On Fragments and Geometry - The International Legal Order as Metaphor and How it Matters

Nikolas M. Rajkovic 

University of Kent, Canterbury - Kent Law School
July 17, 2013

Erasmus Law Review, Vol. 6, No. 1, 2013 
Abstract:      
This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century.

Number of Pages in PDF File: 11

Keywords: international law, fragmentation, archaelogy, Foucault, geometry

Full text available at: http://www.youtube.com/watch?v=xvVCZEiNg_Q

Introduction: Critical Legal Histories in EU Law

Fernanda Nicola 

American University - Washington College of Law
July 17, 2013

American University International Law Review, Forthcoming
American University, WCL Research Paper No. 2013-15 
Abstract:      
This essay introduces a collection of articles spurred by the New Historians of EU law. These scholars offer a new way to reflect, in an interdisciplinary manner, on what EU law scholarship has accomplished until now and how it has shaped our shared European legal culture. Among the goals attained by the New Historians, there is a commitment to better understand how legal change has occurred in EU law through critical legal histories of understudied everyday practices. The aim is to offer new and multiple narratives to shed light on Europe’s past with implications for its future.

Number of Pages in PDF File: 14

Keywords: European Union law, legal history, critical legal history

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294979

Through the Looking Glass of Global Constitutionalism and Global Administrative Law - Different Stories about the Crisis in Global Water Governance

Monika Ambrus 

Erasmus University Rotterdam (EUR) - Erasmus School of Law
July 17, 2013

Erasmus Law Review, Vol. 6, No. 1, 2013 
Abstract:      
In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.

Number of Pages in PDF File: 18

Keywords: global water governance, global constitionalism, global administrative law, water crisis, integrated water resources management

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294999

International Criminal Law and Constitutionalisation - On Hegemony Narratives in Progress

Marjan Ajevski 

Norwegian Centre for Human Rights
July 17, 2013

Erasmus Law Review, Vol. 6, No. 1, 2013 
Abstract:      
As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation.

Number of Pages in PDF File: 12

Keywords: hegemony, constitutionalism, constitutionalisation, international criminal law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295023

Domestic Judicial Law-Making

Antonios Tzanakopoulos 

University of Oxford - Faculty of Law
June 10, 2013

Research Handbook on the Theory and Practice of International Law-Making, Catherine Brölmann and Yannick Radi, eds, Edward Elgar, Forthcoming 
Abstract:      
This contribution to the Research Handbook on the Theory and Practice of International Law-Making discusses the law-making potential of domestic courts. Given the seemingly strict 'dualist' approach of international law to domestic law and domestic court decisions ('merely facts'), the paper demonstrates the modest international law-developing function of domestic courts: it first details their methods in engaging international law, and then discusses the impact of such engagement. It concludes that domestic courts may, in terms of content, fine-tune rules of international law rather than set grand principles. In terms of process, this is done by 'suggesting' the fine-tuning, rather than in any way single-handedly developing international law.

Number of Pages in PDF File: 19

Keywords: domestic courts in international law, domestic law and international law, development of international law, international law-making

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295410

‘Fat Taxes’ in Europe and Beyond – A Legal and Policy Analysis Under EU and WTO Law

Alberto Alemanno 

HEC Paris - Law Department

Ignacio Carreno 

FratiniVergano-European Lawyers
July 19, 2013

European Food and Feed Law Review, 2/2013, pp. 97-112 
Abstract:      
At a time in which food taxes are causing controversy throughout Europe and discussed across the world, this article provides an analysis of the genesis, rationale, scientific evidence and legal implications stemming from the introduction of such fiscal schemes. By taking as a case study the recently implemented (and soon-withdrawn) Danish fiscal scheme, it discusses the compatibility of these product-specific taxes under both EU law and WTO law. Given the increasing number of Member States considering adopting such measures and the references to 'fiscale measures' contained in the recently-adopted WHO NCD Global Action Plan 2013-2020, it also examines the legality of a hypothetical EU-wide fat tax scheme within the framework of the EU’s Obesity Prevention Strategy and other EU-related strategies. Although fat taxes present raise several serious flaws in addressing the ‘obesity epidemic,’ the tobacco experience suggests that the use of fiscal policies to affect the price of products may be effective. However, this it is true only insofar as they are part of an overall strategy based on a mix of policy tools. Unfortunately neither the EU nor the Member States have yet shown enough political will and creativity as to develop the sort of credible EU obesity prevention strategy needed to experiment bold policies such as fat taxes.

Number of Pages in PDF File: 16

Keywords: Fiscal Measures, Lifestyle Risk Regulation, Lifestyle Risk, Non Communicable diseases, EU Law, WTO Law, Paternalism, Theories of Justice, Nudge

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295923

The Fragmented Governance of the Global Energy Economy: A Legal-Institutional Analysis

Rafael Leal-Arcas 

Queen Mary University of London - School of Law; World Trade Institute, University of Bern

Andrew Filis 

Queen Mary, University of London
July 19, 2013

Journal of World Energy Law and Business, Vol. 6, Issue 4, pp. 1-58, 2013, Oxford University Press 
Abstract:      
The objective of this paper is to promote global energy security by evaluating the existing patchwork of institutions and processes linked to the governance of the global energy economy. What we mean by global energy security is the satisfaction of humankind’s energy needs to maintain lifestyle levels in the developed world and to promote development and improve the quality of life across the world, including least-developed and developing countries.

The paper focuses on the global energy economy, its fragmented governance and its implications for global energy security. Inter-State governance over the global energy economy is neither global nor cohesive. Rather, the various aspects pertinent to it – amongst others, economic development, climate change, trade, investment protection, finance and human security – are managed in a disparate and disjointed manner. What is more, the absence of a global energy security regime to address global – i.e., humankind’s collective – energy needs justifies the need to investigate the implications of the current state of play for global energy security.

To do so, the paper will examine all relevant institutions and processes linked to the global energy economy in order to assess their individual and combined implications for global energy security. This paper therefore aims to promote an understanding of, and an attitude towards, the global energy economy that acknowledges that it is a composite affair with a high degree of interplay between its constituent parts, and that there are systemic reasons why the current state of play fails to address global energy security needs.

The aim of the paper is to perform an extensive mapping-out and analysis of the institutions and processes linked to the governance of the global energy economy, and of those purportedly concerned with global energy security, in order to answer the following three questions: 1. How does the current governance system of the global energy economy affect global energy security? 2. What challenges does the current global energy governance system pose to global energy security? 3. Which models of global energy governance should be applied to promote and improve global energy governance generally and global energy security in particular?

Number of Pages in PDF File: 58

Keywords: global energy governance, international cooperation in energy, WTO, PTAs, Energy Charter Conference, OPEC, investment treaties, ICSID, UNFCCC, energy security, IEA, IEF, MEF, national oil companies, World Petroleum Council

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296311