This thesis examines the default application of the 1969 Vienna Convention on the Law of Treaties reservation rules to reservations to human rights treaties. The contemporary practice of formulating reservations allows states to unilaterally modify their treaty obligations following the conclusion of negotiations. Though multilateral treaties address a broad spectrum of subjects and are negotiated using a variety of methods, all treaties are governed by the same residual reservation rules of the Vienna Convention when there is not a treaty-specific reservation regime in place. The Vienna Convention system is only engaged if a state seizes the opportunity to determine whether a reservation is valid pursuant to default rules or if a challenge regarding the validity of a reservation is brought before another competent mechanism of review, such as a dispute resolution mechanism. Even when applied, the Vienna Convention rules are ambiguous at best and have been criticised since their inception due to the high degree of flexibility in their application, especially in relation to human rights treaties. In light of the inherent flaws of the Vienna Convention reservation regime and the structural characteristics of human rights treaties, rarely will a reserving state be deprived of the benefit of the reservation even if it is determined to be invalid by another State Party. Though the consequences of an invalidity determination are more concrete when the decision is taken by a dispute resolution mechanism, such as a court, seldom are disputes over the validity of a reservation to a human rights treaty submitted to a competent mechanism. Using the core UN human rights treaties as a case study this research highlights that the past thirty years have revealed a practical impasse in treaty law when the default reservation rules are relied upon to regulate reservations to human rights treaties. Reservations of questionable validity gain the same status as valid reservations because the Vienna Convention rules do not address the consequence for a reservation determined to be invalid outwith the traditional inter se application of the reservation between the reserving and objecting states, which is not logical in the context of a human rights treaty. Against this background, this thesis examines whether the default reservation rules adequately govern reservations to human rights treaties. The conclusion affirms that the Vienna Convention reservation regime can regulate reservations to human rights treaties but only if there is a clearly defined final view on the validity of a reservation taken by an organ other than the state. Therefore, it is argued that treaty-specific supervisory mechanisms attached to each of the core UN human rights treaties should be invested with the competency to serve a determinative function with respect to evaluating reservations to human rights treaties in order to facilitate a stronger basis for the international human rights system.

This thesis contributes to academic debate about the question: how much substantive protection should investment treaties (IITs) provide to foreign investment? Chapters 5 and 6 argue that arbitral tribunals have interpreted fair and equitable treatment and indirect expropriation provisions of existing IITs in several different ways. Each of these interpretations is sketched as a model level of protection that could be explicitly adopted by states in the future, either through inclusion in new IITs, or through amendment to existing IITs. In this way, the thesis defines a range of prospective options available to states concerning the level of protection to provide to foreign investment through IITs. The thesis evaluates the relative desirability of these different levels of protection. The thesis argues that different levels of protection should be evaluated according to their likely consequences. The thesis develops a framework for inferring and understanding the likely consequences of adopting different levels of protection. The framework proposes that the consequences of a given level of protection can be understood in terms of its likely effect on: economic efficiency; the distribution of economic costs and benefits; flows of foreign direct investment into host states; the realisation of human rights and environmental conservation in host states; and respect for the rule of law in host states. Within this framework, the thesis provides an assessment and synthesis of existing empirical evidence and explanatory theory so far as they relate to the consequences of IIT protections. It also specifies the normative criteria by which these consequences should be evaluated. Through the application of this framework, the thesis concludes that lower levels of protection of foreign investment are, in general, likely to be more desirable than higher levels of protection.

本論文除第一章導論外，尚分五章，其架構大致介紹如下：一.第二章為〔國內法上之強制規律及其基本理論〕本章之探討目的，主要在表明強制規律的基本意義，強制規律與任意規律的不同，強制規律維護公益及法律秩序之根本的本質﹞。第三章為〔條約法上強制規律的發展〕本章之目的乃在表明，強制規律的用語雖來自於國內法，但其在國際法上之思想淵源卻可追朔至十六七世紀的自然法學派﹞。第四章為〔條約法上強制規律的意義，內涵與本質〕許多與強制規律有關的重要問題，接在這章討論，比如，條約法公約第五十三條所謂〔國際社會全體接受並公認〕的真正意涵何在？國際法規律究為自然法或實證法？強制規律與國際法法源的關係為何？在國際社會並無一世界政府的情形下，國際法強制規律的內涵為何？四.第五章為〔與強制規律牴觸情勢之探討〕本章討論的難題亦不少，比如，條約在締結時與強制規律牴觸者無效，此等無效之性質為何？強制規律是否有回溯的效力？第三國是否有權主張與強制規律牴觸的條約無效？等問題﹞第六章為結論第六章針對整篇論文提出三項總結，第一節認為強制規律已獲得多數學者之肯定，但仍面臨了若干未決之難題，第二節強調強制規律是一項實證國際法規範，第三節勾勒出強制規律的理想，乃在協調個體與全體間利益之衝突。

Considering that the concept of sustainable development has a function of normative integration in international law, Article 31(3)(c) provides a legitimate basis of such systemic integration. At the same time, it displays the limitations of the harmonious solution drawn from its application because it works only within the rigid consent-based framework in which the referenced rules should be legal “rules” and should be “applicable in the relations between the parties.” International jurisprudence suggests supplemental elements to overleap the consensual limitations in the application of Article 31(3)(c): a generic term and the object and purpose of the treaty. These text-based and the object-and-purpose-based developmental interpretative techniques enable interpreters to consider legal rules that are not “any relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c).

Considering that the concept of sustainable development has a function of normative integration in international law, Article 31(3)(c) provides a legitimate basis of such systemic integration. At the same time, it displays the limitations of the harmonious solution drawn from its application because it works only within the rigid consent-based framework in which the referenced rules should be legal “rules” and should be “applicable in the relations between the parties.” International jurisprudence suggests supplemental elements to overleap the consensual limitations in the application of Article 31(3)(c): a generic term and the object and purpose of the treaty. These text-based and the object-and-purpose-based developmental interpretative techniques enable interpreters to consider legal rules that are not “any relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c).

The Diploma Thesis deals with the President of the Republic and his/her relation to the International Treaties, to the Negotiation, the Approval and the Ratification. The work contains both international and national perspective of the problem. The thesis is a reflection of the ongoing expert debate, to which extent has the President of the Republic the constitutional right of decision-making autonomy in the field of International Treaties of the Czech Republic. The thesis analyses the current legal situation and presents up-to-date juridical opinions together with arguments from the political science.

Le traité de paix est un acte juridique de nature conventionnelle, conclu entre deux ou plusieurs États en vue de mettre fin à une guerre qui les oppose. Cependant, au regard des conditions de sa conclusion aussi bien que de son contenu, l’instrument présente un certain nombre de caractères peu compatibles avec le modèle classique du traité international. En effet, l’exigence d’une rencontre de volontés à la fois libres et égales se heurte tant à l’existence d’un recours préalable à la force qu’au défaut de réciprocité des droits et obligations convenus. Pour autant, l’instrument ne peut être réduit au simple enregistrement d’un rapport de forces entre les parties, au profit duquel le vainqueur dicterait arbitrairement ses conditions à un vaincu contraint de les accepter. Au contraire, la pratique révèle l’inscription du traité de paix dans un faisceau de mécanismes juridiques qui détermine en partie le contenu, le sens et la mesure des droits et obligations respectifs des belligérants. Essentiellement empruntés au droit de la responsabilité internationale et au droit de la sécurité collective, ces mécanismes invitent à envisager le traité de paix, non comme le produit de l’application exclusive du droit des traités, mais comme le résultat des exigences simultanées et potentiellement contradictoires de différents corps de règles. Cette approche dynamique de l’instrument permet de porter une lumière nouvelle sur les règles matérielles qui régissent la fin des conflits armés internationaux, autant que de mettre en question certaines représentations parfois hâtivement associées à la forme du traité international. / Peace treaty is an international legal act of a contractual nature, concluded by two or more States in order to end the war between them. Nevertheless, regarding both the circumstances of its conclusion and its content, this instrument is remotely compatible with the classical figure of international treaty. The requirement of free and equal wills faces both the existence of a prior use of force and the lack of reciprocity on the agreed rights and obligations. This does not mean that the instrument is solely the product of two forces confronting each other. In practice, the winner does not arbitrarily dictate its terms to a coerced vanquished. On the contrary, a peace treaty finds itself at the intersection of several legal mechanisms which partly determine the content and the extent of the respective rights and obligations of belligerents. Those mechanisms are mostly borrowed from the law of international responsibility and the law of collective security. They invite to consider the peace treaty not as the product of the exclusive application of the law of treaties, but as the result of simultaneous and potentially conflicting requirements of different bodies of rules. This dynamic approach of the instrument brings a new light on the substantive rules governing the end of international armed conflicts. It also permits to discuss certain representations sometimes hastily associated with the very concept of treaty.

The objective of the study was to investigate the right of the South African Government to tax the income earned by a foreign company when rendering services in South Africa to a South African associated enterprise on a recurrent basis, together with the right to tax the amounts paid to the employees of the permanent establishment for services rendered in South Africa. At the same time the research investigated whether the services rendered by a foreign company to an associated enterprise in South Africa on a recurrent basis would constitute a permanent establishment, as this is essential before South Africa may tax either the foreign company or the employees of the permanent establishment (where such employees are not resident in South Africa).The research was conducted by means of a critical analysis of documentary data and data from a limited number of interviews with academics and the authors of textbooks and articles. In order to limit the scope of the research, a number of assumptions were made. Conflicting viewpoints underlying certain of these assumptions were discussed. Some of the important conclusions reached are that the provisions of the Vienna Convention on the Law of Treaties should be taken into account when interpreting South African legislation (including Double Tax Agreements), and that the Organisation for Economic Cooperation and Development (OECD) Commentary may be relied upon when interpreting OECD based Double Tax Agreements in South Africa. No conclusion was reached on whether to apply an ambulatory or a static basis of interpreting the OECD Commentary, however. The final conclusion of the research is that the services rendered in South Africa on a recurrent basis would be geographically and commercially coherent and consequently meet the "location test'. It is clear that as the services are rendered regularly and recurrently, they would be regarded as having the necessary permanence and would meet the 'duration test'. The place of business would therefore be regarded as being fixed (having the necessary degree of permanence). As the services would be rendered at the place of business of the South African entity, they would be regarded as being rendered 'through' the place of business and the foreign entity would be regarded as having a permanent establishment in South Africa (as defined in Article 5(1) of the OECD Model Tax Convention}. The South African Government would therefore be entitled to tax the income attributable to the permanent establishment and the income earned by the non resident employees, who rendered services in South Africa for the permanent establishment. Once the entitlement to tax exists, South African legislative rules determine how South Africa proceeds to tax the income.

This thesis deals with the possibilities of interpretation of legal texts au- thentic in more than one language and attempts to analyze the approaches applicable as a possible solution of contradictions between various langu- age versions. The thesis is divided into five chapters. The first chapter is an intro- duction to the issue. There is just roughly outlined the reason for the exis- tence of multilingual legal texts and there is also defined the scope of the following chapters. The second chapter is dedicated to various methods of interpretation, distinct by legal doctrine. With regard to the topic of the thesis, the inter- pretive methods are divided into two groups with respect to the approach of finding the meaning of legal norms and the content of the regulation. The first section deals with methods based on the text of the legal norm. These are linguistic, logical and systematic method. The second section describes the methods based on the purpose and significance of the treatment. These are the teleological, the historical and the comparative method, as well as the modifications of the teleological method, used primarily in internati- onal law and law of European union. The way of choosing the primary interpretation method is described in the third section. The third chapter deals with the...

Made available in DSpace on 2016-04-26T20:23:07Z (GMT). No. of bitstreams: 1 Miguel Angelo Marques.pdf: 24228955 bytes, checksum: 700c60165b618a4ec605b4936675d0e5 (MD5) Previous issue date: 2014-08-29 / In Brazil, the Legislative branch has always been present in the process of establishment and conclusion of International Treaties. In the Imperial Period, even though the 1824 Charter Policy did not formally provide for the General Assembly participation, it could conceivably be said that the conduct of the foreign affairs was carried out in practice by four State agencies: the Emperor, the Cabinet of Ministers, the Council of State and the Parliament. From the Proclamation of the Republic, all the constitutional texts provided expressly for the participation of the National Congress in the process of production of Treaty Texts. However none of our Constitutions ‒ including the current one ‒ has handled the participation of the Legislative branch in cases of termination of treaty texts and thus the power to cease the treat has always been exclusively held by the Executive branch (even in those cases where the ratification of the international instrument depended on the National Congress approval). This much discussed issue in the doctrine field has been brought to the Supreme Federal Court on June 16th, 1997 by the means of the Direct Unconstitutionality Action (ADI) 1625 that pleaded the declaration of unconstitutionality of Decree 2,100 of December 20th, 1996 which made public the cease of the Convention 158 of the International Organization of Labor (OIT) for offence to the provisions of art. 49, I of the Constitution. Within the scope of the judgment of this process filed by the National Confederation of the Workers in Agriculture (CONTAG) and the Central Workers Union Confederation (CUT), three out the four Ministers who have already voted have acknowledged the need of prior consent from the National Congress to the Executive branch to proceed to the termination of Treaty Texts. If this understanding persists in the C. Supreme Federal Court there will be an important change of model in the field of the Law of Treaties, which is a basic issue under the international law. This Master s dissertation aims to foster discussions within the academic community concerning the need (or not) for the Brazilian Parliament participation in Treaties, Conventions and International Acts termination process / No Brasil, o Poder Legislativo sempre se fez presente no processo de celebração e conclusão de Tratados Internacionais. No Período Imperial, embora a Carta Política de 1824 não contemplasse, formalmente, a participação da Assembleia Geral, pode-se dizer que, na prática, a condução das relações exteriores era realizada por um conjunto de quatro órgãos do Estado: o Imperador, o Gabinete de Ministros, o Conselho de Estado e o Parlamento. Com a Proclamação da República, todos os textos constitucionais subsequentes passaram a assegurar, de forma expressa, a participação do Congresso Nacional no processo de produção de Textos Convencionais. Contudo, nenhuma de nossas Constituições, inclusive a atual, regulou a participação do Poder Legislativo nos casos de extinção de textos convencionais, razão por que o poder de denunciar tratados sempre foi exercido, de forma exclusiva, pelo Poder Executivo (mesmo nos casos em que a ratificação do instrumento internacional tenha dependido de aprovação do Congresso Nacional). Essa questão, muito debatida no campo doutrinário, chegou ao Supremo Tribunal Federal em 16 de junho de 1997, através da Ação Direta de Inconstitucionalidade (ADI) 1625, por meio da qual se pleiteava a declaração de inconstitucionalidade do Decreto nº 2.100 de 20 de dezembro de 1996, que tornou pública a denúncia da Convenção n° 158 da Organização Internacional do Trabalho (OIT), por ofensa ao disposto no art. 49, I da Constituição Federal. No bojo do julgamento dessa demanda, ajuizada pela Confederação Nacional dos Trabalhadores na Agricultura (CONTAG) e pela Central Única dos Trabalhadores (CUT), três dos quatro ministros, que já proferiram seus votos, reconheceram a necessidade de prévia autorização do Congresso Nacional para o Poder Executivo efetivar a denúncia de Textos Convencionais. Persistindo esse entendimento no C. Supremo Tribunal Federal, haverá uma mudança de paradigma importante no campo do Direito dos Tratados, tema fundamental na área do direito internacional. A presente dissertação de mestrado tem por escopo fomentar, no meio acadêmico, discussões acerca da necessidade (ou não) da participação do Parlamento brasileiro nos casos de denúncia de Tratados, Convenções e Atos Internacionais