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10592. The History of International Legal Theory in Russia: a Civilizational Dialogue with Europe
- Author:
- Lauri Mälksoo
- Publication Date:
- 02-2008
- Content Type:
- Journal Article
- Abstract:
- This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians' works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that 'we too are civilized/European' in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the 'civilizing'/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.
- Topic:
- Cold War and International Law
- Political Geography:
- Russia and Europe
10593. The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity – Elements of a Beautiful Friendship
- Author:
- Armin Von Bogdandy
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.
- Topic:
- International Law and Culture
- Political Geography:
- Europe
10594. The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System
- Author:
- Moshe Hirsch
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- International economic law (IEL) is influenced by diverse theoretical approaches. This article emphasizes that international economic activity is a social phenomenon and international trade should also be conceived as a specific type of social interaction. The scarcity of sociological analysis in contemporary IEL literature does not diminish the influence of social factors that are active in the under-explored layer of the international economic arena. Sociological analysis may recast well-known dilemmas in a different manner and generate insights regarding better legal mechanisms for coping with modern challenges faced by IEL. These properties of sociological analysis are illustrated in this article, which addresses one of the most challenging dilemmas in current IEL literature: the relationship between the World Trade Organization (WTO) and regional trade agreements (RTAs). The underlying argument of this article is that the economic dimension of RTAs is overlaid with a sociological dimension. Consequently, the global/regional debate is analysed with new conceptual tools: sociological theories, mainly the structural-functional perspective, the symbolic-interactionist approach, and the social conflict perspective. The core sociological theories lead to different conceptions of IEL and different interpretations of existing WTO legal provisions regarding RTAs. This article argues that while each of the above sociological approaches underscores certain significant aspects of the global/regional debate, the symbolic-interactionist perspective should generally serve as a point of departure for law- and policy-making in this sphere. This approach suggests that the relevant WTO legal rules should be interpreted in a liberal manner.
- Topic:
- Economics, International Law, and World Trade Organization
10595. The Legal Reasoning of ICSID Tribunals – An Empirical Analysis
- Author:
- Ole Kristian Fauchald
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a 'fragmentation' of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.
- Topic:
- Development and Law
- Political Geography:
- Vienna
10596. Determining the Necessity of Domestic Regulations in Services: The Best is Yet to Come
- Author:
- Panagiotis Delimatsis
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- A necessity test is a tool that reflects the balance between each country's prerogative to regulate in its own jurisdiction and the multilateral interest in progressive liberalization of services trade. Experience gained in goods trade indicates that the principle of necessity can be a useful proxy allowing the judiciary of the World Trade Organization (WTO) to draw the dividing line between legitimate regulation and protectionist abuse. This article explores the possibility of creating a necessity test that would be applicable to all services sectors. Such a horizontal test may yet emerge from the current negotiations within the Working Party on Domestic Regulation (WPDR), which aim to fulfil the legal mandate contained in Article VI(4) of the General Agreement on Trade in Services (GATS or the 'Agreement'). At the core of this mandate, as clarified by various negotiating documents, lies the requirement that Members ensure that domestic regulatory measures relating to licensing, qualifications, and technical standards do not constitute unnecessary barriers to trade in services.
- Topic:
- World Trade Organization
10597. Making Markets Work: A Review of CDM Performance and the Need for Reform
- Author:
- Charlotte Streck and Jolene Lin
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
- Topic:
- Security, Governance, and Reform
- Political Geography:
- Europe
10598. Editorial
- Publication Date:
- 06-2008
- Content Type:
- Journal Article
- Abstract:
- Book reviews, seemingly so simple, are, as any book review editor will know, so challenging. They are, now more than ever, indispensable. Word processing, digital research and, more generally, the industrialization and commercialization of academia, have made the manufacturing of books faster and easier. There are many more law books published today than ever before. Book reviews are not only a way of keeping up with what is published, but also of getting a sense of the content and value of books one simply has to read, of books one should, but never would, read, of books that one neither should nor could read (but which one's library ought to purchase) and, finally, a rare species of a book review, those titles with which one should not bother at all, e.g., so many of those conference 'edited' books (which normally means a motley bag of uneven quality with no academic editing at all and often not even copy editing). The same features of contemporary academia and publishing are responsible for the plethora of 'learned' journals, the articles in many of which are rarely read by anyone but the author and, perhaps a hapless editor and referee. And then there are the Working Paper series (which these days are, thank God for small mercies, never actually on paper, Occasional Research series, and the Blogsphere which renders, say, yesterday's World Court decision already old news tomorrow.
10599. European Exceptionalism in International Law
- Author:
- Magdalena Ličková
- Publication Date:
- 06-2008
- Content Type:
- Journal Article
- Abstract:
- For Member States of the European Union, participation in this supranational organization has increased the number of difficulties in the international arena. Occasionally, the expanding legislative activity of the European institutions reaches out beyond the borders of the European legal system and incidentally affects the EU Member States' autonomous relations with third parties. Consequently the EU and its members, often with success, seek third parties' consent to exceptional treatment. Because of their number and significance, such derogations have inspired this article to inquire into their expansion and legal status under international law. Even though the EU-related exceptions have not created an international customary rule, the article observes that European integration shapes international rules in diverse fields and adjusts them to its needs. Since European integration is designed to administer and regulate an increasing number of issues, the autonomous international obligations of the EU Member States may become an obstacle. Because the European Union is likely to continue using special treatment in the future, it is important to assess how far the supranational exception can go in order to accommodate all interests at stake.
- Political Geography:
- Europe
10600. Human Rights and the Magic of Jus Cogens
- Author:
- Andrea Bianchi
- Publication Date:
- 06-2008
- Content Type:
- Journal Article
- Abstract:
- There is an almost intrinsic relationship between jus cogens and human rights. Peremptory human rights norms, as projections of the individual and collective conscience, materialize as powerful collective beliefs. As such, they inherently possess an extraordinary force of social attraction that has an almost magical character. This article investigates the legal effects of peremptory human rights norms at both the systemic and contextual levels. If these norms have been successful in providing the societal body with a set of identity values, they have dramatically failed to operate as an ordering factor of social practices. To wonder why this is so and to see what can be done (and by whom) to enhance their impact on the contextual level is the main goal of this article.
- Topic:
- Human Rights