Principles Of Public Law Research Articles

The State of Judicial Scrutiny of Public Contracting in New Zealand and Canada

This article evaluates the varying ways in which the courts of New Zealand and Canada respond to arguments that government procurement exercises are subject to the principles and remedies of public law. While conceding that context is critical and that there are many, often competing considerations that are relevant in the evaluation of such arguments, the author contends that the courts in both countries should at least on occasion be open to the availability of public law remedies for misfired government procurement exercises, and, more importantly, whether by judicial review or civil action, to the deployment of public law principles in the assessment of the procedural and substantive components of government procurement. More generally, the author warns against the movement in both countries in the direction of the assimilation of public procurement within existing principles and remedies of private tendering law.

Can Customs Rules Solve Difficulties Created by Public International Law?: Thoughts on the ECJ’s Judgment in the Brita Case (C-386/08)

The Brita case decided by the European Court of Justice (ECJ) in early 2010 refers to the application of rules of origin in the EC-Israel and EC-PLO Association Agreements to territories occupied by Israel in 1967 and held by it since. The decision of the ECJ, based on the general principles of public international law, reflects the European Union's (EU's) policy toward the region but does not contribute to the enhancement of international trade in these areas. This article suggests that alternative, trade-oriented legal approaches to this dispute, based on the interpretation of the relevant Association Agreements according to the principles of the Vienna Convention on the Law of Treaties (VCLT) 1969 and on the General Agreement on Tariffs and Trade (GATT), might have better served the trade interests of all the parties involved, in the short term, thus facilitating the enhancement of the peace process in the region in the medium to long term.

Bright Lines and Open Prisons

The control order regime in Division 104 of the Australian Criminal Code Act 1995 (Cth) ('Criminal Code') is one of the exceptional measures introduced into Australian anti-terrorism law after the 2005 London bombings. Like the UK regime on which it was based, it threatens to erode long-established principles of public and criminal law by severely restricting individual liberty on the basis of future conduct and without prior determination of criminal guilt. The Australian legislation is likely to remain in its original form for the foreseeable future, while the UK control order regime in the Prevention of Terrorism Act 2005 ('POTA') is now the subject of a proposed wholesale revision by the UK government.

Curse of the Black Hills: breach of treaty and due process under the 5th Amendment

The US Congress has a legal relationship with the Native Americans that is set out in the Commerce clause. It has been invoked by the federal government to reach agreements with the tribes leading to their sovereign status. This process was achieved with the Sioux by means of the Treaty of Fort Laramie 1868 that led to the Great Sioux Reservation, which encompassed a land mass in the mid-West of the US. The Black Hills range proved to be gold rich and were soon coveted by the mineral prospectors. After their military defeat the Sioux had to forfeit the territory under the clause of the 5th Amendment in 1879. The issue of taking the land against the stipulation of due process has been the subject of dispute ever since and the Supreme Court in Sioux Nation v. the US, (1980) has awarded monetary compensation. The Sioux having denied any proprietary right on the basis that the claim is res judicata can question it on the basis of the principles of public international law. These can draw on the international rulings that have come through the International Court of Justice (ICJ) judgments? It can then build on the precedence that can claim the judicial review of purchases of land under duress and in breach of treaty leading to the revocation of the plenary power doctrine.

The Applicability of the Energy Charter Treaty in ICSID Arbitration of EU Nationals vs. EU Member States

The relationship between EC law and international investment law has gained increasing attention. This is due to ongoing proceedings before the European Court of Justice (ECJ) concerning the compatibility of bilateral investment treaties (BITs) of EU Member States with EC law, several arbitral proceedings of investors versus EU Member States based on BITs between EU Member States and/or concerning substantive legal problems that are somehow related to EC law (e.g. Eastern Sugar). Insufficient attention, however, has so far been paid to the relationship between EC law and the Energy Charter Treaty (ECT) with regard to the specific situation of a possible arbitral proceeding of an EU national versus an EU Member State. As the ECT is a plurilateral treaty that has been concluded as a so-called mixed agreement by the EC and all its Member States, the questions that arise are to a large extent different than in the Eastern Sugar/BIT situation. Accordingly this paper discusses the applicability of the ECT in ICSID arbitrations of EU nationals versus EU Member States. The first part of the paper provides an introduction to the applicable law concerning the admissibility and merits of ECT/ICSID proceedings. The second part discusses the public international status of the ECT towards the EC and its Member States and analyses the legal phenomenon of ‘mixed agreements’ within the EC and its Member States. The author continues to examine the general aspects concerning the legally-binding effects of mixed agreements such as the ECT from a public international law perspective. Following the emphasis upon a number of intrinsic legal principles of public international law, the author argues that the ECT as a mixed agreement under EC law does not influence the comprehensive legally-binding effect of the ECT treaty in view of the EC and its Member States under public international law. In the third part of the paper the contributor adheres to providing an overview of the exemptions to the comprehensive binding effects regarding mixed agreements, focussing particularly on the analysis of possible limitations of the legally-binding inter se relationship as a result of explicit and implicit ECT standards. Subsequently an intermediate conclusion is presented, which underlines that from a public international law perspective, an inter se modification of the ECT by EC law is not possible. The author continues to contextualise Part III and V of the ECT and concludes that no competency is given therein to the EC. In the last part of the paper the contributor assesses the associated sub problem of the conflicting jurisdiction in the sense of Art. 292 EC and discusses the irrelevance of Art. 307 EC from an international public law perspective in relation to ECT/ICSID proceedings.The paper closes by providing an analysis of the legal principles of lex arbitri and ordre public concerning the applicability of EC law in an ECT/ICSID proceeding. The author concludes that the legal provisions of the ECT are applicable in an ICSID proceeding of an EU national versus an EU Member State; similarly it is established that EC law does not influence such proceedings which are exclusively governed by public international law.

The Treatment of Non-EU Nationals before Domestic Courts of Member States

There is some uncertainty in private international law at the present time as to the correct law to be applied to decide jurisdictional disputes involving nationals of non-EU Member States who come before the domestic courts of a Member State. Examining these issues from the perspective of the third State defendant, this papers first summarizes the current legal framework as it applies to cases with an international dimension beyond the EU, then analyses some decisions of national courts, particularly in the last year, to highlight the many remaining uncertainties facing a non-EU-domiciled defendant and finally considers the likely impact on third State parties of possible future EU legislation in this area and the compatibility of present and future legislation with generally accepted principles of private and public international law.

Legal and Aeronautical Issues Concerning the Earthquake in Haiti

The earthquake that devastated the capital of Haiti and much of its environs in January 2010, causing massive fatalities and damage to property, could be distinguished from the Tsunami of December 2004 in that the latter left the government infrastructure and machinery intact. The earthquake, on the other hand, crippled the Haitian government and infrastructure, rendering government authorities weak in the running of the country. From an aeronautical perspective, this brought to bear issues of sovereignty within the parameters of relief flights and humanitarian law. Another devastation that was unique to the earthquake was that although the only runway at the airport was undamaged, the rest of the aviation infrastructure lay in a shambles. The flow of the numerous relief flights that came into Haiti after the fact had therefore to be managed with caution and diligence. This article addresses these issues in the backdrop of the applicable principles of public international law and the regulatory regime of international civil aviation.

Retribution but No Recompense: A Critique of the Torturer's Immunity from Civil Suit

This article examines the principle of state immunity from the civil jurisdiction of national courts as it has been applied to officials. In Jones v Saudi Arabia the House of Lords held that individual officials should have the benefit of immunity, notwithstanding the possibility of criminal prosecution as agreed by states parties to the United Nations Convention Against Torture. It is incontrovertible as a matter of international and English law that the state itself is immune from suit in torture claims but there was scant authority prior to Jones requiring the extension of immunity to individual officials. There are two key hurdles for the torture victim to surmount: first, it must be demonstrated that the forum state has jurisdiction to make and adjudicate rules regarding the relevant conduct and, secondly, that any claim to immunity should be denied. It is argued that the assertion of civil jurisdiction over torture which has taken place in another country is permissible under English rules on conflict of laws and would not be excessive in view of the recognition of criminal jurisdiction by states parties to the United Nations Convention Against Torture and under customary international law. It is further argued that to allow civil suit against the torturer (but not the state) would not offend the principles of public international law that relate to immunity, nor should it breach the State Immunity Act 1978.

New directions in public law in the Commonwealth Caribbean – some reflections

This article critically assesses how some public law principles, including the doctrine of legitimate expectations, are applied in the Commonwealth Caribbean. It proceeds to discuss the impact of international law on public law and to note that, through the implementation of unincorporated treaties into domestic law, the principle of dualism is increasingly losing its significance and protective effect. The consequence of this is that Governments will continue to want more opt outs and will be more cautious about signing treaties which they are not ready to implement.

Is the Extra-territorial Application of the Human Rights Act Really Justified?

AbstractThe question of whether the Human Rights Act can apply outside the UK has exercised English appellate courts in a number of recent cases. The European Court of Human Rights in Strasbourg has also dealt with the question of extra-territoriality in respect of the European Convention on Human Rights, most notably in the case of Bankovic v Belgium. This article considers whether, as a matter of strict construction, there can be extra-territorial application of the Act and/or the Convention. It goes on to consider some particular circumstances where extra-territorial application has been found, and attempts to set down some principles governing when the courts ought to apply the Act or Convention outside the territory of a High Contracting Party. The article concludes that the existing jurisprudence both at Strasbourg and in the UK strikes a sensible balance between the Convention's regional character and the need to ensure States Parties are accountable for their conduct abroad. This article applauds the Strasbourg and UK courts' importation of relevant principles of public international law in determining the scope and applicability of the rights protected by the Convention.

The Chicago Convention in International Law

The Chicago Convention on International Civil Aviation of 1944 accomplished two purposes. First, it established certain principles of substantive public international law. Second, it established an international organization - ICAO - and vested it with jurisdiction to accomplish certain objectives, and prescribed the procedures to govern the exercise of its jurisdiction.

Courts and Conditions of Uncertainty in 'Times of Crisis'

This paper examines recent decisions of the British courts in terrorism cases. Two general approaches are identified: the first seeks to accommodate government crisis-related claims; the second starts from the need to reassert 'normal' public law principles. The paper then explores the judicial response to a particularly important plane of argument - namely, questions of risk and uncertainty. While a number of different ways of responding to government arguments about risk are isolated, it is argued that it is ultimately better for the courts to confront these arguments directly in their judgments.

Utility and Rights in Common Law Reasoning: Rebalancing Private Law Through Constitutionalization

In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem of justice in terms of protecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres of private law such as consumer law and labour law from mainstream doctrine. By the second half of the twentieth century, however, these regulatory measures had triggered a marked shift in private law reasoning as a whole, which became more instrumental or policy oriented. It evolved into a hybrid of the old private interest reasoning and modern policy oriented regulatory reasoning. At extreme moments, common law reasoning was almost reduced to a variant of economic reasoning concerned with maximizing wealth. In reaction, what is happening now is the search for ways to rebalance the underlying values of utility and rights. The task is to construct a legal language through which private law can be reoriented in ways which both give full weight to a wide range of individual rights and at the same time serve collective interests. The increasingly popular method for achieving this task involves the constitutionalization of private law. By grounding the principles of private law in the general principles and abstract rights found in constitutions, it is hoped to restore the balance between utility and rights. Yet this approach requires new techniques for transforming the content of constitutional principles and civil liberties. These public law principles need to be reinterpreted so that they make sense in the context of the relations between private citizens. Furthermore, these public law rights need to be extended into the social, economic, and cultural sphere, so that they can address the questions of distributive justice that the discourses of civil liberties leave unanswered.

The moral of the Hungarian Status Law saga

The present paper deals with the debate about the fiercely disputed Hungarian Status Law and its amendments. The Law was destined to grant a special status to ethnic Hungarians living the beyond the borders of Hungary. The paper contains a brief comparison of the mainly Central and Eastern European laws, through which states grant special rights to their kinminorities. The international debate about the Hungarian Status Law is also covered by the paper. Even though several states grant special status to the members of their kin-minorities the enactment of the Hungarian Status Law triggered a surprisingly fierce debate. It is submitted that although in some details the law might have run counter certain public international law principles, the reaction to the law was mainly backed by emotional arguments and hence the whole controversy could not go beyond the level of symbols. The paper also deals with the 2003 amendment of the Law, which was enacted according to the objections raised by the neighbouring co...

Public International Law: Is It Fit For Purpose?

AbstractThis paper by Professor Gillian Triggs seeks to explore whether the traditional principles of public international law are ‘fit for purpose’ in responding to such contemporary threats to collective security by reference to three issues: the regulation of the use of force; the need to balance the sovereign rights of states with humanitarian concerns; and the relationship between human rights and the orthodox rules applicable to prisoners of war and security detainees.

Designing a Legal and Regulatory Framework for Better Public Financial Management: Some Issues for Consideration from Trinidad and Tobago

Ill fitting legal shoes pinch citizen’s foot. Chinese Proverb Never ask of money spent where the spender thinks it went. Nobody was ever meant to remember or invent what he did with every cent. Robert Frost There is a sense in which discussions of public law and debates about budgeting have a good deal in common. Both budgets and law are essential to the task of public administration. Without legal authority and budgetary resources, agencies cannot function. Indeed, without legal authority they do not even exist, and without financial resources they exist in name only. Cooper, Phillip J (1999) ‘Courts and Fiscal Decision Making’, in: Handbook of Government Budgeting (San Francisco: Jossey‐Bass) p 502. In a global environment of emerging trading blocs, it is imperative for small island states to pay attention to the adequacy of a major plank of a country’s financial infrastructure viz, the public financial management system. For the purposes of this paper, the components of this system are considered...

Interactions between Investment and Non-Investment Obligations in International Investment Law

The accelerated proliferation of international investment agreements, the growing number of treaties in other international domains, and the increase of investor-state arbitrations enhance the prospects of overlap between investment and non-investment obligations. The interactions between international-investment and non-investment obligations may be controlled by two main sets of rules: the relatively well-developed principles of public international law or the nascent body of rules emerging from international investment jurisprudence. As analyzed in this paper, investment tribunals have generally not resorted to the relevant principles of public international law. This practical disregard of the regulatory rules of general international law stands in stark contrast to the extensive reliance of investment tribunals on other rules of the Vienna Convention on the Law of Treaties. This current unawareness of investment tribunals may well change in the future with regard to fundamental human rights that are recognized in public international law as jus cogens rules. Contemporary international investment law does not offer a systematic set of rules to be applied to such questions. International investment tribunals that encountered such questions have tended to address these questions in a sporadic manner. Consequently, the paper examines these investment awards separately and seeks to trace some systematic principles that emerge from this jurisprudence. These principles relates to the relevance of non-investment treaties, the different impact of voluntary and non-voluntary obligations, the parties' motivations, chronological sequence of obligations and available information, and least restrictive measures.

Terrorist Attacks on Western Civilization

This special issue of Public Choice is designed to afford leading scholars the opportunity to apply the principles of public choice, law and economics, and the economics of religion in analyzing the nature and consequences of the early twenty-first century assault by Islamic terrorist groups on Western civilization. These attacks are designed to wipe out all the religious, economic, legal and political advances of more than half a millennium that have occurred in the West following the awakening in the fifteenth century of a Renaissance that broke the religious yoke imposed by the medieval Roman Catholic Church. The terrorists are motivated by hatred, intermingled with envy, of Western civilization, and by a willingness to deploy wanton mayhem as a vengeful response to their own perceived helplessness before the ruthless autocracies that dominate their Middle Eastern environments. By their actions, these terrorist groups intend to restore a fundamentalist Islamic Caliphate across the Muslim world and to eliminate all links with the advanced democracies. By successfully analyzing the rational choice nature of this serious threat to modernity, the special issue demonstrates the continuing relevance of the public choice research program in an increasingly dangerous world.

Distinguishing From or Integrating Into—What Is the Relationship Between International Environmental Law and Public International Law?

I would like to begin my comments by addressing the theme regarding the nature of IEL. The idea of being distinct stands in contrast to the integration of IEL into general public international law. Is there a tension between having distinct characteristics and integrating fully into public international law that might lend more credibility to the field held among more traditionally minded international lawyers? Moreover, being a distinct area may be a disservice for an area of law with an overarching objective of integrating its subject matter (environment) into economic decision making. My question would be whether such distinctiveness, as mentioned by the previous speakers, undermines the credibility of international environmental law as perceived by public international lawyers by merely differentiating itself. As any good student of public international law would begin their analysis, I will briefly comment on the sources of IEL. This serves as a backdrop inferring a public international law perspective which arguably distorts the analysis of IEL. A number of the customary international law principles in IEL consist of a series of principles that are amorphous and difficult to operationalize and enforce, to say nothing about the challenge in demonstrating the existence of opinio juris. Yet such principles yield real outcomes that show their legitimacy. For instance, the principle of common-but-differentiated responsibility, of which there is no treaty-based hard-law obligation, has led to significant transfers of technology and finances to developing countries. The notion of sustainable development has engendered novel regulatory approaches such as the use of market based instruments. Professor Brunne also has remarked how the concept of common concern has engendered multilateral action and unique institutional structures to support such action. In some way, MEAs with their sophisticated decision-making machinery offer a fluid response to the shared problems among states. The proliferation of MEAs has enriched the corpus of IEL. Moreover, the Agreements have developed innovative regimes and sophisticated responses to environmental problems. But has this led to the disaggregation of the commonalities in MEAs, reduced the potential for MEA synergies, and contributed to the ensuing difficulty of international environmental law specialists to remain experts in their field? In looking at the opinion of jurists, since the Gabcikovo-Nagymaros dispute representing the fulsome application of public international law principles and concepts to a predominantly environmental dispute, a number of nonenvironmental tribunals grappling with international environmental legal questions have surfaced. Some would argue that emergence of environmental issues in other tribunals may solidify the integration of international environmental law into general public international law. …

Judicial Supervision of NAFTA Chapter 11 Arbitration: Public or Private Law?

THE NAFTA investment chapter, Chapter 11, relies on an individualized regime of enforcement for violations of the treaty's investment standards.1 A NAFTA-based foreign investor may initiate a claim directly under Chapter 11 for compensation for losses caused to the investor by a NAFTA state's breach of the rules. The claim is submitted to an arbitration tribunal constituted under the rules of either the Additional Facility of the International Centre for the Settlement of Investment Disputes (ICSID) or the United Nations Commission on International Trade Law (UNCITRAL).2 If a Chapter 11 tribunal concludes that the NAFTA host state violated the relevant treaty standards, the tribunal may award damages to the investor.3 The award is given the force of domestic law through existing structures of international commercial arbitration – represented primarily by the New York Convention – which adopt the principle of judicial deference to arbitration tribunals.4 A Chapter 11 award is not the same as a typical commercial arbitration award arising from a dispute between private parties. At its root, the authority for Chapter 11 arbitration comes from the consent of state parties to NAFTA, not from a contract. Thus, the consent of one of the disputing parties in a Chapter 11 arbitration – the host state – is made via an instrument of public international law. Moreover, the general effect of Chapter 11, like bilateral investment treaties, is to regulate host states' exercise of public authority in relation to foreign investors. In this regard, NAFTA standards could be viewed as analogous to rules of domestic public law that protect individuals by limiting state authority, although in the international sphere. On the other hand, Chapter 11 imports rules and structures of international commercial arbitration into investor-state dispute resolution. As such, the arbitration of a dispute under Chapter 11 closely resembles classical commercial arbitration between private parties. This contradiction in the public and private law aspects of Chapter 11 reveals a basic tension in investor-state arbitration under modern investment treaties. Is investor-state arbitration more like public law adjudication or commercial arbitration? Or is it a hybrid, and if so should public or private law principles take precedence in a particular circumstance?