Global Ordo-Liberalism, Private Power and the Transfiguration of Diplomatic Law

Noe Cornago 

University of the Basque Country (UPV/EHU)
October 16, 2013

Oñati Socio-Legal Series, Vol. 3, No. 4, 2013 
Abstract:      

Diplomatic law is commonly depicted as a field of law particularly differentiated and stable, and apparently at least not particularly vulnerable to the tensions associated to the restructuring of the global political economy which are so easily observable in other fields of international law. For centuries its formative process was customary. Later, early diplomatic practices, institutions, and norms were tailored to measure the functional and normative needs of a world of nation States. However, it was not until the signing in 1961 of the Vienna Convention on Diplomatic Relations that its basic rules were formally codified. But, as the preamble in this Convention affirms, the rules of customary law continue to govern all questions not expressly regulated by its contents. Custom however is not always the residue of the past that some practitioners and scholars use to imagine. Moreover, its formative processes are also embedded in wider historical transformations of global capitalism. Through the examination of current transformations affecting diplomatic settlement of disputes, diplomatic protection, diplomatic immunity and diplomatic reciprocity, this article contends that diplomatic law is becoming another field of struggle, both particularly unexpected and revealing, in the current transition from embedded liberalism towards a new era of global ordo-liberalism.

Number of Pages in PDF File: 30

Keywords: Global law making, Diplomatic Law, Privatization, International Law, Ordo-liberalism, Diplomatic Protection, Diplomatic Immunity, Diplomatic Reciprocity, Settlement of Disputes. Decisiones del Derecho global, Derecho Diplomático, Privatización, Derecho Internacional, Ordo-liberalismo.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2341013

Federalism and Political Competition in Emerging Democracies

Jonathan L Marshfield 

University of Arkansas 
2011

Washington University Global Studies Law Review, Vol. 10, No. 2, 2011 
Abstract:      

Political competition is essential to the development and maintenance of a healthy and stable democracy. Current scholarship has largely ignored the role that federalism can play in fostering meaningful political competition in emerging democracies. This Article aims to fill this void by developing a theory of political competition within federal systems based on a formal game theory model created by economist and Nobel Laureate Roger B. Myerson. The Article argues that constructive political competition is especially difficult in emerging democracies because social and economic exigencies create strong incentives for new leadership to quash opposition and because first-time voters do not have a point of comparison by which to judge their first set of democratic leaders. Unitary regimes exacerbate these problems because they create an all-or-nothing political scenario and provide voters with only one point of political comparison. Federal systems, on the other hand, create multiple political arenas. This means that political opposition can be contained without being quashed, and that voters will have multiple points of political comparison. After exploring the necessary parameters of this model, the Article then applies the model to post-apartheid South Africa, which has been controlled by a single political party since the country’s first democratic election in 1994. The Article concludes that South Africa’s federal structure is gradually fostering constructive political competition as the model suggests and that opposition parties in South Africa are well situated to take further advantage of these opportunities in the future.

Number of Pages in PDF File: 51

Keywords: federalism, political competition, South Africa, emerging democracies, developing country, democracy, democratic theory, voting, voter choice, public choice, comparative constitutional law, South Africa and democracy, apartheid, Democratic Alliance, DA, Hellen Zille, African National Congress, ANC

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346795

The Scope and Balancing of Rights: Diagnostic or Constitutive?

George Letsas 

University College London - Faculty of Laws
October 29, 2013

Eva Brems & Janneke Gerards (eds), Shaping Rights: The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge University Press, Forthcoming 
Abstract:      

The two-stage doctrinal test of scope and balancing that human rights courts use to determine whether there has been a human rights violation is diagnostic. It does not tell us what a right consists in. Rather, it is a mechanism for helping courts to explore constitutive questions about what a right consists in and whether it was justifiably infringed. Like any diagnostic test, the test has weaknesses and limitations. It can produce false negatives and false positives. The paper highlights the importance of the distinction between diagnostic and constitutive questions about rights and explores the shortcomings of the test that European courts use in adjudicating fundamental rights.

Number of Pages in PDF File: 30

Keywords: human rights, fundamental rights, scope of rights, balancing, proportionality, European Convention on Human Rights, judicial review

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346835

Accidental Constitutionalism: The Political Foundations and Implications of Constitution-Making in Israel

Adam Shinar 

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law
October 30, 2013

The Social and Political Foundations of Constitutions 207 (Denis Galligan & Mila Versteeg eds., Cambridge University Press 2013) 
Abstract:      

Unlike most democratic constitutional regimes, the events that gave rise to Israel's constitutional structure did not come about as a result of a constitutional convention, referendum, civic mobilization, or any other deliberate process that characterizes traditional constitution-making. Instead, the process has been gradual, incremental, and piecemeal. The making of Israel's constitution, I will argue, should be understood as accidental, a process best described as “accidental constitutionalism.”

Accidental constitutionalism can raise problems of legitimacy. For example, constitutional milestones, such as declaring the supremacy of some laws over others and the establishment of judicial review, were initiated by the Supreme Court. The determination that Israel even has a constitution was made by the Court. Although this aspect of Israeli constitutionalism has been the focus of most scholarly writing, it obscures how the Israeli constitutional system has produced arrangements that are both stable and similar to those of countries whose constitution originated in more conventional processes.

This chapter argues that the ad-hoc making of Israel’s constitution has had relatively little impact on the day-to-day manageability and workability of that structure. The more general argument this chapter pursues is that there is no necessary relationship between a polity's constitution-making process and the particular features that process generates. Although Israel's constitutional structure came about in an unconventional way, I argue that when examining the consequences of such a process, the similarities to traditional constitutions outweigh the differences. This conclusion challenges the common assumption that constitutional origins have a particular effect on subsequent constitutional developments.

Number of Pages in PDF File: 34

Keywords: Constitutions, constitution making, comparative constitutional law, Israel

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347839

From Kadi to Nada: Judicial Techniques Favoring Human Rights Over United Nations Security Council Sanctions

Erika De Wet 

Institute for International and Comparative Law in Africa
October 31, 2013

(2013) 12 Chinese Journal of International Law (December Issue, Forthcoming) 
Abstract:      

The contribution analyzes the implications of the Kadi decision of the European Court of Justice of 18 July 2013, as well as that of the Nada decision of the European Court of Human Rights of September 2013. Both decisions have given preference to human rights standards over United Nations Security Council sanctions stemming from the Resolution 1267 (1999) sanctions regime. However, they used very different techniques in coming to similar results, with implications for the effective enforcement of UNSC binding decisions and the unity of international law.

Number of Pages in PDF File: 19

Keywords: UNSC, sanctions, Kadi, Nada, fair trial, article 103

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348010

The Theories and Practices of Citizenship

Richard Bellamy 

University College London - Department of Political Science
November 1, 2013

Citizenship: Critical Concepts, 4 Volumes, R. Bellamy & M. Kennedy-MacFoy, eds, Routledge, 2014, Forthcoming 
Abstract:      

This essay introduces four volumes of published articles exploringdifferent theories and practices of citizenship from ancient Greece to the present. This period has witnessed significant changes as to who can be a citizen, the topic of Volume 2, how we exercise citizenship – the rights and duties of citizenship and the practices through which we use them, examined in Volume 3, and where citizenship is located – the nature of the political community to which a citizen belongs, the subject of Volume 4. For example, much of the history of citizenship has involved the struggle for the inclusion of the propertyless, women and ethnic minorities into the fold of citizens. Likewise, the range of political rights and duties has altered over time, as have the degree and ways they need to be performed. In most countries, military service has ceased to be a core civic duty, while political participation has become increasingly limited to a voluntary and periodic act of voting for a decision-maker rather than regular and sustained direct involvement in decision-making. The type of political community deemed to sustain a form of citizenship has also evolved, expanding beyond the city to encompass nation states, empires, and international bodies such as the EU.

Number of Pages in PDF File: 23

Keywords: Citizenship, political community, liberalism, republicanism, multiculturalism, Aristototle, Machiavelli, Hobbes, Marshall, Kymlicka, globalisation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348922

Democracy, Courts and the Dilemmas of Representation

Richard Bellamy 

University College London - Department of Political Science

Cristina E. Parau 

University of Oxford, Department of Politics and International Relations
October 17, 2013

‘Introduction: Democracy, Courts and the Dilemmas of Representation’, Representation, 49:3 (2013), pp. 255-266 (introduction to a co-edited Special Issue on ‘Courts and Representative Democracy’) 
Abstract:      

The first important work of comparative law and politics to define, analyse and evaluate the global phenomenon of the “judicialization of politics” was Tate and Vallinder’s The Global Expansion of Judicial Power (1995). They found that judges had steadily encroached upon policy-making prerogatives hitherto reserved to elected representatives. Over the past decade and a half a vast empirical literature on this topic has sprung up, spanning law and politics (Stone Sweet 2000; Guarnieri and Pederzoli 2002; Hirschl 2004; Caldeira, Kelemen et al.

2008). These studies remain for the most part rooted in older debates concerning the legitimate powers of the judiciary in a democracy (e.g. Bickel 1962; Ely 1980). Similar preoccupations have also loomed large in recent work by normative legal and political theorists on judicial review and the nature of constitutionalism (Dworkin 1998; Waldron 2006; Bellamy 2007). This Introduction reflects and seeks to advance these debates on the impact and legitimacy of the judicialization of democratic politics in two main ways. First, it surveys scholars holding different perspectives - some more critical of and others more favourable to judicialization - and who employ different methods, be they normative, qualitative or quantitative, that reflect the different disciplinary approaches to the topic found in law, political science and sociology. Second, it focuses specifically on the contrasts and complementarities of law and politics as modes of democratic representation.

Number of Pages in PDF File: 13

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2341538