scholarly journals OECD acts as instruments of soft international law

2020 ◽  
pp. 398-402
Author(s):  
Anatolii Petrenko
Keyword(s):  
International Law ◽  
International Organization ◽  
Development Assistance Committee ◽  
International Treaties ◽  
Member States ◽  
Legal Norms ◽  
Wide Range ◽  
Oecd Convention ◽  
Rules Of Procedure ◽  
Science And Education

A characteristic feature of the modern system of international relations is that the not only the international legal norms, but alsothe rules of soft international law are the regulators, with the constantly growing share of the latter. There is a great variety of conceptsregarding the nature of soft international law in modern doctrine of international law. However, it is indisputable fact that internationalorganizations play significant role in its development. One of such international organizations is the Organization for Economic Cooperationand Development, whose rule-making activities are largely implemented through the adoption of legally non-binding documentsbut at the same time they have a significant impact on the behavior of the international law subjects. The organization unites 36 industrializedcountries. Thus, of the total number of regulations of various legal force adopted or developed under the auspices of the OECDduring the entire period of existence of this international organization, acts of soft international law account for approximately 78 percent. In total, the OECD adopted 454 regulations, including 13 international treaties, 87 decisions, 300 recommendations, 36 declarationsand 18 other legally non-binding international instruments. Recommendations are adopted in accordance with Art. 5, 6 and 7 ofthe OECD Convention and paragraph 18B of the Rules of Procedure of the Organization and are transferred to the Member States forconsideration. So the Member States may, if they deem it appropriate, implement them in their national law. OECD Declarations arelegally optional framework documents establishing the general principles and long-term goals of cooperation between states within theframework of this international organization. In general, declarations are not acts of the OECD within the meaning of Art. 5 of theOECD Convention, but in practice their implementation is monitored by OECD bodies. Apart from recommendations and declarationsOECD also practices the following types of legal non-binding regulations: Arrangement and Understanding which can be described asgentleman’s agreements and also the recommendations of the Development Assistance Committee (DAC) OECD. With all these do -cuments, the OECD regulates international cooperation on a wide range of socio-economic issues, including the fight against corruption,taxation, regional development, environmental protection, finance and investment, trade, industry, social policy, consumer protection,science and education, shipbuilding and transport, energy, etc.

scholarly journals OECD acts as instruments of soft international law

2020 ◽  
pp. 398-402
Author(s):  
Anatolii Petrenko
Keyword(s):  
International Law ◽  
International Organization ◽  
Development Assistance Committee ◽  
International Treaties ◽  
Member States ◽  
Legal Norms ◽  
Wide Range ◽  
Oecd Convention ◽  
Rules Of Procedure ◽  
Science And Education

A characteristic feature of the modern system of international relations is that the not only the international legal norms, but alsothe rules of soft international law are the regulators, with the constantly growing share of the latter. There is a great variety of conceptsregarding the nature of soft international law in modern doctrine of international law. However, it is indisputable fact that internationalorganizations play significant role in its development. One of such international organizations is the Organization for Economic Cooperationand Development, whose rule-making activities are largely implemented through the adoption of legally non-binding documentsbut at the same time they have a significant impact on the behavior of the international law subjects. The organization unites 36 industrializedcountries. Thus, of the total number of regulations of various legal force adopted or developed under the auspices of the OECDduring the entire period of existence of this international organization, acts of soft international law account for approximately 78 percent. In total, the OECD adopted 454 regulations, including 13 international treaties, 87 decisions, 300 recommendations, 36 declarationsand 18 other legally non-binding international instruments. Recommendations are adopted in accordance with Art. 5, 6 and 7 ofthe OECD Convention and paragraph 18B of the Rules of Procedure of the Organization and are transferred to the Member States forconsideration. So the Member States may, if they deem it appropriate, implement them in their national law. OECD Declarations arelegally optional framework documents establishing the general principles and long-term goals of cooperation between states within theframework of this international organization. In general, declarations are not acts of the OECD within the meaning of Art. 5 of theOECD Convention, but in practice their implementation is monitored by OECD bodies. Apart from recommendations and declarationsOECD also practices the following types of legal non-binding regulations: Arrangement and Understanding which can be described asgentleman’s agreements and also the recommendations of the Development Assistance Committee (DAC) OECD. With all these do -cuments, the OECD regulates international cooperation on a wide range of socio-economic issues, including the fight against corruption,taxation, regional development, environmental protection, finance and investment, trade, industry, social policy, consumer protection,science and education, shipbuilding and transport, energy, etc.

ASEAN asWayang Kulit: A Critique of the Constitutional, Extra-constitutional, and Practical Fetters of ASEAN

2019 ◽  
Vol 9 (2) ◽  
pp. 275-297 ◽  
Author(s):  
Jose Duke BAGULAYA
Keyword(s):  
International Law ◽  
International Organizations ◽  
Structural Control ◽  
World Politics ◽  
International Organization ◽  
Control Mechanisms ◽  
Member States ◽  
Legal Personality ◽  
Rules Of Procedure ◽  
Wayang Kulit

AbstractInternational organizations have been described metaphorically as the Frankenstein of international law. They are created by states and yet more often than not they assume powers that humble their creators. This paper presents a different metaphor to describe the Association of Southeast Asian Nations [ASEAN]. Created in 2007, ASEAN, it is argued, resembles the fetteredwayang kulitin Indonesian theatre. It is an international organization which is controlled by its Member States in various ways. This paper analyzes three forms of ASEAN's fetters: constitutional, extra-constitutional, and practical. Constitutional fetters refer to the structural control embedded in the ASEAN Charter. Extra-constitutional fetters refer to rules of procedure that close the openness of the constitutional text. Finally, practical fetters refer to the ways the Member States limit ASEAN's legal personality in practice. Through these control mechanisms, ASEAN has so far acted on the stage of world politics according to the narrative of its puppet masters.

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
Legal Limit ◽  
Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

International Responsibility

2021 ◽  
pp. 176-207
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
International Law Commission ◽  
Final Consequence ◽  
Law Commission

The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.

scholarly journals Theoretical Approaches of the European Commission for Democracy Through Law (the Venice Commission) to the Assessment of Anti-Terrorism Legislation: international Legal Discourse and Implementation Problems

2020 ◽  
Vol 14 (3) ◽  
pp. 411-422
Author(s):  
Anna Kashirkina ◽  
Andrey Morozov
Keyword(s):  
International Law ◽  
European Commission ◽  
International Treaties ◽  
Council Of Europe ◽  
Member States ◽  
Counter Terrorism ◽  
Theoretical Approaches ◽  
Legislative Regulation ◽  
Venice Commission ◽  
Law Regulation

The topic of the article is highly relevant due to the importance of basing the legislative regulation of counter-terrorism activities on international treaties in this sphere. Besides, the legislative regulation of counteracting terrorism should be developed in accordance with the current international law acts and should take into account international obligations that they entail. The authors believe that the improvement of counter-terrorism legislation is facilitated by the work of the European Commission for Democracy through Law (the Venice Commission), which conducts an expert evaluation of the national legislations of member states. The goal of this research is to analyze the current international law regulation in the sphere of counteracting terrorism and in identifying the specifics of its application by the Venice Commission in its assessment of national counter-terrorism legislations. The authors examine some issues connected with the work of the Venice Commission on preparing conclusions and recommendations that contain its assessment of the counter-terrorism legislation of a number of countries (the Republic of Moldova, the French Republic). They note the specifics of the work of the Venice Commission as a special auxiliary body of the Council of Europe that analyzes and assesses the legislative acts of member states based on the poly-functional guidelines of the Council of Europe. While assessing national legislations, the Venice Commission uses international law acts that contain, among other things, universally recognized principles and norms of international law, so the authors of the article show the significance of the international law regulation of counteracting terrorism through international treaties both between different countries and under the aegis of international organizations and integration unions; they also identify the problems connected with their implementation in national legislations. Based on the conducted research, the authors come to the following conclusions: the legislative regulation of counteracting terrorism should be amended with strict observance of the universally recognized principles and norms of international law incorporated, among other things, in international treaties; it is necessary to develop the international law regulation in the sphere of counteracting terrorism while taking into account new challenges and threats brought about by globalization and use the potential of international law instruments; international bodies play an important part in improving national counter-terrorism legislations, specifically, the Venice Commission, which, through its expert work, contributes to the development of legislation based on international legal acts.

scholarly journals WTO AGREEMENTS: WAYS OF INTERPRETATION

2021 ◽  
Vol 117 (4) ◽  
pp. 17-25
Author(s):  
TYSHCHENKO Yuliia
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Legal Interpretation ◽  
International Treaties ◽  
Historical Interpretation ◽  
Theoretical Methods ◽  
Legal Norms ◽  
Trade Relations ◽  
Teleological Interpretation ◽  
Wto Agreements

Background. The most of the world’s trade relations are governed by uniform rules that form the legal basis of the WTO. Member states sometimes have different understanding of the content of their rights and obligations, which are in the WTO agreements. This gives rise to controversy between them. To reduce the number of disputes between states, they should use uniform ways of interpreting WTO agreements. Analysis of recent research and publications has revealed that the interpretation of WTO legal sources has not been the subject of a separate study, therefore, requires clarification. The aim of the article is to identify and theoretically comprehend the main ways of interpreting the WTO agreements. Materials and methods. The set of general scientific and special methods of scientific research is chosen as the methodological basis. Results. WTO law consists of legal norms and the general rules of interpretationof the theory of law are applied to clarify their meaning. The legal sources of the WTO are the sources of public international law. Therefore, for the interpretation of the norms of this organization, the methods of international law are primarily used. The main source of rules for the interpretation of international treaties is the 1969 Vienna Convention on Treaties. The Agreement on the Rules for the Settlement of Disputes specifies that the usual rules of interpretation of international law are applied to clarify the rules of WTO agreements. Thus, for the interpretation of WTO agreements, the rules enshrined in the Vienna Convention and other methods of interpretation used in international law are applied. Articles 31, 32 of the Convention provide for such methods of interpretation as textual, teleological interpretation, clarification of the meaning of the term of the contract by establishing the intentions of the participants and historical interpretation. It is worth adding to the list of ways of interpreting WTO law such general theoretical methods as logical, systematic, special legal interpretation, etc. Conclusion. So, the methods of interpretation of the WTO agreements include textual, teleological, historical interpretation, the interpretation of norms by clarifying the intentions of the parties to the treaty, as well as general theoretical methods of interpretation. Keywords: legal interpretation, methods of interpretation, textual, teleological, historical interpretation, intentions of the parties, WTO agreements.

scholarly journals The Operation of International Law in the National Legal System: in search for better understanding

2020 ◽  
pp. 26-43
Author(s):  
A. Ya. Kapustin ◽  
I P. Zhuravleva
Keyword(s):  
International Law ◽  
Legal System ◽  
Domestic Sphere ◽  
Legal Personality ◽  
Legal Norms ◽  
Wide Range ◽  
National Implementation ◽  
National Legal System ◽  
International Legal System

INTRODUCTION. The issue of implementation of international legal norms is extensive and multifaceted, and most importantly, it is always relevant. Despite the long-term development of questions of the operation of international law in national legal systems, the issue remains in the focus of researchers. Russian scholarship is quite rich in research of this area, and the practice of Russian courts is also rich in examples of the use and application of international law. Their presentation at the international level can significantly enrich the basis for analytical comparisons with the practice of other countries and further developments in this area. Nevertheless, the research of Russian authors is not well represented in the international legal discourse: the appearance of works by our compatriots in foreign editions is not so frequent. That is why monographic research papers by Russian authors published in major foreign publishing houses is of great interest to both Russian and foreign readers. At the same time, such publications implicitly set a high bar for expectations from their content.MATERIALS AND METHODS. The article presents a critical understanding of the monograph of Professor S. Marochkin, published in 2019 by one of the world's oldest publishers Brill-Nijhoff (Leiden, the Netherlands) – "the Operation of international law in the Russian legal system. Changing approach". The article highlights key elements of the study. Special attention is paid to the reflections and conclusions of the author of the monograph on the theory of international law. The analysis of the research is based on general and private scientific methods.RESEARCH RESULTS. Th reviewed monograph presents to our attention a wide range of Soviet and Russian general theoretical, discipline-specific and international legal doctrines. The work covers a significant period of theoretical, normative, institutional and practical development of the issue of implementation of international legal norms – more than three decades. This corresponds to the goal set out in the study – to show a changing approach to the issue in scholarship, judicial practice, and rule-making. The monograph consistently exposes the author's idea about the essence of national implementation of the principles and norms of international law, domestic legal and institutional mechanisms for such implementation, assessment and generalization of the practice of Russian courts related to the appeal to international law and the application of international legal norms. At the same time the monograph begs some questions: 1) on the author's understanding of the content of the concerned concepts in the theory of international law; 2) on the methods of law-formation in the national and international legal system; 3) on the constituent elements of the international legal system; 4) on the meaning and nature of self-executing international legal norms; 5) on the problem of international legal personality; 6) on the author's view of the state of modern legal scholarship in Russia.DISCUSSION AND CONCLUSIONS. Russian scholarship, as well as practice in the law-making, law-application and law-enforcement have gone a long way in mastering and ensuring the constitutional provision on the principles and norms of international law and international treaties of the Russian Federation as an integral part of the national legal system. The reviewed book emphasizes the importance of theoretical justification and competent application of theoretical theses on the place and role of norms and sources of international law within national jurisdiction, on the correlation of the legal force of international and domestic norms. Indeed, both legal scholars and public institutions that directly address questions about the operation of international legal norms need to have a complete understanding about the functioning of the regulatory and institutional mechanism for implementation of international legal obligations in the domestic sphere. In this light, it is reasonable to attach particular importance to the role of the judiciary branch in appealing to and applying international law. The research paper consistently demonstrates changes in the practice and approaches to the perception of international law over time with ups and downs in the estimation of its significance and role in the country's legal order. Although the study claims to offer an exhaustive fundamental analysis of all the problems raised, the author still makes some theoretical mistakes that complicate the correct understanding of his analytical work. Thereby the author challenges himself to continue the research of the issue in order to untangle some knots of doctrinal contradictions.

The Parliamentary Assembly of the Council of Europe and the Sanctions Against the Russian Federation in Response to the Crisis in Ukraine

2018 ◽  
Vol 27 (1) ◽  
pp. 77-91
Author(s):  
Antonino Alì
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Issues ◽  
Council Of Europe ◽  
Member States ◽  
The Core ◽  
European Project ◽  
Rules Of Procedure ◽  
The Russian Federation ◽  
Heads Of State

The article examines the actions taken by the Parliamentary Assembly of the Council of Europe (PACE) against the delegation of the Russian Federation in response to the crisis in Ukraine. In 2014 the Assembly decided to suspend some of the rights of the Russian delegation and menaced to annul the credentials of the delegation if an effective effort was not made on the part of Russia to sort out the situation and to reverse the annexation. The adoption of sanctions against the Russian delegation raised several legal issues related to the very existence of a sanctioning power of the CoE and in particular of the Assembly. The question is whether the powers to “penalize” the parliamentary delegation have been exercised by PACE in conformity with the Statute. The Statute of the CoE does not attribute sanctioning powers to the Assembly in order to target the states which are in breach of Article 3 or international law more generally. This power falls firmly in the hands of the Committee of Ministers as a way to put pressure on, deter, and eventually punish a state which has seriously violated the core of the principles of the CoE system. PACE, in the exercise of its functions, may certainly contribute to activating procedures to monitor the activities of the member states, but the last word is in the hands of the Committee which may suspend the rights of representation of a state and request that the offending state withdraw from the Committee entirely. The Statute plainly does not attribute this power to PACE. In the absence of the jurisdiction of a Court to deal with the problems caused by the lack of harmonisation between the sanctions adopted by the Committee of Ministers and the ones introduced by the Parliamentary Assembly through some modifications of the Rules of Procedure, the recent call for a 4th Summit of Heads of State and Government of the CoE by the Assembly in order to “preserve and further strengthen this unparalleled pan-European project currently threatened by divisions and a weakening of member States’ commitment” by “harmonising[…] the rules governing participation, representation and responsibilities of member States in both statutory organs, while fully respecting the autonomy of these bodies” should be welcomed.

Amsterdam Center for International Law Introduction to the symposium on Responsibility of International Organizations and of (Member) states: Attributed or Direct Responsibility or Both?

2010 ◽  
Vol 7 (1) ◽  
pp. 9-33 ◽  
Author(s):  
Pieter Jan Kuijper
Keyword(s):  
International Law ◽  
International Organizations ◽  
Shared Responsibility ◽  
International Organization ◽  
State Responsibility ◽  
Member States ◽  
Introductory Article ◽  
Classical Conception

AbstractThis is the introduction to three articles that resulted from the Symposium on Responsibility of International Organizations and of (Member) States organized by the Amsterdam Center for International Law (ACIL) under direction of Professors André Nollkaemper and Pieter Jan Kuijper in April 2009. The Symposium concentrated on those articles of the ILC draft articles on the Responsibility of International Organizations which are concerned with the responsibility of States for the unlawful acts of International Organizations as well as with the responsibility of International Organizations for unlawful acts of States, and in particular Member States. This introductory article seeks to place the articles relating to these issues in the context of the draft articles as a whole and of their predecessors, the draft articles on State Responsibility. Moreover, since the articles in question are based on the notion of a directly incurred responsibility on the part of the international organization or State concerned, rather than the classical conception of responsibility through attribution, they are also analyzed in the light of these two conceptions of responsibility. The issue of shared responsibility deserves special attention in this respect.

EC Law and International Agreements of the Member States—An Ambivalent Relationship?

2007 ◽  
Vol 9 ◽  
pp. 387-440 ◽  
Author(s):  
Robert Schütze
Keyword(s):  
International Law ◽  
Legal Order ◽  
International Treaties ◽  
Member States ◽  
International Treaty ◽  
Court Of Justice ◽  
Treaty Of Rome ◽  
Ambivalent Relationship ◽  
Formed Part ◽  
Ec Law

The European Community (EC) was established in 1957 on the basis of an international treaty. The Treaty of Rome formed part of international law, though the Court of Justice was soon eager to emphasise that the ‘Community constitutes anew legal orderof international law’, and that:By contrast with ordinary international treaties, the E … C Treaty has created its own legal system which, on the entry into force, became an integral part of the legal systems of the Member States and which their Courts are bound to apply.

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