new treatie on human understanding, pursuing Spinoza and Locke.

The COVID-19 pandemic revealed numerous weaknesses in pandemic preparedness and response, including underfunding, inadequate surveillance, and inequitable distribution of countermeasures. To overcome these weaknesses for future pandemics, WHO released a zero draft of a pandemic treaty in February, 2023, and subsequently a revised bureau's text in May, 2023. COVID-19 made clear that pandemic prevention, preparedness, and response reflect choices and value judgements. These decisions are therefore not a purely scientific or technical exercise, but are fundamentally grounded in ethics. The latest (...) treaty draft reflects these ethical considerations by including a section entitled Guiding Principles and Approaches. Most of these principles are ethical—they establish core values that undergird the treaty. Unfortunately, the treaty draft's set of principles are numerous, overlapping, and show inadequate coherence and consistency. We propose two improvements to this section of the draft pandemic treaty. First, key guiding ethical principles should be clearer and more precise than they currently are. Second, the link between ethical principles and policy implementation should be clearly established and define boundaries on acceptable interpretation, ensuring that signatories abide by these principles. (shrink)

following Spinoza an, somewhat, Locke, trough a luminous path of a unique philosophical adventure.

Obstacles to achieving a global climate treaty include disagreements about questions of justice raised by the UNFCCC's principle that countries should respond to climate change by taking cooperative action "in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions". Aiming to circumvent such disagreements, Climate Change Justice authors Eric Posner and David Weisbach argue against shaping treaty proposals according to requirements of either distributive or corrective justice. The USA's climate envoy, Todd Stern, takes (...) a similar position. In this article I explain the practical and theoretical drawbacks of Posner & Weisbach's welfarist perspective and propose an alternative. I show that their arguments fail to rule out John Rawls' non-utilitarian, political conception of international justice and human rights, the Law of Peoples. On this basis I develop a conception of climate justice that highlights implications of some of Rawls' principles and adds a principle for determining fair shares of climate -treaty-related benefits and burdens. I propose this conception as a moral framework for negotiating a treaty that would promote human welfare consistently with requirements of justice, and I argue that a treaty proposal satisfying these requirements could best satisfy Posner & Weisbach's own feasibility criteria. (shrink)

This paper’s aim is to establish an explanation for the separation of Northern minds, by examining the influence of a variety of factors on the shaping of people’s sense of identity at the time. Near the end of the 16th century the Groningers had proven to be a people with a mind of their own—impetuous, unruly and, in the end, unwilling to join the Republic in its efforts to liberate itself from its oppressive Spanish overlord. One by one the Dutch (...) cities had joined the revolution, but the city of Groningen refused. The ‘Ommelanden’—the city’s surrounding territory—however, did not—laying bare a critical disagreement between two ‘classes’: the Saxon city elite and the predominantly Frisian countryside nobles (Dutch plural: landjonkers/jonkheren). (shrink)

This article examines the British colonial theft of Indigenous sovereignty and the particular obstacles that it presents to establishing just social relations between the colonizer and the colonized in settler states. In the first half, I argue that the particular nature of the crime of sovereign theft makes apologies and reparations unsuitable policy tools for reconciliation because Settler societies owe their very existence to the abrogation of Indigenous sovereignties. Instead, Settler states ought to return sovereignty to the land’s Indigenous peoples. (...) In the second half of this paper, I take up some of the practical questions of how this might be done and anticipate a number of objections. Giving up sovereignty would not mean dispossessing the millions of colonists who currently reside in these countries of their homes and property – but it does mean rethinking the constitutional makeup of a country and how that serves to benefit the different peoples who make their homes there. (shrink)

Human rights treaties are often attached and complemented with Optional Protocols. The Optional protocol instruments are adopted after careful deliberation between different stakeholders including member states to human rights treaties. -/- The present document on Introduction to the International Covenant on Economic Social and Cultural Rights- Optional Protocol [OP-ICESCR] is an addition to the on-going work on the Human Rights Framework on ESC Rights. It covers basic information on the objectives of the OP and the key provisions dealing (...) with the redressal mechanisms and processes. Much emphasis is given to highlighting the expansion of the normative framework through the works of the Committee under the ICESCR. The document highlights a few of the important standards developed, interpreted and applied by the Committee in its dealing with member states. The document also mentions a few areas that need further study and analysis in order to understand the impact of the OP-ICESCR mechanisms within domestic jurisdictions, particularly of the member states. (shrink)

Philosophical Anthropology treatie in portuguese language.

In this article, I present a two-pronged argument for the immorality of contemporary, asymmetric drone warfare, based on my new interpretations of the just war principles of “proportionality” and “moral equivalence of combatants” (MEC). The justification for these new interpretations is that drone warfare continues to this day, having survived despite arguments against it that are based on traditional interpretations of just war theory (including one from Michael Walzer). On the basis of my argument, I echo Harry Van der Linden’s (...) call for “an international treaty banning all weaponized UAV [uninhabited aerial vehicles].”. (shrink)

In this public communication, AI policy theorist Demetrius Floudas introduces a novel era classification for the AI epoch and reveals the hidden dangers of AGI, predicting the potential obsolescence of humanity. In retort, he proposes a provocative International Control Treaty. -/- According to this scheme, the age of AI will unfold in three distinct phases, introduced here for the first time. An AGI Control & non-Proliferation Treaty may be humanity’s only safeguard. This piece aims to provide a publicly accessible exposé (...) of the most pertinent current issues in the governance, ethics and social impact of Artificial Intelligence. (shrink)

When a liberal-democratic state signs a treaty or wages a war, does its whole polity do those things? In this article, we approach this question via the recent social ontological literature on collective agency. We provide arguments that it does and that it does not. The arguments are presented via three considerations: the polity's control over what the state does; the polity's unity; and the influence of individual polity members. We suggest that the answer to our question differs for different (...) liberal-democratic states and depends on two underlying considerations: the amount of discretion held by the state's officeholders; the extent to which the democratic procedure is deliberative rather than aggregative. (shrink)

The politics of climate change is marked by the fact that countries are dragging their heels in doing what they ought to do; namely, creating a binding global treaty, and fulfilling the duties assigned to each of them under it. Many different agents are culpable in this failure. But we can imagine a stylised version of the climate change case, in which no agents are culpable: if the bad effects of climate change were triggered only by crossing a particular threshold, (...) and it was reasonably, but mistakenly, believed by each country that insufficiently many other countries were willing to cooperate in order for that threshold to remain uncrossed, no country would be required to make a unilateral contribution. Yet even without culpability, we can diagnose a moral ill: the world has gone other than it should have. If not for the mistaken beliefs, there would have been a global climate treaty, and all the avoidance of future suffering that would come with it. In this article I argue that this moral ill has implications for the non-culpable agents, in that it generates duties to disgorge actual holdings over and above the counterpart holdings in the relevant counterfactual: those holdings the agents would have had, were the world to have gone as it should. (shrink)

Multiple states are at risk of becoming uninhabitable due to climate change, forcing their populations to flee. While the 1951 Refugee Convention provides the gold standard of international protection, it is only applied to a limited subset of people fleeing their countries, those who suffer persecution, which most people fleeing climate change cannot establish. While many journalists and non-lawyers freely use the term “climate refugees,” governments, and courts, as well as UNHCR and many refugee experts, have excluded most climate refugees (...) from the Convention as a matter of legal interpretation. In our 2015 paper, “Unable to Return in the 1951 Refugee Convention: Stateless Refugees and Climate Change”, we sought to reopen the debate on “climate refugees” by arguing that some climate refugees qualify under the 1951 Convention as it is currently written (even if they are not persecuted): those who are stateless and are unable to return to their country of origin because climate change has rendered it uninhabitable. Our interpretation, however, has been rejected by Goodwin-Gill and McAdam (2021) and by Foster and Lambert (2019), which explicitly responds to our paper. Here, we address and respond to their arguments, and develop a new supplementary one, drawing on the principle of systemic integration, as enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties. (shrink)

Substantially increased wealth inequality across the developed world has prompted many philosophers, economists and legal theorists to support comprehensive taxes on all forms of wealth. Proposals include levying taxes on the basis of total wealth, or alternatively the change in the value of capital holdings measured from year-to-year. This contrasts with most existing policies that tax capital assets at the point they are transferred from one beneficiary to another through sale or gifts. Are these tax reforms likely to meet their (...) aims of greater economic and political equality? We argue that these policies are likely to fail because, following neoclassical economic theory, they are based on a conception of capital as possessing given values in what amounts to a static equilibrium. This mischaracterizes the dynamic and subjective character of market economies and the contested value of real instantiations of capital goods. This makes them very difficult, often impossible, to value apart from at the point of voluntary transfer or profit realization. This means most taxes levied on a mark-to-market basis will be arbitrary and unfair. We propose alternative policies based on an income realization approach to taxation that are more likely to curb excessive wealth holdings. This includes introducing international treaties that prohibit preferential tax treatment for individual companies and specific sectors, and broadening the income tax base to include the imputed rent of personal housing wealth. (shrink)

Under the UDHR, all persons have the right to "seek and to enjoy . . . asylum from persecution." From this designation as fundamental followed codification of the right in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating (collectively 'the Convention'), the "centrepiece" of treaties and customary norms that make up international refugee law. It defines and regulates the status and rights of refugees; its purpose is to safeguard the basic rights of persons (...) "outside their country of origin," who have fled due to a legitimate fear of persecution. Fundamentally, it guarantees that asylees and refugees enjoy rights without discrimination; without penalization for illegal territorial entry; and, without expulsion or return to "territories where . . . life or freedom would be threatened on account of . . . race, religion, nationality, membership of a particular social group or political opinion," —or 'non-refoulement'. What follows is background on development of the principle of non-refoulement, evasive US Asylum Cooperative Agreements ('ACAs') and implementing legislation, and the resulting erosion to the right to asylum. (shrink)

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can (...) resolve a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

The urgent importance of dealing with the climate crisis has led some influential theorists to argue that at least some demands for justice must give way to pragmatic and strategic considerations. These theorists (Cass Sunstein, Eric Posner, and David Weisbach, all academic lawyers, and John Broome, an academic philosopher) contend that the failures of international negotiations and other efforts to change economic policies and practices have shown that moral exhortations are worse than ineffective. Although Broome's position is similar in these (...) respects to that of Sunstein, Posner and Weisbach, it differs in other important respects, including his understanding of the idea of justice, his disagreement with the policy approach (which he calls "efficiency with sacrifice") favored by the economists Nicholas Stern and William Nordhaus, and his proposal for establishing a new international financial institution, a World Climate Bank, in addition to putting a price on carbon. Elsewhere I offer a critical analysis of the position taken by Posner and Weisbach in their book, Climate Change Justice. Their arguments against allowing principles of distributive justice (narrowly understood) to constrain treaty negotiations fail to rule out the principles of John Rawls' Law of Peoples (which is a conception of the moral basis of a just international order, including states' obligations to secure basic human rights for all). Therefore their arguments against shaping climate treaties to reflect any principles of justice do not succeed in supporting their position. Here I offer a critical analysis of Broome's position. I raise and discuss objections to Broome's proposal for a WCB, and I argue that the continued relevance of these objections is contingent on how the proposal for a WCB may get developed. (shrink)

The 20th century was a bloody one, full of armed clashes which destroyed Europe, withered an entire generation’s hope of European-level peace. After the Versailles Treaty, the famous economist John Maynard Keynes uttered this prophecy: ”With such a peace treaty, you’ll be at war again within 20 years”. John Maxwell Coetzee, an important South-African novelist, called the 20th century “Satan’s century”. A tough statement yet extremely true unfortunately. Besides war, the past one hundred years also witnessed terrible totalitarian regimes occur, (...) such as the Nazi and fascism. The hardness of those regimes at least equaled the suffering caused by the world wars. One wouldn’t be wrong to call such regimes state terrorism: a leader suppressing his own citizens just to satisfy his own fantasy. The hugeness of their deeds goes beyond human imagination according to the number of victims. A classical word of wisdom describes terrorism as follows: ”It kills a few, but terrifies more”. (shrink)

One of the ṣaḥābīs of Prophet Muḥammad is ʿUrwa b. Masʿūd from the Ṭāʾif tribe of Thaqīf. He belongs to the Ahlâf part of the Thaqīf tribe and he is the ruler of this part. ʿUrwa’s ancestry is known without any controversy until Kasî (Thaqīf). According to a narrative his epithet was Abū Yaʿfur and another of his epithet was Abū Masʿūd. Father of ʿUrwa an important person too. He is one of the leaders of his tribe and he commanded (...) his part (Aḥlāf) in wars of Fijār. Mother of ʿUrwa is Subay’a bt. ʿAbd Shams from Banū Umayya. In this way ʿUrwa has kinship both with Banū Umayya and Prophet Muḥammad. So ʿUrwa has a very important position because of his lineage, his mother and father. Thefore, his connections with Mecca and Quraysh strengthens his position. In our sources there is no information about his dates of birth and death. It is likely to be over middle age when he became a muslim, considering that he was the leader of his tribe and his son become a muslim after he died. There is too little information about weddings of ʿUrwa. According to narratives, he had ten wives before becoming Muslim. After becoming a Muslim Prophet Muḥammad warned from him to prefer four out of ten wives. One of his four wives is the daughter of Abū Sufyān. Howev-er, there is no information about the names of his wives. Names of his sons: ʿĀṣim, Abū Murra, Abū Mulayḥ, Dāwūd, Hammām and Hishām and names of his daughters: Umm Saʿīd (married with Ḥaẓrat ʿAlī) and Ḥalīma. We could see he served as embassy before the treaty of Hudaybiyah. His embassy duty shows us the superiority of his position. Also, this embassy duty was very effective at peace negotiations. He mentioned kinship relations which connects about Mecca. He said that it could be beneficial to talk to Prophet Muḥammad himself. The Meccans mentioned about their trust in ʿUrwa. During the time of his embassy, he expressed that both sides should be away from war. In this context, he told the Meccans: The people around Prophet Muḥammad are very loyal to him and he told to Prophet Muḥammad: People around him could disintegrate easily. This mission shows us he is intelligent, respectable and had high persuasion skills. ʿUrwa, observed loyalty of ṣaḥābīs to Prophet Muḥammad. He confessed this loyalty can not be for any ruler. This observa-tion probably affected ʿUrwa’s conversion to Islam. Because of the conquest of Meccah and the events that followed, the people of Ṭāʾif were very worried. Because of this reason people of Ṭāʾif took part in the side of Hawāzin’s and they bat-tled with Muslims. In this time they sent ʿUrwa b. Masʿūd and Ghaylān b. Salama to the city of D̲j̲aras̲h̲ of Yemen, to learn about some war machines and techniques. Therefore they did not join wars of Hunayn and Ṭāʾif. Prophet Muḥammad ended the siege of Ṭāʾif and went to Medina. Meanwhile, ʿUrwa and his friend returned from Yemen. According to narratives when the Prophet Muḥammad returned Medina or he was way in Medina ʿUrwa visited him and became Muslim. Some people tell about the date of ʿUrwa’s being Muslim at before or after Abū Bakr’s emirate of Hadj. However, when the narrations are examined, it can be said he became Muslim after four or five months from Prophet’s siege of Ṭāʾif and before three or four months from Tabūk expedition of Rabīʿ al-awwal or “Rabīʿ al-ākhir” (July or August) in the year 9/630. As for the conversion of ʿUrwa, basic sources report that “Allah, inspired Islam to the heart of ʿUrwa and he changed his situation. He went to the Messenger of Allah and he became Muslim.” They do not give a specific reason. But after this period the narratives tell the reason for ʿUrwa’s becoming a Muslim as due to an experience he had while travelling to Najrān for trade. In this travel, two mysterious young girls and the priest in Najrān said the last prophet came and ʿUrwa must be subject to him and ʿUrwa became Muslim after he returned. But this narrative is prob-lematic with regard to evidence and text. After being Muslim, ʿUrwa wanted permission from the Prophet to invite his tribe to accept Islam. The prophet did not want to accept this at first. Because the people of Ṭāʾif had an arro-gant stance against Islam, and he said that the people of Thaqīf could kill ʿUrwa. Eventually ʿUrwa went to his hometown with permission of Prophet and invited people to Islam and they did not accept this invitation and cursed ʿUrwa. The next morning ʿUrwa read adhan of fajr and people of Ṭāʾif killed him. ʿUrwa b. Masʿūd was likened to Prophet Jesus by the Prophet Muḥammad. It is generally accept-ed that ʿUrwa b. Masʿūd el-Thaqafī is “one of the biggest from two cities” expressed in sūra Zukhruf. Only two weak narrations were reported of Urwa who could live as a Muslim for a few days and was matyred by his tribe. (shrink)

As Ebbinghaus (1908) tells us in the opening words of his popular textbook of psychology, “psychology has a long past but only a short history.” In my opinion, there are three foundational moments in the history of psychology and, paradoxically, all three are moments of great advancement in biology. First, in the long past of psychology, psychology did not exist as such but was part of philosophy. It is extremely interesting to understand why it has been necessary, at one point (...) of time in the sixteenth century, to invent this field and to create a signifier – namely “psychology” – separate from philosophy, which enabled the field to distinguish itself from philosophy (Mengal, 2000/2001). In this century of religious violence, bare corpses lay everywhere and progresses in anatomy are major. In 1540, the German religious reformer Philippe Melanchthon publishes a book which comments the De anima of Aristotle and he completes the Aristotelian text with a long treaty of anatomy (Mengal, 2000/2001). On the basis of this new knowledge, Melanchthon attributes functions to the body which were previously reserved for the soul. The brain becomes the principal organ of sensory functions and displaces the heart as the seat of emotional life and of thought. To the Aristotelian position that all living beings, whether plant, animal, or human, to varying degrees possess a soul which organizes the body, Melanchthon opposes a dualistic anthropology which divides the human in body and soul. The two-dimensional “anthropologia” is articulated in “anatomia,” science of body, and “psychologia,” science of the soul. It is this new anthropology that is diffused into the world of the Reformation (Mengal, 2000/2001). The Dutch reformer Snellius (1594), for example, defines the body and the soul by their respective essential property: “The rational soul of man is the thought that, coupled with the body, completes man. (…) The physical things closer to natural bodies that move naturally, have an extension and for that reason occupy a space. (…) The faculty of the rational soul is the mind or will. Thought is the faculty of the soul to discourse and think about things which are and which are not.”1 (Snellius, 1594, pp. 26–27). It is as a philosopher that René Descartes proposes his dualist vision much in line with the reformist opinions. Descartes dissects animals and human cadavers and is familiar with the research on the flow of blood (Fuchs, 2001). He comes to the conclusion that the body is a complex device that is capable of moving without the soul, thus contradicting the Aristotelian doctrine of the soul. The metaphysical order, which states that the body exists by the soul, is broken. (shrink)

The anti-counterfeiting trade agreement was originally meant to harmonise and enforce intellectual property rights provisions in existing trade agreements within a wider group of countries. This was commendable in itself, so ACTA’s failure was all the more disappointing. In this article, I wish to contribute to the post-ACTA debate by proposing a specific analysis of the ethical reasons why ACTA failed, and what we can learn from them. I argue that five kinds of objections—namely, secret negotiations, lack of consultation, vagueness (...) of formulation, negotiations outside any international body, and the creation of a new governing body outside already existing forums—had only indirect ethical implications. This takes nothing away from their seriousness but it does make them less compelling, because agreements should be evaluated, ethically, for what they are, rather than for the alleged reasons why they are being proposed. I then argue that ACTA would have caused three ethical problems: an excessive and misplaced kind of responsibility, a radical decrease in freedom of expression, and a severe reduction in information privacy. I conclude by indicating three lessons that can help us in shaping a potential ACTA 2.0. First, we should acknowledge the increasingly vital importance of the framework of implicit expectations, attitudes, and practices that can facilitate and promote morally good decisions and actions. ACTA failed to perceive that it would have undermined the very framework that it was supposed to foster, namely one promoting some of the best and most successful aspects of our information society. Second, we should realise that, in advanced information societies, any regulation affecting how people deal with information is now bound to influence the whole ‘onlife’ habitat within which they live. So enforcing IPR becomes an environmental problem. Third, since legal documents, such as ACTA, emerge from within the infosphere that they affect, we should apply to the process itself, which one day may lead to a post-ACTA treaty, the very framework and ethical values that we would like to see promoted by it. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to (...) improve the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

A summary assessment of the dimensions and concentrations of military equipment manufacture primarily in the United States and western Europe and the extent of availability of this equipment to buyers throughout the world. Treaty-based limitations are also listed.

The article reviews on the technical attributes on current technologies deployed in outer space and those that are being developed and mass produced. The article refutes the Chinese state-controlled Xinhua News’ propaganda several years ago on objecting America’s deployment of nuclear technologies in outer space with rigorous scientific evidence. Furthermore, the article warns on the dangers of physical signals applied in outer space technologies that can threaten the solar system, especially the Mozi quantum satellite with photon beams. The article concludes (...) with the illicit practices by the Chinese state party with militant ambitions in the supposedly scientific institutions. It violates the spirit on the peaceful use of outer space, and goes against the 2222 (XXI) resolution adopted by the general assembly, including the 1967 Outer Space Treaty banning the stationing of weapons of mass destruction in outer space. (shrink)

The precautionary principle (PP) aims to anticipate and minimize potentially serious or irreversible risks under conditions of scientific uncertainty. Thus it preserves the potential for future developments. It has been incorporated into many international treaties and pieces of national legislation for environmental protection and sustainable development. In this article, we outline an interpretation of the PP as a framework of orientation for a sustainable information society. Since the risks induced by future information and communication technologies (ICT) are social risks (...) for the most part, we propose to extend the PP from mainly environmental to social subjects of protection. From an ethical point of view, the PP and sustainability share the principle of intergenerational justice, which can be used as an argument to preserve free space for the decisions of future generations. Applied to technical innovation and to ICT issues in particular, the extended PP can serve as a framework of orientation to avoid socio-economically irreversible developments. We conclude that the PP is a useful approach for: (i) policy makers to reconcile information society and sustainability policies and (ii) ICT companies to formulate sustainability strategies. (shrink)

The discursive character of human rights prevents a precise summary of historical origin, rationale, or definition outside of the various codifications in religious texts, secular philosophies, founding national documents, and international treaties, charters, conventions, covenants, declarations, and protocols. Regarding the objects of human rights, we can speak of a “foundational five” 1) Personal security 2) Material subsistence 3) Elemental equality 4) Personal Freedom and 5) Recognition as a member of the human community. Despite, or perhaps because of its multivalence, (...) the concept of human rights has been criticized as “foundationalist,” “essentialist,” or “ethnocentric”—its universalism being used as a weapon against itself by critics of cultural imperialism. Even the tolerance discourses so popular in critical theory, however, gain their normative force from the same basic notion of individual or group rights. Notwithstanding these rhetorical abuses, the concept of human rights has proved robust as a doctrine of equality owing to its openness to a pluralism of justifications grounding the basic “goods” agreed as necessary for human development. (shrink)

The concept of sovereignty is a recurring and controversial theme in international law, and it has a long history in western philosophy. The traditionally favored concept of sovereignty proves problematic in the context of international law. International law’s own claims to sovereignty, which are premised on traditional concept of sovereignty, undermine individual nations’ claims to sovereignty. These problems are attributable to deep-seated flaws in the traditional concept of sovereignty. A viable alternative concept of sovereignty can be derived from key concepts (...) in Friedrich Nietzsche’s views on human reason and epistemology. The essay begins by considering the problem of sovereignty from the ancient philosophical perspective inherent in the fundamental assumptions and ideas of Plato’s political philosophy and epistemology. It then considers the contemporary problem of sovereignty in the context of international law by examining Louis Henkin’s formulation of and approach to it in his essay That S-Word: Sovereignty, and Globalization, and Human Rights, Etc. Finally, the essay articulates Nietzsche’s views on intellectual conscience, discusses their merits and advantages when used in dealing the problem of sovereignty in the context of international law, and proposes a solution to this problem that draws on the philosophies of Nietzsche, Novalis, Kant and Plato. The essay illustrates the relevance and advantages of this solution by examining the issue of states’ reservations to international treaties and conventions. (shrink)

The World Trade Organization (WTO) is a multilateral trade organization that, at least partially, governs trade relations between its member states. The WTO (2011a) proclaims that its “overriding objective is to help trade flow smoothly, freely, fairly and predictably.” The WTO is a “treaty-based” organization – it has been constituted through an agreed, legally binding treaty made up of more than 30 articles, along with additional commitments by some members in specific areas. At present, 153 states are members of the (...) WTO, which collectively make up over 97 percent of all trade worldwide (WTO 2011b). Together, the WTO treaty specifies the rights and obligations of its member states. To become a member of the WTO, a state must treat the agreement as a “single undertaking.” Members cannot choose à la carte which agreements – for example, regarding tariffs, or trade in services or intellectual property – they want to accede to and which they do not. Instead, they must take on the obligations of the agreement in toto. The WTO is one of the most consequential governance institutions in the world, a lodestar of political debate about globalization (see globalization), attracting increased interest from moral and political philosophers in recent years (James 2006; Moellendorf 2005; Risse 2007; Brock 2009). (shrink)

This article asks how the costs and benefits of operating a monetary union should be distributed amongst its more and less competitive members, taking as an example the operation of the European Monetary Union (EMU or Eurozone). Drawing on existing domestic and transnational justice debates, I resist both a purely procedural and a purely distributive view. The former assumes treaties against a fair background can make any distribution fair and disregards how individual citizens are likely to fare depending on (...) how a monetary union is organized. The latter requires justice amongst Eurozone co-citizens, and it neglects the value of member state’s choices and attitudes towards risk. Instead, I defend a view of the EMU as an association of free self-determining states. I also argue that a variety of factors are relevant to this problem, including the need to protect less competitive states from ‘domination’, or inappropriate forms of control by their co-members, and to protect citizens from various forms of deprivation even if their own governments are willing to expose them to the relevant risks. This article asks how the costs and benefits of operating a monetary union should be distributed amongst its more and less competitive members, taking as an example the operation of the European Monetary Union (EMU or Eurozone). Drawing on existing domestic and transnational justice debates, I resist both a purely procedural and a purely distributive view. The former assumes treaties against a fair background can make any distribution fair and disregards how individual citizens are likely to fare depending on how a monetary union is organized. The latter requires justice amongst Eurozone co-citizens, and it neglects the value of member state’s choices and attitudes towards risk. Instead, I defend a view of the EMU as an association of free self-determining states. I also argue that a variety of factors are relevant to this problem, including the need to protect less competitive states from ‘domination’, or inappropriate forms of control by their co-members, and to protect citizens from various forms of deprivation even if their own governments are willing to expose them to the relevant risks. (shrink)

Theorists and activists favor empowering government agencies to regulate technology; but an examination of such regulation by the US government exposes the inadequacy of any such regimen. Vested interests routinely interfere, e.g., keeping administration of polio vaccine in the hands of physicians, political infighting with regard to cancer research funding, advantages gained from noncompliance with military technology-constraining treaties. Public/private salary differences limit availability of the best talents for government positions, nor are truly appropriate regulatory policies easily arrived at in (...) the absence of meaningful funding. Solutions such as a Science Court are unreliable given the influences that would undermine neutrality as well as competence. (shrink)

This paper takes up the possibilities for thinking about human solidarity that can be found in Immanuel Kant’s writings on history. One way of approaching Kant’s philosophy of history is to focus on what would seem to be an antinomy in Kant’s account between the role of nature and the demands of freedom. Whereas nature, according to Kant, ruthlessly drives us into a state of perpetual war until finally, exhausted and bankrupt, we are forced into an international treaty for peace, (...) freedom, and the morality that flows from it, requires that each individual obey the supreme moral principle, namely, that we treat all people as ends in themselves and never merely as means; that we never, in other words, wage war. This antinomy is resolved once we see that, for Kant, a community of moral agents can only arise as a result of a perfect political constitution; a constitution that itself can only arise at the end of a history of war. (shrink)

Governments across the world appreciate the need for checks on the transfer or exportation of commodities, information, software, and technology considered of strategic value. In order to control exports, countries rely on laws, treaties, international arrangements and other related instruments. In the current case, the UAE is largely dependent on Federal Law No. 12 of 2008 while the UK depends on the Export Control Act of 2002. It is established that the legislations enact amendments to reflect the dynamic nature (...) of the state environment. However, the entry into international arrangements supports the view that the fight against trading in dual-use, military, or sensitive products require cooperative efforts from state parties in order to attain success. The current paper assesses export controls in the United Arab Emirates and the United Kingdom. (shrink)

The author examines the arguments for applicability of the limitation clause which specifies the requirements for limitation of constitutional freedoms and rights (Article 31 para. 3 of the Constitution) to the right to protection of life (Article 38). Even if there is almost a general acceptance of such applicability, this approach does not hold up to criticism based on the rule existing in the Polish legal order that treaty commitments concerning human rights have supremacy over national statutory regulations. Due to (...) an international pattern which does not provide application of the limitation clause to the right to life protection, despite the recognition — at the level of a constitutional standard — of applicability of the clause of Article 31 para. 3 to Article 38, and to protection of life in general, this will be made impossible at any attempt to formulate a statutory standard. He also points out the defectiveness of the reasoning leading to acceptance of certain limitations of a particular value (e.g. life) on the basis of the ex definitione exemptions existing in the international standard to the assumption of applicability of the limitation clause when shaping statutory standards in the Polish legal system. The discussed issues are related to the question of interpretation of the inviolability of human rights. This term takes different meaning in the context of: 1) inviolability of all human rights understood in abstracto as normative structures of a general and abstract nature; 2) right protecting certain values with no exception; 3) rights to which an application of the limitation clause is forbidden; 4) rights not subject to derogation; 5) inviolability of understood in concreto, as that is (here and now) due to the subject of dignity; 6) inviolable essence of freedoms and rights. One should also clearly distinguish between (7) the descriptive and (8) the normative meaning of inviolability. -/- Punktem wyjścia jest analiza argumentacji na rzecz tezy o stosowalności do prawa do ochrony życia (art. 38 Konstytucji RP), klauzuli limitacyjnej określającej warunki ograniczania konstytucyjnych wolności i praw (art. 31 ust. 3). Mimo niemal powszechnej akceptacji tej tezy, nie wytrzymuje ona krytyki opartej na pierwszeństwie, które w polskim porządku prawnym mają zobowiązania traktowe dotyczące praw człowieka, wobec regulacji ustawowych. Ze względu na wzorzec międzynarodowy, który nie przewiduje stosowania klasycznej klauzuli limitacyjnej do prawa do życia, mimo uznania - na poziomie standardu konstytucyjnego - stosowalności klauzuli z art. 31 ust. 3 do art. 38 i ochrony życia w ogóle, stosowalność tej klauzuli będzie uniemożliwiona przy każdej próbie formułowania standardu ustawowego. Autor zwraca uwagę na wadliwość wnioskowania prowadzącego od uznania dopuszczalności pewnych ograniczeń ochrony jakiejś wartości (np. życia) na podstawie wyjątków ex definitione obecnych w standardzie międzynarodowym, do tezy o stosowalności klauzuli limitacyjnej przy kształtowaniu standardu ustawowego w polskim systemie prawnym. (shrink)

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. [ii] In terms (...) of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. -/- At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? -/- While harmonization is widely promoted, its study and assessment is complex. (shrink)

The jurisprudence under international human rights treaties has had a considerable impact across countries. Known for addressing complex agendas, the work of expert bodies under the treaties has been credited and relied upon for filling the gaps in the realization of several objectives, including the peace and security agenda. -/- In 1982, the Human Rights Committee (ICCPR), in a General Comment observed that “states have the supreme duty to prevent wars, acts of genocide and other acts of mass (...) violence ... Every effort … to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.” Over the years, all treaty bodies have contributed in this direction, endorsing peace and security so as “to protect people against direct and structural violence … as systemic problems and not merely as isolated incidents …”. A closer look at the jurisprudence on peace and security, emanating from treaty monitoring mechanisms including state periodic reports, interpretive statements, the individual communications procedure, and others, reveals its distinctive nature. (shrink)

This document articulates the foundational principles, legal frameworks, and strategic imperatives underpinning the establishment of Imperium Romanum a sovereign Digital Nation-State. It aims to provide a comprehensive analysis grounded in international relations, legal theory, economics, and historical prece- dents. The focus is on addressing the existential threats posed by blockchain technology, AI, social impact bonds, digital identification systems, and social engineering practices that collectively risk transforming individuals into un- witting digital subjects—a violation of international laws prohibiting unlawful imprisonment and forced (...) labor. By asserting sovereignty over unclaimed territories such as Marie Byrd Land in Antarctica for research purposes, Imperium Romanum seeks to legitimize its physical presence in accordance with international law, including the Antarctic Treaty System. This document employs advanced legal argumentation, referenc- ing precedent cases and established legal theories, to advocate for the voluntary acceptance of citizenship within Imperium Romanum as a means to counteract the unstoppable technological innovations in Web3 and FinTech that threaten individual autonomy and liberty. (shrink)

The dispute settlement mechanism in FTAs is necessary as they provide means to settle disagreements on interpretation or compliance with treaty obligations. The dispute settlement mechanism help ease tensions among FTA parties and maintain healthy relationships among trading partners. Bashar H. Malkawi.

In lieu of an abstract, here is a brief excerpt of the content:Why Gaia?Massimo Pigliucci (bio)The Gaia Hypothesis: Science on a Pagan Planet, Michael Ruse, Chicago: University of Chicago Press, 2013. 272 pages.“The Gaia Hypothesis: Science on a Pagan Planet tells a story that comes out of the 1960s, a story that reflects all of the beliefs and enthusiasms and tensions of that decade.” So begins Michael Ruse’s fascinating, if at times puzzling, exploration of James Lovelock’s famous idea that our (...) planet is, in a serious scientific sense, a living organism with a tendency of taking care of (her)self. But why tell this particular story, especially considering that Gaia hardly makes an appearance in today’s scientific or philosophical publications, and doesn’t even seem quite that popular with the lay public as it used to be? Because, as Ruse tells us near the end of the book, at the onset of chapter seven: “the paradox that set us on our path [is] why the scientific community reacted so negatively to the Gaia hypothesis, whereas the public reaction was so positive.”As it turns out, there is a good answer to that conundrum, one that Ruse himself lays out clearly in the last chapter of the book, and which makes the reader wonder why this should count a paradox at all. But we will get there in due time. First, the basics: the so-called Gaia hypothesis is the brainchild of iconoclastic inventor-turned-independent-scientist James Lovelock, who later got significant help in elaborating (and promoting) his ideas from another iconoclast, biologist Lynn Margulis. By the time you get to the end of Ruse’s engaging book, however, you won’t have gained a particularly good understanding of what the hypothesis actually consists. But that’s not Ruse’s fault, it is Lovelock’s (and Margulis’). At times it sounds like the entirely uncontroversial claim that the Earth’s [End Page 117] biosphere is a somewhat homeostatic system—i.e., a biophysical system that is resistant to major changes, at the least within a certain range (the planet’s atmosphere, after all, did change dramatically early on, increasing its oxygen content as a result of the evolution of photosynthetic organisms—the anaerobic life forms that had up to that point been dominant did not appreciate the novelty). At other times the claim is downright preposterous: the Earth literally is a living organism (according to Lovelock) (Chapter 7),1 a finding that allegedly puts in question the whole Darwinian view of biological evolution (according to Margulis) (Chapter 7), a position that can only be characterized as nonsense on stilts. At yet other moments, Gaia is presented as just a metaphor to help us wrap our minds around the complexities (and homeostatic properties) of the world’s ecosystems (Chapter 8). It is this never-ending oscillation between the trivial and the bizarre that has led the majority of scientists to write off Gaia, to the chagrin of Lovelock, Margulis, and a large number of New Age tree huggers from the 1960s.Indeed, the scientific reaction to Gaia was swift and ranging from the condescending to the unforgiving. Evolutionary biologist John Maynard Smith—never one to mince words—called it “an evil religion” (Chapter 2). Another evolutionary biologist, Stephen Jay Gould (whose own disagreements with Maynard Smith became legendary) said that “Gaia strikes me as a metaphor, not a mechanism” (Chapter 2). Ecologist Robert May, who eventually became president of the Royal Society, called Lovelock “a holy fool” (Chapter 2). The highly respected theoretical biologist W.D. Hamilton said that in order for the hypothesis to work, it would require “treaties between Neptune and Zeus, a Gaian Interpol, conventions about bills of lading for chemical transport by air and water, and so on” (Chapter 7). Finally, Richard Dawkins accused Lovelock of committing the fallacy of “the BBC theorem,” assuming (or wishfully thinking) that the world is a harmonious place, just like in naive BBC nature documentaries (Chapter 2).You get the gist: pretty much from the beginning, and with very few exceptions, the scientific establishment rejected Gaia on the grounds that it is not a scientific hypothesis at all, and that its main tenets actually go against pretty... (shrink)

Why Human Rights? addresses universal human rights as moral mandates – rights to justice that all m persons have by virtue of their humanity alone. These are not the legal rights of statutes and treaties, but moral rights of the kind Gandhi, King, and Mandela invoked to oppose unjust laws. All such rights presuppose three claims: (1) that some duties of justice apply universally, (2) that all human beings have equal moral status, and (3) that states must protect or (...) serve certain individual interests regardless of the societal impact of doing so. -/- Can these three premises be justified? Is the human equality claim, for example, rationally supportable, or is it no less faith-based than hierarchical doctrines like caste? This book explores the case for these foundational claims along with other philosophical controversies pertaining to human rights. Because these issues lie at the heart of moral and political philosophy, readers will also obtain a broad appreciation of these disciplines and their leading theorists, including Mill, Kant, Rawls, Sandel, Nozick, Rorty, and many others. Written in concise, jargon-free language, this book presents a high-relief map of the philosophical issues surrounding human rights. (shrink)

Alexander James Dallas' An Exposition of the Causes and Character of the War was written as part of an effort by the then US government to explain and justify its declaration of war in 1812. However publication coincided with the ratification of the Treaty of Ghent, which ended the War. The Exposition is especially interesting for the insight it provides into the self-constraint of American foreign policy and of the conduct of a war. The focus is on the foreign policy (...) of the early republic and the related philosophy of law and war. A central idea is that international law should chiefly benefit those remaining at peace. -/- Dallas was a Philadelphian who settled there in 1783, the year of the Peace of Paris which ended the War of Independence, arriving from Jamaica after a British education. He wrote much on law, becoming the first recorder of cases before the U.S. Supreme Court. He later served as Secretary of the Commonwealth of Pennsylvania, and federal district attorney for Eastern Pennsylvania, appointed by President Jefferson. He was appointed Secretary of Treasury by President Madison. -/- In this edition the original text is presented with annotations to help identify persons and events of interest. The editor has also added an Introduction, a Bibliography, a short Chronology of Dallas' life and the events of the War, and an analytical Index. As such this annotated edition presents a key primary source in a manner helpful to research for students of the early Republic. (shrink)

Disability laws are crucial in ensuring a life of dignity for persons with disabilities. However, they remain limited and ineffective in the absence of adequate knowledge and awareness of the experiences with disability. The limitedness of disability laws has been spoken of in cases where the full realization of rights is subject to technological, philosophical, and market dynamics. In many cases, the law is also weakened by negative cultural beliefs and social perceptions of disability. And then there are cases where (...) disability laws perpetuate or tolerate oppression and violence. Despite their limitedness, disability laws offer normative content to facilitate engagement and critique for reform. In terms of what disability laws ‘ought’ to be, scholars write, that they should be about disabled people and the meanings provided by them. This objective has and can be fulfilled with the aid of disability studies that go beyond the inquiries of law with the right kind of research tools to theorize and re-theorize concepts and meanings about disability. Disability studies, in other words, represent the living conditions of disabled persons and the questions of how disability and/or impairment should be defined. This chapter examines the interaction between disability law and disability studies through the prism of the Convention on the Rights of Persons with Disabilities (CRPD). While discussing the models of disability (medical, social, human rights, and relational-community models) and agendas for reforming the CRPD, the chapter highlights the importance of new concepts and approaches. Further, the potential of disability laws, CRPD in particular, has been discussed keeping in mind the application of its core principles across different sectors (with a special focus on the Marrakesh treaty and copyright laws). (shrink)

International human rights law is profoundly oxymoronic. Certain well-known international treaties claim a universal character for human rights, but international tribunals often interpret and enforce these either narrowly or, if widely, they rely upon sovereign states to enforce the rights against themselves. International lawyers and diplomats have usually tried to resolve the apparent contradiction by pressing for more general rules in the form of treaties, legal doctrines, and institutional procedures. Despite such efforts, aliens remain who are neither legal (...) nor illegal and who thereby slip through a discourse that claims universality. I ask, why does international legal discourse claim a universality of human rights enforceable by impartial, politically neutral tribunals when it also recognises that a state may refuse to recognise some groups as “persons”? I turn to the works of Bernhard Waldenfels for an explanation. To that end, I briefly outline two examples of state-centered human rights treaties. I then reconstruct Waldenfels’ explanation as to how a territorial sense of space needs an alien exterior to the space. The territorial structure assumes time is frozen as of the date of the foundation of the structure. The body of the alien is taken as a biological body. The personality, motives, and actions of the alien are the consequence of the imagination of people inside the territorial boundary. The dominant international legal discourse reinforces and institutionalises such a territorial sense of space and frozen time because the territorial state is considered the primary legal subject of international law. I also retrieve, however, an experiential but concealed sense of space and time. To retrieve this sense of space and time requires that lawyers see the world through the twilight of legality heretofore ignored as pre-legal. (shrink)

It is commonly assumed that Indigenous nations had neither sovereignty in international law nor title to their territories when Europeans first arrived in North America. Thus the continent was legally vacant and European powers could gain title to it simply by such acts as discovery, symbolic acts, or occupation, or by concluding treaties among themselves. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or to basic principles of justice. (...) To the contrary, Indigenous American nations were sovereign entities holding exclusive title to their territories at the time of European contact, and they participated actively in the formation of Canada and the United States. This fact requires us to rewrite our constitutional histories and reconsider the current status of Indigenous nations. (shrink)

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless of whether the President of the (...) United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence. (shrink)

This study investigates transnational relations and global challenges which the European Industrial Relations have been facing recently. The paper, methodologically, was structured with taking into account both socio- political and judicial arguments. The social theory, and ergo, the practice in Europe were analyzed according to Marxist point of view. Basically, industrial relations and employment relationship were examined from the perspectives of employees, employee representatives and nation-states. The influence of the Charter of Fundamental Rights which is legally binding with the Lisbon (...) Treaty (TFEU) was examined. Likewise, the effectiveness of the acquis communautaire within the EU was argued with respect to the European Social Model; such as, social dialogue, tripartite and bipartite information exchange and consultation, collective bargaining and legal provisions regarding employment conditions and social protection. The importance of Europeanisation and convergence of national industrial relations was illustrated. (shrink)

This paper is the second of two papers which examine the versatility of the principle of subsidiarity. The first paper explored the nature of the principle in Catholic social teaching as a moral and social principle and its potential application in the political sphere. This paper further explores the political application of the principle of subsidiarity through a discussion of its operation in the European Union, where it is embodied in article 5(3) of the Treaty on European Union. This paper (...) discusses subsidiarity’s interpretation by the European Court of Justice as a political value judgement, rather than a legal principle. In its discussion of subsidiarity in the European Union, this paper draws some comparisons with the principle’s enunciation in Catholic social teaching. Together, these papers are intended to highlight the many facets of the principle of subsidiarity in order to promote its continued relevance and to promote further scholarship on subsidiarity. (shrink)

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

Resumen. -/- Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Tercer accésit El proceso de integración europea, en el que vivimos inmersos, reviste caracteres económicos, sociales, políticos y jurídicos; que dotan de características peculiares a un proyecto de integración cuya naturaleza está en constante discusión, casi tanto como su futuro. Sin duda, uno de los grandes protagonistas del proceso de integración ha sido y es el Tribunal de Justicia de la Unión Europea, sobre todo con la proclamación y consagración de (...) los principios definitorios de la relación entre el ordenamiento comunitario, hoy de la Unión Europea con los ordenamientos nacionales: los principios de eficacia directa y de primacía del Derecho comunitario. Esto lo ha hecho a la vez que desarrollaba su jurisprudencia sobre las libertades económicas fundamentales consagradas en el Tratado de la Comunidad Económica Europea (libre circulación de mercancías, libre prestación de servicios, libre circulación de trabajadores y libre circulación de capitales). Este trabajo tiene por objeto estudiar dicha jurisprudencia, analizando el papel preponderante de la libre circulación de mercancías, así como las perspectivas de futuro tras la entrada en vigor del Tratado de Lisboa. -/- Abstract. -/- The process of European integration, in which we are immersed, has economic, social, political and legal characters giving special characteristics to an integration project whose nature is in constant discussion as its future. Certainly one of the great protagonists of the integration process has been and is the European Court of Justice, especially with the proclamation and consecration of the defining principles of the relationship between Community law, now European Union law, and national law: principles of direct effect and supremacy of EU law. ECJ recognised this principles while it developed its jurisprudence on fundamental economic freedoms recognised in the Treaty establishing the European Economic Community (free movement of goods, freedom to provide services, free movement of workers and free movement of capitals). This work aims to study this case law, analyzing the dominant role of the free movement of goods as well as the future trends after the entry into force of Lisbon Treaty. (shrink)

In order for the liberalization and increase of international trade, the free trade agreement is generally deemed a most useful instrumentality within the region. Under the WTO regime, we can see that a plethora of FTA arrangements are negotiated, come into the treaty laws, as well as operate to regulate the binational or tri-national trade disputes on the regional basis. As most typical and frequented in FTAs, they usually include an arbitration and binational panel procedure as a dispute settlement mechanics. (...) In many aspects, the procedures prescribed in most of FTAs could be apposite that most effectively and cheaply handle the disputes arising from the specific binational or trinational treaties. On the other hand, they could offer a chance to avoid the constitutional musters merely because diplomacy, international negotiation, ratification of treaties and approval of them traditionally fall within the powers of Congress or Executive under the separation of powers principle. This paper examined the legal issues as focused upon the NAFTA ch. 19, ch. 11 and US constitution. The chapters instituted the binational panel procedure dealing with the anti-dumping or counter measures as of subsidies, as well as legal dispute from the binational investment arrangements. From the consitutional viewpoint, we can be aware that the chapters could expressly contravene the Article III of original jurisdiction, Eleventh amendment of state sovereignty, and limitations of the treaty making powers inherent in the separation of powers principle. Given the overriding feature of such treaty clauses, the treaty should be ratified through the form of constitutional amendment, which requires a more stern step over most of the civilized constitutional states. The constitution is a supreme law in land, and represents a popular sovereignty as sheerly distinguished from the constitutional function of normal branches. When the special mechanics of dispute settlement may adopt an option of forum for escape, it is viewed that its unconstitutionality could yet be cured because the constitutional language of Article III original jurisdiction is considered mandatory or exclusive. I believe that the constitutional amendment procedure only could properly dispose such arrangements. While some areas of the presidential powers are deemed not subject to constitutional review as resorted upon the doctrine of political question or judicial self-restraint, the current jurisprudence gradually finds some limitations on the presidential power of foreign affairs including the treaty or war making provisions. As for a would-be treaty party of FTA, the constitutional issues raised in US is not entirely irrelevant to the Korean case ahead. (shrink)