1,721,016 research outputs found
More Equal than Others? Perspectives on the Principle of Equality from International and EU Law
No full textOf Restoring Compliance, Lex Specialis and Intersecting Wrongs: the Question of ‘Remedies’ in Gabčíkovo-Nagymaros
No full textLoris Marotti and Paolo Palchetti discuss the innovative and case-specific treatment of remedies in Gabčíkovo-Nagymaros, which explains the case’s relatively limited influence specifically as regards the consequences of internationally wrongful acts. At the same time, the Court’s approach finds an echo in the flexibility of the rules on reparation adopted in the framework of the ilc codification exercise
Equality, Conflict of Laws and Human Rights
No full textVarious different aspects of the principle of equality are considered with reference to the identification of the applicable law according to the rules of private international law. This principle is relevant, first of all, for the interpretation of connecting factors, the goal of which must be to assess the manner in which these factors operate. Secondly, the principle of equality is also relevant in terms of the results arrived at by the connecting factors, and must be applied when assessing the substantive fairness of the legal system referred to, drawing inspiration from the principle’s capacity to protect fundamental rights
Sovereign Inequality and Struggles for Equality
No full textThe principle of sovereign equality is a “structural” or “systemic” prin-ciple that is devoid in itself of any specific legal content. It simply refers to the absence within the international legal system of any legal authority above the states, apart from the normative authority of international law. Thus understood, the prin-ciple is compatible with any kind of inequality sanctioned by particular international rules. However, at the same time, it has an extremely important role in the dynamics of international law, insofar as it allows claims for equality in areas where existing international law sanctions inequality, towards a more just international law in the future
Equality before courts and tribunals – The case for a comparative approach
No full textIl contributo si interroga sulla rilevanza dell'approccio comparatistico allo studio della giurisdizione internazionale ed interna.This chapter outlines the merits of a comparative approach to judicial and arbitral procedure. It thus sets the framework for the discussion of the influence of the principle of equality on procedural law, notably—more specifically, on rules concerning access to justice at the international and domestic level
Equality of States and Mutual Membership in European Union Law: Contemporary Reflections
No full textIn line with the solutions adopted in other instruments establishing international organizations, Article 4(2) TEU incorporates the doctrine of equality of States into the EU legal order. But the doctrine of equality of States is not the only factor inspiring the Treaty provision. It is generally accepted that the wording of Article 4(2), echoing the definition of formal equality which is contained in the core international human rights instruments—as well as in the constitutions of States—, is also a clear expression of the strict nexus between States and individuals under EU law. Unsurprisingly, the respect of the equality of Member States is also intimately tied to the protection of fundamental values upon which the Union is based—starting from the respect of the rule of law—and thus contributes to the affirmation of the autonomy of EU law, as well as to the establishment of an idea of “mutual membership within the Union”, that is, the idea that unilateral actions of Member States are likely to have an influence on their mutual relations, even in situations where the linkage with EU law is less strict. Against this background, this chapter explores some recent elements of practice attributable to Member States of the Union, showing a growing recourse to a logic of unilateralism, with a view to assessing their implications for a proper enforcement of the equality principle. To do so, the chapter is structured into four sections. After a global assessment of the equality principle in EU law (Sect. 3.1), Sect. 3.2 looks at recent episodes of unilateral infringements of EU law put in place by some EU countries, justified by the need to protect national prerogatives, and creating tensions in terms of equality among Member States before the Treaties. Section 3.3 considers the judicial unilateralism showed recently by the supreme courts of some Member States in re-shaping the interplay between EU law and municipal law, and the influence of such unilateralism on the affirmation of the equality principle. Section 3.4 concludes the chapter, summarizing its main findings
The Recognition of the Formal Equality of International Organizations by Means of an International Rule of Incorporation
No full textOne of the major developments of the law of international organizations of the last decade was the conclusion of the project on international responsibility. In this period, the ARIO prompted a critical reflection on the foundational principles of international organizations. The notion of equality is one of the most controversial issues. This paper focuses on its meaning and how it relates to the equality of other subjects of international law. In particular, I criticise the conventional description of international organizations as “fundamentally unequal” and its foundation in the so-called principle of speciality. This is a very confusing notion, even if consistently applied by legal scholarship. To clarify the theoretical framework, I apply the notion of formal equality to international organizations, distinguishing it from substantive equality. I contend that the substantive inequalities affecting states and individuals are interconnected with the formal inequality of organizations. The paper discusses issues such as unequal voting rights, unequal rules on the attribution of conduct, unequal capacity to bear obligations. I conclude the paper by claiming that the equal capacity to bear rights and obligations has to be based on a rule of general international law that gives a meaning to organizationhood as sovereignty does for statehood
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