Public Interest Rules of International Law: Towards Effective Implementation
Ashgate Publishing, November 2009, Pages: 510
This book clarifies factors that play an important role in securing the effectiveness of legal regimes that aim to protect public interests of the international community.
In Part 1, the authors focus on theoretical problems arising in the implementation process of those legal regimes from both a constitutional and functional perspective.
In Parts 2 through Part 4, they pay attention to practical issues in the implementation process of particular legal regimes, in light of what interpretation or measures are legitimate from the perspective of protecting public interests.
This book incorporates an idea of public law into the theoretical framework of international law which has been mainly constructed on the theory of private law in domestic legal systems. In contrast to many books which focus on the role of the procedural and material factors in the implementation process of various institutions and rules, this book emphasises the role of normative factors in securing effectiveness of public interests-oriented rules and is a valuable resource for both academics and policy makers working in this area.
List of Tables
Notes on Contributors
Introduction
Teruo Komori
Changing Character of International Law
Approaches to Diversity and Complexity of the International Legal Process
Structure of the Book
References
Part I Theoretical Aspects of the Implementation Processes
1 General Observations
Karel Wellens
Introduction
Conceptual Framework
Enforcement in its Various Forms
The Necessary Link between Primary and Secondary Rules
Balancing Public Interests and the Interests of Individual
Victimized Parties
Impact of the Public Interest Nature of the Rules on Various
Aspects of the Implementation Process
The (Potentially) Ambivalent Role of Domestic Courts
Impact of the Public Interest Nature of the Rules on Various
Aspects of the Enforcement Process
Conclusion
References
2 Diversification of Implementation Processes and Changing Concepts of Effectiveness: From a Factor-based to a Process-based Approach
Teruo Komori
Introduction
Structural Features of Implementation Processes
Operational Features of Implementation Processes
Justifying Measures Taken in the Implementation Process
Concluding Remarks: Towards Process-based Concepts of
Effectiveness
References
3 Multifaceted Conceptions of Implementation and the Human Rights Approach
TERAYA Koji
Introduction
Providing Legitimacy to States as Producers of International Law
Providing Integrity to International Norms
Providing Social Conditions for Observance
Determinacy of Human Rights and the Positivist Contribution
Concluding Remarks
References
Part II Diversity and Complexity of the Institutionalized Implementation Process
4 UN Reform 2005 and Beyond: Conceptualization, Institutionalization and Implementation
Vitit Muntarbhorn
Introduction
Conceptualization
Institutionalization
Implementation
Concluding Remarks
References
5 Legitimization of Measures to Secure Effectiveness in UN Peacekeeping: The Role of Chapter VII of the UN Charter
Hironobu Sakai
Introduction 119
Significance and Limitations of Traditional UN Peacekeeping Operations
The Role of Chapter VII of the UN Charter in Peacekeeping and Its Evaluation
Concluding Remarks
References
6 Security Council Resolution 1540 and International Legislation
Masahiko Asada
Introduction
Content and Significance of Security Council Resolution 1540
Resolution 1373 as the First International Legislation by the Security Council
Resolution 1540 and the Problems with International Legislation by the Security Council
Resolution 1540 and the Conditions for Legitimate International Legislation by the Security Council
Conclusion
References
7 Proportionality as a Norm of Application for the Precautionary Principle: Its Significance for the Operation of the Precautionary Regime for Land-based Marine Pollution in the North-West Atlantic
Takeo Horiguchi
Introduction
Precaution, Proportion and Proportionality
Evolution of a Precautionary Regime for LBMP in the North-East Atlantic
Proportionality and the Effectiveness of the Precautionary Regime
Conclusion
References
8 The Role of Diplomatic Protection in the Implementation Process of Public Interests
Nobuyuki Kato
Introduction
Function of Diplomatic Protection in the Protection of Individuals
Effectiveness of Diplomatic Protection and the Law of Human Rights
Relevancy and Effectiveness of Diplomatic Protection in the Protection of Public Interests
Invocation of State Responsibility in Case of Violation of Obligations Erga Omnes and Diplomatic Protection
Concluding Remarks
References
Part III Coordination of Legal Regimes and Systems in the Implementation Process
9 Effective Implementation of Intersecting Public International Regimes: Environment, Development and Trade Law
Marie-Claire Cordonier Segger
Introduction
Trade, the Environment and Development: Conflict or Compatibility?
Sustainable Development in World Trade Law
Sustainable Developments in New Regional and Bi-lateral Trade Treaties
Process Innovations Develop More Sustainable Trade Agreements
Conclusions: Processes and Provisions to Reconcile Intersections between Regimes in the Implementation of Trade Law for
Sustainable Development
References
10 Effective Implementation of International Environmental Agreements: Learning Lessons from the Danube Delta Conflict
Mari Koyano
Introduction
Overview of the Danube Delta Conflict
Analysis on the Management Processes of the Danube Delta Conflict
Lessons Learnt from the Management Processes of the Danube Delta Conflict
Conclusion
References
11 The Principle of Complementarity in Reality: Who Actually Applies It and in What Way under the ICC System?
Shuichi Furuya
Introduction
Screening Processes of Complementarity
Substantive Tests under the Rome Statute
Complementarity in Practice
Conclusion
References
12 Implementation of Article VI of the 1967 Outer Space Treaty: The Responsible State and Appropriate State for Private Space Activities
Akira Sakota
Introduction
Preliminary Considerations
Responsible State and Appropriate State in the Drafting Discussion in COPUOS, Legal Literature and Various National Space Legislation
The Link between a Space Object and a State in the Practice of Registering Space Objects
Conclusion
References
13 How to Design an International Liability Regime for Public Spaces: The Case of the Antarctic Environment
Akiho Shibata
Introduction
A Regime for the Environment?
A Liability Regime for Public Spaces
Conclusion: Challenges for Domestic Implementation
References
Part IV Diversification of Actors in the Implementation of International Public Interests
14 International Economic Law and the Basel Committee on Banking Supervision – An Alternative Form of International Law-making?
Kern Alexander
Introduction
Sources of International Economic Law and Financial Regulation
Globalization and International Standard Setting
International Standard Setting and the G10 Committees
The Traditional Sources of Public International Law and International Financial Regulation
Basel Committee’s Decision-making and Implementation Issues
Alternative Modes of Implementation and Enforcement of the Basel Accord
Official and Market Incentives to Adopt International Banking Standards
Enforcement also Requires Skills and Other Institutional Costs
Assessment of the Basel Committee’s Role in the Present International Financial Regulatory Regime
Conclusion
References
15 Corporate Social Responsibility and Its Implications for Public International Law
AGO Shin-ichi
Preliminary Observations: The Position of CSR in Domestic Law and the Legal Status of an Enterprise in International Law
Existing International CSR Rules and their Implementation
GUF Framework Agreements
The Expanding Space of the International Legal Community
CSR as a Vehicle to Implement Traditional International Law (the Procedural Aspect of Law)
CSR as Emerging Law (Operation Processes that Play an Important Role in Law-making)
Conclusion
References
16 Privatization of Childcare as a Way of Implementing Young Children’s Rights: The Recommendations of the Committee on the Rights of the Child and Their Implications for Japan
OTA Ikuko
Introduction
The UNCRC and Its Implications for Young Children
The Impediments to Ensuring Effective Implementation of the UNCRC
The CRC’s Approaches to Re-strengthening the Roles of Parents and States Parties
Striving for Young Children’s Best Interests in Day-Care Privatization in Japan
Overall Evaluation: The Acknowledged Importance of Close and Continuous Relationships in Day-Care Services
The CRC’s Contribution to Ensuring Effective Implementation of Young Children’s Best Interests
References
Concluding Remarks
Karel Wellens
The Instrumental Role of Interpretation in the Process
The Flexibility of the Process to Adapt to Changing Circumstances Reflects Its Effectiveness
The Link Between Procedural and Substantive Aspects of the Process
The Role of the Domestic Systems
The Need to Establish Benchmarks to Asses the Performance by States
The Principle of Complementarity as Traditionally Defined
The (Emerging) Principle of Mutual Supportiveness
The Role of Non-State Actors
Other Non-governmental Actors
The Variety of Methods Used to Enhance the Effectiveness of the Process
Impact of the Process of Implementation of Public Interest Rules on Some Issues of General International Law
(Potential) Impact of General International Law on the Process of Implementation of Public Interest Rules
The Question Raised by Carol Harlow
References
Index
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