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Asif H. Qureshi

This chapter focuses on the Trade Policy Review Mechanism as a mechanism for the implementation of the World Trade Organization code, particularly as it affects 'developing' countries. It highlights some of the general problems with respect to mechanisms within the framework of GATT that facilitate the implementation of that agreement in so far as 'developing' countries are concerned. The analysis is based mainly on the experience of ten 'developing' countries, as follows: Morocco 1989; Colombia 1990; Thailand 1991; Nigeria 1991; Indonesia 1991; Ghana 1992; Egypt 1992; Brazil 1992; Bangladesh 1992; and Uruguay 1992. The relationship of developing countries to the international trading order and international enforcement mechanisms is influenced by the following: the availability of resources in relation to information and expertise; the trade-related institutional structure; and the interaction of the rest of the domestic economic structure with international trade-related issues.

in The World Trade Organization
Abstract only
Asif H. Qureshi

The dispute settlement framework is described in the Understanding on Rules and Procedures Governing the Settlement of Disputes (the Understanding). The primacy and significance of the institutional framework under the Understanding is reinforced by the edict to members that they are not to make determinations of violations under the World Trade Organization (WTO) code, except through recourse to the mechanisms under the Understanding. A Dispute Settlement Body (DSB) has been established to administer the rules and procedures under the Understanding. The jurisdiction of the DSB, under the institutional framework of the WTO, extends to the whole of the WTO code. Thus the remit of the DSB includes trade in goods, services and intellectual property rights, and is generally coterminous with the GATT 1994.

in The World Trade Organization
Asif H. Qureshi

This chapter focuses less on European Communities (EC) trade policies and practices than on the challenges the EC poses in the implementation of the World Trade Organization (WTO)code. The European Union is undergoing a process of internal economic integration. Its external trade relations are also dynamic, and have an impact on its internal structure. The enforcement standpoint has an 'institutional' concern. This is in terms of the efficacy of the GATT/WTO instruments of implementation; in the trade-related institutional framework of the entity under review; and in the general relationship and responsiveness of the trade policies and practices with the WTO framework. The EC has passed legislation to implement the results of the Uruguay Round, effective as of January 1995. The 1991 Report by the GATT Secretariat gives a picture of the pattern of EC external as well as internal trade, including an appraisal of EC trade product-wise.

in The World Trade Organization
Fiona Beveridge

This chapter examines the specific issues which flow from the operation of the principle of state sovereignty in the field of foreign investment examined, highlighting the range of such techniques and the areas of international law which have historically been of significance in relation to the treatment of foreign investment. Historically, the discretion of states in relation to foreign investment has been perceived as restricted to three main areas. First, and most pervasively, certain restrictions were seen to flow from the particular way in which the apparently permissive doctrine of sovereignty itself was constructed, and these must be contextualised and examined before the issue of sovereignty in North-South economic relations can be properly understood. Second and more recently, a non-discrimination rule has been formulated which has become part of customary international law. Third, the international law regarding expropriation must be examined.

in The treatment and taxation of foreign investment under international law
Ilias Bantekas

The interaction of law, politics and financial considerations have proved detrimental for staging criminal prosecutions, even to this day, but ultimately have not negated the criminal liability of perpetrators. This chapter explores the various forms of direct participation in humanitarian law offences. These are: planning and conspiracy; ordering others to commit a crime; incitement and dissemination of hate propaganda; and complicity. The chapter describes the concept of war crimes and crimes against humanity. Since the adoption of the Genocide Convention, the concept of criminal conspiracies has attracted the attention of the ILC regarding its Draft Code of Crimes against the Peace and Security of Mankind. Draft Article 2 deals with the individual responsibility of participants in international offences. An order is unlawful when it violates international humanitarian law, regardless of its legitimacy under national law.

in Principles of direct and superior responsibility in international humanitarian law
Stephen C. Neff

This chapter focuses on the ways in which the basic war strategies of the two sides affected neutrals, and in the legal innovations and controversies involved. From the Allied side, came the set of techniques sometimes given the broad collective title of 'long-distance blockade'. From the Central powers' side, the outstanding innovation was a new style of preying on enemy commerce at sea: submarine warfare, which was waged by means that departed significantly from those of traditional maritime war. An important resemblance between the Great War and the Napoleonic wars of the previous century was the prominent part played by sovereign right measures, as contrasted with traditional belligerents' rights per se. At the very outset of the War, Germany provided a spectacular demonstration of its readiness to commit serious infringements of the normal rights of neutrals under the rubric of necessity.

in The rights and duties of neutrals
A study of the European Convention on Human Rights, Fourth edition

This book provides an expanded and up-to-date account of the European Convention on Human Rights and the evolution of its system of human rights protection. It explains the scope of the rights and freedoms which are guaranteed, then reviews the institutional arrangements, first as they functioned until November 1998, and now under Protocol No. 11. To put the Strasbourg system in perspective, the book begins with a short historical overview of the Convention and its progressive elaboration and describes the new European Court of Human Rights. It also mentions other arrangements which now exist for promoting and protecting human rights in Europe. The Council of Europe was set up as a peaceful association of democratic States which proclaimed their faith in the rule of law and 'their devotion to the spiritual and moral values which are the common heritage of their peoples'. The 'Congress of Europe', convened by the International Committee of Movements for European Unity, was held at The Hague in May 1948. Articles 14-18 of the Convention relate to the scope and exercise of the rights guaranteed. They are therefore not intended to secure additional rights, but rather to ensure the effective exercise of the rights set out in the earlier provisions, or in certain situations to permit their limitation. Article 14 establishes the principle of non-discriminatory application, Article 15 allows for the exercise of emergency powers, and Article 17 is intended to prevent abuse of the Convention's freedoms.

The prohibition on the use of force
Nikolaos K. Tsagourias

This chapter explains how the antagonistic theoretical streams mould legal argument and how this is reflected in the United Nations (UN) framework and the state practice. The legal framework to be considered here is the UN Charter which adheres to sovereignty and nonintervention as guarantors of international peace, order and security but also makes proclamations for justice and human rights. According to one line of argument Article 2(4) contains an all-inclusive prohibition. Consequently, humanitarian intervention is illegal and located outside the premises of the Charter. This reasoning contains those theoretical ingredients which substantiate the concept of sovereignty. The argument which relies on Article 2(4) invokes the consensual aspect of positive international law and the role of sovereignty whereas that which relies on notions of justice and human rights invokes extra-consensual, naturalistic, aspects.

in Jurisprudence of international law
Asif H. Qureshi

The array of mechanisms for the implementation of the World Trade Organization (WTO) code are varied, subtle and sophisticated. Under Article X of GATT 1994 all legislative instruments and international agreements relating to or affecting international trade are to be published in an expeditious fashion for the benefit of both traders and governments. In particular, all such legislation that results in increasing the burden on traders is to be effective only when officially published. Procedures to prevent the suspected import or export of goods infringing intellectual property rights are to be made available, particularly in relation to counterfeit trade mark or pirated copyright goods. The requirement that the WTO provide special information to developing countries, for example in the field of technical barriers, is of particular relevance in enhancing the capacity of developing countries to ensure implementation through the WTO.

in The World Trade Organization
Stephen C. Neff

In the middle of the eighteenth century, writers on international law began to propound where to seek the general law of neutrality. The result was the emergence of three rival schools of thought purporting to explain the law of neutrality. The three schools are the conflict-of-rights theory, code-of-conduct school, and community-interest school. Several important features of the school of thought should be carefully noted. One is its general stress on rights rather than duties, in practice, rather more on the rights of belligerents than of neutrals. Another fundamental feature of this approach is that neither the neutrals' nor the belligerents' rights are rooted in the law of war per se. Both are derived instead from general principles of international law. Two areas will serve to give a favour of coherent schools' divergent approaches: contraband and blockade.

in The rights and duties of neutrals