The Advancement of International Law

ISBN: 9781841132785 出版年：2010 页码：346 Charles Leben Bloomsbury Publishing

PART 1-ADVANCES IN THE TECHNIQUES OF INTERNATIONAL LAW Chapter 1-State Contracts and their Governing Law: A Reappraisal State Contracts as New International Legal Acts State Contracts as Contracts entered into by States as Subjects of Public International Law State Contracts as Contracts governed by the International Legal Order Responses to some Objections On it being Impossible for Contracts between States and Individuals to come within the International Legal Order On the Preference Given to Public International Law Rather than Transnational Law for Governing State Contracts Chapter 2-The International Responsibility of States based on Investment Promotion and Protection Treaties State Responsibility in the International Legal Order Characteristics of States' International Responsibility on the Basis of Protection Treaties Justification of Resource to International Law State Responsibility on the Basis of Protection Treaties and State Responsibility in Municipal Law In the Absence of any Contractual Connection between Investor and State In the Presence of a Contractual Connection between State and Investor and with a Separate Dispute Settlement Clause from that Provided by the Protection Treaty Chapter 3-The State's Normative Freedom and the Question of Indirect Expropriation Indirect Expropriation in International Law In International Law in General In International Investment Law Maintaining the State's Normative Freedom Results of Case Law The Prudence of Arbitrators PART 2 ADVANCES IN THE THEORETICAL ANALYSIS FO INTERNATIONAL LAW Chapter 4-Some Theoretical Reflections on State Contracts The Concept of State in State Contracts The Double Personality of the State in Anzilotti Kelsen's Dismissal of the Double Personality of the State Presented by Anzillotti The Double Theory of the State in Kelsen Individuals as Subjects of Public International Law Definition of the Subject of International Law Subjects of International Law and 'Legal Communities' of International Law Objections Raised by the Dualist Doctrine Relations between Private Persons and their Home State from the Standpoint of International Law On the Inequality between States and Private Persons Private Persons bringing Proceedings before International Courts Dismissal of the Petitio Principii that Individuals can never Bring Proceedings before International Courts Can Mixed 'Tribunals' be considered International Courts? The Case of ICSID Tribunals Can 'Mixed' Courts be considered International Courts? The Case of Ad Hoc Tribunals On the Incapacity of General Principles of Law to Internationalise State Contracts Lankarani El-Zein's Argument Dismissal of this Argument On Stabilisations Clauses in State Contracts Stabilisation Clauses are Purportedly not Characteristic of a New Category of Contracts Stabilisation Clauses Purportedly do not Imply the Internationalisation of State Contracts On the Validity and Efficacy of Stabilisation Clauses Chapter 5-Hans Kelsen and the Advancement of International Law The Nature of International Law Law in its Own Right Reprisals and War: Sanctions of Decentralised International Law Centralisation of International Law: Collective Security and Compulsory Jurisdiction Changes in International Law: Towards what sort of Civitas Maxima? Centralisation /Decentralisation of Legal Orders The International Organisation as a Comparatively Centralised Legal Order and its Relations with the State The European Union as a Possible Horizon of International Law Changes in International Law: Internationalised State Contracts and the Status of Private Persons in the International Legal Order The Notion of a State Contract The Possibility of Individuals to be Limited Subjects of International Law Chapter 6-The Notion of Civitas Maxima in Kelsen's Work Civitas Maxima and the Primacy of International Law Civitas Maxima and Kelsen's Conception of Legal Orders The World State: Cognitive Postulate or State Stricto Sensu? Conclusion Chapter 7-International Courts in an Interstate Society The Decisive Criterion for the Existence of an International Legal Order Law as a System of Justiciable Rules International Law as a System of Minimally Justiciable Rules Optional Courts and Mandatory Courts Mandatory Judgement and Operative Judgement Judicial Third Party and Political Third Party International Courts and the Advancement of the International Legal Order Primacy of the Rules of Law and State Sovereignty Judicial Interpretation and Self-Interpretation of International Law Legal Disputes and Political Disputes The Development of International Law The End of Anarchy Chapter 8-The State within the Meaning of International Law and the State within the Meaning of Municipal Law (On the Theory of the Dual Personality of the State) The Two Sides or Double Personality of the State The Two Sides of the State in Classical French and German Doctrines The Double Personality of the State in Italian Internationalist Doctrine The Double Personality of the State: Kelsen's Analysis Ambiguities in Kelsen The Double Personality of the State in a Normative Conception of Legal Orders: A Proposal PART 3-EUROPEAN UNION LAW: INTERNATIONAL LAW SURPASSED OR INTERNATIONAL LAW ADVANCING? Chapter 9-On the Legal Nature of the European Communities Centralisation/Decentralisation of a Legal Order The Kelsenian Interpretation of Federalism The European Community: A Relatively Centralised International Legal Order The Importance of Central Norms The Existence of a Court to Rule on the Apportionment of Jurisdiction between the Central Order and the Local Orders The Direct Applicability of Community Law The Primacy of Community Law The International Legal Order/The State Legal Order Of the Birth of the State Of the Legal Nature of the Community and its Future Development Chapter 10-A Federation of National States or Federal State? The Reasons for Community Europe's Dysfunctions Federation and the Constitutional Theory of the State Confederation of States and Federal State The Federation (J Fischer) or Federation of Nation State ( J Delors) Sovereignty and Nation States Sovereignty Nation States The European Federation: Squaring the Circle Chapter 11-Is there a European Approach to Human Rights? Introduction The West and the Rest: Europe and the Question of the Universality of Human Rights The European Model of Human Rights: A Concrete Universal It is Possible to Conceive of the Universal and Human Rights Starting from Other Traditions The Universal and the Particular in Human Rights The European Universal and its Relations with other Civilisations The Universal and the Eternal: The Birth of Universal Human Rights in and through History Europe and the West: The European (Properly Speaking) Dimension of Human Rights Birth, Disappearance and Rebirth of Human Rights in Europe The Enforced Hibernation of the Philosophy of Human Rights in Europe Barbarity in Europe and the Renewal of the Philosophy and Positive Law of Human Rights Certain Features of the European Concept of Human Rights Conclusion