UNCROC and the prevention of childhood obesity: the right not to have food advertisements on television

This article discusses how legal rights-based discourse could inform the response of Australian State and federal governments to the increasing prevalence of childhood obesity. The authors contend that the principles in the United Nations Convention on the Rights of the Child (a treaty which has been ratified but not implemented) are capable of providing a basis for a legislative program to prevent childhood obesity. It is argued that an approach to legislation which is grounded on the basis of children's rights would require that there be restrictions on advertising food to children. The authors set out specific proposals for legislative reforms which the federal Parliament could enact to implement the Convention so as to restrict advertising to children. The scope of the discussion is then expanded to consider the implications of rights-based discourse in broader public health contexts.     

THE BOLDT DECISION

In 1974 Federal District Judge H. Boldt mandated that 50% of the salmon resource of Washington State be allocated to Indian treaty tribes. His decision produced what has been characterized as "except for some desegregation cases … the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century." This article argues that fishing rights litigation has played a significant role in defining and structuring the conflict over the salmon resource. An unanticipated or unavoidable "side effect" of the successful tribal litigation strategy is the restructuring of the conflict in a way that is likely ultimately to prove as detrimental as outright legal defeat. Focusing on the Indian fishing rights issue, the article also studies the use of litigation as a weapon for social change. The underlying assumption is that a legal order that denies impoverished and powerless constituents a meaningful avenue for social change is gravely flawed.     

The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law

This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.     

The Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation?

Conflicts between treaty and customary norms are endemic to international law and are increasingly frequent. Yet there is nothing automatic or mechanical about interpreting and resolving such conflicts, which require a high degree of contextual sensitivity. Their identification and interpretation test the limits of the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties, particularly where treaty modifications by subsequent customary law are concerned. This article endeavours to sketch how the latter phenomenon occurs, and the interpretative and evidentiary challenges involved—many of which remain underexplored. The analysis begins with the identification and interpretation of newly emerged customary norms, before delving into the process of determining their treaty-modifying potential. This involves the side-by-side interpretation of the pre-existing treaty and the customary norm to assess whether there is a genuine incompatibility that cannot be resolved through harmonious interpretation. The final inductive step is to ascertain the parties’ consent to displace the treaty norm in favour of the customary norm, subject to certain crucial requirements. Against the backdrop of the organic and continuous interplay between treaties and customary international law, these interpretative and evidentiary steps serve to ensure that the parties’ intention remains paramount.

     

The Future of International Investment Regulation: Towards a World Investment Organisation?

With growth in foreign investment and in the number of companies investing in foreign countries, the application of general principles of public international law has not been deemed adequate to regulate foreign investment and there is, as yet, no comprehensive international treaty on the regulation of foreign investment. Consequently, states have resorted to bilateral investment treaties (BITs), regional trade and international investment agreements (IIAs) and free trade agreements to supplement and complement the regime of protection for foreign investors. In the absence of an international investment court, states hosting foreign investment or investor states have opted for investor-state dispute settlement mechanism (ISDS). This mechanism has brought about its own challenges to the international law of foreign investment due to inconsistency in the application and interpretation of the key principles of international investment law by such arbitration tribunals, and further, there is no appellate mechanism to bring about some cohesion and consistency in jurisprudence. Therefore, there are various proposals mooted by scholars to address these challenges and they range from tweaks to BITs and IIAs, the creation of an appellate mechanism and the negotiation of a multilateral treaty to proposals for reform of ISDS only. After assessing the merits and demerits of such proposals, this study goes further, arguing for the creation of a World Investment Organisation with a standing mechanism for settlement of investment disputes in order to ensure legal certainty, predictability and the promotion of the flow of foreign investment in a sustainable and responsible manner.

     

The progressive policy shift in the debate on the international tax challenges of the digital economy: A “Pretext” for overhaul of the international tax regime?

This contribution presents a critical overview of the policy and legal debate (primarily from a tax treaty law perspective) surrounding the challenges raised by the digitalisation of the economy for the international tax regime. The article addresses some key policy challenges inherent in the proposals for reform currently under consideration. It focuses in particular on the difficulties associated with fitting the concept of “value creation” within the pre-existing framework based on “source” and “residence”; a gradual transition from a primarily “supply” approach to a “supply and demand” approach in the understanding of “source”; and an implicit drift in the policy debate on the tax implications of the digitalised economy from a targeted analysis aimed at incrementally reforming the existing regime to a full-blown reconsideration of some of its fundamental tenets.     

Parallel Proceedings in Investor‐State Treaty Arbitration: Responses for Treaty‐Drafters,Arbitrators and Parties

Parallel investment treaty arbitrations present a demonstrated risk of inconsistent awards. This article examines several ameliorative responses to parallel investment treaty proceedings, executable by treaty‐drafters, arbitrators and parties themselves. The unique jurisdiction mechanics and applicable law in investment treaty disputes frames the responses available. Despite the unique context within which parallel investment arbitrations occur, the challenges they pose to party interests, to principles including legal fairness and to the effective pursuit of dispute resolution closely resemble those posed by parallel proceedings in other domestic and international legal fora.     

Reflections on the International Legality of the Special Tribunal for Lebanon

This article addresses legal problems posed by Security CouncilResolution 1757 of 30 May 2007, establishing the Special Tribunalfor Lebanon (‘STL’). After describing the historicalbackground of the resolution (section 1) and the plan to establishthe STL as a treaty-based institution (section 2), the paperturns to an analysis of Resolution 1757 (section 3). The authorquestions whether the Council intended to bring the Lebanon-UNagreement into force as an international treaty, and holds thatthe UN Charter does not give the Council a power to unilaterallyimpose on a member state an obligation in the form of a treaty.The author argues that in Resolution 1757 the Council did notsubstitute a Chapter VII decision for the missing ratificationof the agreement by Lebanon, but instead established the STLby making the provisions of the agreement negotiated with Lebanonan integral part of a Chapter VII resolution. Section 4 thenquestions whether the Council was entitled to procure Lebanon'sconsent to be bound by a treaty by threatening unilaterallyto put those provisions into effect through a Chapter VII resolution.After discussing certain rules of the law of treaties concerningthe coercion of a state, the author concludes that it is notthat law but the UN Charter itself that prohibits the Councilfrom exerting pressure on a member state in order to make thatstate ratify a treaty.     

意思表示错误效力比较研究

意思表示错误应具有何种法律效力,因涉及表意人的意思自治与相对人合理信赖的风险分担,而成为民法中最为棘手的难点问题。各国立法对意思表示错误制度的效力设计,出现静态安全相对保护主义与动态安全相对保护主义两种立法方案。基于权利制衡的基本宗旨,可以得知静态安全相对保护的立法模式较为可采,但应辅之以表意人撤销权要件及损害赔偿责任等诸多限制。     

Identity and its verification

The European Commission's eJustice Strategy seems to contemplate that all lawyers will be issued with an ‘identity card’ card, perhaps intended to include a key for making digital signatures. The Council of Bars and Law Societies of Europe (CCBE) is proposing to introduce such a card. The purpose of this article is to clarify what ‘identity’ is and what is involved in verifying it, and to offer some general observations about identity cards. Although written with the eJustice proposals in mind, nevertheless the purpose of this article is to address the topic in its widest sense, which means it affects identity and its verification, whatever the circumstances.     

Constructing Compliance: Game Playing, Tax Law, and the Regulatory State

This article proposes a rethinking of approaches to compliance, extending perspectives that view regulation as an interactive or reflexive process mediated by sociolinguistic practices. These suggest that the meaning of rules is not fixed ex ante, but may emerge and change through such interactions, which therefore actually help to construct what it means to comply. The analysis supports proposals to base tax law on purposive general principles combined with detailed rules. However, it suggests that this should be the approach adopted for the tax code as a whole, instead of focusing mainly on the merits of a general anti-avoidance principle, as some of the recent debates have done. The article explores the question of interpretation of rules and the problem of avoidance and game playing. It reexamines the issue of the indeterminacy of rules and relocates it within the context of professional and regulatory practices, suggesting that it is these interactions that construct the meaning of rules and hence of compliance. The analysis is applied to income taxation, to sketch out how the international tax system has been constructed through the interaction of contending views of fairness in the allocation of tax jurisdiction, while in the process becoming refined into a formalist and technicist process of game playing. It argues that the central factor in this process has been the inherent contestability of the core concepts of international taxation, the rules on corporate residence and source of income. The article concludes by considering some of the current proposals for improving tax compliance, in particular by reducing complexity, improving clarity, and the use of broad principles.     

Executive impunity and parallel justice? The United Kingdom debate on secret inquests and inquiries

At the beginning of 2008, the United Kingdom Government rolled into the Counter-Terrorism Bill some controversial proposals to reform coronial inquest processes, namely clauses that would provide for "secret inquests". The provisions were heavily criticised both inside and outside Parliament, and took a rocky passage through both the House of Commons and the House of Lords before eventually being abandoned by the government. In 2009 the government again tried to introduce "secret inquests" with the Coroners and Justice Bill, instead ultimately succeeding in establishing what critics have termed a "parallel" system of justice through provisions around "secret inquiries". This move has been seen as subverting the principles of transparency and open justice in the investigation of contentious deaths. This article examines the government's efforts to introduce "secret inquests" and thereafter "secret inquiries" in the context of the United Kingdom's coronial law and purpose, human rights obligations and the ongoing issues around sensitive intelligence, and examines the clash of laws that gave rise to the controversial proposals.     

Global Environment Threats and a Divided Northern Community

The EU, Japan, and the US now share many environmental norms, laws, and institutions and cooperate on international environmental matters through numerous bilateral and multilateral channels. They disagree, however, on how to deal with some of the most serious issues facing the global environment and the quality of human life including wide-scale biodiversity loss, climate change, the use of genetically modified (GM) organisms; the trans-boundary movement of hazardous wastes, and chemical safety. As these are all issues that require the involvement of developing countries if global environmental protection efforts are to be effective, the discord that exists among the Northern states is of tremendous significance. The US has pulled out of the Kyoto Protocol arguing that the treaty is poorly designed and would be detrimental to the US economy. Japan and the EU have had to try to find a way to bring the treaty into force without the participation of the world’s largest emitter of greenhouse gases and to convince participating countries to meet their targets even though this may put them at a competitive disadvantage. In the case of biodiversity loss, although the US initiated international negotiations on biodiversity preservation, it has refused to join the EU and Japan in ratifying the Convention on Biological Diversity. There are also differences between the US, on the one side, and Japan and the EU on the other, regarding the use of GM organisms. This article analyses the reasons for the differences that have emerged among northern states in their international environmental policy positions and what the implications of this northern policy divide are for the effectiveness and legitimacy of international environmental protection efforts.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

The house that Jacques built

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. From one point of view, this could have been the shortest reviewever published in the JIPLP. The WTO TRIPs Agreement of 1994is the most important Global IP treaty by a large margin. The     

论国际航空私法条约适用的强制性

条约的适用是国际法上一个重大的理论问题,也是国内法院在司法审判中必须面对的实践问题。1929年《华沙公约》建立了强制性适用原则,只要是公约定义的国际运输,必须适用公约。这一原则被其后包括1999年《蒙特利尔公约》在内的国际航空私法条约予以继承和保留,成为国际航空私法条约的鲜明特色。以《华沙公约》为代表的国际航空私法条约,其适用并未完全遵循国际法传统的条约适用理论,当事人国籍国是否批准条约并不是适用的前提条件,而是取决于航空运输合同所确定的始发地点和目的地点所在的国家是不是公约的缔约国或当事国,并以此为基础,建立起国际航空私法条约自身不同于其他国际法条约的适用理论和规则体系。"地点标准"是《华沙公约》适用的核心标准,其在一定程度上突破了条约适用的一般理论,是对条约适用一般理论的发展,是条约适用上的重要创新。司法实践中,应抛弃固有思维,从条约文本规定出发,才可避免法律适用上的错误。     

Democratic consolidation and parliamentary reform in Russia, 1990–93

It is a commonly held view that the Russian parliament, created in the late period of perestroika, possessed powers and structures that were incongruous with the process of democratic consolidation.’ It is a mistake, however, to suggest that parliamentary deputies failed to appreciate the problems that hampered both the parliament's work and its relationship with executive organs. Many deputies in both the All Union and Russian assemblies were committed to the creation of a ‘professional parliament’, and numerous reforms were put forward to resolve what some deputies called the ‘crisis of parliamentarism’ in Russia. These reforms, proposed by democrats and conservatives alike, raise new questions about the aims and objectives of deputies in Russia's first post‐Soviet parliament. What did deputies understand by the notion of a ‘professional parliament'? In what form did deputies envisage the new system of government? Were the many, often competing, proposals for parliamentary reform conducive to the achievement of democratic consolidation in Russia? This article will attempt to answer these questions by examining the proposals for parliamentary reform in the Russian parliament between 1990 and 1993.     

国际投资条约仲裁中投资者与东道国权益保护平衡问题研究

在国际投资条约及其仲裁中,如何在投资者和东道国权益保护之间寻求合理的平衡,是目前国际投资领域关注的热点问题之一。要合理平衡二者间的关系,应该在现行的投资条约中设置必要的例外条款,为东道国维护国家安全和公共利益预留必要的空间;应改进和完善投资条约中公平公正待遇、最惠国待遇、保护伞等核心条款的规定,防止或限制仲裁庭对其作扩大解释;应改进与完善投资条约仲裁的程序规则,使其能够满足投资者与东道国间投资争端解决的需要。     

共同利益:国际法本质的基石

共同利益是破解国际政治与国际法、国际法与国内法相互关系诸问题的关键。该文从基本法理出发 ,并从国际条约与共同利益、国际习惯与共同利益、国际法各部门法与共同利益几个方面 ,比较全面地论证了国际法的共同利益性。本文的中心议题是 :共同利益构成国际法本质内容中最基础的部分。     

美国总统缔约权的宪法规定与历史变迁

在美国缔结国际条约和国际协议的权力主要归属于国会。总统作为最高军事统帅，享有部分缔约权，这部分权力属于行政权中的“内含缔约权”（ inherent authority）。随着国际经济交往的深入，美国国会开始将缔结部分经济与贸易协议的权力让渡给总统，这部分权力属于“授权缔约权”（delegated authority）。授权缔约权的范围有多大？总统是如何获得这些权力的？通过授权缔约权缔结的国际协议具有直接适用效力还是间接适用效力？美国宪法对此没有规定。要厘清这些关系，除了仔细研读宪法相关规定之外，我们还需要进一步了解美国的立法实践以及总统缔约权的变迁历史。