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18491. A Democratic Rule of International Law

Author:
Steven Wheatley
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
This article examines the way in which we should make sense of, and respond to, the democratic deficit that results from global governance through international law following the partial collapse of the Westphalian political settlement. The objective is to evaluate the possibilities of applying the idea of deliberative ('democratic') legitimacy to the various and diverse systems of law. The model developed at the level of the state is imperfectly applied to the inter-state system and the legislative activities of non-state actors. Further, regulation by non-state actors through international law implies the exercise of legitimate authority, which depends on the introduction of democratic procedures to determine the right reasons that apply to subjects of authority regimes. In the absence of legitimate authority, non-state actors cannot legislate international law norms. The article concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms and the implications of the analysis for the regulation of world society.
Topic:
International Law
Political Geography:
Westphalia

18492. The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks

Author:
Jean d'Aspremont
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989–2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007–2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.
Topic:
International Law

18493. Demystifying the Art of Interpretation

Author:
Michael Waibel
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Despite its codification by the Vienna Convention more than 40 years ago, treaty interpretation in international law continues to evolve as its function of providing predictability in international relations remains as important as ever. The voluminous recent literature testifies to the continuing scholarly interest in interpretation, even if sometimes at the cost of over-theorizing. This essay reviews six books that seek to demystify the art of treaty interpretation. Written by European scholars, the books take a fresh look at interpretation but differ in their approaches and scope of analyses. While all six authors study the interpretive practice of international courts and tribunals, Gardiner, Linderfalk and Van Damme focus on treaty interpretation; Fernández de Casadevante Romani, Kolb and Orakhelashvili also examine the interpretation of decisions by international organizations, unilateral acts and customary international law. Kolb and Orakhelashvili opt for a comprehensive, theoretically-grounded approach, whereas Van Damme focuses on the interpretative practice of the WTO Appellate Body. On the strength of her perceptive and nuanced analysis of WTO jurisprudence, the book is the best guide among the six to interpretation in international law generally. In addition to Van Damme's work, the practitioner will also find Gardiner's book particularly useful.
Political Geography:
Europe and Vienna

18494. Stephan W. Schill. The Multilateralization of International Investment Law

Author:
Sergey Ripinsky
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Stephan Schill's book, The Multilateralization of International Investment Law, stands apart from the rest of the literature on international investment law which has burgeoned in the past few years. In contrast to most publications on the market, this volume, adapted from the author's Ph.D. thesis, does not attempt to summarize and systematize the developments in arbitral practice. Instead, it reveals an important and previously unexplored dimension of the investment treaty phenomenon by presenting an original vision of the landscape formed by more than 3,000 international investment agreements (IIAs). The author advances and substantiates the seemingly counter-intuitive thesis that these predominantly bilateral instruments do not result in chaotic fragmentation but, taken together, 'function analogously to a truly multilateral system' (at 15).

18495. Nancy A. Combs. Fact-Finding Without Facts. The Uncertain Evidentiary Foundations of International Criminal Convictions

Author:
Chris Stephen
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
The field of international criminal law (ICL) is synonymous with the crowded courtroom and the infamous individual in the dock; Adolf Eichmann, Slobodan Milošević, Saddam Hussein, and now Radovan Karadžić. The actions of such individuals have taken place within the various conflicts and mass atrocities that have proven to be lamentably frequent both during the last century and now into this one. In the aftermath of this sustained bloodshed, trials, whether national (Klaus Barbie in France, John Demjanjuk in Germany) or international (Jean Kambanda before the International Criminal Tribunal for Rwanda (ICTR)), have constituted a frequent (David Scheffer's pronouncement of 'tribunal fatigue' suggests perhaps too frequent) reflex reaction by states and have formed the backbone of ICL. Beginning with the Leipzig trials, then via Nuremberg and Tokyo, Yugoslavia and Rwanda to the creation of the International Criminal Court (ICC), successive tribunals have sought to build upon the strengths (and weaknesses) of their predecessors. For example, the recent rise of hybrid courts such as the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia (ECCC) can be attributed, at least in large part, to the flaws of previous international judicial institutions; a perceived lack of legitimacy, huge running costs, and detachment from victims, communities, and the locus delicti. The evolution of ICL thus proceeds through a series of trials and error.
Political Geography:
France, Cambodia, Tokyo, and Lebanon

18496. Armin von Bogdandy and Jürgen Bast (eds). Principles of European Constitutional Law

Author:
Birgit Schlutter
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
Topic:
Law
Political Geography:
Europe and Lisbon

18497. Donatella della Porta and Manuela Caiani. Social Movements and Europeanization

Author:
Rebecca L. Zahn, Dr. jur
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
There is an ever-growing body of literature in law and political science on the illusive concept of Europeanization. A lot of the discussion in the literature attempts to define Europeanization and, on the basis of such a definition, to elaborate on the content of the concept. Donatella della Porta and Manuela Caiani, who both work in political science departments, contribute to this discussion by combining insights from the existing body of literature with new empirical findings in order to demonstrate the relevance of the European Union to social movements. The authors situate the discussion surrounding the involvement of social movements in the process of Europeanization within the aftermath of the failed referenda on the European Constitution in France and the Netherlands in 2005 in order to illustrate the contribution of social movements to the debates on European integration. The authors refer to the literature in the area of social movement studies.1 However, they also go beyond the field and combine insights from the literature on Europeanization with empirical research in order to address the involvement of social movements in the process of Europeanization. An example of such involvement is the European-wide campaign against the so-called 'Bolkestein' Directive in which social movements actively participated. Social movements, in this context, are defined as 'dense informal networks of collective actors involved in conflictual relations with clearly identified opponents, who share a distinct collective identity, using mainly protests as their modus operandi'.
Political Geography:
Europe

18498. Nikolaus Forgó, Regine Kollek, Marian Arning, Tina Kruegel and Imme Petersen. Ethical and Legal Requirements for Transnational Genetic Research

Author:
Hans Christian Wilms
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
The ethical and legal challenges of biomedical research are among the most crucial and interesting questions in law nowadays. One of these questions concerns the regulation of research on human genetic data in transnational constellations. Genetic research promises therapies and prevention for diseases like cancer and HIV, but it is highly dependent on genetic material derived from donors of tissue or blood. For significant advancements in cancer research, for instance, a large number of genetic data of patients is needed. Such data are most effectively collected in and made available by databases or biobanks that allow the exchange of genetic data by various research facilities. To enhance the possibilities and enlarge the amount of genetic data available for researchers the European Union through its 6th Framework Programme of the European Commission under the Action Line 'Integrated biomedical information for better health' funded the so-called 'Advancing Clinico-Genomic Trials on Cancer' research project (ACGT). This project aimed to deliver to the cancer research community an integrated clinico-genomic information and communication technology environment designed to become a pan-European voluntary network connecting individuals and institutions to enable the sharing of data and tools. However, broadening the scope to the European level causes problems of integration of different national views on ethical issues and their legal framework.
Political Geography:
Europe

18499. Impressions: Georg Dahm. Völkerrecht, 3 volumes (1958–1961)

Author:
Karl Doehring
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
With Impressions, as the name indicates, we wish to provide a forum for a more personal, historical-contextual approach to book reviewing. We have asked some of our older, possibly wiser, scholars of public international law to revisit a book which very much influenced their thinking, a book that indeed made a lasting impression on them. Rather than presenting a critical assessment of the book, our reviewers will offer personal reflections on the impact a book has had on their own thinking as well as its past and continued relevance for public international law scholarship.

18500. Midas

Author:
Laura Coyne
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Midas Midas that tough, successful alchemist Before his time Could turn the wind to gold, …