Theorising The Global Legal Order

21-22 May 2008
School of Law, Swansea University, Wales, UK

  

SCOPING PAPERS will be given by:

Patrick Glenn, McGill University

Sir Neil MacCormick, University of Edinburgh

Stefan Oeter, University of Hamburg

William Twining, University College London
 

PAPERS ON SPECIFIC TOPICS are anticipated from:

Ari Afilalo, Rutgers University, and Dennis Patterson, Rutgers University & Swansea University
The New Global Trading Order (Strategy, Trade and the Post-Modern State)

The strategic and trade configuration of the post-modern 21st century world has evolved well beyond the traditional alliances and ideological struggles of the 20th century. The gLong Warh that pitted modern liberal democracies against communism and fascism has been won, and the democratic victors must now face the new threats of global networked terrorism and expansionist religious fundamentalism and a geopolitical map that includes emerging powers such as China, India and Brazil. This paper argues that the powers that won World War II should overhaul the Bretton Woods trading system that governed commerce among liberal democracies after that conflict. In positing that the structure of the international economic and strategic order of states should both reflect the inner face of the State, its fundamental gStatecrafth, it is argued that in an emerging international society of market-states, the genablement of economic opportunityh should be institutionalized as a foundational norm of international trade to supplement (and in part supplant) comparative advantage. This institutional and normative change is regarded as crucial to providing an international economic structure that supports the liberal democracies in their strategic struggles of the day.  Although the new norm entails measures that will encroach upon traditional 20th century notions of sovereignty, this outcome is warranted because the alternative is a self-defeating, obsolete system that will result in economic and strategic disasters for the liberal democratic world and emerging economies.

 

Stephen Allen, Brunel University
Indigenous Peoples and the Emergence of a Global Legal Order

The proliferation and increasing authority of multilateral international institutions has facilitated the rise of a global civil society concerned with the legitimate demands of a wide range of non-State actors, including marginalised sub-State societal groups. By forging international networks, indigenous peoples have penetrated supra-national institutions such as the International Labour Organisation and the United Nations with the objective of shaping the priorities of this evolving society through the setting of international standards. In so doing, they have secured a degree of leverage in international fora previously reserved for States. This paper focuses on ILO Convention 169 on Indigenous and Tribal Peoples (1989) and the UN Declaration on the Rights of Indigenous Peoples (2007) in order to assess their resonance for the development of human rights law in an emergent global legal order, notwithstanding the challenges that such standards present for the operation of law in a global context. 

 

Robert Barnidge, University of Reading
Questioning the Legitimacy of Jus Cogens in the Global Legal Order

This paper questions the legitimacy of peremptory norms of general international law, or jus cogens, in the global legal order. While recognising that the idea of jus cogens itself elicits emotional responses and very much approximates, to quote Mani on the universal application of international legal norms, a greligion, unquestioned and unquestionableh, it has three objectives.  First, it looks at the creation of jus cogens norms, paying particular attention to who determines how and when these norms become law and the authority upon which these determinations occur. Second, this paper explores how international actors engage with what they view as breaches of jus cogens in the absence of a dispute settlement body to categorically resolve the issue at hand. Finally, assuming that relevant actors can even agree, or at least concede, that a breach of jus cogens has occurred, it assesses whether obvious consequences ensue, as a matter of both law and practice.  Ultimately, this paper concludes that structural infirmities permeate the very notion of jus cogens, a process of ad hoc moralism, and undermine the legitimacy of these norms per se.

 

Christopher Bruner, Texas Tech University
States, Markets, and Gatekeepers:
Public-Private Regulatory Regimes in an Era of Economic Globalization

This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse – the public-private gatekeeper.  Specifically, it examines striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them – (1) the dominant credit rating agencies (Standard & Poorfs and Moodyfs), and (2) the Internet Corporation for Assigned Names and Numbers (ICANN).  Following an examination of the development of these markets and the global regulatory power exercised by these private-sector entities as a result of their unusual positions under U.S. law, the paper considers the challenge they pose to prevailing theoretical perspectives on the regulation of the global economy. It is argued that these regimes reflect a larger tension between two competing conceptions of sovereignty – Westphalian sovereignty emphasizing the centrality and autonomy of the state, and an increasingly prevalent alternative conception of sovereignty emphasizing the need for cooperation and compromise among states in light of economic globalization.  Through these gatekeepers, the U.S. government has preserved centralized power while cultivating the perception of market-based private ordering, representing an unstable conflation of divergent views on how the global economy ought to be managed.

 

Richard Collins, Sheffield University
The Constitutional Construction of the Institutional:
gGlobal Lawh as Constitutionalism in the Final Epochs of Institutional Imagination

A seemingly modern tendency in international law is to employ constitutional vocabulary, often by analogy to institutional or normative structures of a maturing international legal system. In this story the institutional, supranational or judicial form is seen as the palliative to arbitrary state politics, the final epoch to a historical cosmopolitan promise. In this paper it is argued that the pragmatic approach to modern scholarship grew out of an explicit projection of the state form on the international plane during the nineteenth century, and that to understand the constitutional gideah in international law, one must go back, to trace the roots of modern liberal thought as it penetrated international legal imagination. The new constitutionalism, a gglobal lawh acting as a normative thread running through a chaotic, fragmented institutional web, amounts to a reinvention of a constructed Westphalian order, but increasingly ignores its own assumptions. The paper concludes by considering how these implicit projections of a contractarian-state tradition can only distort post-state ideas as to the actual functions, purposes and strengths of modern institutional forms.

 

Jean dfAspremont, University of Leiden
The (Neo-)Hobbesian Foundations of the Global Legal Order

The multifaceted character of globalization constantly obfuscates our understanding of the theoretical foundations of the global legal order. One of the most common answers to the complexity of any such undertaking has been provided by international constitutionalists who have advocated a conception of the global legal order that corresponds to a table of global values. Liberals and neo-liberals have also floated a value-based representation of the foundations of the global order. This contribution is an attempt to challenge such Kantian or Grotian conceptions of the global legal order and aims at laying down an (neo-) Hobbesian understanding of the common denominators of the global legal order based on (individual and common) interests rather than global values. It is argued that such an interest-based conception enhances the harmonization and transformation-capacity of law as it strips the latter of the imperialistic and hegemonic overtones that are inherent to any value-based understanding of the foundations of the global legal order.

 

Arwel Davies, Swansea University
Squaring Legitimate National Regulatory Interests with Broader International Discipline: The Case of the GATT Article XX / GATS Article XIV Chapeau Jurisprudence

Trade oriented WTO obligations can frequently conflict with the desire of states to pursue legitimate non-trade objectives using measures connected with protecting public health and morals, or the environment.  This paper traces the development of the analytical process by which WTO adjudicative tribunals have located the so called eline of equilibriumf between the treaty rights of the general WTO Membership, and the right of individual Members to invoke exceptions.  From a worrying absence of textualism, and extremely opaque reasoning in the early case law, we now have, for the first time, something resembling a potentially coherent test for determining the availability of the exceptions.  The paper will examine the nature of this test in terms of its provenance, and whether it creates a legal environment which is more permissive of national measures which restrict trade in the name of recognized non-trade objectives.

 

Nicholas Dorn, Erasmus University Rotterdam
The corruption of cosmopolitanism:
Administrative oversight and incapacitation in the Western Balkans

Contemporary developments, including the collapse of boundaries between the international political economy and the domestic sphere of national sovereignty, challenge us eto couple critical thinking with a sense of determination to turn away from the global governance through crime and do the future differentlyf (Sheptycki). By this is meant the analytical proposition that governance is currently accomplished through a political management of crime threats and the normative position that alternative approaches to governance should be found. This paper suggests something similar with reference to global governance through corruption, examining some paradoxical aspects of international administrative governance in the Western Balkans, with a focus on Bosnia and Herzegovina and a query over Kosovo. Exploring interdisciplinarity between international relations, public law and criminology, the paper deploys state pluralist and cosmopolitan perspectives to understand international governance of the Western Balkans. Sanctions and embargoes in the 1990s, followed by UN/EU oversight and political and institutional ereformsf, had unintended consequences including amplification of corruption. Cosmopolitan actors such as NGOs share responsibility, because of their active participation in a narrative on corruption that characterises the whole region as corrupt and thus needing yet more reforms and external management. This legitimises the dismissal of elected representatives, undermines democracy, stalls the development of the licit economy and, ironically, perpetuates corruption.

 

Catherine Dupré, University of Exeter
Globalisation and Judicial Reasoning: The Need for a Theory of Interpretation

This paper suggests that an important aspect of theorising the global legal order is to understand the processes of globalisation of law. The focus here is the increasing use of foreign and comparative law by judges, which is arguably one of the most significant aspects of legal globalisation in Europe. This phenomenon has variously been labelled as cross-fertilisation, judicial dialogue and law importation. However, the paper notes that such reliance on foreign and comparative law is not framed by any existing theory or method of interpretation, even though it raises critical questions about the nature of judicial activity and the legitimacy of judicial creativity, particularly when the use of foreign law determines the outcome of a ruling by filling a gap in the national law, which sometimes involves bypassing the national constitution. Based on a wide range of European constitutional rulings (both at national and supranational levels), this paper explores the types of law used by judges under the broad banner of foreign and comparative law and the ways in which they choose those foreign norms. The paper discusses how these processes may be theorised, both to aid commentatorsf understanding and to clarify judgesf use of global law arguments.

 

Deirdre Dwyer, Oxford University
The Domestic Enforcement of Supranational Rules:
The Role of Evidence in EC Competition Law

Although EC Competition Law can in theory be enforced not only by the Commission and national competition authorities but also through civil action in the domestic courts, there is in practice a total underdevelopment of effective domestic remedies.  In particular, there is no uniformity of rules concerning evidence of alleged anti-competitive practices.  Discussion about developing such rules has to date been led by the Commission, and has been directed towards increasing the number of successful private actions, while reducing costs.  The de facto model for evidence rules would appear to be Anglo-American, incorporating pre-trial discovery, cross-examination, and the universal competence and compellability of witnesses.  This paper looks to identify a principled approach to reform, and assesses two competing evidence paradigms: that the rules of evidence should further the rationalist goal of accurate fact determination, or alternatively that they should reflect elements of a European legal tradition, promoting a range of values in our fact finding.  This debate in some ways reflects the broader jurisprudential debate about whether law should be understood as purposive or positive. 

 

Carlos Fuentes, McGill University
Normative plurality in International Law: the role of soft law in human rights

This paper will try to show how international human rights judicial and quasi-judicial entities are using soft law in their judgments and decisions as a way to reinforce the law-making powers of international organizations. By showing that current theories of the sources and interpretation of international law fail to explain the use of soft law, it will demonstrate the theoretical void that must be filled and present possible ways to construct a theory that recognizes normative plurality and verticalization in international law.

 

John Gillespie, Monash University
Developing a Regulatory Understanding of Legal Globalisation

This paper argues for a regulatory understanding of legal globalisation. Research conducted by the author into the commercial behaviour of over sixty urban and rural-based firms in Vietnam and South Eastern China shows that state and non-state actors negotiate the adaptation and implementation of global laws and principles (global scripts) through a form of participatory governance. States give non-state actors latitude to self-regulate within an overarching policy framework that is constructed from global scripts, informal agreements and tacit understandings. These regulatory frameworks blur law-based distinctions between public and private realms and legal rights implicit to global notions of the rule of law. As a consequence, global scripts are interpreted and implemented according to an ongoing series of decentred negotiations rather than in accordance with hierarchies of laws. This paper will conclude by considering how state and non-state actors can order decentred negotiations to generate uniform and socially appropriate approaches to global scripts.

 

Teresa Giménez-Candela, Autonomous University of Barcelona
Principles of Global Law: Obligations and Contracts

The subject deals with private Law, the current Laws of which date back to ancient Roman Times until the Global time. The aim of this paper is to discuss the new unification projects of Obligations and Contract Law, which are the main objective of some countries (Germany) and some Research or Study Groups (PECL, Gandolfi, Unidroit) and with the historical roots of legal institutions, laying emphasis on both similar and divergent codification solutions as well as the Common Law approach, through a comparative analysis.

 

Oxana Golynker, Leicester University
European Union as a single working-living space: EU law and new forms of intra-Community migration

The traditional boundaries of the nation state have been challenged by global developments in the organisation of modern societies and the interplay of global economic forces. One of the aspects of the complex process of structuring the world as a whole is the emergence of ga global-human conditionh which is examined in this paper in projection onto EU law. In particular, the paper will address the fact that, in the information-based and network-structured economy, the information and communication revolution makes it possible for migrants to move between jobs without concomitant residential mobility. In a sense, globalisation allows European Union citizens to become ubiquitous. The paper will investigate whether, with regard to the new socio-economic patterns of migration, the role of EU law has been receptive/responsive or proactive/creative. The analysis will focus on partial migration as a microcosm for nested social membership and the challenges which this model of social membership poses for EU law.

 

John Harrington, Liverpool University
Space - Health - Law: Globalization and Access to Health Care

This paper examines the changing rhetoric of territory in UK law on access to health care. It conceives of space as a common sense topic of medical law and tracks the changing content of this topic in the years since the foundation of the National Health Service (1948). The paper draws on perspectives in political economy and critical geography in focussing on patient challenges to denial of care from the 1970s to the present day. It will be seen that national space has lost its automatic priority. Instead a plurality of scales (national, European, global) is articulated in medical case law.

 

James Harrison, Edinburgh University
The International Regime for Oil Pollution Compensation and Liability:
The limits of international law

States are generally accepted as the primary actors in the international law-making process. The role of non-state actors in this process, on the other hand, is not so clear.  This paper will consider the issue of law-making in the context of the international regime for oil pollution liability and compensation.  This regime was created by a series of treaties concluded by states.  Yet, non-state actors also have an interest in the regime.  This paper will analyse the types of non-state actors which participate in the regime and the nature of their involvement.  In particular, it considers the role of the international shipping industry.  It would appear that despite the limits placed by international law on their participation in the regime, non-state actors have sought other ways in which to influence its operation.  Thus, it is suggested that it is no longer possible to consider the international regime purely as a creature of international law controlled by states alone.  Rather, it is necessary to take into account the activities of states and non-state actors in the context of a wider normative framework. 

 

Yasuo Hasebe, University of Tokyo
The Reception of the Rechtsstaat Concept in Japan: Its Contraction in Administrative Law and Expansion in Constitutional Law

Ko Hasegawa, University of Hokkaido
How can a legal system incorporate another?
A sketch from the viewpoint of interpretive agency

This presentation considers how people can incorporate the ideas and values of foreign legal systems into their own legal system. Several non-western societies did introduce western legal systems in effective ways: for example, the cases of Japan or Turkey in late 19th or early 20th century. Thus we should understand how this introduction was possible. The incorporation in question need not be a full success or a complete transplant; rather, it should be a product of human endeavors for a relative success or an adequate transformation. This incorporation process involves agential thinkings and doings which require us to explore the salient features of the interpretive activity for that incorporation. In this exploration, the importance of the isomorphic conversion of legal ideas and values becomes apparent. The theory of interpretive agency generally aims at grasping the internal drive for the shaping of social order, and particularly here at capturing the agential elements of the diffusion of law.

 

Ludovic Hennebel, New York University & Magna Carta Institute Brussels, and Gregory Lewkowicz, National Fund for Scientific Research (Belgium), Perelman Centre for Legal Philosophy, Magna Carta Institute Brussels
When Judges Play Global: Defining Global Law in a Fragmented World

What is the role that – domestic and international - judges can play in the emerging global law? In discussing this issue, a paradigm for understanding the role of judges in the definition of the content of global law is proposed. More specifically, through focusing on the interpretative models that are used by judges, acting as global judges, when they decide on transnational human rights litigation, the application of a paradigmatic test called the gmost favorable provision modelh is suggested. It is argued that this approach is the most likely to meet the challenges of the new global legal arena. 

 

Stefan Kadelbach, University of Münster
Title to be confirmed

Oleksiy Kresin, Volodymyr Koretskyi Institute of State and Law, National Academy of Science of Ukraine
The development of the civilizationist school and its ability to respond to the core questions of comparative law

Chamu Kuppuswamy, University of Sheffield
Global legal order and power shifts: The concept of the common heritage of mankind

Commerce, through the years has proved to be a powerful impetus for developing global rules. Considering the role of the state in ensuring free market global trade, it can be inferred that trade is not anymore a matter for private law. A classic example of an attempt to re order the global economic landscape through the law is the development of the common heritage regulatory framework for deep seabed mining, which is conceived of as having potential to change the worldfs industrial raw materials market. This paper will focus on the common heritage of mankind as a notion that envisages economic change and consequently the creation of new power centres, which in turn shapes the rules written to create a global legal order. It will also highlight the basis of the common heritage concept in human rights, and that in this case, empowerment of states will also help empowerment of individuals and thus contribute to a more equal status of human beings across different jurisdictions. The paper will draw attention to the attempted and partially successful common heritage framework discernible in current soft law instruments in relation to the human genome, where modern international rule making is producing interesting debates which feed into the project of theorising the global legal order. 

 

Holning Lau, Hofstra University
Globalizing Markets and Globalizing Human Rights Law

A growing body of scholarship suggests that globalization of capital and labor markets goes hand-in-hand with globalization of human rights protections.  This incentive exists because states wish to attract investors and the mobile class of skilled professionals who have strong preferences for human rights protections.  This paper will explore the relationship between globalizing markets and globalizing human rights law.  It will examine situations—such as the case of sexual orientation rights in Singapore—where a statefs interest in its market competitiveness seems to be the main impetus for expanding human rights protections.  It will assess the strength and sustainability of human rights protections that are motivated primarily by interests in global competitiveness, as opposed to normative principles such as liberty, equality, or dignity.  

 

Thilo Marauhn, University of Giessen
Title to be confirmed

Bonita Meyersfeld, Odysseus Trust London
The infiltration and implementation of international law

There is evidence that canonic standards against violence, including domestic violence, can improve the way a state deals with private violence when the political climate is agreeable. The informal and ad hoc incorporation of international legal principles into the judicial, legislative and non-governmental activities of individual states is a theory proposed both by scholars of international law and international relations. Powerful non-governmental actors have oiled the gears of international law, allowing for the infiltration of einternational normsf into domestic law. Within this setting the following argument is advanced: domestic violence affects women disproportionately as a group worldwide and almost without exception states fail to respond properly to the needs of domestic violence victims; historical disadvantage and discrimination explain why state institutions do not respond to this epidemic properly; international law, by establishing standards, can improve the way states respond to the needs of their people and, potentially, the way people respond to each other.

 

Sarah Nason, Bangor University
Multiculturalism, Universal Human Rights Norms, and Religious Beliefs

This paper takes as its inspiration the recent case of Surayanda v. The Welsh Ministers, wherein it was held that the slaughter of Shambo, the Temple-bullock of The Community of the Many Names of God, despite being an interference with the Communityfs religious beliefs, was justified on public health grounds. The appeal of a universal conception of human rights lies in the belief that such an approach is inherently secular, that common standards do not favour, either implicitly or latently, any particular set of religious beliefs. This appeal is weakened, however, when one considers the claims, firstly that secularism is not itself neutral between these beliefs, and secondly that respect for human rights may not itself be a universally valid value.  This paper considers the approach taken in various quarters of the international community to resolve conflicts between multiculturalism and universal human rights norms, with particular reference to religious beliefs. It further assesses whether the European proportionality principle is a successful method for resolving such disputes.

 

Marco Odello, Aberystwyth University
Between Law of Peace and Law of War:
International Law and Fundamental Standards of Humanity

The historical and legal nature of the concepts of Law of Peace and Law of War will be examined and the implications of new forms of conflict for these concepts will be considered. The applicability of contrasting rules of Human Rights Law and Humanitarian Law will be investigated through a consideration of their theoretical distinctions and practical implications. The development of  Fundamental Standards of Humanity within International Law will be traced with a view to establishing a definition of these standards and considering their potential scope and role.

 

Paul Roberts, Nottingham University
Beyond the Domestic Analogy:
International Penal Law and Cosmopolitan Criminal Jurisprudence

Is the orthodox legality of the Westphalian state gradually breaking down under mounting pressures towards regionalism and internationalism? If so, what is replacing national law, as traditionally conceived? This paper considers the rapidly developing field of International Criminal Law as a case-study in legal cosmopolitanism, serving as an heuristic for modelling the character traits and mapping the future trajectories of cosmopolitan law more generally. It is argued that a fully self-conscious jurisprudence of International Criminal Law must pay attention to disciplinary objectives, values and methodologies, and that, crucially, the gdomestic analogyh is imperfect: orthodox accounts require significant adaptation to meet the challenges of international penality. The development of a properly theorised international criminal jurisprudence is seen to demonstrate how the very dichotomy between gnationalh and ginternationalh law has become blurred and is beginning to break down. The implications of creeping legal cosmopolitanism are related to the basic character of law and the future of legal scholarship and practice in a globalising world.

 

Jukka Snell, Swansea University
eEuropean constitutional settlementf, an ever closer union, and the Treaty of Lisbon

The most fundamental democratic criticism aimed at the EU concerns its lack of demos: the EU is composed of peoples rather than a people; in the absence of a European demos, it becomes illegitimate for the majority to expect the minority to submit to its wishes. Only within a demos is the identification of an individual with the group so strong that he or she is prepared to submit to the majority rule. Given the absence of a common language it is even difficult to foresee a European demos developing in the future.  Thus it could be argued that the democratic deficit the EU is said to suffer from is endemic and permanent. The purpose of the present paper is to examine the arguments in defence of the EU by Majone and Moravcsik (two leading social scientists), which find a broadly satisfactory and durable eEuropean constitutional settlementf relying on the supposedly limited powers of the EU. These arguments will be considered against the backdrop of the historical drive of the EU towards an eever closer unionf, and the impact of the Lisbon Treaty. It will be argued that their accounts fail to capture the dynamic nature of the EU, which is again in evidence with the Lisbon Treaty. Some reflection will also be offered on the implications of this study for the wider problem of multiple demoi at the global level.

 

Helen Stacy, Stanford University
Sovereignty, Culture, Civil Society

Current thinking in international law, it is argued, has offered three critiques about global human rights: sovereignty, culture, and civil society.  These are not new problems, but have been debated as part of a long philosophical tradition. Taking lessons from tradition and casting them in contemporary light, new approaches are proposed to fill the gaps in current theories: relational sovereignty, reciprocal adjudication, and regional human rights. 

 

Carsten Stahn, Swansea University
Jus Post Bellum: From just war theory to legal paradigm

The law of armed force is typically theorised in two categories of law, the law on the recourse to force (jus ad bellum) and law applicable to the conduct of hostilities (jus in bello). Historically, however, there has has been an additional parameter in the equation, namely the concept of law after war (jus post bellum) which is aimed at establishing a fair and sustainable peace after conflict. This concept has been largely ignored in legal scholarship, although it has an established tradition in the context of just war theory. This contribution will analyse whether and why it is feasible to re-think the law of armed force from the post-conflict perspective. It will discuss differences between just war theory and jus post bellum as a legal paradigm. Moreover, it will elaborate how a contemporary jus post bellum might interrelate with the jus ad bellum and the jus in bello.

 

Christian Walter, University of Münster
Title to be confirmed

 

Xie Hui, Shandong University
Non-governmental Norms and Customary Rights

This paper studies the inherent relationships of non-governmental norms and customary rights. First, the concept of customary rights is defined, arguing that customary rights are concerned with rights secured to a person by law, i.e., state law. They indicate a social qualification that a person in a given community himself has to act or omit to act, or a legally enforceable claim that another will do or will not do a given act in accordance with the non-governmental norms, including social practices. Secondly, the basic characteristics of the customary right are analyzed by comparing them with statutory rights and pointing out that non-governmental norms  behave as the carrier of customary rights, which are an important content of non-governmental  norms. Thirdly, after an investigation based on a large number of actual cases, it is pointed out that in non-governmental norms some customary rights are expressed and some are implied. Finally, the paper concludes that it is only by seriously confronting civil norms that we can understand the practice (not only the concept) of customary rights and expand human rights in customary rights; and stresses that we should observe and recognize customary rights embodied in non-governmental norms.