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1 – 10 of 38Ibrahim Sief Abdel Hameed Menshawy
This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral…
Abstract
Purpose
This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts.
Design/methodology/approach
The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts.
Findings
Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community.
Practical implications
States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act.
Originality/value
This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.
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Samiksha Mathur and Sonu Agarwal
This paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal…
Abstract
Purpose
This paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.
Design/methodology/approach
The paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.
Findings
The authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.
Research limitations/implications
The most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.
Originality/value
The paper fulfils an identified gap in the positioning of IOs under the international law.
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Proposes to treat social law contracts by covering the two most important aspects of the contract of employment, and also the collective agreement. Covers the contract of…
Abstract
Proposes to treat social law contracts by covering the two most important aspects of the contract of employment, and also the collective agreement. Covers the contract of employment in full with all the integral laws explained as required, including its characteristics, written particulars, sources or regulations, with regard to employers, are also covered. Lengthy coverage of the collective agreement is also included, showing legal as well as moral (!) requirements, also included are cases in law that are covered in depth.
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In this part it is proposed to discuss five aspects of the contract of employment and matters relating to it. The nature of the contract of employment will be considered first and…
Abstract
In this part it is proposed to discuss five aspects of the contract of employment and matters relating to it. The nature of the contract of employment will be considered first and the discussion will then go on to treat statutory intervention as a factor which regulates the underlying structure of the law of employment. In the second instance the characteristics of the contract of employment will be considered. There will then follow a brief excursus on how a contract of employment is formed. Here only offer, acceptance, consideration capacity, intention to enter into legal obligations and form will feature. Discussions on legality of object and restrictive covenants will be left until later. Following on from this third aspect, the fourth will consist of a detailed examination of the statutory written particulars of employment, i.e. (written statement); the discussion will then go on to examine in what circumstances complaints connected with the written statement may be made to an industrial tribunal. The reader will finally be invited to look at a sample written statement by way of practical exercise.
The purpose of this paper is to analyze the potential for tariff reduction under the most favored‐nation (MFN) provision of international trade law as it is written, lex lata.
Abstract
Purpose
The purpose of this paper is to analyze the potential for tariff reduction under the most favored‐nation (MFN) provision of international trade law as it is written, lex lata.
Design/methodology/approach
The paper analyzes differences in average tariff rates applied to imports under the MFN provision of international trade law. Two empirical methods are used; an analysis of variance to estimate significant differences in tariff rates between high‐income members and least‐developed members of the World Trade Organization (WTO); and fixed‐effects regression model to determine the effect of national output on the marginal propensity to import (MPM).
Findings
The paper finds that there is a significant difference in the margins of import tariffs that are applied to imports by the high income and the least‐developed members and that the MPM is significantly dependent on output for the high‐income members, but not for the least‐developed members.
Practical implications
The findings indicate that international trade law must be developed with the aim of increasing national earnings capacity and not just creating enabling conditions for tariff reduction or the harmonization of municipal law with international trade law. When circumstances change in a fundamental way (rebus sic stantibus), WTO members must be measured in their approach to attain the law that is sought (lex ferenda).
Originality/value
The paper argues that multilateral trade arrangements for tariff reduction and fair trade must integrate enabling conditions with arrangements for earnings capacity to increase national income and reduce tariffs.
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The main purpose of this paper is to explore the extra-judicial killing situation in Bangladesh by analyzing both national and international human rights law. In addition, this…
Abstract
Purpose
The main purpose of this paper is to explore the extra-judicial killing situation in Bangladesh by analyzing both national and international human rights law. In addition, this paper will also identify the remedy that is available for the victim’s family for extra-judicial killing by law enforcement agencies, especially the Rapid Action Battalion of Bangladesh.
Design/methodology/approach
This is a qualitative research where both primary and secondary sources have used to identify the situations of extra-judicial killings in Bangladesh, the human rights instruments and the judicial activism to protect human rights.
Findings
This paper will show impunity of the law enforcement agencies increasing the number of extra-judicial killings of citizens, by violating the Constitutional and International human rights law that deal with “right to life”. The state sovereignty is not hindering the implementation of the international law, but the judiciary of Bangladesh needs to be more efficient in protecting citizens’ human rights, along with bringing criminal prosecution against members of the law enforcement agencies, by providing “effective and adequate” remedy to the victim’s family.
Research limitations/implications
While analyzing the “right to life” under the International Human Rights Conventions, this paper will only deal with the UDHR and the ICCPR, as Bangladesh has ratified those Conventions.
Originality/value
This paper will add value to identify the present rights of the citizen under domestic and international law and to incorporate new legislation through finding the lack of present legislation to protect the right to life and remedy for extra-judicial killings in Bangladesh.
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This chapter reviews the literature to contextualize the intervention in the post–cold war era characterized by the momentum of globalization dominated by informal actors beside…
Abstract
This chapter reviews the literature to contextualize the intervention in the post–cold war era characterized by the momentum of globalization dominated by informal actors beside the legal authority of the state. It indicates how these actors deviate the primary purpose of the humanitarian intervention and create an ungovernable environment of the state particularly when interventions are operated in countries endowed with natural resources. The case of the Democratic Republic of the Congo (DRC) serves as a model to ascertain such phenomenon in which actors such as states involved in intervention come in collusion with shadow elites, lobbyists and multinational companies to establish clandestine networks of illegal exploitation and smuggling of natural resources. The chapter winds up by suggesting the redefinition of policies of interventions to keep humanitarian intervention in its primary mission while holding actors involved in illegal and smuggling of natural resources accountable.
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This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of…
Abstract
Purpose
This article aims to examine the sustainability of European and SADC states' practice of agreeing bilateral investment agreements (BITs) for the promotion and protection of foreign investments in light of the latter's recent inauguration of Black Economic Empowerment (BEE) as a basic norm of regional customary international law and strategy for countering the social and economic legacy of apartheid rule on their territories for over half a century.
Design/methodology/approach
The approach taken is textual analysis and deconstruction of emergent SADC BEE legislation, substantive BIT legislation provisions, dispute settlement mechanisms and emergent jurisprudence on the tensions between BEE policy and BIT obligations.
Findings
The strong elements of exclusivity between European/SADC BIT dispute settlement mechanisms on the one hand, and the “ouster clauses” of SADC BEE legislation and regulations on the other, are mutually incompatible. This incompatibility threatens the sustainability of the EU/SADC states' BIT dynamic for the promotion and protection of foreign direct investments (FDIs).
Originality/value
Demonstration of BEE as SADC's emergent basic norm of social reconstruction for countering the social and economic legacy of apartheid rule in affected states and implications of that for EU/SADC policy on the promotion and protection of FDIs.
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The purpose of this paper is to argue that the leadin‘g international actor responsible for the maintenance of peace and security, the United Nations Security Council (UNSC), must…
Abstract
Purpose
The purpose of this paper is to argue that the leadin‘g international actor responsible for the maintenance of peace and security, the United Nations Security Council (UNSC), must ensure that they strictly abide by accepted fundamental human rights norms when promulgating and enforcing resolutions for freezing assets of suspected terrorists.
Design/methodology/approach
The paper presents an overview of some fundamental human rights affected by the UN resolutions. It then compares leading case law from both the international (European Court of Justice) and domestic (the UK and the USA) perspectives. Finally, the paper discusses the leading academic critiques before exploring whether the UNSC is right to infringe or derogate from human rights norms in its counter‐terrorism policy. If so, in what circumstances and under what conditions may they be right to do so?
Findings
There are several fundamental human rights norms which are not respected by the UNSC in the area of terrorist financing.
Research limitations/implications
Research could be expanded to other courts. Further research should consider additional human rights that were outside the scope of this paper.
Practical implications
The UNSC should allow special advocates on all matters both before the ombudsman and themselves. This should provide greater transparency.
Social implications
The paper should draw attention to the seemingly incongruous position of the UNSC, tasked with protecting us and our human rights, when in fact they themselves may be breaching them.
Originality/value
The paper will be valuable to governments and regulators that seek to regulate the financial markets. It will also be useful to human rights activists.
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Since the disintegration of Cold War international systemic bipolarity in 1989, the international community has witnessed the entrance of at least 30 new states, proclaiming their…
Abstract
Since the disintegration of Cold War international systemic bipolarity in 1989, the international community has witnessed the entrance of at least 30 new states, proclaiming their formal sovereignty by obtaining membership in the United Nations. As with the previous wave of UN membership enlargement following decolonization three decades earlier, this most recent burst of accessions reflected inter alia the power of nationalism to change the domestic and international political status quo. In some cases, horrendous violence at times approaching genocidal levels has accompanied these changes. Of ten boundaries among these new states remain under intense dispute. This persistence and intensification of movements for national self‐determination require that the prerequisites for a successful international strategy for peacefully regulating this type of change include accommodation of sovereign self‐determination for “aspiring” nations.
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