3- https://doi.org/10.1111/jopp.12315
Evaluating International Agreements: The Voluntarist Reply and Its Limits
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On 31 January 2020 the United Kingdom left the European Union. The legal terms of this “Brexit”, and the new relationship between the UK and the EU, were set out in two international agreements, the Withdrawal Agreement, setting out the terms of the UK's departure from the Union, and the UK–EU Trade and Cooperation Agreement (TCA), governing trading relations and cooperation post-departure. Three and a half years of often acrimonious planning, posturing and negotiations produced texts that were agreed between representatives of the UK and the EU, and ratified by their respective parliaments. Following a transition period (during which the TCA was negotiated), on 31 December 2020, the UK ceased to be a member of the EU customs union and common market. Yet within months of their entering into force, the UK government (the same one that had negotiated them) began to publicly criticize these agreements, and specifically the difficult compromise agreed in respect of Northern Ireland.1 This may have reflected genuine misunderstandings within government about the effects of the agreement, or bad faith in the negotiations themselves, or the changing domestic political situation. Regardless, within weeks of celebrating their “great”2 and “cracking”3 deal, UK ministers were directly contradicting its content4 and, as time went on, denying that they ever supported it, and branding its content “problematic”,5 economically harmful,6 and built on a premise that “does not exist in real life”.7 Public responses from the EU and its member states (and indeed many UK politicians)8 expressed predictable frustration: whatever the merits of re-examining the practical operation of the agreement, the UK could not simply attack, denigrate and potentially disregard an agreement it had itself agreed only a few months earlier.9 There might be problems with that agreement, and scope for improvement. There might be other agreements that could have been made, that might have governed matters differently. However, it mattered that the UK had in fact agreed to this agreement, and any criticism must be judged accordingly. Brexit provides a particularly stark example of a state criticizing its own agreement, and the frustrated responses this evokes. However, it is by no means the only such example. It frequently seems important, in evaluating criticism of international treaties or institutions, to observe that the critics themselves agreed to that treaty or institution. As US officials have grown increasingly critical of the WTO in general, and WTO dispute settlement in particular, responses have frequently highlighted that these rules and institutions reflect agreements the US itself accepted (and indeed led).10 Conversely, development-oriented critiques of the WTO (and especially the TRIPS agreement) meet invocations of developing countries' voluntary acceptance of the Marrakesh Agreement.11 Criticisms of investment treaties and arbitration are answered by reference to respondent states' consent.12 Similarly consent, whether to IMF membership or to specific loans, seeks to blunt criticism of loan conditionality.13 While there are many differences between these examples, they share a fundamental assumption: that the procedural fact of past consent is relevant to substantive critique of an agreement's content. It is often hard to say how much weight is placed on voluntarism, compared to other arguments. It is rarely the only response offered: defenders of agreements will typically combine invocations of voluntarism with substantive defences of the terms of those agreements. However, it does seem to carry at least some weight in these kinds of debates. My goal in this article is to examine the moral significance of voluntary consent to treaties by interrogating this style of argument, which I label the “Voluntarist Reply”. I ask whether and to what extent the kind of consent invoked by the Voluntarist Reply changes the moral circumstances of the parties, in ways that might give that reply force. I am somewhat sceptical of the Voluntarist Reply, but I do not set out to challenge it directly. Rather, I show that, even if we grant some important premises on which it depends, there remain significant limits on that reply, some going to whether agreement is in fact voluntary in the required sense, and others reflecting deeper concerns not answerable by any appeal to voluntariness. Putting the argument in its simplest terms: for the Voluntarist Reply to have any application, an agreement must meet a very demanding standard of voluntariness; and even when it meets that standard, there remain many complaints that invocations of voluntary consent simply cannot answer. My principal interest is economic agreements, and at various points I focus on trade agreements in particular. However, the arguments described have much broader relevance, applying to almost any international agreement, and in particular those with distributive effects, whether within or between states.14 I approach my task in three parts. Section I seeks to clarify the nature of the Voluntarist Reply, as a procedural answer to substantive concerns, contrasting the role of consent here with its contribution to establishing either the validity or the legitimacy of international law. Section II asks how the Voluntarist Reply might be motivated, and what this tells us about the sense of voluntariness it requires. While the absence of voluntariness is not the only way that the Voluntarist Reply can fail, it constitutes one important limit on its scope. I argue, in this section, that invocations of the voluntarist reply are undermined where an agreement is made in the context of prior injustices for which a counterparty has some remedial responsibility. Section III considers other ways that the Voluntarist Reply might fail. It highlights the extent to which the applicability of the Voluntarist Reply, and hence the moral effect of state consent, will vary given different answers to background questions about global economic justice, mapping some of the limits implied by four views on these questions. Before proceeding, it is worth pausing to consider the kind of claim that the Voluntarist Reply makes and to distinguish it from a number of other roles that voluntarism and consent play in international legal discourse. The most obvious role of consent in international law is as a condition for the validity of a legal norm. Validity here denotes the extent to which the relevant norm forms part of the international legal system.15 For many positivist international lawyers, state consent is a necessary condition for the validity of international legal norms, whether custom or treaty.16 Anti-positivists have challenged that view: Dworkin's recent interpretivist account denies consent any fundamental role.17 Voluntariness may also be relevant to the (related but distinct) question of international law's legitimate authority.18 It may be relevant to determining not simply “what is the law?” (the question of validity), but also “why should a given agent obey the law?” (the question of legitimate authority). For the analytical positivist, validity alone is morally inert.19 Knowing that the law requires x is not the same as having a good reason to x: something more is required.20 Valid law may or may not have legitimate authority, and whether a given agent has consented to that law may play a role in connecting the two.21 Fundamental aspects of international legal doctrine, including pacta sunt servanda and the duty of good faith, are premised on the moral significance of state consent. While positivist lawyers might hope to work with these legal principles without interrogating their normative basis, it is hard to explain why they are so fundamental unless we think the fact of agreement matters, morally as well as legally.22 When a state stands on its treaty rights, and refuses to countenance renegotiation, it implicitly invokes the political and moral significance of its counterparty's prior consent. However the Voluntarist Reply has a broader focus than either validity or authority. In the examples noted above, critics are not denying that agreements constitute valid international law. Nor are they necessarily denying that those agreements impose legitimate obligations (although this may also be part of their complaint). Rather, they are complaining about the substantive content of those agreements: that they are unjust, or unfair, or inefficient, or otherwise fail to live up to some relevant standards. They are saying that these are bad agreements; they should not be law; and, to the extent that they are, there are good reasons to change them. The Voluntarist Reply seeks to answer such criticisms, not by engaging with the substantive criticism, but by emphasizing the relationship between the agreement and the agent by, or on whose behalf, the criticism is advanced. It says that, while the agreement might be criticized, their standing to criticize it, or the force of their criticisms vis-à-vis a specific counterparty, is undermined by the fact of their having agreed to it.23 It is a procedural answer to a substantive complaint. If the Voluntarist Reply works, then it is as a reply to complaints of this kind, about substantive content (whether articulated in terms of justice, fairness, efficiency or otherwise) rather than simply validity or legitimate authority. The Voluntarist Reply, as I understand it, is a response to criticism, understood as a negative evaluation by reference to some normative standard, expressed with a specific (negative) illocutionary force. There is an important difference between, for example, “I do not like this agreement” and “this agreement is unfair”. Either might readily explain a proposal for termination or renegotiation, but only the latter is a criticism of that agreement.24 The Voluntarist Reply seeks to answer criticism, but it says nothing about proposals for revision or reform that do not also criticize. We might wonder if the distinction here is simply a matter of tone? However, criticism imports significant practical implications that other calls for revision may not: that there are reasons (independent of the complainant's preference) to repeal or renegotiate the agreement; that those who benefit from the agreement are profiting from a moral wrong, while those who are burdened are also wronged; that other parties to those agreements should not strictly enforce their terms. Criticism has a normative force for the addressee that more neutral proposals for revision lack. “I don't like this agreement!” can be answered with “Well, I do!”; but “This agreement is unfair!” or “This agreement is impracticable!” demand answers that go beyond the interests of the counterparty and their power to maintain the status quo. Criticism and complaint call for answers (and actions) in ways mere preferences do not. So understood, the Voluntarist Reply operates at the level of political morality rather than legal doctrine or practice. It serves to answer political criticisms of, rather than legal challenges to, the content of international agreements. How far we endorse the Voluntarist Reply thus determines how we should feel about and act towards international agreements that are subject to these kinds of criticisms. The Voluntarist Reply invokes the fact of agreement to answer criticism of an agreement's terms. How, we might wonder, can it do this? That consent might ground validity or legitimacy is a much weaker claim that that it can answer a substantive grievance. What is the moral mechanism that might bring this about? We might wonder about the moral ontology required to translate either argument to the international case. Is it really “the state” as opposed to “this official”/“this group” doing these things?27 That ontology is fundamental to how we think and talk about international affairs, but I return to consider at points below the importance of the fact that we are here dealing with collective agents rather than human persons.28 The other motivating ideas—that consent can cure a moral wrong and that consistency limits our standing to complain about acts we have ourselves authorized—are widely shared. We can interpret them in various ways but they have sufficient plausibility across a broad range of contexts and views to grant, if only in order to examine the kinds of claims they support. Assuming the Voluntarist Reply implicitly invokes one or other of these argument structures, this in turn imports a very demanding standard of voluntariness, which many international agreements will not meet. “Voluntary consent” may mean very different things across different views. For Hobbes, the fact that consent is given at the point of a sword in no way undermines its force,29 a view rejected by many subsequent critics, from Hume's direct critique of Hobbes's social contract view30 to Rawls's denial of the moral significance of “threat advantage”.31 To matter, morally, consent typically requires an appropriate context, which might non-exhaustively include reasonable alternatives, adequate information, and respect for rights. Absent such circumstances, consent is voluntary in only a formal, and morally ineffective, sense. Beyond this, the criteria for voluntariness will vary, depending both on the moral work it is called on to do, and on the broader moral view against which the appeal to voluntariness is made. The threshold for voluntariness in the Voluntarist Objection may be significantly higher than we would apply to determine whether an agent was morally responsible for an action, or whether a state's consent was legally effective.32 I may be morally responsible for a choice, while still feeling legitimately aggrieved at both the option I have chosen and the fact that I had to choose at all; and we might have good reasons to treat an agreement as legally effective notwithstanding significant defects in the manner of its formation. If the Voluntarist Reply seeks to answer substantive criticism, then we must ask what circumstances must obtain for a party's having consented to an agreement to undermine such criticism? The two interpretations of the underlying argument sketched above help us to do this. Consider, first, the no-injustice interpretation. Robert Nozick's discussion of equality and choice is instructive.33 While arguing against “patterned principles”, and especially economic equality, Nozick describes a scenario whereby agents move, through a series of free choices, from an initial, ex hypothesi fully just, equal distribution, to a subsequent unequal distribution. In Nozick's telling, the lesson is that the second distribution, reached by a series of just steps from an initial position of justice, must itself be just. Choice, he argues, is justice-preserving.34 Whether we accept that claim or not, it is probably the strongest claim that can be made for the power of choice to morally validate an outcome. Yet [(I) Justice + Choice = Justice] does not imply [(II) Injustice + Choice = Justice]. The fact that I chose some outcome, over one where I was morally wronged, gives no reason to think this chosen outcome respects my rights. At most, it shows I thought it was better than the status quo. If the status quo was morally defective, then the same may be true following my choice, however free. In Rawls's language, it is only in circumstances of “background justice” that the results of agreements freely entered can, in virtue of that fact, claim to themselves be just.35 On the no-injustice interpretation, the Voluntarist Reply requires a no-injustice background to generate its no-injustice conclusion. We might expect the no-standing interpretation to be less demanding. After all, this interpretation does not claim that consent remedies the ills of an agreement, focusing only on who can complain, and to whom, about that agreement. However, on reflection the same demanding conditions seem to apply. G. A. Cohen has written helpfully on standing and the ways perspective might preclude specific agents from making specific complaints or offering specific justifications to specific others.36 Moral argument is interpersonal. Claims, criticisms, defences and justifications do not exist in the abstract: it often matters both by whom, and to whom, they are made. I may, on Cohen's account, be precluded from complaining to or criticizing some particular others, not simply because of the objective situation, but because of the ways that I or they may be implicated in that situation. The no-standing interpretation exemplifies this kind of perspectivity. Sometimes, analysing the substance of an agreement may convincingly identify defects, by whatever standard. Nonetheless, it may be difficult for the author of that agreement, or one of its co-authors, to condemn it on that basis. This is an instance of the challenge Cohen labels “You're involved in it yourself!”, which says: “How can you condemn me when you are yourself responsible, or at least co-responsible, for the very thing you are condemning?”.37 Many agents might criticize an agreement, but surely not the states party to it, who are after all its authors? Insofar as they have previously endorsed it, they are limited in what they can now say against it without opening themselves to charges of inconsistency, bad faith, or hypocrisy. However, it is also important to consider the perspective of the counterparty, to whom the substantive criticism is offered, and who invokes the Voluntarist Reply in response. When I invoke the Voluntarist Reply, I assert that my (real or has chosen this agreement, of an that they could have and should have had they not to these This in play not only their relationship to the agreement, but also my and my relationship to their consent, and how far I am to on If the reason they entered into an agreement is that I or to their moral rights, them no choice but to then I can invoke that consent to answer their subsequent criticisms. This is to Cohen's involved in it you are yourself more or less implicated in the act you to condemn if you the legitimate to which the act is a We not think the fact of prior the making of to that the of that prior standing to can thus undermine the Voluntarist Reply, whether understood in its no-injustice or no-standing Yet it seems that international economic relations constitute circumstances of whether because of or because of the injustices of that have so this preclude the Voluntarist Reply to any economic The answer on the between and agreement, and on the extent to which the is one for which relevant have I below some specific ways that international economic circumstances might the Voluntarist For me a more between that or an agreement, and that is with The difference in how the agreement, or its context, the making of the agreement with the of that This is in the of by in the of the addressee some if they then they do not. It may be to and where one party ex hypothesi in circumstances, and the agreement one way they might better their and the However, it is also important how far the is one that the particular counterparty has to If we economic injustices as that all agents have to then many more agreements will be by those and the of the Voluntarist Reply to the is the of many including to international on the other we understand as more then the Voluntarist Reply has scope. matters, both in and its implications for the criticism and of I return to this point This condition thus significant limits on the scope of the Voluntarist It is here as a necessary condition for that reply to It seems that other conditions will also apply. In particular, there may be as the Voluntarist Reply consent as complaints that a party might otherwise we would expect a to be limited to that a party was or should have been if one party has this will undermine the I examine a number of other on the Voluntarist Reply in Section For us examine a how the condition might specific agreements. The condition that determining the scope of the Voluntarist Reply requires the moral and that apply to and states in the relevant To invocations of the Voluntarist Reply in respect of international economic agreements, we must what requires in international economic in the absence of those agreements at in the absence of the particular agreement This is a very question that I cannot hope to answer to it only that there are some of international economic justice, and to in for themselves their specific content. This the discussion somewhat and the necessarily However, I hope it also means the may be of to those with widely substantive To things it to that at least some states have some moral and in the international the of to much international economic I will focus on moral to mapping the implications of such for invocations of the Voluntarist Reply in this In what of this section, I a number of for such how they might the of the Voluntarist Reply in different The first, and most view to trade as to defects in the international economic Many identify moral on states to their own and to and to an international trading whether on or may be subject to a various they may be to do or of they may be limited by the of, and effects on, own and there are many questions about which trade are most to which morally significant The is that states may not be morally free simply to to into a trade agreement, or to terms without reference to these moral they remain legally free to do both these at least on the a state a to this then voluntarism provides no reply to criticism of the terms or We might the agreements in these terms. if we that concerns for equality, or economic directly of justice, injustices may give to remedial or and trade agreements may be an appropriate mechanism for those The of European constitute the to the international To the extent we think that states have remedial or from past we may the of trading terms as one way to this. trade relations have been in these terms from an EU They reflect specific between these and it is in terms of that specific that they are typically To the extent we think that is we might expect trade to reflect and in part this. If we think that for injustices give to remedial and that those might be in part through the of trading then states cannot invoke the Voluntarist Reply to answer criticisms of the agreements that they ask states to might also where past have given to legitimate and on the part of and the to grant whether or by agreement, would those As well as to we might understand the in these terms. the and agreements, states to the European for a number of to the of trade whether through investment or where preferences are offered, so a subsequent of may them not only than they were while preferences were in but potentially than they would have been had they had that the on the EU this argument the EU was not free to that and hence could not invoke the Voluntarist Reply to the agreements it states to accept in order to UK's on EU might also be understood in these the fact that Brexit was a choice of the UK the The condition one necessary limit on the Voluntarist it is only where the party it has themselves towards the other However, even where an agreement meets this there remain significant limits on the work that consent can do in criticisms of its terms. The limits below do not whether an agreement is they show how the moral force of voluntary agreements out a range of How we understand these limits in part on our other moral and, in the context of international economic those vary As with the section, rather than work within one such moral and the of those with different the discussion below shows how the moral significance of voluntariness given four different of such move, from the morally most to the most demanding. The international moral denies the of of international economic justice, and in particular any across for example, a view of international that limits states' to and denying any of international economic a for The agreements that states are in their but not subject to or any sense of To the extent we economic across these are of those agreements and apply to us only where these have been How might this view understand the Voluntarist If all from agreement, then we might expect the fact of agreement to in turn an for the content of those agreements. What other could we have for evaluating on such a account of our moral rights, we will as voluntary almost any agreement that meets the legal in the The mere fact that a counterparty is economically even in gives them no to demand better economic terms than others are to Yet there remain at least two by which even moral might limit the Voluntarist from the of agreement in the moral account, and from the nature of the agent making that agreement. the the moral agreement as the of international However, the agreement pacta sunt in turn requires some
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- Oct 26, 2021
- Constitutional State
The article under studies is a legal analysis of the international contractual lawmaking in the field of finance. It lays particular emphasis on the role of international financial agreements in forming the international financial order enforcement. The article contains a classification of international agreements, which directly or indirectly aim at regulating financial relations according to the following criteria: 1) the subject of legal regulations; 2) the legal status of the parties that conclude an international agreement; 3) the number of the parties in an international agreement. In addition, the paper under discussion analyzes the contents of the statutes of certain international financial organizations, whose norms play a significant role for the legal-normative constituent of the international financial order enforcement. The research indicates that in compliance with the nature of the irfunctions and the number of the parties, international financial agreements are divided into: A) the international agreements, which set up the legal basics and a single procedure of the inter-state relations in a certain field of activities of the international financial relations (the fields of currency relations, settlement relations, countering terrorism financing, etc.) andserveas a basis for concluding other agreements in a respective area: 1) the international agreements that aim at coordinating states in the international financial relations (statutes of the international financial organizations); 2) the international agreements that have a mixed legal nature in the context of the ultimate legal entities, to which most of the provisions of the agreement are directed. Such inter-state agreements make the states fulfil their obligations by implementing the international norms into their national legislations, which concern the financial relations between legal and juridical persons. B) The international agreements, which contain individually determined financial norms (on the issues of financing, investing, etc.).
- Research Article
- 10.26668/2448-3931_conpedilawreview/2015.v1i16.218
- Jun 7, 2016
- Conpedi Law Review
International agreements are the primary source of obligations internationally, whi- ch generate reflections in national law. They have been extremely used in tax harvest because they avoid double taxation and reduce tax burden in international trade. They are formal sources of tax law, which the legislature is expressly recognized in Article 96 of the National Tax Code to set the “tax legislation” expression. Article 98 of the Code determines the supremacy of international tax agreements over national law. Against the odds, international tax agreements do not revoke or modify the national legislation, just limit the effectiveness of national law incompatible with them, with supra-legal hierarchy and infra-constitution. They are above national law, either after or before it is created, and are below the Federal Constitution, so agreements incompatible with it should not be approved by Congress and, if so, they will be subject to declaration of unconstitutionality by the Supreme Court. It is a reporting case the international agreement’s unconstitutio- nality after it is celebrated.
- Single Book
- 18
- 10.1093/oso/9780198293293.001.0001
- Jul 12, 2001
This timely collection explores the highly topical area of international trade agreements and environmental policy. It focuses in particular on two key aspects of the international dimension of environmental policy: with trans-frontier environmental problems, such as climate change and acid rain, it is necessary for countries to enter into international environmental agreements to overcome incentives for free-riding; and even if pollution were simply a domestic concern, countries are linked via trade, thus environmental policies will impact upon the international competitiveness of certain sectors of an economy. The individual chapters fall into four Parts, which attempt to answer the following questions: 1. How can international environmental agreements be designed to increase the number of countries that might join such agreements? 2. If it is possible to reach an environmental agreement among only a small number of countries, how should environmental policies by the parties to the agreement be designed to reduce the extent to which reductions in pollution by the signatories are offset by increases in emissions by non-signatory countries? 3. When a country increases the stringency of its environmental policies, are the impacts on trade and welfare larger when account is taken of scale economies and imperfect competition in international markets than was thought to be the case from earlier studies based on the assumption of competitive markets for international trade? 4. Do national governments have incentives to distort their environmental policies to gain strategic advantage, and if so, what form might this take and what does this imply about the sovereignty of nations in choosing environmental policies? Employing both theoretical analysis and empirical modelling, "Environmental Policy, International Agreements, and International Trade" aims to advance understanding of some of the key issues surrounding the links between trade and the environment. It will appeal to all those with an interest in environmental issues and international trade.
- Research Article
- 10.56444/ulrev.v7i2.4522
- Nov 27, 2023
- UNTAG Law Review
This research examines the issue of consistency in the implementation of Indonesia's international agreements in the field of investment in Indonesia's national legal system, with a focus on achieving public welfare. The political implementation of Indonesian International Treaties in the field of investment into national law is divided into two periods. The period before the Constitutional Court Decision Number 13/PUU-XVI/2018 and the subsequent period. The court decision mainly talks about how to ratify an international treaty. Article 2 of Law No. 24/2000 on International Agreements states that ratification of international agreements is done in two ways, namely ratification by passing a law by the Parliament and ratification by issuing a presidential regulation by the President. Ratification through parliament if an international agreement has a broad and fundamental impact on the livelihood of the people related to the financial burden of the state and or requires amendments to the law as stipulated in article 11 paragraph (2) of the 1945 Constitution. Meanwhile, the position of international agreements in the field of investment, based on Article 11 (2), the ratification of International Agreements is based on Presidential Regulations. At the same time, there are international investment agreements whose material can have a broad and fundamental impact on people's lives, so the absence of parliamentary control can lead to inequality and potential negative impacts on people's welfare. Through normative legal research methods, the findings show that foreign investment must provide the maximum benefit for economic development and public welfare, and the ratification of international investment agreements can be done either through presidential regulations or legislation by passing a law
- Research Article
- 10.56461/spz17203t
- Apr 30, 2017
- Strani pravni život
In the contemporary literature dealing with international environmental law a significant number of papers is devoted to criticism on account of efficiency of international environmental treaties. The purpose of this paper is to show the various factors and causes of (in) efficiency of these international treaties. In the first part of paper the importance of international environmental treaties, as a source of law, is emphasized. Other sources of the international environmental law are pointed out, too. In the main part of the paper methodological issues and criteria for measurements of effectiveness and the causes of (in) efficiency of international environmental treaties are discussed. Paper provides an overview of the problems that affect the achievement of goals. Some international treaties which achieved the prescribed objectives, as well as some which did not meet the objectives are mentioned. It is noted that there are several different factors that determine the possibilities of achieving the goals of international environmental treaties.
- Research Article
- 1
- 10.33663/1563-3349-2022-33-227-235
- Sep 1, 2022
- Yearly journal of scientific articles “Pravova derzhava”
The research is devoted to the problems of law-making treaties and the breadth of their distribution in the East Slavic state formations of the X‒XIV centuries. The need to study the terms vow and oath is related to the peculiarities of their own Old Rus terminology, where the words denoting the vow (swearing, “khrestne ciluvannya»), oath («rota», «khodyty do roty») and treaty (“ryad”, “ryad polojiti”) are used on the meaning of the same phenomena. By swearing an oath on the terms of the treaty. Therefore, all three terms should be used, although in general it is a single phenomenon. The most studied among all law-making treaties of East Slavic state formations of the X‒XIV centuries. there are international treaties that make up a large array of both original texts and their copies, extracts from treaty texts, as well as mentions of such treaties in chronicles. About 200 treaties are known, of which several dozen have remained more or less complete. A separate independent group among international treaties are peace treaties, both because of their content and in the fact that these treaties are almost impossible to divide into international and inter-princely. Another large and fairly well-studied group of law-making treaties are interprincely treaties. The division of groups of international and inter-princely treaties is partly extremely diffi cult, as their individual varieties are almost identical. Exclusively among the inter-princely should include: a) treaties, the rules of which were of all-Rus (or common to the principality) meaning, establishing universally binding rules (common name at the time ‒ «na ustruyeniye mira») and b) treaties, which enshrined the terms of princely rule. Territorially, inter-princely treaties were spread in all areas of East Slavic state formations of the X‒XIV centuries, both during the reign of the Rurikoviches and during the reign of the fi rst Gedeminovichs. It should be noted that international treaties are usually referred to in the sources as treaties (“ryad”), and inter-princely treaties are more based on the oaths that binded their conclusion («khrestne ciluvannya», «rota»). Therefore, in historical science, they received another name ‒ «Khrestociluval’ni gramoty». Two large blocks of treaties are the treaties of princes with their subjects. A distinction should be made between the political treaties of princes and the “viche”, which embodied the opinion of society and was its representative (the so-called treaties of princes with the people) and the treaties of princes with their servants (so-called free servants, “slugi volnyye”) and boyars. The latter category of treaties is a kind of vassal treaty, but they had many diff erences from such an institution in Western Europe. Both types of treaties are usually mentioned in the sources as oaths, although several fulltext records of princes with the “viche” survived, and for treaties with boyars, the sources themselves know that the reason for dismissal of the boyar could be a breach of treaty by the prince. The least studied among the law-making treaties are vassal treaties and treaties of personal dependence, in which the suzerains were free people and aristocrats. Similarly, intra-family and inter-family contracts have been little studied, although their existence is known from sources. In both cases, the limited subject matter is due to the extremely small source base: although more than a thousand birch-bark manuscripts have been found in the last 70 years, the number of private documents found remains insignifi cant. It is concluded that the complex cellular structure of East Slavic society, where each cell was the smallest social unit. In such a society, vertical connections are very weak and horizontal ones are complex. The cells of this cellular structure do not have hard walls and a person can belong to several neighboring cells. The closets themselves are attracted to each other on the basis of contractual relations. It is noted that this model of society has much in common with the so-called Catalan pactism (pactisme). Key words: East Slavic, Kyivan Rus, Old Rus, Medieval Law, Old Rus Law, Treaty, Legal Oath, International treaty, Source of Law, state formations, Legal history.
- Research Article
- 10.24144/2307-3322.2021.67.7
- Jan 16, 2022
- Uzhhorod National University Herald. Series: Law
The article analyzes the norms of international human rights treaties of a universal nature, of which Ukraine is a member or participant. It has been proved that international human rights treaties of a universal nature are a structural element of the legal mechanism for ensuring the fulfillment of human and civil responsibilities. Among such international treaties are those that contain the responsibilities of man and citizen, as well as enshrine the need for the State party to create an effective regulatory mechanism to ensure the implementation of these responsibilities: the Universal Declaration of Human Rights (Article 1, Article 29), International Covenant on Civil and Political Rights (art. 19, art. 24), International Covenant on Economic, Social and Cultural Rights (Preamble), 1989 Convention on the Rights of the Child (art. 7). It is noted that the states parties to these international human rights treaties have undertaken to establish effective national mechanisms to ensure the fulfillment of the obligations of man and citizen enshrined in these treaties and must fulfill these obligations in good faith by improving national legislation (especially all - constitutional) and the practice of its application. Emphasis is also placed on the draft Universal Declaration of Human Responsibilities and its norms. It is argued that the structural elements of the legal mechanism to ensure the fulfillment of human and civil responsibilities are international law, general principles of law recognized by all nations, the following supporting sources: international court decisions, doctrinal works of the most qualified specialists in international law. It is stated that the performance of the duties of a person and a citizen should not contradict the goals and principles of the United Nations. It is concluded that international human rights treaties of a universal nature apply a universal approach to consolidating the responsibilities of man and citizen.
- Research Article
- 10.2307/1190312
- Jan 1, 1956
- Law and Contemporary Problems
Each modern national state has a rather well developed set of legal principles whereby some account is taken of foreign as well as domestic laws in settling the legal relations of persons concerned in factual situations with foreign as well as local features. These are the rules of international or of laws, socalled, and understanding of their technical nature and their purpose is crucial to assessing what is possible in the way of conflict avoidance by international agreement. Of course, the very object of these national systems of conflictual rules has been and is basically conflict avoidance. That is to say, they represent attempts to avoid the evil of investing the same persons with different (or conflicting) legal rights and duties in the two or more countries touched by a given international factual situation. These national conflictual systems have, in the main, developed domestically without sanction or benefit of international agreements, and the results (though certainly far from perfect) have been significant. Nevertheless, it will be contended here that further advances in the utility and justice of this branch of the law in any country require international or interstate agreement. But international agreements could do more harm than good if they failed to take account of the basic features of technique and policy that have characterized the various national conflictual systems. Accordingly, the analysis that follows seeks to reveal these essential features in an orderly way and to educe their necessary implications respecting effective conflict avoidance by international agreement. For the most part, the writer will speak in terms of the English system of conflictual rules because, so far at least as British Commonwealth countries are concerned, private international law is still primarily a department of the common law where English judges have led in developing the rules. Also, to speak in terms of the English private international law avoids the peculiar impact of any particular federal constitution on interstate or interprovincial conflict avoidance within that federation. What, then, have we learned about the extent to which practical national legal procedures can be devised to take account of foreign laws with the object of conflict avoidance when dealing with international facts? The basic problem is to determine which countries are potentially concerned and then to make a choice between the
- Front Matter
- 12
- 10.1016/s0140-6736(16)30115-5
- Apr 1, 2016
- The Lancet
Reforming international drug policy
