International Journal of Public Law and Policy

Yang, Songling

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046069

The article discusses the issue whether westernised DSMs of newly created FTAs in East and Southeast Asia are suitable to settle disputes just involved countries in this region. Indeed, countries in East and Southeast Asia are adopting an aggressive legalism towards the dispute settlement process. It could be reflected in their increasing complains in WTO DSB and the design of China-ASEAN, Korean-ASEAN and Japan-ASEAN FTAs. However, the unique East and Southeast Asia legal culture and developing background of this region explore the disadvantages of simply copy of WTO mode DSM in the structure of DSMs in FTAs of this region. The rules of main arbitration centres in this region, such as CIETAC, HKITAC, SIAC and KCAB, offer many enlightening suggestions about how to better combine this regional legal culture with advantage westernised dispute settlement process. Such manners are better for the settlement of disputes just involving countries within this region.

Prihandono, Iman

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046070

Incorporating human rights concerns into bilateral investment treaties (BITs) have continuously been proposed by many scholars. The main objective of this proposal is to strengthen the legal accountability of TNCs for human rights violations. This article analyses the possibilities for an agreement between home and host countries to incorporate human rights provisions in BITs. It identifies a number of indicators whose presence can increase the likelihood of the incorporation of human rights provisions in BITs. These are This article demonstrates that the proposed framework can possibly materialise between countries when these four indicators are present. In particular, host countries with these indicators have more power to demand the inclusion of human rights obligations into BITs. More importantly, with these indicators in hand, TNCs’ resistance to the proposed BITs can be minimised.

Latipulhayat, Atip ; Ariananto, Agil

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046071

One of the most fundamental principles in the field of air law is the principle of State sovereignty over its airspace. Under the principle, States are responsible for the safety oversight within their territories. However, this principle received specific limitations in certain areas. The States are committed to observe the international regulations governing air navigation, as a consequence, the rights of governments to regulate air navigation above their territories are not absolute, but subject to international rules. The European Commission took the initiative in 2004 to reorganise the European airspace by launching the Single European Sky (SES) Programme. To improve aviation safety in Europe, the European Commission decided to ban airlines found to be unsafe from operating in European airspace. By reason that Indonesian airlines did not meet aviation safety standards, EU imposed a flight ban to all Indonesian airlines. This paper argues that EU flight ban is a unilateral act that violates the principle and objectives of the Chicago Convention 1944.

Mmusinyane, Boitumelo

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046072

India and Canada have adopted diverse approaches to realising the right to adequate housing. In Canada, the right to adequate housing is not entrenched under its Constitution and is merely pursued through policy-driven objectives that are not amenable to a judicial review to establish whether or not these policy objectives have been fulfilled. This approach is inadequate and this article argues that it leaves the marginalised victim with little hope of finding any remedy. In India, however, the right to shelter is regarded as one of the Directive Principles of State Policy and its courts have seized their judicial powers of review to ensure justiciability by interpreting existing constitutional provisions to safeguard the right to shelter. This paper will illustrate that the Canadian judiciary can invoke and draw inspirations from the Indian judicial system to determine if its policy measures fulfil the stated objectives.

Blazey, Patricia

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046073

Determining who owns the world’s tropical rainforests is fundamental to reaching an agreement for their protection. This issue has been in the past and continues to be the stumbling point in discussions that take place in numerous forest forums that focus on curbing deforestation. The issue of sovereignty is a major sticking point because governments housing tropical rainforests refuse to give up sovereignty over their natural resources. The opposing argument is that rainforests belong to the ‘global commons’ and therefore the international community has the right to legislate for their protection. This article discusses these theories and argues that the international community can and should draft a treaty that protects what is left of these forests in order to preserve biodiversity and the ecosystems that they house.

Ajai, Olawale

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.046074

The right to work is not part of the fundamental rights in the constitutions of many countries and even the right to association which covers the right to unionise is surprisingly treated with disdain in some ‘more civilised nations’. In light of global economic downturn there are massive cuts in public sector jobs and lay-offs in the private sector as well in many countries. There have been wage cuts in some countries as well. Pension rights have been abrogated or hugely revised to the disadvantage of workers. The outlook for developing countries is not particularly good, due to their dependence on commodity trade, investment and aid flows. However, social equity, human rights and freedoms are recognised as imperative for sustainable development, along with environmental conservation, of course. Trade union law, therefore, remains a topical aspect of the social agenda and should be revisited in the national and global legal discourse with a view to instrumentally calibrating a balance between the desire to restructure ‘over-consumption’ and intra-generational sustainable development. This paper offers a review of Nigerian trade union law and practice with a view to providing a platform for examining the relevant issues of human rights and public law, business and economic management and governance, as well as learning points for emerging economies and federations and from the global economic downturn.