THE ADVANCEMENT OF INTERNATIONAL LAWPDF电子书下载

PART 1—ADVANCES IN THE TECHNIQUES OF INTERNATIONAL LAW 3

1—State Contracts and their Governing Law：A Reappraisal 3

State Contracts as New International Legal Acts 5

State Contracts as Contracts entered into by States as Subjects of Public International Law 5

State Contracts as Contracts governed by the International Legal Order 8

Responses to some Objections 22

On it being Impossible for Contracts between States and Individuals to come within the International Legal Order 22

On the Preference Given to Public International Law Rather than Transnational Law for Governing State Contracts 32

2—The International Responsibility of States based on Investment Promotion and Protection Treaties 43

State Responsibility in the International Legal Order 46

Characteristics of States’International Responsibility on the Basis of Protection Treaties 47

Justification of Recource to International Law 54

State Responsibility on the Basis of Protection Treaties and State Responsibility in Municipal Law 61

In the Absence of any Contractual Connection between Investor and State 63

In the Presence of a Contractual Connection between State and Investor and with a Separate Dispute Settlement Clause from that Provided by the Protection Treaty 67

3—The State’s Normative Freedom and the Question of Indirect Expropriation 87

Indirect Expropriation in International Law 90

In International Law in General 90

In International Investment Law 93

Maintaining the State’s Normative Freedom 96

Results of Case Law 97

The Prudence of Arbitrators 103

PART 2 ADVANCES IN THE THEORETICAL ANALYSIS OF INTERNATIONAL LAW 111

4—Some Theoretical Reflections on State Contracts 111

The Concept of State in State Contracts 113

The Double Personality of the State in Anzilotti 114

Kelsen’s Dismissal of the Double Personality of the State Presented by Anzillotti 116

The Double Theory of the State in Kelsen 117

Individuals as Subjects of Public International Law 120

Definition of the Subject of International Law 121

Subjects of International Law and‘Legal Communities’of International Law 123

Objections Raised by the Dualist Doctrine 126

Relations between Private Persons and their Home State from the Standpoint of Internalonal Law 128

On the Inequality between States and Private Persons 130

Private Persons bringing Proceedings before International Courts 133

Dismissal of the Petitio Principii that Individuals can never Bring Proceedings before International Courts 133

Can Mixed‘Tribunals’be considered International Courts？The Case of ICSID Tribunals 134

Can‘Mixed’Courts be considered International Courts？The Case of Ad Hoc Tribunals 142

On the Incapacity of General Principles of Law to Internationalise State Contracts 146

Lankarani El-Zein’s Argument 146

Dismissal of this Argument 149

On Stabilisation Clauses in State Contracts 153

Stabilisation Clauses are Purportedly not Characteristic of a New Category of Contracts 154

Stabilisation Clauses Purportedly do not Imply the Internationalisation of State Contracts 156

On the Validity and Efficacy of Stabilisation Clauses 157

5—Hans Kelsen and the Advancement of International Law 165

The Nature of International Law 166

Law in its Own Right 166

Reprisals and War：Sanctions of Decentralised International Law 167

Centralisation of International Law：Collective Security and Compulsory Jurisdiction 168

Changes in International Law：Towards what sort of Civitas Maxima？ 171

Centralisation /Decentralisation of Legal Orders 172

The International Organisation as a Comparatively Centralised Legal Order and its Relations with the State 173

The European Union as a Possible Horizon of International Law 176

Changes in International Law：Internationalised State Contracts and the Status of Private Persons in the International Legal Order 179

The Notion of a State Contract 181

The Possibility of Individuals to be Limited Subjects of International Law 182

6—The Notion of Civitas Maxima in Kelsen’s Work 189

Civitas Maxima and the Primacy of International Law 191

Civitas Maxima and Kelsen’s Conception of Legal Orders 195

The World State： Cognitive Postulate or State Stricto Sensu？ 198

Conclusion 201

7—International Courts in an Interstate Society 203

The Decisive Criterion for the Existence of an International Legal Order 204

Law as a System of Justiciable Rules 204

International Law as a System of Minimally Justiciable Rules 207

Optional Courts and Mandatory Courts 207

Mandatory Judgement and Enforceable Judgement 209

Judicial Third Party and Political Third Party 211

International Courts and the Advancement of the International Legal Order 212

Primacy of the Rule of Law and State Sovereignty 212

Judicial Interpretation and Self-Interpretation of International Law 212

Legal Disputes and Political Disputes 214

The Development of International Law 215

The End of Anarchy 216

8—The State within the Meaning of International Law and the State within the Meaning of Municipal Law （On the Theory of the Dual Personality of the State） 219

The Two Sides or Double Personality of the State 221

The Two Sides of the State in Classical French and German Doctrines 221

The Double Personality of the State in Italian Internationalist Doctrine 226

The Double Personality of the State：Kelsen’s Analysis 239

Ambiguities in Kelsen 240

The Double Personality of the State in a Normativist Conception of Legal Orders：A Proposal 247

PART 3—EUROPEAN UNION LAW：INTERNATIONAL LAW SURPASSED OR INTERNATIONAL LAW ADVANCING？ 257

9—On the Legal Nature of the European Communities 257

Centralisation/Decentralisation of a Legal Order 258

The Kelsenian Interpretation of Federalism 259

The European Community：A Relatively Centralised International Legal Order 260

The Importance of Central Norms 261

The Existence of a Court to Rule on the Apportionment of Jurisdiction between the Central Order and the Local Orders 262

The Direct Applicability of Community Law 263

The Primacy of Community Law 264

The International Legal Order/The State Legal Order 266

Of the Birth of the State 267

Of the Legal Nature of the Community and its Future Development 270

10—A Federation of Nation States or a Federal State？ 273

The Reasons for Community Europe’s Dysfunctions 274

Federation and the Constitutional Theory of the State 276

Confederation of States and Federal State 276

The Federation （J Fischer） or Federation of Nation State （J Delors） 277

Sovereignty and Nation States 279

Sovereignty 280

Nation States 283

The European Federation：Squaring the Circle 284

11—Is there a European Approach to Human Rights？ 287

Introduction 287

The West and the Rest：Europe and the Question of the Universality of Human Rights 290

The European Model of Human Rights：A Concrete Universal 292

It is Possible to Conceive of the Universal and Human Rights Starting from Other Traditions 296

The Universal and the Particular in Human Rights 297

The European Universal and its Relations with other Civilisations 299

The Universal and the Eternal：The Birth of Universal Human Rights in and through History 304

Europe and the West：The European （Properly Speaking） Dimension of Human Rights 306

Birth，Disappearance and Rebirth of Human Rights in Europe 306

The Enforced Hibernation of the Philosophy of Human Rights in Europe 306

Barbarity in Europe and the Renewal of the Philosophy and Positive Law of Human Rights 311

Certain Features of the European Concept of Human Rights 312

Conclusion 325

Index 327