sense that the multitudinous rules of a developed legal system should ‘make sense’ when taken together. It has also been proposed that it is a limiting requirement of legal justification that decisions in cases not covered by mandatory rules must be shown to be supported by some general legal principle, or by some relevant analogy or other ‘persuasive’ legal source. It may be thought that the discussion of the use of general legal principles in legal argument has failed fully to account for their importance.

The mathematical realization of equivalence principle (EP) is the principle of general covariance. General relativity (GR) equations must be covariant with respect to general coordinate transformations. To go from special relativity (SR) to GR equations, one replaces ordinary by covariant derivatives. The SR equation of motion turns into the geodesic equation. The Einstein equation, as the relativistic gravitation field equation, relates the energy momentum tensor to the Einstein curvature tensor. The Einstein equation in the space exterior to a spherical source is solved to obtain the Schwarzschild solution. The solutions of Einstein equation that satisfy the cosmological principle is the Robertson-Walker spacetime. The relation of the cosmological Friedmann equations to the Einstein field equation is explicated. The compatibility of the cosmological-constant term with the mathematical structure of Einstein equation and the interpretation of this term as the vacuum energy tensor are discussed.

This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.

This chapter considers the role of international law in sovereign financing, a legal area currently underdeveloped. It briefly presents the content and implications of the Principles and analyses whether and to what extent international law supports them. The Principles are embodied in a itself so called soft law instrument. However, a few principles are backed by international treaties and customary international law, and some others could even be considered as general principles of international law. This chapter argues that the legal character of the Principles is not determined by its soft law shell and will mainly depend on two variables: (a) the extent to which each principle is supported by hard rules of international law, including general principles of international law, and; (b) their intrinsic value to persuade stakeholders that they are necessary in international sovereign financing to overcome global problems. The fact that the Principles are well-rooted and broadly tested in domestic laws influences these two variables.