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Journal Cover International & Comparative Law Quarterly
  [SJR: 0.324]   [H-I: 25]   [144 followers]  Follow
    
   Full-text available via subscription Subscription journal
   ISSN (Print) 0020-5893 - ISSN (Online) 1471-6895
   Published by Cambridge University Press Homepage  [25 journals]
  • THE INFLUENCE OF TEACHINGS OF PUBLICISTS ON THE DEVELOPMENT OF
           INTERNATIONAL LAW
    • Authors: Sivakumaran; Sandesh
      Pages: 1 - 37
      Abstract: This article considers the influence of teachings of publicists on the development of international law. The category of ¯˜teachings of publicists¯™ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ¯˜ordinary¯™ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ¯˜influence¯™. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • ILQ volume 66 issue 1 Cover and Front matter
    • Pages: 1 - 5
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • ILQ volume 66 issue 1 Cover and Back matter
    • Pages: 1 - 9
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • THE WORKING METHODS OF THE UNITED NATIONS SECURITY COUNCIL: MAINTAINING
           THE IMPLEMENTATION OF CHANGE
    • Authors: Harrington; Joanna
      Pages: 39 - 77
      Abstract: The United Nations Security Council is often described as an opaque body, closed in both membership and approach, and unaccountable for its conduct. For many years, this view has motivated calls for reform to the Council's working methods. This article aims to shine light on the Council's approach to process matters, recognizing the Council's preference for making change through developments in practice. The article reviews the efforts undertaken by the ¯˜Small Five¯™ group of States from 2005 to 2012, followed by the efforts since 2013 of the Accountability, Coherence and Transparency Group, while also acknowledging the contributions made by Japan. With some proposals having received some degree of Council support, the sustained implementation of change is identified as the key priority. The article argues for the contextual application of the key concepts of transparency, engagement and accountability, as well as prevention, to provide a principled basis for both the maintenance and development of working methods reform.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES
    • Authors: Keay; Andrew
      Pages: 79 - 105
      Abstract: Cross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • BAIL-IN AND PRIVATE INTERNATIONAL LAW: HOW TO MAKE BANK RESOLUTION
           MEASURES EFFECTIVE ACROSS BORDERS
    • Authors: Lehmann; Matthias
      Pages: 107 - 142
      Abstract: Bank resolution is key to avoiding a repetition of the global financial crisis, where failing financial institutions had to be bailed out with taxpayers¯™ money. It permits recapitalizing banks or alternatively winding them down in an orderly fashion without creating systemic risk. Resolution measures, however, suffer from structural weakness. They are taken by States with territorially limited powers, yet they concern entities or groups with global activities and assets in many countries. Under traditional rules of private international law, these activities and assets are governed by the law of other States, which is beyond the remit of the State undertaking the resolution. This paper illustrates the conflict between resolution and private international law by taking the example of the European Union, where the limitations of cross-border issues are most acute. It explains the techniques and mechanisms provided in the Bank Resolution and Recovery Directive (BRRD) and the Single Resolution Mechanism (SRM) Regulation to make resolution measures effective in intra-Eurozone cases, in intra-EU conflicts with non-Euro Member States and in relation to third States. However, it also shows divergences in the BRRD's transposition into national law and flaws that have been uncovered through first cases decided by national courts. A brief overview of third country regimes furthermore highlights the problems in obtaining recognition of EU resolution measures abroad. This article argues that regulatory cooperation alone is insufficient to overcome these shortcomings. It stresses that the effectiveness of resolution will ultimately depend on the courts. Therefore, mere soft law principles of regulatory cooperation are insufficient. A more stable and uniform text on resolution is required, which could take the form of a legislative guide or, ideally, of a model law. It is submitted that such a text could pave the way for greater effectiveness of cross-border resolution.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • ASSESSING THE FEASIBILITY OF A BUSINESS AND HUMAN RIGHTS TREATY
    • Authors: McConnell; Lee
      Pages: 143 - 180
      Abstract: In light of a recent shift in dialogue to hard law standards in the domain of business and human rights, this article provides an in-depth examination of the viability of a business and human rights treaty. It seeks to advance a valid theoretical model for a treaty that directly addresses non-State actors, explores the allocation of responsibility among multiple duty-bearers, and contemplates the scope, content, and enforcement of the potential obligations. By supplementing this analysis with analogies drawn from existing treaty regimes, the article aims to contribute positively to the normative development of international law in the field.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • ACCOUNTABILITY MECHANISMS FOR HUMAN RIGHTS VIOLATIONS BY CSDP MISSIONS:
           AVAILABLE AND SUFFICIENT'
    • Authors: Johansen; Stian
      Pages: 181 - 207
      Abstract: This article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated. The assessment of the CSDP accountability mechanisms¯"the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level¯"is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights. The consequences of the insufficiency of these mechanisms for the EU's accession to the ECHR are also touched upon.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • UNLIKELY BEDFELLOWS: THE EVOLUTION OF THE RELATIONSHIP BETWEEN
           ENVIRONMENTAL PROTECTION AND DEVELOPMENT
    • Authors: Brighton; Claire
      Pages: 209 - 233
      Abstract: Poverty and environmental degradation are two of the gravest issues facing the planet today. The most obvious means of addressing each issue, however, appears ostensibly to undermine the other. While environmental and development strategies are largely associated with the concept of sustainable development that emerged in the 1990s, the debate between these two interests dates back to the 1940s. This article seeks to fill an apparent gap in environmental scholarship by presenting a history of the environmental protection/development relationship. It will argue that, rather than being the product of an organic development process, the concept of sustainable development and the principles underlying it were consciously shaped by a number of international actors with vested interests in their trajectory. Understanding why and how this was permitted is important not only for its capacity to throw light on the past, but also for its ability to assist in understanding and predicting the future.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • LEGAL TRANSFERS OF RESTRICTIVE IMMIGRATION LAWS: A HISTORICAL PERSPECTIVE
    • Authors: Ghezelbash; Daniel
      Pages: 235 - 255
      Abstract: This article examines the legal transfer of restrictive race-based immigration laws across self-governing settler societies in the United States, Canada, Australia, New Zealand and South Africa in the late nineteenth and early twentieth century. These societies shared the common policy objective of limiting Chinese and other ¯˜non-white¯™ immigration. They each also faced informal and formal restrictions on implementing overtly racist immigration policies. This created fertile ground for legal transfers. When an innovation was found that could achieve the policy goal of race-based immigration restriction, without direct reference to race, it quickly spread across all jurisdictions operating in that paradigm. The legal transfer of three mechanisms is examined: (1) landing taxes; (2) passenger-per-ship restrictions; and (3) literacy tests. The article concludes by drawing parallels with contemporary transfers of restrictive border control policies targeting asylum seekers and irregular migrants more broadly.
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • Fighting at the Legal Boundaries: Controlling the Use of Force in
           Contemporary Conflict by K WATKIN [OUP, Oxford, 2016, 631pp, ISBN
           9780190457976, £91.00 (h/bk)]
    • Authors: Boothby; William
      Pages: 257 - 258
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
  • Islamism, Statehood and Human Rights: A World of Difference by OLUFEMI OJO
           ILESANMI [Intersentia, Cambridge, 2016, 276pp, ISBN 978-1780683317,
           â‚¬65 (p/bk)]
    • Authors: Hodge; Patrick
      Pages: 259 - 261
      PubDate: January 2017
      Issue No: Vol. 66, No. 1 (2017)
       
 
 
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