International agreements

This article discusses the place of non liquet in the statute and practice of the International Court of Justice. It argues that although there is no prohibition of non liquet in the statute of the court, the completeness of the court of international law in article 38(1) of the statute makes no room for the court to declare non liquet in practice. The author argues that the inclusion of general principles of law and judicial decisions in article 38(1) makes the sources of international law available to the court complete, thereby affording the court the means to avoid non liquet through judicial creativity.     

III ‐ International agreements

Constitutions guarantee certain rights and freedoms. The formulation of these rights and freedoms are predicated on society. Prior to colonisation, Maori (the indigenous peoples of Aotearoa/New Zealand) had effective legal, social and political structures, premised on Tikanga Maori (Maori custom), which determined their ‘constitution’. Upon colonisation the existing ‘constitution’, determined by Tikanga Maori, was not recognised and, arguably, colonisation contributed to the break down of the Maori social fabric. Critics advocate that the disproportionate social statistics, indicating that Maori are over represented in the criminal justice system, are a manifestation of colonisation. The National-led government is engaging in a review of New Zealand’s constitutional arrangements. In light of New Zealand’s recent endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, it is timely to consider whether the implementation of, and return to, Tikanga Maori is a constitutional right.     

International environmental agreements with agenda and interaction between pollutants

This paper analyzes how the sequence of negotiating agreements on each pollutant affects coalition behavior in international environmental agreements (IEAs) when multiple and correlated pollutants exist. I consider a model in which countries suffer from two pollutants with different externality characteristics and attempt to cooperate by sequentially negotiating on IEAs. The membership outcome depends on the environmental concern, abatement technology, spillover effect and most importantly the correlation between pollutants as either substitutes or complements. I find that cooperation in the first stage can facilitate later negotiations and that countries are prone to cooperate on a pollutant of common concern. Moreover, except for symmetric countries, different negotiation agendas may result in distinctive participation outcomes when pollutants are complements. Therefore, with systematic policy design, the negotiation sequence can serve as another method to encourage participation and cooperation in IEAs.     

Unwanted cohabitation agreements

Given the predominant role in American law of cohabitation agreements in protecting cohabitants, this Article presents an informal study that measured attitudes toward such agreements. The results confirm the literature findings that people generally are not inclined to want cohabitation agreements upon cohabitation. Further studies might explore the reasons for the unpopularity of cohabitation agreements and the ways to improve the protection of cohabitants, and this Article offers potential considerations.     

Parallel trade and free trade agreements

Legal context. Free trade agreements seek to remove unjustifiedbarriers to trade. Normally barriers to trade are imposed bystates, such as quotas, tariffs, subsidies and regulatory restrictions.However, sometimes barriers will be imposed by private partiesseeking to prevent parallel trade (arbitrage) of their own products.The aim of this article is to examine the way in which freetrade agreements deal with private barriers to parallel tradeand thus to consider to what extent parallel trade is possiblewithin free trade areas. Key points. The article considers first the situation withinthe European Community, which has long supported parallel tradethrough its provisions on the free movement of goods and competitionlaw, before turning to the approach taken in the Community'sfree trade agreements with third countries. It carries out thesame exercise in relation to the United States and then considershow parallel trade is dealt with by the World Trade Organisation.Finally, as free trade agreements only seek to remove unjustifiedbarriers, it considers possible justifications for the differentapproaches before drawing some tentative conclusions. Practical significance. This article considers the impact whichthe overlap between intellectual property, competition law andtrade law has in relation to parallel trade. As well as reviewingthe current position, which will be of use to businesses andlegal practitioners on both sides of parallel trade, it assessesthe underlying justifications which are relevant to policy makingin this field.     

The effectiveness of international environmental agreements

Many argue that international environmental agreements (IEAs) can alter states’ cost-benefit analyses by providing crucial information about the costs of environmental degradation. Thereby, IEAs may help to effectively curb environmental pollution. However, previous attempts to empirically measure institutional effectiveness found it difficult to provide credible estimates because they have missed to produce convincing counterfactuals. This study empirically estimates the effectiveness of one prominent example of an international environmental institution, the Long Range Transboundary Air Pollution agreement (LRTAP). It sets forth a transparent identification strategy in light of latest advancements in the causal inference literature and presents evidence for the non-effectiveness of the LRTAP in changing member states’ behavior in terms of anthropogenic emissions of two substances (NO _x and SO₂). By deriving and illustrating the use of difference-in- differences (DID) design in the context of IEAs, this study provides a general methodological tool kit to drawing causal inferences about the effectiveness of international environmental institutions.     

Physician noncompete agreements must be carefully tailored

When covenants not to compete are used, care must also be taken that they are not viewed as a violation of the Medicare anti-kickback statute, 42 U.S.C. Section 1320a-7b(b). Some government officials have asserted that, when physicians selling their practices continue to be affiliated with the buyers of those practices, payments to physicians for intangibles (including covenants not to compete) could be disguised payments for future referrals. See Dec. 22, 1992 letter from D. McCarty Thornton, General Counsel to the Office of Inspector General, to T. J. Sullivan at the Internal Revenue Service. Although the anti-kickback statute is beyond the scope of this article, it must be considered in this context, and care should be taken in any event to assure that purchase prices for physician practices in no event exceed fair market value.