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Ilias Bantekas

This chapter analyses the circumstances under which superiors incur liability for the acts of their subordinates. A fundamental question posed in this chapter is whether all types of superiors are liable in accordance with the same criteria, or whether this depends upon each particular person's de facto or de jure status. The chapter presents an analysis of the necessary and reasonable measures expected of operational, tactical and POW camp commanders, as well as the extent of their liability in accordance with either the people they command or control, or the territory that they occupy. Regulation 8(ii) of the British Royal Warrant was subsequently construed by the United Nations War Crimes Commission as referring to a matter of evidence and not of substantive law. The chapter examines the applicable mens rea standard required under the doctrine of command responsibility, as well as possible lege ferenda standards.

in Principles of direct and superior responsibility in international humanitarian law
Jurisdictional aspects
Fiona Beveridge

Territoriality, nationality, passive personality, protection of the state, universality and extra-territoriality are all recognised bases of jurisdiction in international legal discourse and debate centres on their applicability or acceptability in particular circumstances. This chapter examines the main legal concepts and practices employed by states in delimiting their tax jurisdiction from that of others with overlapping interests. Customary international law restrictions on tax jurisdiction can be examined under three headings. First, there may be restrictions arising from particular substantive rules of the system, such as the principle of non-intervention in internal affairs, the rules on the treatment of foreign nationals or the principle of non-discrimination. Second, there may be restrictions arising from the general principles of jurisdiction. And, finally, there may be specific restrictions on jurisdiction in the taxation sphere, evidenced by state practice and opinio juris.

in The treatment and taxation of foreign investment under international law
Fiona Beveridge

An examination of the rules used by states in the tax sphere can be informative not only as a description of current practice, but also to gain insight into the legal and non-legal constraints within which the current regime operates. Although domestic law rules for the taxation of transnational business are typified by their detailed complexity, they are underpinned for the most part by a small group of relatively simple concepts. The two primary tasks for taxation regimes are the definition or description of the tax base and the allocation of taxable income or wealth between tax authorities, and it is with these tasks that the basic concepts are concerned. This chapter first discusses the basic tax principles and principles employed in the avoidance of double taxation. The chapter then describes the taxation under the World Trade Organisation.

in The treatment and taxation of foreign investment under international law
Asif H. Qureshi

The international community must not only confront the challenges of designing a substantive code of state conduct in the field of international trade, but must also engineer effective techniques for the implementation of that code. Not only is the desirability of an effectively implemented code axiomatic, but herein, it may be contended, lies a clearer picture of the World Trade Organization (WTO) code. In the practice of international economic organisations three principal methods of implementation have featured. These are surveillance, supervision and dispute settlement. The practice of international supervision gives rise to a pronounced hierarchical relationship, namely that of supervisor and supervisee. The primary objective of the WTO dispute settlement procedure is to resolve the 'private' relations between member states that are a consequence of the code. Dispute settlement is primarily concerned with the immediate correction of deviant behaviour. Its efficacy is dependent on the nature of its coercive component.

in The World Trade Organization
Fiona Beveridge

This chapter reviews some of the important issues arising from the Multilateral Agreement on Investment (MAI), and considers the suitability of the World Trade Organisation (WTO) as a forum for the development of future disciplines on foreign investment law. The continuing debate over the handling of environmental concerns under WTO disciplines is paralleled in debates regarding unilateral measures adopted by states in pursuit of social concerns, such as labour standards generally or the elimination of child labour, or human rights. Though recourse to the WTO Dispute Settlement Body has been less common in relation to these areas, the link between trade and social issues is clear and the subject of growing public awareness. The WTO also offers authority to future negotiations on investment regulation, including in particular the growing authority of its dispute resolution processes.

in The treatment and taxation of foreign investment under international law
Asif H. Qureshi

The phenomenon of trade 'blocs' poses interesting challenges for the international trading system. In a sense the definition of a trade bloc is a function of the perspective from which they are apprehended. This lack of a coherent definition could be attributed to the level and quality of the international consciousness that pertains to the enforcement problems trade blocs pose. This chapter aims to draw and sharpen the focus of attention on the problems of managing trade blocs within the World Trade Organization (WTO) framework. The constitutional structure of a trade bloc varies according to the genre of the trading association, and indeed as between associations. Most commentators are in agreement that trade blocs require management if they are to co-exist peacefully and in the framework of the objectives of the GATT/WTO.

in The World Trade Organization
Asif H. Qureshi

One of the most exciting of the developments that has emerged in the institutional sphere from the Uruguay Round of Trade Negotiations is the focus on ensuring closer adherence by members to the WTO code through the newly created Trade Policy Review Mechanism (TPRM). The Uruguay Round Mid-Term Review agreement establishing the TPRM was arrived at in Montreal, Canada, by the Trade Negotiations Committee at Ministerial level in December 1988. The criterion for the assessment of a member's foreign trade regime under the TPRM is the impact a member's trade policies and practices make on the multilateral trading order. The agreement is not very transparent with respect to the criteria for the review. A fortiori, the agreement on the TPRM can only refer to economic and/ or legal criteria. Indeed, this was the understanding of the negotiating group.

in The World Trade Organization
Towards international disciplines
Author:

This book examines some of the challenges which globalisation throws up for the international community from a legal perspective. It focuses on two aspects of the treatment of foreign investment by states: the general rules concerning access, operation and expropriation of foreign investment and the lex specialis of international taxation. The book describes the implications for developing states which have in the past resisted the international law rules relating to expropriation of foreign investment and sought instead the development of a new international economic order including inter alia the establishment of binding rules addressing the behaviour of transnational corporations. It traces the development of new legal concepts and techniques in different contexts and locations: in bilateral relations, in multilateral conventions and negotiations and in regional economic integration systems. The wide scope of the Uruguay Round and the linking of the separate agreements in the WTO 'package' serve to illustrate how the battle between old and new ideological strands can be played out simultaneously in different ways in different locations and with different results; it serves to highlight how ideology drives the transfer and leakage of legal concepts and principles from one field to another. Many developing states have signed up to the WTO Agreements and have embraced the free trade orthodoxy in other areas. But recent and future developments in relation to the treatment and taxation of foreign investment will constitute in some areas an assault on long-held ideological constructs hitherto shielded from or accommodated within other free trade developments.

Towards a new paradigm
Fiona Beveridge

This chapter examines a number of legal developments which have shaped current approaches to the treatment of foreign investment. It first examines the Foreign Investment Review Act Case, a pre-Uruguay Round GATT dispute between Canada and the US, which throws into sharp relief the ideological debate over the role of the state in the regulation of foreign investment and the relationship between foreign investment regulation and trade disciplines. The chapter then looks at the foreign investment implications of the Uruguay Round Agreements, in particular Trade-Related Investment Measures which clarifies the relationship between GATT and the regulation of foreign investment, General Agreement on Trade in Services, which concerns market access for and treatment of service providers, and the Trade Policy Review Mechanism, the World Trade Organisation (WTO) mechanism whereby the trade policies of Members are subject to regular scrutiny by other WTO Members.

in The treatment and taxation of foreign investment under international law
Matthew Happold

Since 1998, when the issue of war-affected children was placed on the agenda of the Security Council, the progressive engagement of the Council has yielded significant gains for children. The United Nations (UN) has tended to consider the issue of child soldiers as a part of the broader issue of war-affected children. Resolution 48/157 marked the first time that the General Assembly had considered the issue of children affected by armed conflict in any specific way. Resolution 48/157 set out a plan of action and proved to be the beginning of a continuing commitment by the political organs of the UN to the issue of children's involvement in armed conflict. The General Assembly recommended that the Secretary-General appoint a special representative on the impact of armed conflict on children, and set out the Special Representative's mandate. From the late 1990s, Security Council resolutions began to make reference to conflict-affected children.

in Child soldiers in international law