Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0012
- Subject:
- Law, Public International Law
This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting ...
More
This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.Less
This chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.
Riccardo Guastini
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199661640
- eISBN:
- 9780191745461
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661640.003.0010
- Subject:
- Law, Philosophy of Law
This chapter attempts to connect systematically a couple of ideas encountered in Carlos Alchourrón's and Eugenio Bulygin's legal theory — viz. the idea of axiological gap and the idea of ...
More
This chapter attempts to connect systematically a couple of ideas encountered in Carlos Alchourrón's and Eugenio Bulygin's legal theory — viz. the idea of axiological gap and the idea of defeasibility — with a sceptic or realistic theory of legal interpretation. It argues that ‘defeasibility’ is just a novel name for two very well-known techniques of construction: restrictive interpretation, in civil law legal orders, and distinguishing, in common law ones.Less
This chapter attempts to connect systematically a couple of ideas encountered in Carlos Alchourrón's and Eugenio Bulygin's legal theory — viz. the idea of axiological gap and the idea of defeasibility — with a sceptic or realistic theory of legal interpretation. It argues that ‘defeasibility’ is just a novel name for two very well-known techniques of construction: restrictive interpretation, in civil law legal orders, and distinguishing, in common law ones.
Eleni Methymaki and Antonios Tzanakopoulos
- Published in print:
- 2020
- Published Online:
- August 2020
- ISBN:
- 9780198789321
- eISBN:
- 9780191831171
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198789321.003.0012
- Subject:
- Law, Public International Law, Philosophy of Law
The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic ...
More
The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts cannot exercise such jurisdiction over another sovereign’s acts. This latter rule has its own exceptions, namely that a state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.Less
The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts cannot exercise such jurisdiction over another sovereign’s acts. This latter rule has its own exceptions, namely that a state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.
