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271. 'Solange, chapter 3': Constitutional Courts in Central Europe – Democracy – European Union

Author:
Wojciech Sadurski
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
Soon after the accession of eight post-communist States from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well-known pattern of behaviour favoured by a number of constitutional courts of the “older Europe”, which is called a “Solange story” for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in postcommunist States, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts' adherence to the “Solange” pattern are primarily domestic, and that it is a way of strengthening their position vis-à-vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.
Topic:
Democratization and Government
Political Geography:
Europe

272. Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

Author:
Ernst-Ulrich Petersmann
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant incentives for forum shopping and rule shopping by governments and non-governmental actors in international economic law. Due to their different jurisdictions, procedures and different rules of applicable laws, national and international judges often interpret international trade law from different (inter)national, (inter)governmental, constitutional and judicial perspectives. This paper explores the judicial functions of national and international judges to reach justified decisions based on positive law, on the basis of transparent, predictable and fair procedures, and to interpret international treaties “in conformity with principles of justice.” Chapters I to III explain some of the “principles of justice” underlying international trade law and argue that international rules for a mutually beneficial division of labour among private citizens should be construed with due regard to the human rights obligations of governments. Chapters III and IV propose to strengthen international cooperation among national and international courts, for instance by negotiating additional WTO commitments to interpret domestic trade laws in conformity with the WTO obligations of the countries concerned and to settle WTO disputes over private rights primarily in domestic courts, without transforming essentially private disputes into disputes among governments.
Topic:
Development, Government, International Trade and Finance, and Non-Governmental Organization
Political Geography:
Europe

273. Legislate or Delegate? Bargaining over Implementation and Legislative Authority in the European Union

Author:
Henry Farrell, Adrienne Héritier, and Carl-Fredrik Bergström
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
In this article we explain how actors' ability to bargain successfully in order to advance their institutional preferences has changed over time as a function of the particular institutional context. We show how actors use their bargaining power under given institutional rules in order to shift the existing balance between legislation and delegation, and shift the rules governing delegation in their favour, between formal treaty changes. We argue that a collective actor's preferences over delegation is a function of whether the actor has more ability to influence policy through delegation or through legislation. We go on to argue that the degree to which a specific actor's preferences can prevail (in a setting in which different actors have different preferences) will depend upon its bargaining power under existing institutional rules, i.e. its ability to impede or veto policy in order to change the division between legislation and delegation and the rules of delegation. Our primary focus in this article is on choice over procedure; i.e. the battles over whether or not delegation or legislation should be employed. We maintain a secondary focus on change in procedure, examining how different procedures of comitology have come into being and been removed from the table. We examine the evolution of the debate over comitology and implementation, over five key periods. We scrutinize how actors within these periods seek to shift the balance of legislation and delegation and the rules of delegation according to their preferences. Our conclusions assess our empirical findings on the basis of our model.
Topic:
Development, Government, and Treaties and Agreements
Political Geography:
Europe

274. The Composition of the College of Commissioners: Patterns of Delegation

Author:
Holger Döring
Publication Date:
11-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
Recent theoretical studies question the view that the European Commission is a preference outlier. This paper addresses this question by discussing the composition of the European College of Commissioners and by focusing on the appointment process. The analysis is based on a dataset that contains biographical information for all commissioners since 1958. The analysis highlights the importance of commissioners' party affiliation and their former political positions. Multivariate regression analysis shows that smaller member states have tended to send more high-ranking politicians to the College of Commissioners than larger member states. However, party affiliation has not become more important as an appointment criterion. What has changed with time has not been the party link but the caliber of positions held by commissioners before they are appointed to the College.
Topic:
Development, Government, and Politics
Political Geography:
Europe

275. One Path or Several? Understanding the Varied Development of Tripartism in New European Capitalisms

Author:
Sabina Avdagic
Publication Date:
11-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
Are newly established institutions capable of shaping actors' strategies and coordinating behavior on a single path? Contrary to punctuated equilibrium analyses, this paper suggests that the constraining capacity of a range of newly established institutions in new European capitalisms is weak and that their very interpretation is subject to contention. Focusing on peak-level tripartism – a formally similar institution whose functioning has varied across national contexts – this paper proposes an actor-centered framework to elucidate the logic and consequences of actors' ongoing strategic maneuvering for the interpretation, enactment, and development of these young institutions. Combining insights of rational choice and historical institutionalism, the paper develops a heuristic model which, by focusing on strategic choices of government officials and union leaders, links the varied enactment of tripartism to different power balances that become mutually accepted in the course of their repeated interactions. In offering a set of falsifiable propositions, the paper provides a guideline for building analytical narratives to evaluate empirically this model.
Topic:
Development, Economics, and Government
Political Geography:
Europe

276. Participatory Governance and European Administrative Law: New Legal Benchmarks for the New European Public Order

Author:
Rainer Nickel
Publication Date:
01-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
European Governance is more than just a policy instrument without legal significance. Its regulatory sub-divisions, such as Comitology, the Lamfalussy procedure, and the growing number of European administrative agencies, have colonized substantive parts of the law-shaping and law-making processes. This contribution argues that European Governance is a distinct phenomenon that cannot be easily reconciled with traditional notions of legislation and administration, but needs to be theorized differently. Accordingly, its legal shape has to be adjusted to this new situation, too. Neither a - still only vaguely defined - concept of 'accountability', nor a non-binding policy concept of 'good governance' can fill this gap.
Topic:
International Relations, Development, and Government
Political Geography:
Europe

277. Anti-Americanism and the Rise of Civic Diplomacy

Author:
Nancy Snow
Publication Date:
12-2006
Content Type:
Policy Brief
Institution:
Foreign Policy In Focus
Abstract:
Anti-Americanism has emerged as a term that, like “fascism” and “communism” in George Orwell's lexicon, has little meaning beyond “something not desirable.” However it is defined, anti-Americanism has clearly mushroomed over the last six years, as charted in a number of polls. This phenomenon is, everyone agrees, intimately tied to the exercise of U.S. power and perceptions around the world of U.S. actions.
Topic:
International Relations, Diplomacy, Government, and Terrorism
Political Geography:
United States and Europe

278. Changes in the Constitutional Structure of Bosnia and Herzegovina

Author:
Henry L. Clarke
Publication Date:
02-2006
Content Type:
Working Paper
Institution:
The Wilson Center
Abstract:
The constitutional structure of Bosnia and Herzegovina is complex, emerging as it did from a peacemaking process between Serb forces of Republika Srpska and a coalition of Bosniak (or Muslim) and Croat forces under the Federation of Bosnia and Herzegovina. Most of the fundamental obligations of the state of Bosnia and Herzegovina and its two subordinate Entities, Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (FBiH), arise from the General Framework Agreement for Peace (GFAP) in Bosnia and Herzegovina and its Annexes, often called the Dayton Accords, signed in Paris on December 14, 1995. The Constitution of Bosnia and Herzegovina is Annex 4 of the General Framework Agreement.
Topic:
Democratization, Government, and Politics
Political Geography:
Europe, Bosnia, and Herzegovina

279. European Chemical Policy and the United States: The Impacts of REACH

Author:
Rachel Massey, Frank Ackerman, and Liz Stanton
Publication Date:
09-2006
Content Type:
Working Paper
Institution:
Global Development and Environment Institute at Tufts University
Abstract:
The European Union is moving toward adoption of its new Registration, Evaluation and Authorization of Chemicals (REACH) policy, an innovative system of chemicals regulation that will provide crucial information on the safety profile of chemicals used in industry. Chemicals produced elsewhere, such as in the United States, and exported to Europe will have to meet the same standards as chemicals produced within the European Union. What is at stake for the U.S. is substantial: we estimate that chemical exports to Europe that are subject to REACH amount to about $14 billion per year, and are directly and indirectly responsible for 54,000 jobs. Revenues and employment of this magnitude dwarf the costs of compliance with REACH, which will amount to no more than $14 million per year. Even if, as the U.S. chemicals industry has argued, REACH is a needless mistake, it will be far more profitable to pay the modest compliance costs than to lose access to the enormous European market.
Topic:
Government, Industrial Policy, and International Trade and Finance
Political Geography:
United States and Europe

280. Organization Design and Frontline Service Improvement in Government: The Case of Performance Targets in the United Kingdom

Author:
Steven J. Kelman
Publication Date:
05-2006
Content Type:
Working Paper
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
Over the last decade there has been a dramatic expansion in use of non-financial performance measures for government organizat ions (Talbot 2005). Often, governments have limited themselves to what may be called “performance measurement” -- choosing measures and reporting performance against them. In this situation, the words typically associated with the effort are “accountability” and “transparency.” Political overseers are made aware of performance, and may then react based on a judgment about whether performance is good or bad. Other times, government organizations have gone beyond measurement to “performance management” – using measures as a tool to improve performance along dimensions measured, not just record performance levels assumed to be unchanging. The basic idea is that various non-financial performance measures serve a role analogous to the profit measure in firms for encouraging better performance. Performance management is thus seen as a potentially powerful tool to remedy underperformance in government.
Topic:
International Relations, Foreign Policy, and Government
Political Geography:
United Kingdom and Europe