scholarly journals Canadian Interpretation and Construction of Maritime Conventions

2019 ◽  
Vol 22 (1) ◽  
pp. 109-128
Author(s):  
William Tetley
Keyword(s):  
Federal Court ◽  
The United States ◽  
International Agreements ◽  
Vienna Convention ◽  
Statutory Interpretation ◽  
International Treaties ◽  
Maritime Law ◽  
Law System ◽  
The United Kingdom ◽  
Federal Jurisdiction

In this article, the author first describes the essentially civilian nature and origin of maritime law in the United Kingdom, the United States and Canada, a point unfortunately overlooked in the Supreme Court of Canada’s decision in the Buenos Aires Maru case [1986] 1 S.C.R. 752, but recognized in the judgement of the same Court in Chartwell Shipping Ltd v. Q.N.S. Paper, [1989] 2 S.C.R. 683. The article touches briefly on the federal jurisdiction over maritime law in Canada, the dual jurisdiction of the Federal Court and the superior courts of the provinces in maritime matters and the mixed civilian / common law system in Quebec. Consideration is then given to the Constitution Act, 1867, as interpreted by the much-criticized Labour Conventions decision of the Privy Council [1937] A.C. 326. The decision held that although the power to conclude international treaties and conventions in Canada is vested in the federal government alone, the enactment of the domestic legislation required to secure the implementation of such international agreements is not an exclusively federal matter, but may be a question of either federal or provincial competence, depending on the subject matter of the treaty or convention concerned. The author then reviews the principal rules of statutory interpretation which are provided for by the Vienna Convention on the Law of Treaties of 1969. He points out that, notwithstanding Canada’s ratification of this Convention in 1970, Canadian courts still tend to apply traditional (and often narrow) techniques of statutory interpretation when called upon to construe treaty texts, rather than keeping the goals of the agreement and intent of the parties in view, as the Vienna Convention requires. He indicates, however, a more recent judicial trend towards a more liberal methodology, as evidenced in decisions like R. v. Palacios, (1984) 45 O.R. (2d) 269 (Ont. C.A.) The article concludes with a brief overview of the major statutory interpretation rules applied by Canadian courts in construing local laws and international agreements and some aids to such interpretation. Professor Tetley, as a last tribute, applauds what he sees to be the slowly emerging "general consensus" on statutory and treaty interpretation in Canada.

Retroactivity in international treaty law

2021 ◽  
Author(s):  
Iryna Osmirko ◽  
Ivanna Maryniv
Keyword(s):  
General Rule ◽  
International Agreements ◽  
Vienna Convention ◽  
Main Body ◽  
International Agreement ◽  
International Treaties ◽  
International Treaty ◽  
Retroactive Effect ◽  
The Status ◽  
Contractual Obligations

Problem setting. Due to the fact that the constitutional norms determine the status of an international treaty, the binding nature of which has been approved by the parliament as part of national legislation, it is important to study the temporal effect of international treaties, namely their retroactivity. In general, the Vienna Convention contains a provision according to which an international treaty has no retroactive effect in respect of the States which are parties to it, except where the intention to give retroactive effect to the treaty follows from the treaty itself or the agreements of its parties. These exceptions to the general rule indicate the non-absoluteness of the latter, so it is appropriate to study the factors that determine the existence of retroactive agreements, as well as controversial and controversial issues that arise in this regard. Analysis of recent researches and publications. Scholars such as S.N. Ivanov, RA Kalamkaryan, M.A. Kapustina, II Lukashuk, OV Pushnyak and others. However, this area needs further study and analysis, given the existence of exceptions to the general provision on the lack of retroactive effect of international agreements. Target of research. Тo consider the conditions under which an international treaty has retroactive effect, to investigate the factors influencing the decision to grant retroactive effect and the issues arising in connection with the retroactivity of international treaties. Article’s main body. This study examines the non-absoluteness of the provision on the absence of retroactive effect of international agreements. Among the reasons that encourage states to anticipate retroactive effect – the interpretive or additional nature of the international agreement or the need to resolve the situation that arose before its conclusion. It should be emphasized that some agreements have retroactive effect by virtue of their object, which provides this retroactive effect, as agreed by the parties, although not explicitly stated in the contract. It is also not uncommon for certain rights and obligations to arise not because of an international treaty that has not yet entered into force, but because of customary norms that are enshrined in it. Conclusions and prospects for the development. The principle of no retroactive effect of an international agreement is not absolute. In each case, the reasons for the application of retroactivity must be decided by a judicial authority in the process of interpreting the contractual obligations. An important role in the possibility of retroactive application of an international treaty is played by its object or the co-existing customary norms of international law and the principles recognized by civilized nations as binding.

“Visible” and “Invisible” Victims in the Criminal Justice System

2021 ◽  
pp. 1-23
Author(s):  
Armando Saponaro
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
The United States ◽  
Public Prosecutor ◽  
Law System ◽  
The Public ◽  
The United Kingdom ◽  
Victim Impact Statement

This chapter outlines the “conflict” and “peace-keeping” victim-oriented justice paradigms. The latter empowers the victims of crime, putting them at the center of an encounter and using interindividual mediation or collective circles to address conflict resolution. Two models are critically discussed in the conflict victim-oriented justice paradigm. The European continental “visible victim” model structures the role of the victim as a full-fledged processual party together with the public prosecutor and offender. In this model, the victim has the same rights and powers of the defendant. The “invisible victim” common law model views the victim as a trial witness, participating, for example, through a victim impact statement (in the United States) or victim personal statement (in the United Kingdom) at the sentencing stage. The visible victim conflict paradigm model enhances a victim's role and involvement in the criminal justice system, offering a solution to existing controversial and critical common law system issues.

scholarly journals Trump Administration Announces Withdrawal from Four International Agreements

2019 ◽  
Vol 113 (1) ◽  
pp. 131-141
Keyword(s):  
United States ◽  
The United States ◽  
International Agreements ◽  
Vienna Convention ◽  
Nuclear Forces ◽  
International Court Of Justice ◽  
Economic Relations ◽  
Optional Protocol ◽  
International Court ◽  
Trump Administration

In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.

scholarly journals Transfer of Risk of Loss in Turkish Law and International Treaties

2020 ◽  
Author(s):  
Almıla Özkan ◽  
Ayşe Sena Aksakallı
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Vienna Convention ◽  
Legal Systems ◽  
International Treaties ◽  
Law System ◽  
Common Law System ◽  
The Way

The risk of loss refers to the value of the goods that were damaged or destroyed without responsibilities of any party. While the matter of risk of loss differs from legal systems to legal systems, it has been subject to international treaties as well. In Turkish legal system, the abrogated Code of Obligation and Turkish Code of Obligations have different features in terms of transfer of risk of loss. According to abrogated Code of Obligation, the buyer is responsible for the value of the damaged goods as soon as the parties sign the contract. In Turkish Code of Obligations, the seller bears the risk of loss until the delivery of goods or registration. Turkish Code of Obligation is compatible with civil law. And abrogated Code of Obligation is compatible with common law system. There are rules regarding transfer of risk of loss in many international treaties. By the way, it must be stated that rules of transfer of risk of loss in Vienna Convention are compatible with Turkish Code of Obligations.

The Many Faces of Federal Court Deference

Deference ◽  
2019 ◽  
pp. 13-72
Author(s):  
Gary Lawson ◽  
Guy I. Seidman
Keyword(s):  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
Raw Material ◽  
The United Kingdom ◽  
Jury Verdicts ◽  
Margin Of Appreciation ◽  
Legal Contexts ◽  
The Many ◽  
Definition Of

US federal courts identify many of their doctrines and activities as acts of deference. This book uses those identifications as the raw material for its inductively derived definition of and framework for deference. Doctrines and practices identified as deference arise in connection with appellate review of findings of fact of legislative, executive, and judicial bodies (including juries); review of legal findings of those bodies; review of policymaking, or discretionary, judgments of those bodies; and review of (or refusals to review) actions of state courts. The scope of deference ranges from total (abstention or absence of review) or near-total (rational basis review of legislative action or jury verdicts) to minimal (so-called Skidmore deference, under which agency legal interpretations receive whatever weight they merit all things considered). Many of the same considerations noted by federal courts appear in legal contexts outside the United States, such as the margin of appreciation doctrine employed by some international tribunals and Wednesbury review in the United Kingdom. This chapter seeks to identify enough instances of deference to allow generalizations about the nature, scope, and reasons for deference that are developed in subsequent chapters.

scholarly journals The slow death of a dogma? The prohibition of legislative history in the 20th century

2020 ◽  
pp. 147377952096795
Author(s):  
John J Magyar
Keyword(s):  
United Kingdom ◽  
20Th Century ◽  
Common Law ◽  
The United States ◽  
Statutory Interpretation ◽  
Legislative History ◽  
The United Kingdom ◽  
English Speaking ◽  
The 1960S ◽  
State Of Affairs

It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners’ reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time.

Medellín’s New Paradigm for Treaty Interpretation

2008 ◽  
Vol 102 (3) ◽  
pp. 529-540 ◽  
Author(s):  
David J. Bederman
Keyword(s):  
Foreign Relations ◽  
The United States ◽  
International Agreements ◽  
Vienna Convention ◽  
New Paradigm ◽  
Optional Protocol ◽  
International Court ◽  
Treaty Interpretation ◽  
United Nations Charter ◽  
The Impact

Much of the scholarly attention given to the U.S. Supreme Court’s March 2008 decision in Medellín v. Texas has focused on the Court’s supposed ruling as to the presumptive nonself-execution of international agreements entered into by the United States, and the power of the president to implement such agreements without an act of Congress. Less heed has been paid to the impact and implications of the Court’s reasoning and analysis in interpreting the four international agreements at issue in the case: the 1945 United Nations Charter and Statute of the International Court of Justice, and the 1963 Vienna Convention on Consular Relations and its Optional Protocol. Although the Court’s analysis of the self-execution questions is beyond the scope of my contribution to this Agora, I acknowledge that the jurisprudence of treaty interpretation fits uncomfortably with the calculus of an international agreement’s selfexecution into U.S. law. And while it may seem obscure to view the Medellín decision through the lens of treaty interpretation, that is what truly brings its importance into focus, so that its impact may ultimately be seen as clarifying the established norms of U.S. foreign relations law, particularly in the selection of appropriate sources for treaty construction and the deference to be granted to various foreign relations actors and institutions.

scholarly journals Rise in the Freedom of Contract: Development and Enforceability of Forum Selection Clauses

2014 ◽  
Vol 3 (1) ◽  
pp. 43-59
Author(s):  
Shreyan Sengupta ◽  
Anirudhya Dutta
Keyword(s):  
United States ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
Law System ◽  
Freedom Of Contract ◽  
The United Kingdom ◽  
Evolution And Development ◽  
The Common ◽  
Judicial Interpretations

Corporations and business houses of the present day require sound redressal mechanisms to mitigate commercial disputes with ease and efficiency. „Forum selection clauses‟ are an easy way out of the turmoil often faced by firms during contractual disputes. Traditionally, the United Kingdom and the United States of America have been very restrictive about enforcing forum selection clauses, however liberalizing it very recently. This article through doctrinal study shows the present situation for forum selection enforcement in India and United States. Courts in India generally have followed the trend as laid down in the United States. There have been diverse judicial interpretations regarding validity of forum selections clauses across the common law system. The article discusses the judicial interpretations which has led to the evolution and development of such contract clauses.

Assistance in obtaining Accommodation

2016 ◽  
Author(s):  
Denza Eileen
Keyword(s):  
United States ◽  
United Kingdom ◽  
The United States ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
Foreign Missions ◽  
The United Kingdom

This chapter considers Article 21 of the Vienna Convention on Diplomatic Relations which deals with the assistance of the receiving State in giving accommodation to the members of the diplomatic mission of the sending State. The Article states that the receiving State shall either facilitate the acquisition of the premises necessary for its mission or assist members of the mission of the sending State in obtaining accommodation in some other way. Also, under the Article, the receiving State shall assist missions in obtaining suitable accommodation for their members where necessary. In essence, Article 21 ensures that diplomatic mission is not barred from acquiring premises adequate for its purposes in the receiving State. The chapter looks into domestic laws of sovereign States that also regulate the accommodation of foreign diplomats, such as the Foreign Missions Act enacted in the United States and the Diplomatic and Consular Premises Act 1987 in the United Kingdom.

scholarly journals TINJAUAN YURIDIS PERATURAN PERUNDANG-UNDANGAN SEBAGAI RATIFIKASI PERJANJIAN INTERNASIONAL

2017 ◽  
Vol 16 (2) ◽  
pp. 202
Author(s):  
Dewi Setyowati ◽  
Nurul Hudi ◽  
Levina Yustitianingtyas
Keyword(s):  
International Agreements ◽  
Vienna Convention ◽  
Constitutional Court ◽  
Material Research ◽  
International Agreement ◽  
International Treaties ◽  
Legal Research ◽  
Existing Problems ◽  
Library Research ◽  
Legal Consequences

<em>This study aims to resolve problems that arise in connection with reconsideration of regulations ratification of the treaty. Can legislation on treaty ratification An overview held back, and how the legal consequences if there is a decision on the revocation of laws on ratification of the treaty in Indonesia. In order to solve these problems need to be supported by the research in the form of legal material. Research obtained through library research (library research) in libraries. From this legal research to achieve results that provide answers to existing problems, namely that the Constitutional Court only had authority to examine the material legislation and ratification of international agreements is not authorized to cancel the treaty. And the cancellation of a law the ratification of international treaties have no direct correlation to the bond Indonesia against international agreements canceled. Thus the State can withdraw from its attachment to an international agreement if the agreement is contrary to the destination country. If a treaty is not regulated the procedure of withdrawal, it can refer to the rules stated in the Vienna Convention of 1969.</em>

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