Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast

2010 ◽  
Vol 12 ◽  
pp. 151-182 ◽  
Author(s):  
Stein Evju
Keyword(s):  
International Law ◽  
Industrial Relations ◽  
Case Law ◽  
Labour Law ◽  
Conflict Of Laws ◽  
Public International Law ◽  
Court Of Justice ◽  
The Impact ◽  
Undesirable Outcome ◽  
Conditions Of Employment

AbstractThe Posted Workers Directive was controversial from the outset, and the recent case law from the Court of Justice has made it even more so. In this chapter, the backdrop, genesis, drafting and adoption of the Posted Workers Directive are first considered in turn in order to place it in its context. The Court of Justice’s case law is then considered and contrasted with this background and elaboration of the Directive as it was adopted. The present situation under the Posted Workers Directives is also compared with public international law norms, ILO Conventions and the European Social Charter, and the impact of the Directive in Scandinavia is considered. It is concluded that the case law of the Court of Justice is problematic because of the fact that a normative framework results from its decisions which impinges upon fundamental features of collective labour law and industrial relations: it both entails restrictions on the kinds of terms and conditions of employment which can be imposed, and encroaches upon freedom of collective bargaining more broadly. The autonomy of Member States is also limited and the effectiveness of national industrial relations regimes compromised, which is a highly undesirable outcome.

Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast

2010 ◽  
Vol 12 ◽  
pp. 151-182 ◽  
Author(s):  
Stein Evju
Keyword(s):  
International Law ◽  
Industrial Relations ◽  
Case Law ◽  
Labour Law ◽  
Conflict Of Laws ◽  
Public International Law ◽  
Court Of Justice ◽  
The Impact ◽  
Undesirable Outcome ◽  
Conditions Of Employment

AbstractThe Posted Workers Directive was controversial from the outset, and the recent case law from the Court of Justice has made it even more so. In this chapter, the backdrop, genesis, drafting and adoption of the Posted Workers Directive are first considered in turn in order to place it in its context. The Court of Justice’s case law is then considered and contrasted with this background and elaboration of the Directive as it was adopted. The present situation under the Posted Workers Directives is also compared with public international law norms, ILO Conventions and the European Social Charter, and the impact of the Directive in Scandinavia is considered. It is concluded that the case law of the Court of Justice is problematic because of the fact that a normative framework results from its decisions which impinges upon fundamental features of collective labour law and industrial relations: it both entails restrictions on the kinds of terms and conditions of employment which can be imposed, and encroaches upon freedom of collective bargaining more broadly. The autonomy of Member States is also limited and the effectiveness of national industrial relations regimes compromised, which is a highly undesirable outcome.

The International Court of Justice and Cultural HeritageInternational Cultural Heritage Law Through the Lens of World Court Jurisprudence?

2020 ◽  
pp. 223-242
Author(s):  
Gabriele Gagliani
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
Case Law ◽  
International Justice ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

The International Court of Justice, and its predecessor court, the Permanent Court of International Justice, have dealt with cultural heritage issues in a number of cases extending back over a century. Scholars’ attention to this case law appears fragmentary. This chapter intends to fill this gap and analyze the ICJ jurisprudence involving cultural heritage. Through the analysis of ICJ case law on cultural heritage and cultural heritage-related arguments resorted to by States in ICJ disputes, this chapter wishes to prove the relevance of cultural heritage issues for public international law and the key, often-underestimated role of the ICJ for international law on cultural heritage.

The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law

1999 ◽  
Vol 48 (1) ◽  
pp. 3-19 ◽  
Author(s):  
Mariano J. Aznar-Gomez
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Case Law ◽  
Legal Order ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

What's Left of the Law of Integration?

2018 ◽  
Author(s):  
Julio Baquero Cruz
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
Structural Elements ◽  
The European Union ◽  
Difficult Situation ◽  
Court Of Justice ◽  
Structural Connections ◽  
The Law ◽  
Constitutional Pluralism ◽  
The Impact

This book discusses the impact of the difficult situation the European Union is currently going through on some structural elements of its legal order, looking for symptoms of decay, exploring examples of resistance, and assessing its overall state of health. The original choices made by the drafters of the Treaties and by the Court of Justice are put in their proper historical perspective, understanding Union law as a tool of civilization, and explaining its current problems, at least in part, as a consequence of the waning of the initial impetus behind integration. The concrete themes to be explored are the following: primacy, the national resistance to it and constitutional pluralism; the preliminary rulings procedure; Union citizenship, equality, and human dignity; the scope of the Charter and the standard of protection of fundamental rights; and the rigidity and fragmentation of the Union system in connection with the recent occasional use of international law as an alternative to Union law. The book looks at the development of the law throughout the decades, inevitably losing much detail, but hopefully also uncovering structural connections and continuities.

Anticompetitive Effects in EU Competition Law

2020 ◽  
Author(s):  
Pablo Ibáñez Colomo
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Time Variable ◽  
Court Of Justice ◽  
Open Questions ◽  
Eu Competition Law ◽  
Competitive Disadvantage ◽  
Probability Threshold ◽  
The Impact ◽  
Freedom Of Action

Abstract This article examines the meaning and scope of the notion of anticompetitive effects in EU competition law. It does so by bringing together several strands of the case law (and this across all provisions, namely Articles 101 and 102 TFEU and merger control). The analysis is structured around a framework that considers the main variables that shape the notion in practice: the time variable (actual or potential effects); the dimensions of competition and the counterfactual; the meaning of effects and the probability threshold (plausibility, likelihood, certainty). The exercise shows that it is possible to discern a concrete meaning to the notion of anticompetitive effects. Some central questions, including the role and operation of the counterfactual and the threshold of effects, have already been answered by the Court of Justice. In particular, it has long been clear that anticompetitive effects amount to more than a mere competitive disadvantage and/or a limitation of a firm’s freedom of action. The impact on equally efficient firms’ ability and/or incentive to compete would need to be established. At the same time, some open questions and some potential areas of friction (relating, inter alia, to stakeholders’ tendency to conflate appreciability and effects) remain. These are also discussed.

scholarly journals Remarks by Maria Flores

2018 ◽  
Vol 112 ◽  
pp. 79-82
Author(s):  
Maria Flores
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Global Scale ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
Small Department ◽  
The University

I first became involved with international law while I was at university. After graduating, I decided to teach public international law. As an undergraduate, I particularly enjoyed this branch of study. I was attracted to it because it helped me to understand the problems, challenges, and breakthroughs in the field of international relations on a global scale. Therefore, after facing a competitive entry process, I joined the international law department of the Universidad de la República. It was a small department, but the university had produced some well-known scholars like Eduardo Jiménez de Aréchaga, who became a judge at the International Court of Justice, and Hector Gross Espiell, who served as a judge at the Inter-American Court of Human Rights.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

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