segunda-feira, 5 de junho de 2017
Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues
14(2) (2017) International Organizations Law Review (Forthcoming)
23 Pages Posted: 24 May 2017
University of Leicester
Date Written: May 23, 2017
On 30 May 2016, the International Law Commission (ILC) adopted a set of 16 draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in Article 38(1)(b) of the ICJ Statute, the ILC study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognizing that the practice of international organizations (IOs) as such may be constitutive of custom. This article critically examines the ILC draft Conclusions concerning the role of IOs in the process of custom creation. It examines the concept of resolution adopted by the ILC and assesses the coherence of the interpretive methodology devised by the ILC using the UN General Assembly resolutions as a case study. The findings show that the draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.
sexta-feira, 2 de junho de 2017
Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy
24 Pages - Posted: 17 May 2017
Indiana University Bloomington Maurer School of Law
Date Written: 2017
Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law?
This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope.
BUXBAUM, Hannah L. Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy (2017). Indiana Legal Studies Research Paper No. 372. Disponível em: <https://ssrn.com/abstract=2968613>. Acesso em: 01 jun. 2017.