Andrew T Guzman
- Published in print:
- 2008
- Published Online:
- January 2008
- ISBN:
- 9780195305562
- eISBN:
- 9780199867004
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195305562.003.0004
- Subject:
- Political Science, International Relations and Politics
This chapter analyzes the most important source of international law – the international agreement. It first explains why it is appropriate to think of states as being risk neutral rather than risk ...
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This chapter analyzes the most important source of international law – the international agreement. It first explains why it is appropriate to think of states as being risk neutral rather than risk averse in the context of international law. It then explores the choice states make between various design features in their international agreements, including the choice between hard and soft law, the presence or absence of dispute resolution, the use of reservations, escape clauses, and exit clauses. The trade‐off between form and substance in agreements is also explained, as is the manner in which membership rules are developed.Less
This chapter analyzes the most important source of international law – the international agreement. It first explains why it is appropriate to think of states as being risk neutral rather than risk averse in the context of international law. It then explores the choice states make between various design features in their international agreements, including the choice between hard and soft law, the presence or absence of dispute resolution, the use of reservations, escape clauses, and exit clauses. The trade‐off between form and substance in agreements is also explained, as is the manner in which membership rules are developed.
Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.003.0004
- Subject:
- Law, Philosophy of Law, Legal History
This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist ...
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This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist commitment to divine omnipotence. Soft Natural Law jurists relied on a theology of God's grace (tafaddul, fadl), and the authority of source-texts to fuse fact and value in nature, but contingently so. By fusing fact and value on the basis of divine grace (fadl), Soft Natural Law jurists allowed for the possibility that God may change His mind. Divine grace in Soft Natural Law permits the fusion of fact and value in nature, while at the same time rendering nature contingent in a way that Hard Natural Law theorists did not allow. The chapter provides an overview of different jurists' Soft Natural Law theories, illustrating both the core concepts of Soft Natural Law, as well as the different approaches to this type of natural law theory.Less
This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist commitment to divine omnipotence. Soft Natural Law jurists relied on a theology of God's grace (tafaddul, fadl), and the authority of source-texts to fuse fact and value in nature, but contingently so. By fusing fact and value on the basis of divine grace (fadl), Soft Natural Law jurists allowed for the possibility that God may change His mind. Divine grace in Soft Natural Law permits the fusion of fact and value in nature, while at the same time rendering nature contingent in a way that Hard Natural Law theorists did not allow. The chapter provides an overview of different jurists' Soft Natural Law theories, illustrating both the core concepts of Soft Natural Law, as well as the different approaches to this type of natural law theory.
Kern Alexander, Rahul Dhumale, and John Eatwell
- Published in print:
- 2005
- Published Online:
- September 2007
- ISBN:
- 9780195166989
- eISBN:
- 9780199783861
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195166989.003.0006
- Subject:
- Economics and Finance, Financial Economics
This chapter examines the theoretical framework of international soft law and how it embraces both legally nonbinding and binding rules and standards of international financial regulation. ...
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This chapter examines the theoretical framework of international soft law and how it embraces both legally nonbinding and binding rules and standards of international financial regulation. International soft law is defined as legally nonbinding standards, principles, and rules that influence and shape state behavior but do not fit into the traditional categories of public international law of legally binding general custom of states and bilateral or multilateral treaties. It is argued that international soft law in its various dimensions can contribute to an understanding of the development of legally relevant international financial norms and how they govern state regulatory practice.Less
This chapter examines the theoretical framework of international soft law and how it embraces both legally nonbinding and binding rules and standards of international financial regulation. International soft law is defined as legally nonbinding standards, principles, and rules that influence and shape state behavior but do not fit into the traditional categories of public international law of legally binding general custom of states and bilateral or multilateral treaties. It is argued that international soft law in its various dimensions can contribute to an understanding of the development of legally relevant international financial norms and how they govern state regulatory practice.
Ingo Venzke
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199657674
- eISBN:
- 9780191753114
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199657674.003.0005
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter engages in a normative assessment of international lawmaking by way of interpretation. It first studies the bittersweet taste of justice in legal discourse and juxtaposes diverging views ...
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This chapter engages in a normative assessment of international lawmaking by way of interpretation. It first studies the bittersweet taste of justice in legal discourse and juxtaposes diverging views on semantic change that employ substantive yardsticks. Neither narratives of progress nor realist critiques can categorically convince. Looking at the preconditions that render the exchange of interpretative claims normatively meaningful is more promising but the concept of arguing should not be overburdened with normative aspiration. International law should rather be explored as a medium that helps to justify the exercise of authority. The chapter testes potentials in the developments of legal doctrine in this regard and exposes the normative preferences nested in notions of soft law, subsequent practice, global administrative law and in research centred on international public authority. It closes by outlining a framework for the democratic justification of semantic authority in a normative pluriverse.Less
This chapter engages in a normative assessment of international lawmaking by way of interpretation. It first studies the bittersweet taste of justice in legal discourse and juxtaposes diverging views on semantic change that employ substantive yardsticks. Neither narratives of progress nor realist critiques can categorically convince. Looking at the preconditions that render the exchange of interpretative claims normatively meaningful is more promising but the concept of arguing should not be overburdened with normative aspiration. International law should rather be explored as a medium that helps to justify the exercise of authority. The chapter testes potentials in the developments of legal doctrine in this regard and exposes the normative preferences nested in notions of soft law, subsequent practice, global administrative law and in research centred on international public authority. It closes by outlining a framework for the democratic justification of semantic authority in a normative pluriverse.
Lucinda Miller
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199606627
- eISBN:
- 9780191731716
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606627.001.0001
- Subject:
- Law, EU Law
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of ...
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The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.Less
The emergence of a European contract law is one of the more significant legal developments in Europe today. The complexities that lie at its heart also make it one of the more fascinating areas of legal study. European Contract Law: Exploring Europeanization examines the origins of the discipline and its subsequent evolution. It brings the discussion up-to-date with full analysis of the debate on the Common Frame of Reference and the future that this ambiguous instrument may have in the contemporary European legal framework. One of the central themes of the book is exploration of the multi-level, open architecture of the EU legal order and the implications of such governance arrangements for the EU’s private law programme. The book demonstrates that the key to understanding European contract law in the 21st century lies in adopting a perspective and mechanisms suitable for a legal order populated by multiple sources of private law. Legal pluralism is offered as a theoretical construct in relation to which the future of European private law might be shaped. Legal pluralism forces consideration of diversity’s normative appeal and readjusts the analytical spotlight beyond the traditional, centralised, legislative, ‘command and control’ means of regulation. In so doing, softer mechanisms are introduced for the governance of contract law; mechanisms that enable coordination between the different sites at which contract law operates. This reorientation in thinking about European contract law, indeed about Europeanization itself, enables the inevitable diversity and pluralism that is a feature of multi-level Europe to be captured within a framework that maximises the opportunities for mutual transformations and learning.
Daniel D. Sokol
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0010
- Subject:
- Law, Public International Law
This chapter examines various formal international antitrust institutions. It begins by exploring the different types of international conduct that suggest the need for an international institutional ...
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This chapter examines various formal international antitrust institutions. It begins by exploring the different types of international conduct that suggest the need for an international institutional response. It then discusses the different existing supranational antitrust institutions. These institutions vary in terms of size (global vs. regional), design (hard vs. soft law), and effectiveness. Next, the chapter explores the strengths and weaknesses and the effectiveness of each of these international antitrust institutions. It concludes that soft law international antitrust organizations are the best institutional choices to reduce the problems of international antitrust. Particularly noteworthy has been the rapid development and effectiveness of the International Competition Network (ICN). The ICN has, in its short history, made significant strides in increased harmonization in procedural issues and some substantive issues. How much convergence is optimal and how best to effectuate it remain open questions not merely for the ICN, but for all existing (and potentially new) international antitrust institutions.Less
This chapter examines various formal international antitrust institutions. It begins by exploring the different types of international conduct that suggest the need for an international institutional response. It then discusses the different existing supranational antitrust institutions. These institutions vary in terms of size (global vs. regional), design (hard vs. soft law), and effectiveness. Next, the chapter explores the strengths and weaknesses and the effectiveness of each of these international antitrust institutions. It concludes that soft law international antitrust organizations are the best institutional choices to reduce the problems of international antitrust. Particularly noteworthy has been the rapid development and effectiveness of the International Competition Network (ICN). The ICN has, in its short history, made significant strides in increased harmonization in procedural issues and some substantive issues. How much convergence is optimal and how best to effectuate it remain open questions not merely for the ICN, but for all existing (and potentially new) international antitrust institutions.
Jeffrey Stacey
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199584765
- eISBN:
- 9780191723506
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199584765.003.0003
- Subject:
- Political Science, Comparative Politics, European Union
This chapter sheds greater light on informal accords, bringing them in from the scholarly shadows. The first section delves into what it is about the EU that allowed the informal sphere to develop ...
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This chapter sheds greater light on informal accords, bringing them in from the scholarly shadows. The first section delves into what it is about the EU that allowed the informal sphere to develop and shows how informal accords fit into the EU institutional architecture. The next section describes the form and function of informal accords, presenting a basic typology of four different types of accords. The third section examines the sources of informal accords, while the fourth explores the legal base of informal accords which is typically assumed to be completely lacking. The chapter's fifth section illuminates the critical role of the Parliament's “Rules of Procedure,” which presages the final section's focus on the origin of the Parliament's political strategy with regard to the EU's informal interorganizational dynamics.Less
This chapter sheds greater light on informal accords, bringing them in from the scholarly shadows. The first section delves into what it is about the EU that allowed the informal sphere to develop and shows how informal accords fit into the EU institutional architecture. The next section describes the form and function of informal accords, presenting a basic typology of four different types of accords. The third section examines the sources of informal accords, while the fourth explores the legal base of informal accords which is typically assumed to be completely lacking. The chapter's fifth section illuminates the critical role of the Parliament's “Rules of Procedure,” which presages the final section's focus on the origin of the Parliament's political strategy with regard to the EU's informal interorganizational dynamics.
Joost Pauwelyn
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199658589
- eISBN:
- 9780191742248
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658589.003.0007
- Subject:
- Law, Public International Law
This chapter addresses one of the fundamental issues in the research on informal international lawmaking (IN-LAW): ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is ...
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This chapter addresses one of the fundamental issues in the research on informal international lawmaking (IN-LAW): ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) in this chapter is whether ‘output informality’ implies that IN-LAW output is not international law.Less
This chapter addresses one of the fundamental issues in the research on informal international lawmaking (IN-LAW): ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) in this chapter is whether ‘output informality’ implies that IN-LAW output is not international law.
Catherine Redgwell
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199299874
- eISBN:
- 9780191714931
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299874.003.0005
- Subject:
- Law, Public International Law
This chapter examines the role played by soft law in meeting the challenge of globalization. A perception is that with increased international economic integration transcending individual national ...
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This chapter examines the role played by soft law in meeting the challenge of globalization. A perception is that with increased international economic integration transcending individual national legal orders on the one hand, and deregulated (or under-regulated) global space facilitated by international trade (e.g. WTO), and financial institutions (e.g. World Bank) on the other, the negative effects of economic globalization are insufficiently addressed in international law. This is particularly the case with the regulation of social matters — labour, environment, and human rights. The chapter focuses on environmental examples, and includes recent soft law initiatives such as the United Nations Global Compact established in 2000 and the Type II partnership agreements which have been concluded since the 2002 World Summit on Sustainable Development in Johannesburg.Less
This chapter examines the role played by soft law in meeting the challenge of globalization. A perception is that with increased international economic integration transcending individual national legal orders on the one hand, and deregulated (or under-regulated) global space facilitated by international trade (e.g. WTO), and financial institutions (e.g. World Bank) on the other, the negative effects of economic globalization are insufficiently addressed in international law. This is particularly the case with the regulation of social matters — labour, environment, and human rights. The chapter focuses on environmental examples, and includes recent soft law initiatives such as the United Nations Global Compact established in 2000 and the Type II partnership agreements which have been concluded since the 2002 World Summit on Sustainable Development in Johannesburg.
Christine Chinkin
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199270989
- eISBN:
- 9780191707704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270989.003.0002
- Subject:
- Law, Public International Law
This chapter analyzes the structure of traditional international law and the conceptual bases for a distinction between legally binding and non-binding norms. It considers the debate of whether ...
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This chapter analyzes the structure of traditional international law and the conceptual bases for a distinction between legally binding and non-binding norms. It considers the debate of whether ‘hard’ and ‘soft’ law are distinct categories or end points on a continuum. It reviews various non-binding instruments and their uses, developing a criteria for identifying ‘soft’ law among the multitude of international texts adopted by international actors.Less
This chapter analyzes the structure of traditional international law and the conceptual bases for a distinction between legally binding and non-binding norms. It considers the debate of whether ‘hard’ and ‘soft’ law are distinct categories or end points on a continuum. It reviews various non-binding instruments and their uses, developing a criteria for identifying ‘soft’ law among the multitude of international texts adopted by international actors.
Jonathan L. Charney
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199270989
- eISBN:
- 9780191707704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270989.003.0005
- Subject:
- Law, Public International Law
This chapter discusses compliance with ‘hard’ and ‘soft’ law. The international community has developed ‘hard’ and ‘soft’ norms to serve many of the same systemic functions, that is, to order ...
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This chapter discusses compliance with ‘hard’ and ‘soft’ law. The international community has developed ‘hard’ and ‘soft’ norms to serve many of the same systemic functions, that is, to order relations among entities in a society and to satisfy the desire of groups within that society to promote their own value preferences. Often, no explicit, reasoned choice is made between ‘hard’ or ‘soft’ norm solutions, instead the character of the norm may result from confluence of various unforeseen and unplanned circumstances. Thus, while the status as law or non-law may be important to compliance in some respects, in most situations it is not. More important is the contribution of that the norm provides to the ordering of relations within the international community.Less
This chapter discusses compliance with ‘hard’ and ‘soft’ law. The international community has developed ‘hard’ and ‘soft’ norms to serve many of the same systemic functions, that is, to order relations among entities in a society and to satisfy the desire of groups within that society to promote their own value preferences. Often, no explicit, reasoned choice is made between ‘hard’ or ‘soft’ norm solutions, instead the character of the norm may result from confluence of various unforeseen and unplanned circumstances. Thus, while the status as law or non-law may be important to compliance in some respects, in most situations it is not. More important is the contribution of that the norm provides to the ordering of relations within the international community.
Jan Klabbers
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.003.0003
- Subject:
- Law, Public International Law
This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to ...
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This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.Less
This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.
Junji Nakagawa
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199604661
- eISBN:
- 9780191731679
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604661.001.0001
- Subject:
- Law, Public International Law
International harmonization of economic regulation is an attempt to eliminate, or at least reduce, regulatory diversity in economic policy areas where states have autonomous regulatory jurisdiction. ...
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International harmonization of economic regulation is an attempt to eliminate, or at least reduce, regulatory diversity in economic policy areas where states have autonomous regulatory jurisdiction. In some regulatory areas, its history dates back to the late 19th century, but harmonization efforts have accelerated and intensified particularly since the 1980s. This book is a first attempt to comprehend the phenomenon of international harmonization of economic regulation in its entirety by analyzing its causes and backgrounds as well as negotiating processes involved in a broad range of areas, and by elucidating the impact of harmonization on domestic laws and global economic governance. Through its analysis, this book emphasizes the existence of dynamic regulatory structures and processes of global economic governance consisting of different actors (notably, international harmonizing bodies, states and the private sector) and the interconnectedness of international rule-making and domestic implementation. It also highlights non-legislative (soft law) and non‐juridical aspects (collegial implementation) of the drafting and implementation of harmonized regulation. It thus provides new empirical and theoretical perspectives for understanding international economic law and global economic governance. This book will be of interest to scholars and students of international economic law and international relations, as well as government officials and corporate lawyers dealing with economic regulation in a wide range of areas.Less
International harmonization of economic regulation is an attempt to eliminate, or at least reduce, regulatory diversity in economic policy areas where states have autonomous regulatory jurisdiction. In some regulatory areas, its history dates back to the late 19th century, but harmonization efforts have accelerated and intensified particularly since the 1980s. This book is a first attempt to comprehend the phenomenon of international harmonization of economic regulation in its entirety by analyzing its causes and backgrounds as well as negotiating processes involved in a broad range of areas, and by elucidating the impact of harmonization on domestic laws and global economic governance. Through its analysis, this book emphasizes the existence of dynamic regulatory structures and processes of global economic governance consisting of different actors (notably, international harmonizing bodies, states and the private sector) and the interconnectedness of international rule-making and domestic implementation. It also highlights non-legislative (soft law) and non‐juridical aspects (collegial implementation) of the drafting and implementation of harmonized regulation. It thus provides new empirical and theoretical perspectives for understanding international economic law and global economic governance. This book will be of interest to scholars and students of international economic law and international relations, as well as government officials and corporate lawyers dealing with economic regulation in a wide range of areas.
Dinah Shelton
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199270989
- eISBN:
- 9780191707704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270989.003.0008
- Subject:
- Law, Public International Law
This chapter presents four case studies on human rights that analyze the use of non-binding norms in four contexts. The first presents the case of the Organization for Security and Cooperation in ...
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This chapter presents four case studies on human rights that analyze the use of non-binding norms in four contexts. The first presents the case of the Organization for Security and Cooperation in Europe (OSCE), whose participating states have deliberately chosen not to conclude treaties, but instead have adopted a series of legally non-binding normative instruments. The second considers the use of recommendations and non-binding instruments in the International Labor Organization (ILO), which also concludes treaties, and the extent to which compliance differs with the nature of the instrument. The third case study considers a similar dual normative structure in the Organization of American States (OAS). The fourth case study compares the McBride and Sullivan Principles, examples of increasingly frequent codes of conduct for transnational corporations.Less
This chapter presents four case studies on human rights that analyze the use of non-binding norms in four contexts. The first presents the case of the Organization for Security and Cooperation in Europe (OSCE), whose participating states have deliberately chosen not to conclude treaties, but instead have adopted a series of legally non-binding normative instruments. The second considers the use of recommendations and non-binding instruments in the International Labor Organization (ILO), which also concludes treaties, and the extent to which compliance differs with the nature of the instrument. The third case study considers a similar dual normative structure in the Organization of American States (OAS). The fourth case study compares the McBride and Sullivan Principles, examples of increasingly frequent codes of conduct for transnational corporations.
Geir Ulfstein
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.003.0002
- Subject:
- Law, Public International Law
The substantive scope of international institutional cooperation increases and states feel compelled to participate in such cooperation. This means that institutions different from the state are ...
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The substantive scope of international institutional cooperation increases and states feel compelled to participate in such cooperation. This means that institutions different from the state are delegated power to make decisions and adopt policies beyond the control of each individual member state. In the absence of national constitutional control, this chapter examines to what extent democratic control of decision-making, guarantees related to the rule of law, and protection of human rights should be ensured at the international level. It also discusses whether the fragmented international institutional framework should be replaced by a hierarchic constitutional order. Finally, the inter-action and respective functions of international and national constitutionals organs are addressed.Less
The substantive scope of international institutional cooperation increases and states feel compelled to participate in such cooperation. This means that institutions different from the state are delegated power to make decisions and adopt policies beyond the control of each individual member state. In the absence of national constitutional control, this chapter examines to what extent democratic control of decision-making, guarantees related to the rule of law, and protection of human rights should be ensured at the international level. It also discusses whether the fragmented international institutional framework should be replaced by a hierarchic constitutional order. Finally, the inter-action and respective functions of international and national constitutionals organs are addressed.
JOSÉ E. ALVAREZ
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198765639
- eISBN:
- 9780191710070
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198765639.003.0004
- Subject:
- Law, Public International Law
This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on ...
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This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on the standard-setting in other international organizations is also presented. The survey mentions the Codex Alimentarius, ICAO's standards and recommended practices, international organizations ‘advisory’ material, ILO recommendations, and IAEA standards. Also mentioned are the FAO's and UNEP's prior informed consent regime, WTO Soft Law, the WHO's Code on marketing of breast-milk substitutes, the World Bank guidelines, IMF conditionality, and emerging global administrative law. The chapter ends with interim conclusions that are at odds with the standard accounts of the limited role of international organizations in law-making and that describe the emerging global administrative law that these organizations produce.Less
This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on the standard-setting in other international organizations is also presented. The survey mentions the Codex Alimentarius, ICAO's standards and recommended practices, international organizations ‘advisory’ material, ILO recommendations, and IAEA standards. Also mentioned are the FAO's and UNEP's prior informed consent regime, WTO Soft Law, the WHO's Code on marketing of breast-milk substitutes, the World Bank guidelines, IMF conditionality, and emerging global administrative law. The chapter ends with interim conclusions that are at odds with the standard accounts of the limited role of international organizations in law-making and that describe the emerging global administrative law that these organizations produce.
P. Bernt Hugenholtz and Ruth L. Okediji
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195342109
- eISBN:
- 9780199866823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342109.003.0020
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter examines policy options and modalities for framing an international instrument on limitations and exceptions to copyright within the treaty obligations of the current international ...
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This chapter examines policy options and modalities for framing an international instrument on limitations and exceptions to copyright within the treaty obligations of the current international copyright system. It considers this international copyright acquis as the general starting point and evaluates options for the design of such an instrument, including questions of political sustainability and institutional home. Section I sketches the rationales for a multilateral approach to the question of limitations and exceptions. Section II explores flexibilities inside the international copyright acquis, reviews the three-step test, and assesses its import for the validity of a proposed international instrument on L&Es, particularly given the expansion of the test in the TRIPS Agreement and the interpretive jurisprudence of the WTO dispute panels. Finally, section III sets out in preliminary fashion the basic contours of a multilateral instrument on L&Es.Less
This chapter examines policy options and modalities for framing an international instrument on limitations and exceptions to copyright within the treaty obligations of the current international copyright system. It considers this international copyright acquis as the general starting point and evaluates options for the design of such an instrument, including questions of political sustainability and institutional home. Section I sketches the rationales for a multilateral approach to the question of limitations and exceptions. Section II explores flexibilities inside the international copyright acquis, reviews the three-step test, and assesses its import for the validity of a proposed international instrument on L&Es, particularly given the expansion of the test in the TRIPS Agreement and the interpretive jurisprudence of the WTO dispute panels. Finally, section III sets out in preliminary fashion the basic contours of a multilateral instrument on L&Es.
Brown Edith Weiss and Dinah Shelton
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199270989
- eISBN:
- 9780191707704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270989.003.0010
- Subject:
- Law, Public International Law
This chapter begins with a review of the hypotheses presented in the study. It then explains compliance by theories about informal social norms. The application of research on compliance with binding ...
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This chapter begins with a review of the hypotheses presented in the study. It then explains compliance by theories about informal social norms. The application of research on compliance with binding agreements to soft law and enhance compliance with soft law are discussed.Less
This chapter begins with a review of the hypotheses presented in the study. It then explains compliance by theories about informal social norms. The application of research on compliance with binding agreements to soft law and enhance compliance with soft law are discussed.
Diamond Ashiagbor
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199279647
- eISBN:
- 9780191707278
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199279647.003.0006
- Subject:
- Law, EU Law, Employment Law
Adopting a critical perspective on the new ‘open method of coordination’, this chapter argues that, through its creative use of soft law mechanisms, the evolving European Employment Strategy has the ...
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Adopting a critical perspective on the new ‘open method of coordination’, this chapter argues that, through its creative use of soft law mechanisms, the evolving European Employment Strategy has the potential to fashion a middle course through the regulatory choices facing the EU, between full harmonisation, on the one hand, and mutual recognition or regulatory competition, on the other. The chapter claims that the ‘soft’ coordination of the open method does in fact have quite a ‘hard’ impact, placing powerful political pressure on Member States to comply with centrally designed policies, and constraining their policy choices. It also questions whether — in the context of an explicitly ‘hard’ economic policy coordination backed by sanctions — a form of governance which eschews centralised social policy norms can adequately ensure a core of social rights, below which no Member State can fall.Less
Adopting a critical perspective on the new ‘open method of coordination’, this chapter argues that, through its creative use of soft law mechanisms, the evolving European Employment Strategy has the potential to fashion a middle course through the regulatory choices facing the EU, between full harmonisation, on the one hand, and mutual recognition or regulatory competition, on the other. The chapter claims that the ‘soft’ coordination of the open method does in fact have quite a ‘hard’ impact, placing powerful political pressure on Member States to comply with centrally designed policies, and constraining their policy choices. It also questions whether — in the context of an explicitly ‘hard’ economic policy coordination backed by sanctions — a form of governance which eschews centralised social policy norms can adequately ensure a core of social rights, below which no Member State can fall.
Junji Nakagawa
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199604661
- eISBN:
- 9780191731679
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604661.003.0010
- Subject:
- Law, Public International Law
This chapter sums up the results of the analyses offered in this book, pointing out praxis-related issues of, and persisting challenges to, international harmonization. The most serious challenge ...
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This chapter sums up the results of the analyses offered in this book, pointing out praxis-related issues of, and persisting challenges to, international harmonization. The most serious challenge faced by international harmonization is securing its legitimacy both domestically and internationally. Implications of international harmonization for the theory of international economic law and global economic governance are discussed emphasizing the following: Harmonization efforts have (1) blurred the distinction between international law and domestic law, (2) blurred the distinction between hard law and soft law and (3) necessitate a rethinking of the status of non-state actors, notably private firms, in the making and implementation of harmonized regulation. These implications call for further elaboration of theories of international economic law and global economic governance. The book concludes with an exposition of the author’s view on the prospects of international harmonization in the near future.Less
This chapter sums up the results of the analyses offered in this book, pointing out praxis-related issues of, and persisting challenges to, international harmonization. The most serious challenge faced by international harmonization is securing its legitimacy both domestically and internationally. Implications of international harmonization for the theory of international economic law and global economic governance are discussed emphasizing the following: Harmonization efforts have (1) blurred the distinction between international law and domestic law, (2) blurred the distinction between hard law and soft law and (3) necessitate a rethinking of the status of non-state actors, notably private firms, in the making and implementation of harmonized regulation. These implications call for further elaboration of theories of international economic law and global economic governance. The book concludes with an exposition of the author’s view on the prospects of international harmonization in the near future.
