M.Com. (South African and International Taxation) / International tax treaties are unique bilateral negotiations effectively breaking down the barriers of international trade while aiming to eliminate double taxation and prevent fiscal evasion. The implementation of these negotiated tax treaties is a matter of domestic law, once concluded a contracting state is free to use domestic legislation to tax the income allocated through the these tax treaties. There is however, no external enforcement of these agreements and as a result disputes occur. The remedy proposed by both the OECD MTC and the UN MTC is what we know as MAP. MAP is a non-binding, non-compulsory dispute resolution mechanism developed in the early 20th century. Even though many jurisdictions remain of the view the MAP is a successful method of dispute resolution, others feel that it has significant shortcomings as outlined by the JWG established by the OECD in 2003. As a result of the work done by the JWG and in an attempt to address some of the insufficiencies of the MAP the OECD introduced additional articles to the MTC including guidelines on non-binding arbitration. The UN subsequently introduced similar guidelines in its MTC. The introduction of mandatory arbitration into both these MTCs is the most significant development in the resolution of international tax disputes. However, the increased complexity and volume of international trade undoubtedly results in tax implications that are not currently addressed in tax treaties or conventions. Differences in the interpretation of the underlying facts of those trade transactions may lead to a host of international tax disputes, often resulting in juridical double taxation. With MAP being the only remedy available, this study aims to determine whether or not the MAP in its current form, is an effective international dispute resolution mechanism or whether further developments are still required.

No description available.

In the dissertation the author conducts analysis of general and special international legal regulations governing the ways for resolving treaty conflicts. Author researches the content and systemic ties between norms of the law of treaties, state responsibility and international legal proceedings pertinent to treaty conflict resolutions, as well as ways methods of treaty conflict resolution embodied in selected subsystems of international law (European Union law, World Trade Organization law, Convention for the Protection of Human Rights and Fundamental freedoms). Based on this research the author provides conceptual findings concerning the notion of conflict of treaties, relationship between methods for resolving treaty conflicts in general and special international law and provides recommendations cncerning interpretation and application of legal regulations governing treaty conflict resolutions. / Disertacijoje tiriamas bendrasis bei specialusis tarptautinių sutarčių kolizijų sprendimo būdus nustatantis teisinis reguliavimas bei jo keliamos mokslinės ir praktinės problemos. Disertacijoje analizuojamas tarptautinių sutarčių teisės, valstybių atsakomybės teisės bei tarptautinio teisminio proceso normų turinys bei jų tarpusavio ryšiai, o taip pat analizuojami tarptautinės teisės posistemėse (Europos Sąjungos teisėje, Pasaulinės Prekybos Organizacijos teisėje ir Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijoje) nustatyti tarptautinių sutarčių kolizijų sprendimo būdai. Disertacinio tyrimo pagrindu autorius pateikia konceptualias išvadas dėl sutarčių kolizijų sampratos, bendrojoje bei specialiojoje tarptautinėje teisėje nustatytų kolizijų sprendimo būdų santykio, bei pateikia pasiūlymus dėl sutarčių kolizijų sprendimą nustatančio teisinio reguliavimo aiškinimo bei taikymo.

Disertacijoje tiriamas bendrasis bei specialusis tarptautinių sutarčių kolizijų sprendimo būdus nustatantis teisinis reguliavimas bei jo keliamos mokslinės ir praktinės problemos. Disertacijoje analizuojamas tarptautinių sutarčių teisės, valstybių atsakomybės teisės bei tarptautinio teisminio proceso normų turinys bei jų tarpusavio ryšiai, o taip pat analizuojami tarptautinės teisės posistemėse (Europos Sąjungos teisėje, Pasaulinės Prekybos Organizacijos teisėje ir Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijoje) nustatyti tarptautinių sutarčių kolizijų sprendimo būdai. Disertacinio tyrimo pagrindu autorius pateikia konceptualias išvadas dėl sutarčių kolizijų sampratos, bendrojoje bei specialiojoje tarptautinėje teisėje nustatytų kolizijų sprendimo būdų santykio, bei pateikia pasiūlymus dėl sutarčių kolizijų sprendimą nustatančio teisinio reguliavimo aiškinimo bei taikymo. / In the dissertation the author conducts analysis of general and special international legal regulations governing the ways for resolving treaty conflicts. Author researches the content and systemic ties between norms of the law of treaties, state responsibility and international legal proceedings pertinent to treaty conflict resolutions, as well as ways methods of treaty conflict resolution embodied in selected subsystems of international law (European Union law, World Trade Organization law, Convention for the Protection of Human Rights and Fundamental freedoms). Based on this research the author provides conceptual findings concerning the notion of conflict of treaties, relationship between methods for resolving treaty conflicts in general and special international law and provides recommendations cncerning interpretation and application of legal regulations governing treaty conflict resolutions.

No description available.

No description available.

In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.

The practice of Iraq and Kuwait in treaty succession has significantly contributed to the development of the concept of state succession not only in Islamic law but also in international law; a contribution which advocates the paramount importance of distinguishing between succession in fact and succession in law. Greatest attention is given to the latter in this study which is divided into the following four parts: Part 1. Survey of the development of the concept of succession in fact under Islamic law and throughout the practice of the Islamic State until the advent of the latter's territorial disintegration into many political entities, whereby various Arab territories developed independent factual identities. The practice of Iraq and Kuwait have been selected from among these entities in order to examine the maturity of certain Islamic legal rules governing succession in fact, upon which the rules governing succession in law are based. The second, third and fourth parts of this treatise survey the development of the concept of succession in law under Islamic law and its relationship to international law through five stages. A. Outline of the Islamic legacy in treaty succession according to the primary sources of Islamic law. B. Analysis of the selective practice of two of the evolving Arab states, namely Iraq and Kuwait, in order to throw some light on the application of the primary sources of Islamic law to treaty succession and the resort to principles embodied in the secondary sources where no provision is found in the former. This will help to explain the practice of these states with regard to certain controversial matters where no precedent existed. C. Study of the concept of state succession in Islamic legal theory from which the Iraqi doctrine of devolution and the Kuwaiti doctrine of non-devolution evolved. (A, B and C constitute part 2). D. (Part 3) The adoption of the Iraqi and Kuwaiti legal doctrines on treaty succession by other Arab political entities and the resulting evolution of Arabic public law. E. (Part 4) Interaction between principles and doctrines that have evolved from the secondary sources of Islamic law, such as Arabic public law, on treaty succession and international law by means of the codification process through the work of the U.N.I.L.C. and the 1978 Vienna Convention on State Succession in Respect of Treaties in which the Arab states made an important contribution to the development of the international legal order. This contribution will be further substantiated in the conclusions.

In 1882, the Turtle Mountain Chippewa Reservation was created which was 500,000 acres, or twenty-two townships. Suddenly, in 1884, the Turtle Mountain Chippewa Reservation was cut down to approximately 476,000 acres, or twenty townships without warning. The total land holdings of the Turtle Mountain Chippewa people in 1884 were ten million acres or approximately 1/10 of North Dakota. But by 1892, their total land holdings were down to thirty four thousand acres, or two townships. In 1882, a traditional tribal government whose hereditary leader had been head chief since 1863 conducts Turtle Mountain Chippewa affairs. However, in 1892, a native committee appointed by a federal Treaty Commission becomes the recognized government body of the Turtle Mountain ChippewaThe Turtle Mountain Chippewa are still today the most prominent of the Plains Chippewa tribes in America, having today's membership and affiliates numbering nearly eighty thousand people. As we shall see, the Turtle Mountain Chippewa were also affiliated with the ethnically European and Indian mixed Métis people, who constitute the largest indigenous group in Canada, and will suffer because of their conflicts between nationality and Canadian and American federal policy. Due to an influx of new evidence, and using quantitative and qualitatitive methodologies combined with analysis of primary and secondary sources, this (dissertation) will contribute to the public record and change previous interpretations concerning the creation of the Turtle Mountain Chippewa Reservation in the 1880s, and final settlement treaty between the United States and the Turtle Mountain Chippewa Indians of North Dakota in 1892. Through letters, journals, manuscripts, as well as other miscellaneous works such as newspaper articles and literary books, a thesis framework will be constructed to put some never before revealed information in a proper historical context.Whether or not Little Shell III was the undisputed head chief of the Turtle Mountain Chippewa and that his being deposed by a faction within his own tribal government was wrong or illegal by the tribe or the federal government, is not an objective of this paper. Instead, this historical revision of the pivotal events of the 1880s and 90s will show that Little Shell III's tenure as a head chief among the Turtle Mountain Chippewa will depict a leader who operated within a chieftain's parameters to mediate disputes and competently represented his diverse tribal membership to outsiders. The failure or lack of success in achieving the goals for all of the people at the Turtle Mountains cannot be a condemnation of his abilities considering that success for Little Shell by the 1880s depended upon fair and equitable treatment by the American federal government. Much of the history during the time from 1882 - 1892 has been misinterpreted by historians until now, it is imperative to proceed carefully with the new information and lay a solid groundwork for further study. Nevertheless, this work will charge the U.S. government for fraud against a peaceful defenseless people, and destroying their traditional leadership structure as well.

This dissertation seeks to explain the viewpoint of Islamic international law {siyar) with respect to the various aspects of treaties {mu'abadat) with non-Muslims. The siyar deals with (the notion) of mutual relations between Muslims and non-Muslims during times of war and peace, and thus has become an intrinsic branch of the Shari'a. The varying nature of siyar and its changing interpretation throughout Islamic history captured the attention of a number of jurists and historians from both the classical and modem times, whose works have been frequently consulted throughout this study. In the course of classical and pre-modem Islamic history, treaty-making continued to evolve and contributed to shaping both political and social relations between Muslims and non-Muslims. Non-Muslim residents in Islamic territories {dar al-Islam), such as the abl al-dhimma and ahl al-aman, were dealt with as existing identities within Islam and were also dealt with by the means of contracts ('aqd), which determined their status under siyar. Relations between Muslims and non-Islamic territories {dar al-harb) were detennined by the conditions of peace and war, and treaties between the two were regulated according to the precedent set by siyar. The treaties selected for this dissertation cover the full spectrum of what Muslims and non-Muslims could do to develop and protect the interest of their communities. Thus, this study aims to shed some bight on a relatively untouched branch of Islamic law, while also elucidating the social ramifications of legal theory and practice.