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1741. 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

1742. 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

1743. 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

1744. 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

1745. 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

1746. The United States and Lebanon's Civil Strife

Author:
Stephen Zunes
Publication Date:
12-2006
Content Type:
Policy Brief
Institution:
Foreign Policy In Focus
Abstract:
The ongoing popular challenge to the pro-Western Lebanese government of Prime Minister Fouad Siniora marks yet another setback in the Bush administration's attempt to impose a new order on the Middle East more compatible with perceived U.S. strategic interests. The success of the nonviolent people power movement against Syria's overbearing role in Lebanese politics during the spring of 2005dubbed the Cedar Revolutionwas an impressive triumph of popular democratic forces, forcing the withdrawal of Syrian forces and enabling the country to proceed with parliamentary elections without Syrian interference. However, despite claims by the Bush administration to the contrary, the electionswhich, like all Lebanese elections, took place under the country's colonially-imposed confessional representation systemdid not constitute a victory for reformers. Instead, the victors were primarily a group of corrupt pro-Western elite politicians from the same traditional political families who have ruled the country since independence. Their credibility among the Lebanese people was reduced further this summer when the United States rejected their pleas to use its considerable influence to stop Israel's brutal 35-day military assault against their country which took the lives of more than 1,000 civilians and caused billions of dollars of damage to the country's civilian infrastructure.
Topic:
Civil Society and Government
Political Geography:
United States, Iran, Middle East, and Syria

1747. 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

1748. U.S. Congress Should Make New Year's Resolution for Haiti

Author:
Brian Concannon
Publication Date:
12-2006
Content Type:
Policy Brief
Institution:
Foreign Policy In Focus
Abstract:
New Year's Day has a history of hope for former slaves in the hemisphere: Haiti freed its slaves and declared its independence on New Year's 1804; 59 years behind its southern neighbor, President Lincoln issued the U.S. Emancipation Proclamation on January 1, 1863. But since then hope has been scarce in Haiti. This year the island nation rang in the New Year with a toll of alarm. A massacre in the urban settlement of Cité Soleil on Dec. 22 left over 20 dead and many wounded by gunfire from UN troops. In this article, human rights lawyer Brian Concannon discusses the need to clear up the past in order to move toward future peace. In particular, he urges the U.S. Congress to thoroughly investigate the role of the United States in the 2004 coup d' etat in Haiti. For more information on Haiti, see related articles (below). For more information on the Institute for Justice Democracy in Haiti, a member of the IRC Americas Program U.S.-Latin America Relations Network, see http://americas.irconline. org/am/3673.
Topic:
Government and Human Rights
Political Geography:
United States, Caribbean, and Haiti

1749. Bush's Dysfunctional Cuba Policy

Author:
Wayne S. Smith
Publication Date:
11-2006
Content Type:
Policy Brief
Institution:
Foreign Policy In Focus
Abstract:
The Bush administration's Cuba policy has reached a dead end, with no hope of success. Its objective is nothing less than to bring down the Castro regime. Or, as then-Assistant Secretary of State Roger Noriega put it on October 2, 2003: "The President is determined to see the end of the Castro regime and the dismantling of the apparatus that has kept him in office for so long." President George W. Bush then appointed a Commission for Assistance to a Free Cuba with the goals of bringing about "an expeditious end of the dictatorship," and developing a plan to achieve that goal. In May 2004, the Commission came out with a near-500- page plan whose basic premise was that the Castro regime was near collapse and that another shove or two would bring it down--a few more Radio Marti broadcasts, a few more travel restrictions, another economic sanction or two and it would all be over. The plan also read like a blueprint for an American occupation that would make the trains run on time, show the Cubans how to run their school systems and grow their crops--so much so that it offended many Cubans who read it, even those who didn't necessarily agree with the Castro government. To correct that, the new--and shorter--report issued by Secretary of State Condoleezza Rice, Commerce Secretary Carlos Gutierrez and Transition Coordinator Caleb McCarry, on July 10 this year stressed that its purpose was simply to assist Cubans on the island. Solutions must come from them, it insisted, adding that the U.S. stood ready and willing to support those initiatives. But having said that, the report went on with page after page of recommended actions--always provided that Cubans on the island wished to initiate them.
Topic:
Diplomacy, Government, and Politics
Political Geography:
Cuba and Central America

1750. North Korea and the Politics of Famine

Author:
Jeff Feffer
Publication Date:
09-2006
Content Type:
Policy Brief
Institution:
Foreign Policy In Focus
Abstract:
This paper was produced under the auspices of a research project sponsored by the Sejong Institute. It will be published in book form later this year. The author would like to thank the following people for their helpful suggestions on earlier drafts: Ruediger Frank, Sang-jin Han, Chuck Hosking, Karin Lee, Wonhyuk Lim, Marcus Noland, and Kie-duck Park. He would also like to thank Randy Ireson, Erica Kang, Rajiv Narayan, Richard Ragan, and Sun-song Park for agreeing to be interviewed.
Topic:
International Relations, Government, and Human Rights
Political Geography:
Asia and North Korea