Pauwelyn on international law and politics

Is it International Law or Not and Does it Even Matter?

Joost Pauwelyn

Graduate Institute of International and Development Studies (HEI)


October 27, 2011


Abstract:     
Novel, hybrid and informal ways of international and transnational cooperation have emerged. Can the output of this informal cooperation, outside international organizations, involving state and non-state actors and leading to instruments other than formal treaties nonetheless amount to 'international law'? This paper examines whether 'informal international lawmaking' can still lead to international law. Is there a line or grey zone distinguishing law from non-law? What criterion does international law use to distinguish law from non-law? Who has the capacity to make international law? What is the difference between being law, having legal effects and being subject to law? And, perhaps most importantly, does it still matter whether an instrument is classified as inside or outside international law?

Number of Pages in PDF File: 44

Keywords: international law, soft law, informal law, normativity, social norms, rules of recognition, legal facts, legitimacy

 

Full text available at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1950068

De Burca on European and American Antidiscrimination Law

The Trajectories of European and American Antidiscrimination Law

Grainne De Burca

New York University (NYU) - Law School



American Journal of Comparative Law, Forthcoming

Abstract:     
There is an apparently sharp contrast in the respective state of antidiscrimination law in Europe and the United States at present. In Europe, antidiscrimination norms are proliferating, within both the European Union and the Council of Europe systems, and elaborate networks and programs of implementation are being established and funded. The grounds of discrimination are widening, the norms are being strengthened and the new laws are being actively litigated. In the United States, by comparison, decades of social and political backlash have significantly weakened the corpus of antidiscrimination law that emerged from the civil rights movement, and the courts have become an arena for ideological battle. Yet, even if certain juridico-cultural differences in conceptions of equality and discrimination between the two jurisdictions are evident, none of the likely explanations for such a stark contrast between the state of antidiscrimination law and policy in each seems fully convincing. On a closer analysis, it seems that the future of antidiscrimination law and policy in Europe faces equally daunting challenges, even if the body of law in question is decades younger and less tested than its U.S. counterpart. One of the themes emerging from this collection of essays, however, is that there are similarities in the way problems of entrenched inequality are being addressed and in some of the solutions being tested both in the United States and in Europe. In particular, there has been a shift away from traditional judicial remedies and towards renewed administrative as well as other more innovative approaches in both jurisdictions. In the United States, this seems to be prompted in part by disillusionment with the current legal stalemate, while in Europe some of the novel approaches - including the spread of equality bodies, parity democracy, and proactive public duties - are being promoted by international and European institutions.

Number of Pages in PDF File: 28

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1950697

Trachtman on International Human Rights Law

Who Cares About International Human Rights? The Supply and Demand of International Human Rights Law

Joel P. Trachtman

Tufts University - The Fletcher School of Law and Diplomacy


October 30, 2011


Abstract:     
Especially in circumstances of great asymmetry, international law can usefully be understood in terms of supply and demand, which highlights the costs and benefits to both the demanding state and the responding state. Human rights protection will often have this asymmetric character as between liberal democratic states and authoritarian states. It is not immediately obvious why liberal democratic states care about human rights in authoritarian states, but this article provides a taxonomy of bases for concern. It is also not immediately obvious why authoritarian states would enter into human rights treaties that constrain their actions. While they may have domestic reasons to use international law to “lock-in” certain behaviors, assuming that international law serves this purpose, or to signal to either external audiences or internal audiences what type they are, these types of reasons seem less plausible and general than a simpler exchange-based model under which other states provide some valuable consideration or refrain from taking harmful action in exchange for human rights protection. International law can serve as a tool for exchange of consideration—for reciprocal and linked exchange—that disrupts existing political equilibria, allowing a superior political outcome for each state under asymmetry. International law may also address the collective action problem that may arise among liberal democratic states as they determine how to share the costs of inducing authoritarian states to protect human rights.
 

Number of Pages in PDF File: 23

Working Paper Series 

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1951489 

Arato on the ECtHR's use of VCLT

The Constitutional Transformation of International Organizations Through Treaty Interpretation: The ECtHR's Expansive Use of VCLT 31(3)(C)

Julian Arato

New York University School of Law


October 30, 2011


Abstract:     
This paper is about the constitutional transformation of international organizations. More specifically, the focus is on how the constituted judicial organs of such organizations develop and transform their constitutions through interpretation. In other words this paper examines these bodies’ reliance upon the externally codified law of treaty interpretation in interpreting their own constituent instruments, and the transformative effects of their use of such techniques on their constitutions. The analysis is confined to the use of a single technique of interpretation (Article 31(3)(c) of the Vienna Convention on the Law of Treaties ), by one particular organization (the European Court of Human Rights), in a single major case – Demir & Baykara v. Turkey (2008). I argue that the case illustrates two distinct forms of constitutional transformation: (1) the Court relies on 31(3)(c) to interpret the substantive rights of the Convention as evolutive over time in light of sources external to the Convention; and (2) the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby, more reflexively, transforming its own material competence to develop the Convention on the basis of developments outside of the Convention.

This working paper was prepared for presentation at the inaugural Research Forum of the American Society of International Law, ASIL Midyear Meeting, UCLA (Nov. 3-5, 2011).

Number of Pages in PDF File: 33

Keywords: International Organizations, Treaty Interpretation, Constitutional Theory

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1951547

Caponi on Judicial Cooperation

Judicial Cooperation in the European Legal Culture: Terminology and Conceptual Framework

Remo Caponi

University of Florence - Dipartimento di Diritto Privato e Processuale


October 30, 2011


Abstract:     
Paper presented to the workshop on Judicial Cooperation in the Area of Fundamental Rights (EUI, Florence 28-29 October 2011).

Number of Pages in PDF File: 8

Keywords: Judicial Cooperation, Dialogue between Judges

 

Full text available at the following URL:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1951509

Jankins on Comparative Law and Terrorism

There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology

David Jenkins

University of Copenhagen



Columbia Human Rights Law Review, Vol. 42, No. 2, 2011

Abstract:     
In the last ten years, many countries other than the United States have experimented with new, controversial forms of government powers to control, deport, or detain suspected terrorists. With this decade-long perspective, one can now better assess how other democracies have tried to balance their twin commitments to national security and the rule of law, how they have worked together to do so, and how judges and policymakers can best use comparative law in these transnational counter-terrorism efforts. Accordingly, this article considers questions of practical comparative methodology by focusing on one remarkable example of comparative anti-terrorism law gone wrong – the development of “special advocates” in the United Kingdom and Canada. In the 1996 decision of Chahal v. United Kingdom, the European Court of Human Rights found that British immigration procedures violated the European Convention on Human Rights because they denied deportees both legal representation and access to security-sensitive evidence in ex parte, in camera administrative hearings, from which the individual concerned and his legal counsel were excluded. In considering more proportional measures for balancing the State’s national security interests with due process, the Court referred in dicta to a Canadian practice of using special advocates – lawyers who could examine secret evidence withheld from a deportee on security grounds. The Court’s description of this Canadian practice, however, was seriously flawed and was the product of a poor comparative law methodology. As a result of Chahal’s dicta, the United Kingdom adopted a system of special advocates that greatly limited due process rights. Ironically, Canada itself would eventually get rid of its own special advocates system and adopt the procedurally-defective British model, based on Chahal’s erroneous description of the earlier Canadian one.

Number of Pages in PDF File: 77

Keywords: Special advocates, secret evidence, anti-terrorism, due process, comparative law, Chahal

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945679

Talk About Talking About Constitutional Law

Adam Samaha

University of Chicago - Law School


October 17, 2011

U of Chicago, Public Law Working Paper No. 368

Abstract:     

Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, those inquiries probably are more important than more talk about how we ought to talk about constitutional law.

Number of Pages in PDF File: 20

Keywords: constitutional discourse, constitutional interpretation, originalism

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945432