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4842. 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
4843. State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?
- Author:
- Ernst-Ulrich Petersmann
- Publication Date:
- 12-2006
- Content Type:
- Working Paper
- Institution:
- European Research Papers Archive
- Abstract:
- This paper discusses the basic constitutional problem of modern international law since the UN Charter: How can the power-oriented international legal system based on “sovereign equality of states” be reconciled with the universal recognition of “inalienable” human rights deriving from respect for human dignity and popular sovereignty? State representatives, intergovernmental organizations, international judges and non-governmental organizations often express different views on how far the universal recognition of human rights has changed the subjects, structures, general principles, interpretative methods and “object and purpose” of international law (e.g. by the emergence of erga omnes obligations and jus cogens limiting state sovereignty to renounce human rights treaties, to refuse diplomatic protection of individuals abroad, or domestic implementation of international obligations for the benefit of domestic citizens). The paper explains why effective protection of human rights at home and abroad requires multilevel constitutional protection of individual rights as well as multilevel constitutional restraints of national, regional and worldwide governance powers and procedures. While all European states have accepted that the European Convention on Human Rights and EC law have evolved into international constitutional law, the prevailing paradigm for most states outside Europe remains “constitutional nationalism” rather than “multilevel constitutional pluralism.” Consequently, European proposals for reforms of international economic law often aim at “constitutional reforms” (e.g. of worldwide governance institutions) rather than only “administrative reforms”, as they are frequently favoured by non-European governments defending state sovereignty and popular sovereignty within a more power-oriented “international law among states.”
- Topic:
- Economics, Nationalism, Politics, and Sovereignty
- Political Geography:
- Europe and United Nations
4844. Consumer Citizenship in Postnational Constellations?
- Author:
- Christian Joerges and Michelle Everson
- Publication Date:
- 12-2006
- Content Type:
- Working Paper
- Institution:
- European Research Papers Archive
- Abstract:
- It is perhaps a truism to note that 'the consumer' is but a role that is played by human subjects. This insight leaves us, as lawyers, with one vital question: how can or does the legal system meaningfully rationalise its encounters with the consumer? Can it, and if so to what way, shape the act of consumption? Can it even ensure that the 'fact' of consumption translates into 'good' normative institutions.
- Topic:
- Economics, Globalization, and Politics
- Political Geography:
- Europe
4845. Codecision and Institutional Change
- Author:
- Henry Farrell and Adrienne Héritier
- Publication Date:
- 12-2006
- Content Type:
- Working Paper
- Institution:
- European Research Papers Archive
- Abstract:
- We examine the sources and processes of institutional change in one important aspect of EU politics—the legislative procedure of codecision and show how interstitial change of institutions emerges between formal Treaty revisions and under specific conditions may be formalized in subsequent formal Treaty reforms. We develop two related models of Treaty change. First, in a'simple' model, we argue that informal rules will be formalized in the Treaty text where all member states are in agreement, and will be rolled back when all member states oppose them; otherwise they will continue in existence at the informal level. Second, in a more complex framework, we argue that actors who have effective veto powers in a related arena may make credible threats that allow them to press member states into formalizing informal rules, provided that member states are not unanimously opposed to this formalization. We empirically assess our claims in the light of several instances of informal rules applied in the codecision procedure.
- Topic:
- Development, Economics, and Politics
- Political Geography:
- Europe
4846. 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
4847. 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
4848. 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
4849. Rational Choice and EU Politics
- Author:
- Mark A. Pollack
- Publication Date:
- 11-2006
- Content Type:
- Working Paper
- Institution:
- European Research Papers Archive
- Abstract:
- Over the past two decades, rational choice theories have made rapid inroads into the study of EU politics. This paper examines the application of rational choice analyses to EU politics, assesses the empirical fruitfulness of such analyses, and identifies both internal and external challenges to the rational choice study of the EU. With regard to the empirical fruitfulness of rational choice, the paper notes charges of methodological 'pathologies' in rational choice work, but suggests that rational choice approaches have produced productive research programs and shed light on concrete empirical cases including the legislative, executive and judicial politics of the EU, as well as on other questions such as public opinion and Europeanization. Turning to external critiques, the paper examines claims that rational choice is ‘ontologically blind' to certain phenomena such as endogenous preference formation and sources of change. While rational choice as a research program does focus scholars attention on certain types of questions, rational choice scholars have theorized explicitly, alongside scholars from other theoretical traditions, about both national preference formation and about endogenous source of change, thereby clarifying and advancing the study of both phenomena.
- Topic:
- International Relations, Development, and Politics
- Political Geography:
- Europe
4850. Decision-making under Pressure: The Negotiation of the Biometric Passports Regulation in the Council
- Author:
- Jonathan P. Aus
- Publication Date:
- 09-2006
- Content Type:
- Working Paper
- Institution:
- European Research Papers Archive
- Abstract:
- This paper accounts for the so-called Biometric Passports Regulation of the European Community. Formally adopted by the Council of the European Union (EU) in December of 2004, the Biometric Passports Regulation prescribes the compulsory biometric “enrollment” of all EU citizens applying for a new passport or passport renewal. Member States fully participating in the Schengen regime and Schengen-affiliated third countries like Norway are obliged to include two biometric identifiers into their citizens' passports by the end of June 2009. Schengen-made “e-Passports” will contain a chip storing a facial scan of the passport holder and two of his or her fingerprints.
- Topic:
- Security and Science and Technology
- Political Geography:
- Europe and Norway