Implementation of the Good Governance Principles on the International Level

2019 ◽  
pp. 263-269
Author(s):  
Henk Addink
Keyword(s):  
International Law ◽  
International Institutions ◽  
Dispute Settlement ◽  
Good Governance ◽  
Environmental Law ◽  
Administrative Law ◽  
Transition Elements ◽  
Legitimate Expectation ◽  
Wto Dispute Settlement ◽  
Policy Fields

By the end of the twentieth century, the concept of good governance was applied in specific policy fields like international environmental law and in the more general frame of policy by the international organizations. The good governance perspective has also been developed in the context of globalizing administrative law. At present, the implementation of good governance has a much broader meaning than it did twenty years ago. The concept is clearly in development and transition. Elements such as propriety, transparency, participation, accountability, accountability and human rights have been added to the concept. All these elements have been incorporated into several documents over the course of time. Within the framework of the Council of Europe, the ECtHR develops its own interpretation of the principle of good governance in the review of government action. We see that the principles of international law and more specifically the principle of effectiveness and the principle of legitimate expectation have been applied by the WTO Dispute Settlement Body. At the grassroots of international law, good governance has been accepted as a principle of law, in national legal systems, and from there in regional and international institutions. So, it functions as a norm for the administration and the court uses elements of the principle in its review. The concept is applied as such and in the different policy fields. In describing the conditions for principles of international law we conclude that the good governance principle is a principle of international law.

scholarly journals Global Governance: The World Trade Organization’s Contribution

2009 ◽  
Vol 46 (4) ◽  
pp. 1061
Author(s):  
Andrew D. Mitchell ◽  
Elizabeth Sheargold
Keyword(s):  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
Current System ◽  
Administrative Law ◽  
Administrative Practices ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Wto Agreements

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

Exceeding the Limits of Territorial Bounds: The Helms-Burton Act

1997 ◽  
Vol 34 ◽  
pp. 161-213
Author(s):  
H. Scott Fairley
Keyword(s):  
United States ◽  
International Law ◽  
International Institutions ◽  
Dispute Settlement ◽  
Trade Agreements ◽  
The United States ◽  
International Trade Agreements ◽  
Title Iv ◽  
Trading Partners ◽  
Title Iii

SummaryThe author argues that the Helms-Burton Act violates general principles of international law. The analysis begins with a brief discussion of the extraterritorial purposes, structure, and operation of the act, followed by a survey of international responses to Helms-Burton by the principal trading partners of the United States: diplomatic protest, formalized dispute settlement under international trade agreements, retaliatory blocking leghlation, and multi-hteral scrutiny in and by international institutions. The author then turns to principles of jurisdiction with a view to demonstrating that Helms-Burton does not meet the applicable thresholds to support either the private right to sue for trafficking in confiscated property under Title III of the act or the governmental exclusion of designated aliens from admission to the United States under Title IV. In this regard, substantive international law arguments in relation to extraterritoriality and nationality, remoteness, the effects doctrine, human rights, and the reasonable expectations of other nations are also considered.

What’s Behind the WTO Crisis? A Marxist Analysis

2020 ◽  
Author(s):  
Rémi Bachand
Keyword(s):  
Political Economy ◽  
International Relations ◽  
International Law ◽  
Capital Accumulation ◽  
Dispute Settlement ◽  
Main Function ◽  
Critical Studies ◽  
Wto Dispute Settlement ◽  
Marxist Analysis ◽  
Rate Of Profit

Abstract The main objective of this article is to explore the background of the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) crisis using Marxist, neo-Marxist or, at least, Marxist-influenced theories of political economy and international relations. Its purpose is twofold. First, to propose an interpretation of the actual WTO crisis that will address alternative interpretations’ gaps. Second, to advance theoretical inputs founded on Marxist or Marxist-influenced writing in political economy, inputs which could be useful elsewhere in critical studies in international law. At the root of the crisis lies the functioning of neoliberalism (understood as the regime of accumulation promoted by US-dominant classes) and the institutions it uses to regulate itself, to deal with contradictions that hurt its capacity to produce profit, and to allow capital accumulation. One of the most important of these institutions, at the international level, is the WTO. We argue that neoliberalism’s incapacity to continuously provide, since the Asian crisis in 1997, a satisfying rate of profit to US capitalists (and to Western capitalists in general, even if our argument focuses on the former) lured it into a crisis. Since the WTO’s main function is to prevent neoliberalism from being hurt by contradictions that would limit its capacity to provide profits allowing capital accumulation, it was inevitable that one day or another, the struggle faced by the latter would also drag the former down in an institutional crisis.

How to Reform the UN System? Constitutionalism, International Law, and International Organizations

1997 ◽  
Vol 10 (3) ◽  
pp. 421-474 ◽  
Author(s):  
Ernst-Ulrick Petersmann
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Organizations ◽  
Dispute Settlement ◽  
Constitutional Theory ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Wto Dispute Settlement ◽  
International Constitutionalism ◽  
Gatt 1947

The UN system requires far-reaching changes so as to achieve the objectives of the UN Charter (e.g. with regard to human rights and maintenance of peace) more effectively. European integration law suggests that ‘international constitutionalism’ offers the most effective approach for strengthening the rule of law and peaceful cooperation among democracies. Section 2 outlines basic principles for a constitutional theory of international law. Section 3 discusses the difficulties of ‘constitutionalizing’ the state-centered and power-oriented concepts of the UN Charter. Section 4 explains why the successful Uruguay Round strategy for replacing the old GATT 1947 by the new World Trade Organization (WTO) – notably the ‘package deal negotiations’, the incorporation of other worldwide treaties into WTO law and the mandatory WTO dispute settlement and enforcement systems – offer important lessons for the needed reforms of the UN Charter.

Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law

2011 ◽  
Vol 12 (5) ◽  
pp. 1141-1174 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Prima Facie ◽  
Legal Norms ◽  
Investment Protection ◽  
Trade Law ◽  
Wto Dispute Settlement ◽  
Judicial Lawmaking ◽  
Dispute Settlement System

In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.

The Global Community Yearbook of International Law and Jurisprudence 2018

2019 ◽  
Keyword(s):  
European Union ◽  
International Law ◽  
Dispute Settlement ◽  
Criminal Court ◽  
Original Research ◽  
The European Union ◽  
Global Community ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
Global Law

The 2018 edition of The Global Community Yearbook of International Law and Jurisprudence both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the Tribunal for the Former Yugoslavia, to economically based tribunals such as ICSID and the WTO Dispute settlement procedures. The contents of this part have been enriched with the inclusion of a new section devoted to the Permanent Court of Arbitration (PCA), the oldest global institution for the settlement of international disputes. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: whether the Paris Declaration of 2017 and the Oslo Recommendation of 2018 deals with enhancing their institutions’ legitimacy; how to reconcile human rights, trade law, intellectual property, investment and health law with the WTO dispute settlement panel upholding Australia’s tobacco plain packaging measure; Israel’s acceptance of Palestinian statehood contingent upon prior Palestinian “demilitarization” is potentially contrary to pertinent international law; and a proposal to strengthen cooperation between the ECJ and National Courts in light of the failure of the dialogue between the ECJ and the Italian Constitutional Court on the interpretation of Article 325 of the Treaty on the Functioning of the European union. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.

Part VIII Compliance, Implementation, and Effectiveness, Ch.60 International Environmental Law Disputes Before International Courts and Tribunals

2021 ◽  
Author(s):  
Klein Natalie
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Considerable Progress ◽  
Environmental Damage ◽  
International Environmental Law ◽  
International Courts ◽  
Ex Post ◽  
International Court ◽  
Ex Post Facto

This chapter examines how international environmental law (IEL) disputes are resolved before international courts and tribunals, addressing when parties will decide to litigate an IEL dispute as opposed to utilizing another form of dispute settlement. Assuming there is reason to pursue adjudication or arbitration, it looks at questions of jurisdiction. The chapter also considers preliminary matters that emerge in these cases, notably questions of standing and whether provisional measures are needed and may be secured before an international court or tribunal. It then turns to substantive matters, but only in the context of presentation of the case in terms of evidence and use of experts. Finally, the chapter assesses the available reparations in the resolution of IEL disputes before international courts and tribunals. Ultimately, considerable progress may be noted in respect of the use of international courts and tribunals for IEL disputes, but it is prudent to observe that in this area of international law, preventing the emergence of IEL disputes is ultimately more important than ex post facto responses to environmental damage.

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