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PART 1—ADVANCES IN THE TECHNIQUES OF INTERNATIONAL LAW3

1—State Contracts and their Governing Law：A Reappraisal3

State Contracts as New International Legal Acts5

State Contracts as Contracts entered into by States as Subjects of Public International Law5

State Contracts as Contracts governed by the International Legal Order8

Responses to some Objections22

On it being Impossible for Contracts between States and Individuals to come within the International Legal Order22

On the Preference Given to Public International Law Rather than Transnational Law for Governing State Contracts32

2—The International Responsibility of States based on Investment Promotion and Protection Treaties43

State Responsibility in the International Legal Order46

Characteristics of States’International Responsibility on the Basis of Protection Treaties47

Justification of Recource to International Law54

State Responsibility on the Basis of Protection Treaties and State Responsibility in Municipal Law61

In the Absence of any Contractual Connection between Investor and State63

In the Presence of a Contractual Connection between State and Investor and with a Separate Dispute Settlement Clause from that Provided by the Protection Treaty67

3—The State’s Normative Freedom and the Question of Indirect Expropriation87

Indirect Expropriation in International Law90

In International Law in General90

In International Investment Law93

Maintaining the State’s Normative Freedom96

Results of Case Law97

The Prudence of Arbitrators103

PART 2 ADVANCES IN THE THEORETICAL ANALYSIS OF INTERNATIONAL LAW111

4—Some Theoretical Reflections on State Contracts111

The Concept of State in State Contracts113

The Double Personality of the State in Anzilotti114

Kelsen’s Dismissal of the Double Personality of the State Presented by Anzillotti116

The Double Theory of the State in Kelsen117

Individuals as Subjects of Public International Law120

Definition of the Subject of International Law121

Subjects of International Law and‘Legal Communities’of International Law123

Objections Raised by the Dualist Doctrine126

Relations between Private Persons and their Home State from the Standpoint of Internalonal Law128

On the Inequality between States and Private Persons130

Private Persons bringing Proceedings before International Courts133

Dismissal of the Petitio Principii that Individuals can never Bring Proceedings before International Courts133

Can Mixed‘Tribunals’be considered International Courts？The Case of ICSID Tribunals134

Can‘Mixed’Courts be considered International Courts？The Case of Ad Hoc Tribunals142

On the Incapacity of General Principles of Law to Internationalise State Contracts146

Lankarani El-Zein’s Argument146

Dismissal of this Argument149

On Stabilisation Clauses in State Contracts153

Stabilisation Clauses are Purportedly not Characteristic of a New Category of Contracts154

Stabilisation Clauses Purportedly do not Imply the Internationalisation of State Contracts156

On the Validity and Efficacy of Stabilisation Clauses157

5—Hans Kelsen and the Advancement of International Law165

The Nature of International Law166

Law in its Own Right166

Reprisals and War：Sanctions of Decentralised International Law167

Centralisation of International Law：Collective Security and Compulsory Jurisdiction168

Changes in International Law：Towards what sort of Civitas Maxima？171

Centralisation /Decentralisation of Legal Orders172

The International Organisation as a Comparatively Centralised Legal Order and its Relations with the State173

The European Union as a Possible Horizon of International Law176

Changes in International Law：Internationalised State Contracts and the Status of Private Persons in the International Legal Order179

The Notion of a State Contract181

The Possibility of Individuals to be Limited Subjects of International Law182

6—The Notion of Civitas Maxima in Kelsen’s Work189

Civitas Maxima and the Primacy of International Law191

Civitas Maxima and Kelsen’s Conception of Legal Orders195

The World State： Cognitive Postulate or State Stricto Sensu？198

Conclusion201

7—International Courts in an Interstate Society203

The Decisive Criterion for the Existence of an International Legal Order204

Law as a System of Justiciable Rules204

International Law as a System of Minimally Justiciable Rules207

Optional Courts and Mandatory Courts207

Mandatory Judgement and Enforceable Judgement209

Judicial Third Party and Political Third Party211

International Courts and the Advancement of the International Legal Order212

Primacy of the Rule of Law and State Sovereignty212

Judicial Interpretation and Self-Interpretation of International Law212

Legal Disputes and Political Disputes214

The Development of International Law215

The End of Anarchy216

8—The State within the Meaning of International Law and the State within the Meaning of Municipal Law （On the Theory of the Dual Personality of the State）219

The Two Sides or Double Personality of the State221

The Two Sides of the State in Classical French and German Doctrines221

The Double Personality of the State in Italian Internationalist Doctrine226

The Double Personality of the State：Kelsen’s Analysis239

Ambiguities in Kelsen240

The Double Personality of the State in a Normativist Conception of Legal Orders：A Proposal247

PART 3—EUROPEAN UNION LAW：INTERNATIONAL LAW SURPASSED OR INTERNATIONAL LAW ADVANCING？257

9—On the Legal Nature of the European Communities257

Centralisation/Decentralisation of a Legal Order258

The Kelsenian Interpretation of Federalism259

The European Community：A Relatively Centralised International Legal Order260

The Importance of Central Norms261

The Existence of a Court to Rule on the Apportionment of Jurisdiction between the Central Order and the Local Orders262

The Direct Applicability of Community Law263

The Primacy of Community Law264

The International Legal Order/The State Legal Order266

Of the Birth of the State267

Of the Legal Nature of the Community and its Future Development270

10—A Federation of Nation States or a Federal State？273

The Reasons for Community Europe’s Dysfunctions274

Federation and the Constitutional Theory of the State276

Confederation of States and Federal State276

The Federation （J Fischer） or Federation of Nation State （J Delors）277

Sovereignty and Nation States279

Sovereignty280

Nation States283

The European Federation：Squaring the Circle284

11—Is there a European Approach to Human Rights？287

Introduction287

The West and the Rest：Europe and the Question of the Universality of Human Rights290

The European Model of Human Rights：A Concrete Universal292

It is Possible to Conceive of the Universal and Human Rights Starting from Other Traditions296

The Universal and the Particular in Human Rights297

The European Universal and its Relations with other Civilisations299

The Universal and the Eternal：The Birth of Universal Human Rights in and through History304

Europe and the West：The European （Properly Speaking） Dimension of Human Rights306

Birth，Disappearance and Rebirth of Human Rights in Europe306

The Enforced Hibernation of the Philosophy of Human Rights in Europe306

Barbarity in Europe and the Renewal of the Philosophy and Positive Law of Human Rights311

Certain Features of the European Concept of Human Rights312

Conclusion325

Index327