As business transactions and the global economy become increasingly digitalized, international investment disputes will deal with novel assets in new boundary-defiant contexts. Indeed, jurisdictional arguments and objections will likely require arbitral tribunals to confront with the uneasy task of delineating the âlocalizationâ of investments in digital economy assets such as cryptocurrency, non-fungible tokens, and data-related investments. However, given that even more traditional assets have raised a variety of problems relating to territorial nexus and localization, the authors believe that the digital economy emphasizes what are essentially differences in degree rather than in kind. This chapter discusses the complexities that arise in considering the idiosyncrasies of investments in digital economy assets within a traditional territorially defined jurisdictional framework. First, the authors present some of those new digital economy assets and canvass several typical cross-border challenges inherent in international investment arbitration. Second, they question how traditional objections to jurisdiction ratione personae and jurisdiction ratione materiae might be employed when the investments in question relate to those digital developments. Third, the chapter raises questions about statesâ jurisdiction to prescribe, and ponders the potential effects for purposes of jurisdiction of states asserting their authority to prescribe over investments or investors outside their territory.
This chapter examines the potential of non-fungible tokens (NFTs) as an instrument to enhance access to justice, highlighting the necessity for judicial and legislative innovation to accommodate them into existing legal frameworks. We analyze two instances of such innovations: judicial adaptations in the Anglo-American legal systems that recognize NFTs as a tool to improve access to justice from both a procedural and substantive perspective and legislative measures in the European Union that incorporate NFTs into regulatory schemes, potentially improving substantive justice access to justice. Our findings suggest that while judicial creativity has played a crucial role in advancing justice in the discussed cases, it is insufficient on its own. Comprehensive legislative reforms are essential, and this requires regulators to be more attendant to market developments, specifically in the field of legal tech, and mechanisms need to be developed to reduce information asymmetries. In designing any new legislative scheme for crypto-assets, access to justice should be a key consideration in mitigating the risks of this new technology.
Geovana de Quadros Martins Bortoli, Herbert Kiefer Colla, Frederico Felipe Timm Kruel
Notary activity is, without a doubt, one of the most traditional in the country, with more than four centuries of existence in Brazil.Since the installation of the first Notary Office, 458 years ago, much has been innovated in notary activity, from the way in which delegations are staffed, through the recognition of the importance of the function, to legislative and legal innovations that, in recent years, have entered the scope of this multisecular function.It is in this scenario that the aim is to contextualize the compatibility of traditional notary activity with new technologies, especially the blockchain network and smart contracts.Furthermore, reference will be made to the recent confirmation of notarial escrow by Law number: 14,711/2023.In this sense, initially, the main characteristics of blockchain, smart contracts and escrow accounts will be exposed.Next, we will seek to analyze how these new technologies impact notary activity to, finally, point out the significant advantages of compatibility, and not replacement, of notary activity with new technologies.
Practices of knowing and being are not isolable; they are mutually implicated. We donât obtain knowledge by standing outside the world; we know because we are part of the world. We are part of the world in its differential becoming. The separation of epistemology from ontology is a reverberation of a metaphysics that assumes an inherent difference between human and nonhuman, subject and object, mind and body, matter and discourse.1 The violence and violations of 2023 defy description: environmental disasters (e.g., floods, hurricanes, earthquakes and out-of-control fires in multiple parts of the globe); threats of authoritarianism throughout Europe and the Americas; the ongoing conflict in Ukraine, and the unspeakable genocidal violence in the Middle East threatening Israelis and the eradication of Palestine; threats by gangs and other armed groups and horrific violence against women and racialized minoritized communities in many parts of the world, extractive industries leveraged from the Global North forcing thousands in the Americas to cross borders in search of basic resources for survival and destroying Abya Yala.2 According to the United Nations, wars displaced more than 84 million people by the end of 2021, and 87 percent of those killed in armed conflicts are civilians. By the end of 2023 those numbers will only be higher. Estimates from 2020 suggest that there are 281 million migrants â that is, those living beyond the borders of their countries of origin â a number which equated to 3.6 percent of the global population, and which is anticipated to rise. The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume, reminds us that this is not the first mass migration between Europe and the Americas and other parts of the Global South. Rather, between the 19th century and the middle of the 20th century, over 60 million Europeans travelled across the world as the original âeconomic migrants.â In her article âMigration as Decolonization,â3 among other publications, she argues that for these migrants the goal of extracting wealth from the countries to which they were moving and funnelling it back was part of colonization and enslavement, processes that included the displacement, slaughter and death through disease of most of the Indigenous populations on the lands that they occupied. In contrast, today international law permits countries to close their borders, and former colonial powers manage borders in highly racialized ways, denying entry to those whose riches and lands were taken by these original migrants.4 Also, transitional justice is, among other things, being sought increasingly by peoples of the Global South and those in the North who are racialized and displaced from their traditional lands but living in âestablished democracies,â as resources for redress and reparation.5 Readers and published scholars and activists in the International Journal of Transitional Justice community explore the work within its pages to better understand some of the multiple ways of thinking about and taking action within or in the wake of many of these complex contexts of violence and violation. Ten years ago, Abdullahi Ahmed An-Naâim editorialized in this journal about the neocolonialism underlying or emerging through transitional justice across diverse sites.6 He challenged those of us educated and/or working in the Global North to move beyond an academic debate about decolonization and to heed voices from the Global South. Others have written in more detail about those voices and ways of being and knowing that urge a holistic approach to the wellbeing of all living systems, including ecosystems and animals; we live within a pluriverse, not a universe.7 Rosemary Nagy identified other limitations of transitional justice, arguing that the Canadian Truth and Reconciliation Commission on residential Canadian schools offered an opportunity to ârethink the scope and bounds of transitional justice.â She cautioned, however, that the conservative political environment and the commissionâs own focus on individual healing shifted the potential impact of the Commission, at least in part, because its focus individualized healing whereas â⌠Indigenous healing is intrinsically connected to structural transformation and reconciliation depends upon remedying colonial violence in the present.â8 Despite these limitations, it is widely recognized that transitional justice developed as one set of responses to the gross violations of human rights attendant to multiple contexts of mass violence in the Global South.9 The changes sought by survivors and those who accompanied them were envisioned as promising governance processes that enhanced participation of all and ensured redress from harms done while promising non-repetition. These sought-for aspirations for transitioning towards democracy reflect what Vanessa de Oliveira Andreotti et al., among others, describe as attaining the âshineâ of modernity; that is, the multiple outcomes or effects of linear democratic governance processes that guarantee political and economic wellbeing, including housing, food security, water, education and physical and psychosocial health. Yet many, if not most, who continue to live in marginalized, racialized and impoverished communities âpost conflictâ remain in the âshadow,â not the âshine,â of modern nation-states. We argue here that despite its promise, transitional justice all too often fails to reach its potential as a response to the magnitude, horror and devastating effects of the violences of armed conflict or, more recently, as a resource to redress the effects of structural racism, impoverishment and white supremacy â intersecting legacies of settler colonialism. We briefly explore some of the soft and radical efforts to reform transitional justice â and ask if it is, in fact, beyond reform. An-Naâim and Nagy are two among a growing number of authors in IJTJ over the past decade who have argued for, documented and critiqued some of the limitations of transitional justice. Others among the critics have pressed for seeing victims and survivors as agents of change, urging for more locally driven initiatives âfrom the bottom upâ or âfrom the periphery.â10 Heeding those calls, some scholars and scholar-activists have argued for victim-centred, victim-participant and/or transformative justice.11 As one response, a field initially deeply rooted in legal discourse and practice has increasingly shifted towards inter- or multidisciplinarity, where philosophers, anthropologists and social scientists are regularly published in these pages. Increasing numbers of empirical studies in the field also reflect a growing diversity of research methodologies, and such studies often raise concerns about the impact of transitional justice interventions and their import for policy.12 These responses to violence, that is, to the shadow life of the modern nation-state, are examples of what Andreotti et al. refer to as âsoft reforms,â i.e., efforts to do things (e.g., transitional justice) differently, including the introduction of diverse disciplinary and methodological strategies, while asking similar questions within the same global imaginary. Transitional justiceâs growing interdisciplinarity and recent emphases on more quantitative and mixed methods for evaluating outcomes or informing policy all too often sustain the power and decision-making of theoreticians or outside practitioners, failing to shift the grounding of our knowledge, which remains centred on transitions to a northern-based democratic governance. Soft reform is thus grounded in a single story of progress, development and evolution wherein we assume that we can make the system better through transforming policies and practices. These changes assume a continuity of theory and praxis whereby the questions and answers stay the same as they evolve. Andreotti and colleagues suggest that the âradical reformerâ also seeks to fix the same system but recognizes that more substantial changes are required to make it better â that is, radical reformers ask the same questions but seek different answers by turning to different voices and adopting new perspectives and frameworks. We suggest that in transitional justice these pressures to include more disparate voices involve particularly those from the ground up. That extends to greater participation and leadership of survivors and their NGOs, that is, a transitional justice that centres victim organizations engaged in collective actions towards a just peace, one that might be characterized as âradical reform.â Other examples of these efforts are reflected in the theoretical challenges to the polarization of victims and perpetrators, that is, the recognition of the blurred borders among many survivors who are also perpetrators; as well as the growing attention to diversities among those experiencing sexual violence, the multiple violations of women beyond that of sexual violence and rape, as well as the existence of female ex-combatants as âcomplex political perpetrators.â13 However, despite these reforms, academics in and from the Global North and/or professionals with expertise in EuroUnitedStatesian human rights practices continue to hold power in these transformative processes. Thus, we suggest that these âradical reformsâ acknowledge different ways of knowing and diverse epistemological questions and sometimes expand global imaginaries but maintain the centrality of that which is and power from the centre. Recent and forthcoming special issues of the journal suggest that efforts to reform transitional justice fall short of the aspirations of local communities in the wake and persistence of violence and, more importantly, fail to recognize the diverse ecosystems in which local communities make meanings, that is, those beyond the human. They challenge transitional justice to draw on alternative ontologies or ways of being as well as alternative epistemologies or ways of knowing. Some have suggested that we must âdecolonize transitional justice.â For example, in his discussion of the work of post/decolonial scholars Nelson Maldonado-Torres and Walter D. Mignolo in the IJTJ, Mohamed Sesay drew attention to three colonial-like structures in which, he argues, Africa [today] remains entangled despite multiple transitional justice processes and efforts at reform. They include the: (1) coloniality of power which is about how the world is constructed, constituted, and configured into a racially hierarchized order; (2) coloniality of knowledge which is the epistemological concern about the politics of knowledge production, representation, and purpose; and (3) coloniality of being which undermines peopleâs belief in their own languages, heritage, capacities and ultimately in themselves.14 In their mapping of multiple ways âto analyse different meanings and practicesâ for change, Andreotti and her colleagues suggest that decolonization may only emerge âbeyond reform.â We suggest here that if transitional justice can decolonize or contribute to changes in the colonialities identified by Sesay, it can only do so vis-Ă -vis a theory and praxis that is âbeyond reform.â Decolonization may challenge us to disinvest in current norms wherein the human rights holder is primarily or exclusively an autonomous individual or a group of multiple individuals. Such claims â and the theory and praxis they undergird and sustain through transitional justice â may have become, in the words of Andreotti et al., âunsustainableâ or âunfixable,â at least in part because they fail to incorporate all living systems or because of their centrality to colonization processes with legacies enumerated above by Sesay.15 We explore possible meanings of transitional justice as âbeyond reformâ to suggest how it might emerge from different global imaginaries or cosmologies, that is, no longer one world grounded exclusively in universals, but within a pluriverse â that is, challenges to a single modernist ontology in favour of a multiplicity of possible worldviews and practices in a collective search for an ecologically wise and socially just world, that is, a world where âmany worlds fit.â16 This is not an easy journey, as the demise of the current ways of being and doing in this world wherein a dominant view of transitional justice and its reforms are âbeyond repairâ may be accompanied by chaos or those of us engaging in it may be challenged to âunlearnâ many of its ways of being, doing and knowing that have sustained both its âshineâ â from which we have benefited â and its âshadowâ â which we have sought to redress. Among the ideas emergent from a pluriverse of multiple worlds and cosmologies that include other modes of existence are those articulated by feminist physicist Karen Barad, cited above, and other Indigenous leaders who are also scientists (e.g., Robin Wall Kimmerer) and from Indigenous communities or original peoples.17 We draw on some of Baradâs ideas and on Mayan scholars and activists who press for a recognition of multiple distinctive ways of knowing, being and doing within a pluriverse.18 We suggest that learning from Indigeneity offers an opportunity of being-doing-knowing that is rooted in an integral, collective relationship of land-body-territory. Multisystemic and relational approaches within and among those systems may disrupt dualisms of nature and culture, of human and nonhuman, of knowing and being, that themselves are frameworks that supported and sustained violence and violations dominant in modernity, capitalism, state domination, masculinist values, as well as the colonial dispossession of Indigenous lands. The latter remains a primary, foundational and ongoing injustice, and Indigenous communities in many parts of the globe including Guatemala are mobilizing today around territorial defence in the face of rampant, violent extractivism by transnational corporations that is all too often supported by the nation-state.19 For example, the Sepur Zarco transitional justice legal case in Guatemala that focused on sexual violence as a crime against humanity was a first-ever in-country prosecution and successful victory for gender justice. But the Qâeqchiâ women plaintiffs who testified noted that their husbands were disappeared or killed because they were organizing to legalize their titles to their lands. Moreover, the women noted that their experience of forced labour and sexual violence at the Sepur Zarco military outpost was not simply the rape of individual women. Rather, they experienced the bodily violation as their their and the Qâeqchiâ of which they are For the for justice or their their for the of their lands and the recognition of who they are as a Qâeqchiâ They thus a single story of or as a legal case â and a that supported this â to the perspectives of these women have against Sepur Zarco such as environmental and The was by and human rights activists as a victory for gender justice. But many who and those who on the in and international to recognize the focus on sexual violence was grounded in a transitional justice that but one which, we may have âbeyond reform.â multiple Indigenous feminist and noted This the transitional justice processes where there was a to towards the Mayan despite the that the of those redress were themselves Mayan â and both they and at the testified to those remains an to justice for Mayan As the argues, is not possible to understand the Mayan of the world from the because and knowledge and what we argue here to be a approach to transitional the Mayan a holistic of things, not but the among the the environmental and the towards an approach to people and scholars and activists have documented how Indigenous have the of violence, including rape, throughout of we are learning from Indigenous women is how they the of their and the They the of as the of their as a territorial Mayan and an and our on the of our first of the the as women we an and defence in two the defence of our bodily and the defence of our we recognize that the as well as the are of that must The Mayan what to as the of the and the in which the of all to culture, denying nature of or the of and the of how matter and not as an of or but as and work a dominant among social often as a that is, an on and a from towards one that has empirical research and feminist Indigenous and scholars Baradâs focus on as do Mayan to some of the challenges a transitional justice âbeyond reformâ and on the work of other Indigenous activists in we argue that if matter to or in the violence of colonial dispossession and in responses to it and its we must recognize that the processes of colonization the into an The was that is, it was not and the a of that was and which was as for the of and As in the Special of this the of also as the of for Indigenous that and have or in as from other living and as from group or rights recognized in EuroUnitedStatesian human and in for example, are recognized as victims whose rights were the armed conflict and beyond they were or is recognized as living and the of and that it is or by the armed conflictâ also that healing is part of the of the this recognition as rights of the than rights over the Indigenous worldviews and in the pluriverse seek to recognize the ways in which is and They undergird a and that questions the approach underlying many of the claims in transitional justice and the recognition not only of collective rights but also of the rights of the This praxis that of Indigenous peoples throughout Abya and They their as one among many, that we are challenged to our and to the pluriverse in which we live and and multiple of which is grounded in an a of being, knowing and We suggest here that and policy seek to redress harms done through violences within and across through the multiple and resources that seek to a transitional justice. We have sought here not only to with some of the efforts at soft and radical reform but also to suggest that many within Indigenous communities urge us through their to in transitional justice within a Thus, we urge the of multiple ways of including dominant knowledge dualisms in and from the Global as well as those from Indigenous or original peoples in diverse parts of the world. The and in this suggest multiple ways in which scholars from the North and South as well as from diverse communities seek to redress multiple legacies of violence and ways of being, thinking and doing that contribute in some ways towards a pluriverse by moving us towards the world in which we seek to In of Truth and the of in the an of initiatives by and a of and processes through a approach to that has the potential to what she and that this approach to can as a for transitional justice that challenges within and beyond the in and the of a in the to a an through which will be to the remains of the and being to Indigenous colonial practice for more than remains were by settler for or academic of have the of such which are modes of to contemporary The is envisioned as a for about the existence of Indigenous communities the distinctive epistemologies and by and communities and the to Indigenous communities by the practices of on the and to challenge us to the ongoing political transitions in in his article the through and the in He argues that has the potential to disrupt in emerging from genocidal violence and armed conflict through both the and the at diverse in on the of and and the he the and of both the of and the the transformation of an and practice of into one of In the Transitional Justice in the of argues that the for has the to within its to how to transitional justice, local of such within to International modes of she claims that the to as to some of justice and a and to in of on Transitional The of Special for They argue that the ongoing violence within has for the of the Special for such violence undermines for participation by victims and in the and of victims from or from with their or and participation This in the and of the In and Transitional Justice in and to from the in which many transitional justice processes their discussion in a of efforts by the in they the shift from a focus on to They suggest multiple for this including in the that from and in from the from This of the IJTJ three from the two of which draw on voices from countries of the Global South and one from a by other in the In his from the by the argues that is a case in how not to in As a with of the he a to and not of the or of of justice and not simply remain but of and of In his in in challenges the dominant of authoritarianism in as to the of current political on the political and economic legacies of the of from to He that the have not to what he a that is, the of democracy and a to a In of to on to what she as an collective through which the to their communities as a within the of an armed group She argues that her for challenges emergent from that move âbeyond reformâ in transitional justice. The by three that or in of transitional justice to wherein and was by violence and violations by and state against of horrific our attention to the focus on the that from but also on other across contexts in on and politics as well as on the of in justice.
Relatives of disappeared persons are recognized as victims of a violation in their own right, because of the anguish and stress caused by the enforced disappearance of their loved ones, the continuing uncertainty on their fate and whereabouts and the attitude of indifference shown by authorities in the face of their pain. Albeit the principle is relatively straight-forward, an analysis of international jurisprudence shows that significant discrepancies exist on rather major issues, beginning with who could validly claim the victim status. The answers given by international human rights mechanisms depend largely on the position taken on another crucial issue, i.e. the rationale to recognize specific persons or groups of persons as victims in the first place. The burden of proof applied weighs significantly on the subjects at stake. Lastly, for those who overcome all the procedural hurdles and are recognized as victims, what is the name given to the violation(s) endured? Moving from an analysis of the jurisprudence of the European and Inter-American Courts of Human Rights, as well as of the Human Rights Committee and the Committee on Enforced Disappearances, the chapter aims at illustrating the main existing discrepancies and their ramifications, including on the measures of reparation awarded.
The article examines the principle of international criminal justice - the presumption of innocence of the defendant. Its content, limits are clarified, the practice of the European Court of Human Rights is analyzed, as well as the practice of international tribunals on the presumption of innocence of the defendant as part of his right to a fair trial.It is established that presumptions of a legal nature on matters of fact and law are admissible in international criminal proceedings only if the defendant is given the opportunity to refute them and prove his innocence.The presumption of innocence is enshrined as a principle and right of the defendant in modern international criminal procedure law, primarily in the Statutes of international courts and tribunals. An analysis of the relevant provisions of these statutes shows that the presumption of innocence means at least that: 1) the burden of proof lies on the prosecution; 2) evidence of guilt must meet a certain standard; 3) in some cases, the presumption may include additional rights, such as the right to bail, as well as additional conditions, such as the condition of a guilty plea only by a lawful court or following a trial in which all rights of defense have been secured, etc. .; 4) the defendant has the right to doubt in his favor; 5) the right of the defendant to remain silent; 6) the right of the defendant to a certain standard of conviction or acquittal; 7) theright of the defendant to compensation in case of acquittal. The formulation of the presumption of innocencein the Covenant and the Convention allows the establishment of the innocence of the defendant by different procedures depending on âwhat is at stakeâ, ie depending on the legal consequences arising from the establishment of guilt. If the defendant can be released from criminal liability and punishment, the procedure for rebutting the presumption of his innocence may be different, and the defendant, of course, must be provided with all means of protection against prosecution.
In his new monograph, Informed Publics, Media, and International Law, Daniel Joyce sets out to explore the role of the media both as an object of international legal regulation and as an influence on international lawâs development and structure.1 Given the obvious connections between the media and international law, one might have expected the topic to have already garnered extensive interest within the existing literature. Yet, as Joyce observes at the outset, â[f]or all its ubiquity and power, the media has to date been the subject of surprisingly limited attention within international legal scholarshipâ.2 In this context, the publication of Joyceâs text may be viewed as part of a recent wave of literature that signals growing interest in the subject amongst international legal scholars, whether due to rising concerns over the use of international law in public debates,3 or as a result of the exponential growth of new channels of communication, most notably digital media platforms.4 In tackling the multi-dimensional relationship between the media and international law, Joyceâs approach is historical and critical, illustrating both âthe resilience of existing international law frameworks, but also their significant silencesâ.5 The historical perspective is particularly valuable in surfacing interesting continuities between present-day controversies and earlier eras. For example, Joyce reveals how contemporary concerns about the relationship between international law, populism, and social media,6 find echoes in a range of formative debates about the relationship between international law, public opinion, and the press in the early twentieth century.7 The drawing of historical parallels is particularly important given the fast pace of developments in the sphere of communication in the digital age. In particular, as the notion of Web 3.0 (or Web3)âthe much-hyped third generation of the Internet premised on âdecentralisedâ technologies, touted to follow static webpages (Web 1.0) and social media and user-generated content (Web 2.0)âbegins to enter the public consciousness, adopting a historical perspective may help nurture what Elizabeth Renieris recently termed an outlook of âinformed skepticismâ.8 As Renieris explains, similar to its predecessors, âWeb3 is imagined as being apolitical, open, decentralized and inclusiveâ, seemingly oblivious to the fact that â[t]his ethosâcharacterised by free speech absolutism and free market idealsâhas enabled all manner of online harms, including rampant mis- and disinformation, racism, discrimination, hate speech and harassment, concentrations of power, toxic business models and limited accountabilityâ.9 In this context, Joyceâs text is particularly useful in situating the shifting contemporary communication sphere along a broader historical trajectory, tracing the neoliberalisation of public communication across different time-periods and settings, and shining a spotlight on the role performed by international law in the process. Beyond its critical and historical orientation, at the centre of Joyceâs text is the concept of âinformed publicsâ, characterised as âa more inclusive and messier picture of the social and connective tissue of international lawâ than the notion of âinternational communityâ.10 If claims made in the name of the latter are often merely âattempts to translate the particular into a language of self-serving universalismâ,11 Joyce advances the notion of âinformed publicsâ as âa model of international civil society which allows for greater variety of forms of associationâ, both by âcontest[ing] the state-centrism of international law and better reflect[ing] a system which involves not a single participatory democracy but a range of regional, domestic and local politiesâ.12 For Joyce, âinternational law depends on informed global publics to function and to address the complex global problems which we faceâ.13 In this way, the concept of âinformed publicsâ emerges as a ânormative goalâ for international law, one which âremains critical to any future conception and realisation of a multilateral system of global governanceâ.14 It is the concept of âinformed publicsâ that draws into view the dual inquiry at the centre of Joyceâs research:15 first, the role of international law in regulating the media, including new forms of digital media; and second, the reliance of international law on the media in communicating its objectives and norms as well as in its functioning as a system. In reflecting on Joyceâs work, this review follows the bookâs structure, with a particular focus on the textâs discussion of the relationship between digital media and international law. In the first half of the book, Joyce examines a range of international law frameworks applicable to the media which adhere to different regulatory modelsâeach recognising and foregrounding certain values and interests to the marginalisation and exclusion of others. In Chapter 2, Joyce examines the regulatory vision of free publics, encompassing the ways in which human rights law (particularly freedom of expression) has sought to protect media freedom from State intervention, as well as how international trade law has sought to ensure free markets for the global media economy.16 Both areas of law emphasise media freedomâwith human rights law focused on protecting the mediaâs societal watchdog function, and trade law focused on deregulation and market access.17 Yet, as Joyce explains, this emphasis comes at the expense of addressing âthe power of the media itself and its own connections with violence and the abuse of rightsâ.18 In Chapter 3, Joyce turns to the regulatory model of endangered publics, encompassing the ways in which human rights law (concerning incitement, hate speech, and propaganda), international criminal law (concerning atrocity speech), and international humanitarian law (concerning media activities in armed conflict) address the connections between the media and violence.19 While these areas of law counter the reductively positive image of the media that underpins the regulatory vision of free publics, Joyce observes that they nonetheless âconfigure the dangers of media power as being exceptional rather than structuralâ and thereby contribute to âa failure to connect media violence with its economic and political powerâ.20 Finally, in Chapter 4, Joyce discusses the regulatory model of digital publics, encompassing forms of Internet, data, and platform governance, which are characterised by âan absence of international lawâ and an investment of faith in the promise of âself-regulation, market-driven innovation and techno-libertarianismâ.21 Joyce suggests that while international law and the media are often depicted as being âexistentially threatened by technological disruptionâ, at least part of this âcrisisâ concerns âthe ongoing failure of international legal frameworks to address the rise of information capitalism in the form of digital media monopolyâ.22 Across these chapters, Joyce offers a compelling analysis of the international regulatory landscape applicable to the media, traversing a diversity of contexts to critically surface both the blind spots and biases identifiable within a range of fields of international law. In an era of specialisation, where scholarship is becoming increasingly siloed, Joyceâs ability to bring diverse fields of international law into conversation with one another is particularly valuable. At the same time, by adopting such a broad perspective some level of detail and nuance is inevitably sacrificed. In exploring the relationship between international law and new forms of digital media in particular, Joyceâs text unveils many of the challenges that have arisen in attempting to reign in the power of todayâs leading digital media companies. However, to some extent, I would argue, Joyce understates the significance of both the state and the law in both enabling the neoliberalisation of the contemporary digital communication sphere and in continuing to legitimate various repressive practices undertaken within it. Whilst acknowledging that the Internet âevolved in collaborations between governments, the military and academic institutionsâ,23 the role of both the state and legal frameworks in the Internetâs historical trajectory remains somewhat marginalised in Joyceâs account. The influence of the state on the shape of the contemporary online environment is well documented. Monika Zalnieriute, for example, discusses the dominance of the âUS Information-Industrial-Complexâ, which âcatalysed the rapid growth of information and communication technologies within the global economy, while firmly embedding US strategic interests and companies at the heart of the current neoliberal regimeâ.24 Support from the US government took at least two forms. First, the US government provided significant amounts of funding and awarded a range of procurement contracts to US technology companiesâa fact that not only undercuts the neoliberal myth that private wealth accumulates because free markets are kept distinct from public expenditure, but also provides important context for the Edward Snowden disclosures which revealed close ties between the US National Security Agency and a number of US technology giants.25 Second, the US government also supported its largest US technology companies by promoting an âInternet Freedomâ agenda abroad, premised on âglobally ânormalisedâ strong legal protections for intellectual property rights, advertising-based consumerism and the commodification of information and personal dataâ.26 And it is here that both domestic and international law become part of the story of the neoliberalisation of the contemporary online environment. As the works of Julie Cohen and Amy Kapczynski, amongst others, have demonstrated, ârising platform power, monopoly power, and the power that technology can give capital over workers and governments over the governed ⌠are mediated at every moment by lawâ.27 At the domestic level, fields such as contract, trade-secrecy, intermediary immunities, privacy, and the First Amendment helped anchor the rising power of online platforms, while at the international level, trade agreements have prohibited the restriction of cross-border online information flows and forbidden data localization rules.28 As Kapczynski argues, âa wave has rippled through our law ⌠[which], intertwined with the architecture of digital networks, has enabled the creation of the vast new firms that wield new forms of surveillance and algorithmic power, ⌠[and] delivered us a form of neoliberal capitalism that is inclined toward monopoly, concentrated power, and inequalityâ.29 By placing emphasis on the absence of international law in the digital domain,30 Joyceâs account understates some of the ways in which both domestic and international law have helped shape the neoliberal communication sphere that characterises the contemporary online environment. Beyond shaping todayâs online environment, international law also performs a role in legitimating certain repressive practices within it. Joyceâs account is alive to lawâs legitimation function, particularly in the context of discussing the co-option of the vocabulary of human rights law by social media companies ânot as binding legal norms, but as available ingredients to enable corporate self-regulation and marketingâ, as well as âto minimise the damage to their reputationsâ.31 Yet, the legitimation function of international law extends beyond this corporate context. Consider, for example, the recent majority judgment of the Grand Chamber of the European Court of Human Rights in the bulk surveillance case of Big Brother Watch and Others v UK.32 The judgment endorsed the legality of bulk surveillance operations as in principle âvaluableâ and of âvital importanceâ for states seeking to identify threats to their national security,33 provided such programmes contain sufficient âguarantees against abuseâ and are subject to a set of âend-to-end safeguardsâ.34 By adopting this approach, the majority judgment adhered to a form of âprocedural fetishismâ,35 which has been characterised as nothing less than âa grand, definitive normalization of mass surveillance[,] by a virtually unanimous Grand Chamber[,] for decades to comeâ.36 In his concluding remarks, Joyce suggests that âit is important to reconsider the value and resilience of existing international media law frameworks including, most significantly, the human rights model, but also to be realistic about the failures and problems associated with that systemâ.37 Yet, while Joyce acknowledges the limits of the vocabulary of human rights law in general termsâincluding how the human rights system âstruggles with controlling private power, individuates and simplifies collective and highly complex issues, and often underplays their structural dimensionâ38âa more detailed exploration of the ways in which human rights law has legitimated and struggled to reign in particular forms of private and state power in the digital domain would have helped prepare the ground for assessing the extent to which it is equipped to address the accountability deficits associated with the contemporary online environment.39 In the second half of the book, Joyce turns to examine how the media is coming to shape various dimensions of international law. In Chapter 5, Joyce explores publicity as a technique utilised by international courts and actors to claim legitimacy and signal their authority. Joyce focuses in particular on the fields of international criminal law and human rights law, observing how âmediatized trials have public relations benefits, but also present the now familiar dangers of media spectacleâ, whilst âhuman rights witnessing promises connection but can also deliver commodification and simplificationâ.40 Reflecting on these tensions, Joyce concludes that while adopting media forms and engaging in public relations may be understood as âthe international legal system ⌠responding to demands for greater transparency, accountability and participationâ, ultimately âpublicity cannot act as a substitute for informed publics who are so often kept at a distance from the levers of institutional power and influenceâ.41 In Chapter 6, Joyce considers the broader critique of the communicative capitalism that underpins international lawâs reliance on the media and its increasingly digitalised form. To this end, Joyce examines ânot only the mediaâs role in bringing issues to public consciousness, but also its implication in the preservation of silences and the maintenance of obsessions and anxietiesâ,42 and reveals the ways in which the growing reliance of international actors on digital media platforms âfurther entangles the field with neoliberal ideologies embedded within the infrastructure of Silicon Valleyâ.43 The result, Joyce concludes, is that âpublicity promises participation, but delivers digital media monopoly, corporate âvaluesâ as structuring norms and increasing private power on the international planeâ.44 Joyceâs analysis in these chapters is again impressive, drawing on a diversity of disciplinary perspectives ranging from political theory to communications studies to reveal how the turn by international actors to mediated techniques of publicity has produced âeffects of both visibility (for one or a group of victims or a theme) and invisibility (for other forgotten victims, contextual analysis and different or competing claims and causes)â,45 whilst masking and facilitating âthe broader privatisation of the public sphereâ.46 Where the text might have delved deeper, however, is in surfacing the ways in which the contemporary online environment enables the reproduction of inequalities, for example along gender and racial lines. In discussing mass atrocities in Myanmar, for example, Joyce points to the failure of Facebook to prevent its platform being used as a tool to incite violence against the Rohingya community.47 However, what is omitted from Joyceâs account is any exploration of the reasons behind Facebookâs passivity in this context.48 Reflecting on the contrast between Facebookâs de-platforming of Donald Trump following the US Capitol riots and its general passivity in Myanmar, Rebecca Hamilton has reflected upon âthe role that economic and political powerâcoupled with cultural affinity, and distributed unevenly across and within Statesâplays in the decisions of major [social media companies] about what content stays on their platformsâ.49 According to Hamilton, global inequities behind how content is moderated on digital platforms are partially a reflection of capitalism, calculated in the advertiser revenue that a platform derives from an American user compared to a user in Myanmar, and partially a reflection of unevenly distributed political power, with âyears of local activism, coupled with international reporting and a United Nations Commission of Inquiry [being required] to finally get Facebook to take the kind of de-platforming action [in Myanmar that] it did in the United Statesâ.50 But another part of the story concerns systemic racial bias. As Hamilton notes, major social media companies âcontinue to default to the cultural assumptions and political and economic incentives held by their predominantly white American male foundersâ.51 This ongoing âdiversity crisisâ in the digital technology sector is significant since, as UN Special Rapporteur on contemporary forms of racism, E Tendayi Achiume, recently observed, âtechnology ⌠that disproportionately excludes women, racial, ethnic and other minorities is likely to reproduce these inequalities when it is deployedâ.52 Joyce also critically discusses âplatform humanitarianismâ, encompassing the turn within the human rights movement towards âcommodified forms of advocacy, fundraising and competition for attention and power between NGOsâ, initially drawing on the emergence of global media, but today increasingly reliant on digital media platforms âto communicate its messages, seek publicity and engage in digital witnessing in the attempt to capture audiences motivated by humanitarian concernsâ.53 One example that Joyce explores in this context is the notorious Kony 2012 campaign, in which an organisation called Invisible Children distributed a video across various digital media platforms calling for the capture and arrest of the leader of the Lordâs Resistance Army, Joseph Kony, by the end of 2012.54 As Joyce notes, the aim of the video was âto engage the American people to place on their government to the of military in to the in its to capture In this way, the video sought to a by the International Court into a in to his Joyce the Kony 2012 for the of the political in and to its whilst also to the broader that the focus of such may attention from social in the Yet, as the of has recently a to this story is how the a example of by as âthe of social and economic value from the racial of another only is the Kony 2012 video with racial but by the US of the may also be within a broader historical in which international law has performed a role in the of value from the in international such as the or and military as For the of this form of global is the of and the of form of between the wealth and the of While Joyce acknowledges the that media may audiences and publics from for the of the racial dimensions of digital are at but not In Informed Publics, Daniel Joyce has made a valuable towards the complex and diverse connections between international law and the the end of the book, Joyce observes its âthe media is not given the significance or in international legal which it has in other such as international political and social It is that with the publication of Joyceâs book, this to at a when international actors are to on the future regulation and use of digital media platforms, they would well to on the critical and historical in this The is to the and in the of International discussion on Daniel Joyceâs Informed Publics, and International Law, as well as the for their are the
Cryptocurrency is a digital exchange medium stored in the Distributed Ledger Technology (DLT) and form the basis for the term crypto-assets. This paper focuses on the group of cryptocurrencies (or crypto-assets) that belong to Public Permissionless Blockchains and explains historical pump-and-dump, and how this old scheme appears to be applied now to cryptocurrency trading. This work explores the nature of the blockchain ecosystem, where cryptocurrencies exist, and proposes that ironically the encryption and immutability nature of the blockchain make cryptocurrencies vulnerable to pump-and-dump schemes. The lack of adequate regulation in Europe leaves cryptocurrencies vulnerable to pump-and-dump schemes causing an overall effect of vulnerable consumers expossed to fraudsters. Cryptocurrency pump-and-dump also affects investors, the development of cryptocurrencies, and the blockchain itself.
The article is devoted to the scientific and theoretical substantiation of the position on the formation of international municipal law as a field of modern international public law. In domestic jurisprudence, the topic is being studied for the first time. The authors connect the emergence of international municipal law with the processes of constitutionalization of international public law and the internationalization of the constitutional legal order of states. These processes were accompanied by the growth of international recognition of the institution of local self-government. First of all, through its international legal regulation and contextualization of topical aspects of the activities of local governments, taking into account their international activities. In particular, through the development and adoption of a number of international multilateral treaties and the preparation at the United Nations level of the draft World Charter of Local Self-Government. In the context of the internationalization of the constitutional legal order of countries in the field of urban law, significant processes of borrowing international legal standards of local selfgovernment by state constitutional law are indicated. Based on the analysis of international practice, a conclusion is made about the compliance of Ukrainian legislation with international standards. At the same time, recommendations are given for its improvement, in particular, for financing local governments, budgetary decentralization, limiting the competence of local state administrations, etc. The formation and development of the architecture of modern public international law, its institutional and structural system is usually associated with its sectoral construction, which is based on the definition of the subject of legal regulation and method of legal regulation. The emergence of a new subject of legal regulation in public international law, as an independent and autonomous legal system, is based on the actualization, emergence, activation, contextualization of cooperation in a new field of interstate cooperation, which in practice is determined by the emergence of a new object of international law. In this case, the methods of international legal regulation in public international law remain constant â either imperative or dispositive. However, today in the formation of new branches of public international law plays an important role trend that emerged during the formation of a new form of globalization â legal, which has such a nomenclature â the constitutionalization of public international law and the internationalization of constitutional order. In general, the national legislation of Ukraine meets world standards, but some legislative norms should be improved. First of all, this concerns the financing of the local state administrations, limiting the competence of local state administrations to the level of control functions and mediation between the local governments, the executive branch and the President. In addition, it makes sense to provide a mechanism for the implementation of the international legal standards for the subjects of Ukrainian local self-government.
The emergence of an international judicial system is often perceived as a cornerstone in the process of building a âglobalâ system of governance.1 Since the end of the Cold War, we have witnessed the rapid proliferation of international courts and tribunals (hereinafter ICs) and the progressive expansion of their scope of jurisdiction to areas as diverse as trade, the law of the sea, human rights, and international crimes (Katzenstein, 2014; Kingsbury, 2012). These ânew-styleâ ICs and quasi-judicial bodies (Alter, 2014, p. 68) allow for wider access from potential litigants, and they are more autonomous than their predecessors, operating often on a transnational rather than inter-state model (Keohane et al., 2000). In doing so, they transcend their function of mere dispute settlement mechanisms to become law making actors in their own right, with significant discretion to interpret international law (Besson, 2014, pp. 419â428). This development has been hailed as a major shift from an international system based on politics and power toward one governed by shared rules and principles under a genuine âglobal rule of lawâ. Cosmopolitan-minded scholars and advocates, who dispute the place that territorial borders and national identities should have in delimiting our fundamental rights and allocating public goods, rejoice about the gradual collapse of the divides between the domestic and the international. Yet with the growing independence and expansion of the mandate of international judicial systems, these mechanisms have attracted attention as to their legitimacy and accountability in relation to different stakeholders. The international judiciary is no longer seen as âthe least dangerous branch.â2 For some critics, accepting the jurisdiction of ICs entails ceding national sovereignty to âforeignâ judicial powers, which have an increasing capacity to create new law. For others, the international judiciary in the absence of a global democratic constituency represents another imposition of Western values that remain alien to other cultures. Moreover, in the current political climate, institutions of global governance, including ICs, are confronted by growing reactionary populist movements that pit democracy against internationalism. To these movements, the turn toward transnational forms of governance, legality and adjudication is perceived as a democratic dysfunction and belittled as harmful to the preservation of the identity and autonomy of a (monolithic and nationalistic) view of the polity. Regional and international human rights bodies, and the International Criminal Court (ICC), are particular targets, insofar as they typically address how states should treat individuals on their own territory. They also tend to protect marginalized minorities against the majority's conception of the identity and values of the polity, and seek to impose rule of law constraints on the executive and legislative branches that often claim democratic support. Yet other ICsâespecially in the area of tradeâhave also become the target of populist and sovereigntist leaders as they are seen to impose unjustified constraints on desired domestic policies. In light of such diverging approaches, it becomes ever more crucial to inquire into the foundations of international courts' legitimacy. To this end, a number of scholars have called for a âdemocraticâ re-conceptualization of the international judiciary (Bogdandy & Venzke, 2014; Grossman, 2013). This has generated attention to a broad range of elements, from appointment processes to procedural rules in order to guarantee judicial independence but also accountability to different stakeholders (Grossman, 2013; PĂŠrez, 2017), typically with a focus on specific types of courts (Føllesdal et al., 2014; Hayashi & Bailliet, 2017; Hennette-Vauchez, 2015). Yet, as I will argue, by reducing the so-called âlegitimacy deficitâ to a problem of institutional factors and representation of ânationalâ constituencies, we might be overlooking a deeper dimension of the âdiversity challengeââone that emerges out of the need for and The this by an of the legitimacy of ICs that to some of the in the populist of ICs, in particular the between democracy and internationalism. 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Due primarily to increases in individuals fleeing violence and turmoil in Central America, over 40% of noncitizens arriving in the United States are put on a fast-track removal process and subsequently claim fear of returning to their home countries. A decade ago, the number was only 5%. This influx of asylum-seekers at the border has led to tension between those who wish to protect them and those who view such migrants as âinvaders.â In 2019 and 2020, the Trump Administration proffered sweeping regulatory changes with the aim to substantively and procedurally restrict noncitizensâ access to protection from persecution and torture in their home countries. Although not all of these proposals may ultimately go into effect, it is vital to explore the legality of such provisions lest they reappear in subsequent administrations. Pursuant to domestic and international law, the United States is subject to the non-refoulement obligation, which prohibits forcibly returning a refugee to a country that threatens their life or freedom. All humans have the fundamental right to not be returned to a country where they will be persecuted or tortured, regardless of their legal status in the country where they seek protection. In the United States, noncitizens facing qualifying persecution or torture upon return to their home countries are entitled to protection in the form of statutory withholding of removal (âwithholdingâ) or withholding or deferral of removal pursuant to the Convention Against Torture (âCAT protectionâ). This Comment argues that noncitizens vindicating their non-refoulement rights by seeking withholding or CAT protection must receive stronger procedural protections because of the fundamental interests at stake. Specifically, two issues are addressed. First, the use of the âreasonable possibilityâ standard of proof at the fear screening stage, a practice expanded in recent years, is inappropriate and a violation of the non-refoulement obligation. This standard is suited for final determinations on the merits, not threshold screenings. Because of the well-documented problems with fear screenings, even absent an increased standard of proof, this practice would result in an impermissible risk that individuals with valid claims would be returned to face persecution, torture, or even death without ever being fairly heard. Second, the unique position of these noncitizens, from legal and humanitarian perspectives, should entitle them to Constitutional Due Process Clause protections. Because their right to non-refoulement is not subject to the discretion of the Executive, the denial of due process cannot be justified by the âentry fiction,â the legal doctrine that gives certain noncitizens inside the United States limited constitutional protections because the law considers them to be detained at the border.
The âfragmentationâ of international law has been a topic of discussion among international lawyers for at least the last two decades. The increase in the number of international organizations, multilateral conventions, bilateral investment treaties, as well as the growth of international courts and tribunals has led to concerns that the coherence and unity of the international legal order would be destabilized. 1 International law, a discipline that has long confronted questions regarding its very legality and legitimacy, was faced with new questions of how to ensure that the legal order would not be pulled apart by competing and overlapping regimes of international law. 2 This âanxietyâ 3 over fragmentation slowly waned, however, and the initial warnings over the potential collapse of the international legal order now seem overblown. Some accept that fragmentation is an inevitable aspect of a decentralized legal system, but argue that international law possesses the tools to manage such divergence. Others argue that the phenomenon has failed to materialize in practice, and that even if we can point to certain examples of fragmentation, these were isolated incidents rather than evidence of an overall pattern. A Farewell to Fragmentation: Reassertion and Convergence in International Law , a collected volume edited by Mads Andenas (University of Oslo) and Eirik Bjorge (University of Oxford) combines both of these arguments. The volume accepts that fragmentation is a part of a legal system, but argues that we are beginning to see a move in the opposite direction, towards âconvergenceâ in international law, steered largely by the role of the International Court of Justice (ICJ) reasserting itself at the center of the international legal order. The book seeks to support this claim by providing a multitude of examples of the ICJ as the âcentre of gravity,â exerting influence over the diverse regimes of international law. The editors set out in the Introduction that â[e]ven if fragmentation, and the fear of fragmentation, is the subject of a rich literature, there is still need for empirical study to understand the impact of fragmentation on the legal system of international lawâ (at 3). Farewell addresses this gap in the literature by providing evidence of convergence based on a thorough examination of both the ICJ and the various regimes of international law. The first part examines âthe centre,â focusing first on the ICJ. Chapters by Judge Greenwood and Judge Cançado Trindade serve to set the scene with regard to fragmentation and unity in international law, before chapters by Vera Gowlland-Debbas and Sir Nigel Rodley focus on how the ICJ has dealt with international human rights law. Philippa Webb examines the factors that influence fragmentation and convergence in international courts, and identifies three common issues: the type of court; the area of law involved; and the procedural rules and practices of the court. Webb uncovers the underlying reasons why the ICJ has played a central role in promoting convergence, but also addresses the issues the court must face if it is to embrace its integrative role (at 168â169). The first part of the book then zooms outwards to the different âregimesâ of international law, again with a particular emphasis on international human rights law. Dean Spielmann discusses the reception of ICJ case-law into the legal order of the European Court of Human Rights (ECtHR), while Magdalena Forowicz discusses some of the factors that will lead to the ECtHR taking into account international law and the jurisprudence of the ICJ in its legal reasoning. The second part of the book is a more eclectic discussion, examining the fragmentation phenomenon with regard to the sources of international law. It first looks at customary international law and jus cogens , before turning towards fragmentation and convergence with regard to treaty interpretation. By providing such rich evidence based on practice, Farewell makes an important contribution to the literature. The volume is strengthened by chapters that focus on the role of domestic courts. Veronika Fikfakâs chapter examining the links between the ICJ and domestic courts and Alexander Orakhelashviliâs chapter on state immunity in international and English law stand out in this regard. The book also examines issues that are often overlooked in the fragmentation debate. For example, Cameron Milesâ contribution uncovers how convergence and fragmentation also take place in the field of procedural law, examining the law of provisional measures, drawing from a deep well of legal research. The book is clearly structured in a way that allows the overall argument to develop. Yet the individual chapters have not been overly edited so as to lose the various voices and opinions of the contributors. Given the bookâs breadth, this review does not examine the specific claims made in the various chapters. Rather, it will seek to address the broader methodological questions and the study of fragmentation more generally. The phenomenon of the fragmentation of international law might be broader than what Farewell suggests. The Introduction sets out three forms of fragmentation. Substantive fragmentation occurs where different disciplines of international law claim to be self-contained, âautonomousâ regimes. Institutional fragmentation stems from the proliferation of courts and tribunals without any institutional hierarchy existing among them. Methodological fragmentation relates to the sources of international law, and takes place when international courts seek to deal with these sources in a special way, often justified by the specific nature of the treaty or legal regime. These three forms of fragmentation all relate to one specific aspect of fragmentation: the interpretation and application of the law. The volume addresses the problems that arise due to the fact that the international system lacks a central body to interpret the law (although the editors argue that the ICJ is well placed to play such a role). The other source of fragmentation stems from the fact that there is no central lawmaker . Given that there is no central legislative authority in the international system, international law comprises a variety of overlapping, and at times contradictory, regimes. While the proliferation of courts and tribunals may have been an initial reason for fears of fragmentation, it really stems from the dispersal of norms among different fields of international law, through the proliferation of treaties, UN Security Council resolutions, and a variety of âsoft lawâ instruments that these multiple courts have been called upon to interpret. Fragmentation was also fueled by the status of new types of actors in this system, including non-governmental organizations (NGOs), multinational corporations, as well as various types of international lawmaking bodies such as international organizations. This growth in specialized fields of law, developed and applied by a range of actors, was a byproduct of political changes, globalization, and the increasing complexity of international problems. In Farewell , fragmentation is presented as a technical issue related to the practice of courts, and the political and other factors that led to such a process are missing. By focusing predominantly on courts, the volume addresses only one aspect of the wider fragmentation debate. The volume puts forward a convergence thesis, arguing that the ICJ, as the âcenterâ of the international legal order is capable of reasserting convergence in international law. The fragmentation literature has long discussed the proper role of the ICJ in the context of fragmentation, including various proposals for the International Court to be the primus inter pares of all international courts and tribunals. 4 Yet it should be recognized that convergence is but one of the tools that have been put forward as a method of addressing the negative elements of fragmentation. There is rich debate about constitutionalization, 5 legal pluralism, 6 âregime interaction,â 7 and normative hierarchy, all of which have also been discussed as possible ways through which fragmentation might be addressed. While Farewell intends to present the empirical evidence of fragmentation and convergence, it does not situate the convergence thesis within this wider theoretical discussion. From a methodological point of view, the editors do not explain why the ICJ was chosen as the topic of the study. Why are regional human rights courts and bodies, also discussed extensively throughout the volume, viewed as âregimesâ of international law, when they could also have been viewed as nodes in a decentralized system of international law? By choosing to focus on the ICJ, it seems to be a foregone conclusion that we will see it as the center, rather than one of many âcenters of gravityâ around which convergence might take place. Just as our ancestors looked up at the stars and confidently concluded the Earth to be fixed and at the center of the universe, international lawyers might also mistakenly conclude that the International Court is the center of the international law universe. This makes it difficult to conceive of a different model, one in which all bodies exert an effect on one another and in which there is no âcenter.â It should also be questioned whether the ICJ is in the best position to act as a âcenter of gravityâ in international law. Concerns over fragmentation first stemmed from the court itself. 8 It seems natural for lawyers to focus on courts, and with the ICJ as âthe principal judicial organ of the United Nations,â 9 the court seems an obvious candidate for promoting convergence. Yet the UN Charter does not establish the ICJ as a constitutional court of the world community. It is established to resolve disputes before it. 10 While Farewell provides multiple examples of the ICJ promoting convergence in a number of fields of international law (an oft-cited example is its approach to jurisdictional immunities) this is not the courtâs central role, and in some cases it may even abandon attempts at promoting coherence in favor of effectively resolving a specific dispute. Even when presented with an opportunity to provide clarity in key areas of international law, the court at times shows reluctance to deal with certain questions or defines its function narrowly, thereby limiting its role to promote convergence. 11 The court has general jurisdiction, but it must rely on states to bring contentious and advisory proceedings before it, limiting its opportunities to play the convergence role. Given these constraints, the ICJ may not be in the best position to act as the âcenterâ of the international legal order. Farewell does not address the idea that there may be other potential âcentersâ of the international legal order besides the ICJ. While this includes other international and regional courts, convergence can also come from other sources. There are many references throughout the volume to the work of the International Law Commission (ILC). While the ILC often relies on ICJ judgments, it can also play an independent role in promoting convergence, primarily by asserting that the international legal order is indeed a system . The ILC favors rules of general application, and has thereby shown a reluctance to develop specialized rules applicable to sub-systems of international law. 12 Other possible âcentersâ of the international legal order are the United Nations and its Charter, which have also been discussed in constitutional terms. 13 Even if convergence is taking place, there are a number of factors that may drive this. Without addressing fully these other sources, the central argument of the volume, that the ICJ is an engine behind convergence, is weakened. The central narrative of Farewell is that the unity of international law was threatened by fragmentation before a shift towards the âcenterâ occurred. Fragmentation and convergence are therefore presented as diametrically opposed poles, âin a Hegelian dialectic processâ (at 1). Judicial activity of a regional, domestic or international court can therefore only be conceptualized as moving in one of two directions: towards convergence or fragmentation. This does not allow us to conceive of activity that might simultaneously fragment and constitutionalize the international legal order. A court may, for example, contribute to methodological fragmentation by interpreting a term in a way that diverges from the practice of other courts, but may do so in a way that respects the methods and sources of international law, contributing to convergence. There appears to be no common understanding across the various chapters as to what should be viewed as examples of fragmentation or convergence. For instance, examples of courts and tribunals referring to each otherâs case-law, especially the citation of ICJ judgments by regional and domestic courts, is often presented as an example of convergence. Yet this is not necessarily indicative of convergence. Courts may choose to cite these judgments selectively, only mentioning ICJ judgments where they align with the opinion of the citing court. Various judgments that could have steered it in the other direction may have been omitted. Even more troubling, courts may cite ICJ judgments simply to lend authority to their decisions, but may misinterpret them or apply them in a unique way, thus giving the appearance of convergence when fragmentation is really taking place under the surface. Some chapters rely heavily on citations of other courts as examples of convergence without assessing the real influence the cited judgments had in a given case. While such âjudicial dialogueâ is welcomed, it should not be adduced as evidence of convergence on all occasions. 14 Another example of this inconsistency is the way in which examples of fragmentation are explained away or deemed as unimportant. Sir Christopher Greenwood, for instance, argues that âthe difference of views over MFN clauses and jurisdiction is best seen as one of those issues which arise from time to time in any legal systemâ (at 54). Regarding the law of provisional measures, Cameron Miles argues, â[a]ny deviations tend to be based on the exigencies of the constitutive instrumentâ (at 268). In relation to the Sarrazin15 decision of the Committee on the Elimination of Racial Discrimination (CERD), an apparent example of fragmentation in human rights law, Mehrdad Payandeh argues that this can be explained by the âinstitutional logicâ and âstructural biasâ of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (at 318). Here the contributors have identified examples of potential fragmentation but have subsequently downplayed their relevance. This is not to argue that the editors and contributors chose their examples selectively. Rather it demonstrates an inherent difficulty of conceptualizing fragmentation. One might view the action of a court as an example of either convergence or fragmentation. For example, a âuniqueâ interpretation by a court might be viewed as justified as an application of Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, stating that a treaty is to be interpreted in âcontext and in the light of its object and purpose.â 16 Yet one may view the very same interpretation and conclude that the court failed to apply Art. 31(2)(c), which allows recourse to â[a]ny relevant rules of international law applicable in the relations between the partiesâ. When is a court ignoring decisions of other courts and bodies in an isolated fashion, and when is it simply applying the law faithfully in a way that is consistent with the object and purpose of the treaty? Answers to these questions become dependent on whom you ask. 17 Without this methodological rigor, the study of fragmentation itself may be becoming fragmented. As much as Farewell seeks to provide empirical evidence of fragmentation or convergence, its claim that international law is a legal system and that the ICJ has played a role in ensuring the coherence and unity of that system, has a normative element. It fits within a line of scholarship that tends to present fragmentation as an overall negative phenomenon, one that should be addressed and managed through legal techniques. It tends to assume that a move towards greater convergence is a desirable aim in international law, but this normative claim is never fully elaborated upon. Consistency and coherence are not in themselves desirable objectives. The volume tends to overlook arguments that the international legal order might be strengthened and preserved by the development of âregimes.â While they might contribute to fragmentation, such courts can also be seen as moving the law forward. Special regimes of international law, rather than undermining the unity of the legal order, may allow instead for more specialized and adapted rules that are more likely to be complied with and easier to enforce. Rather than having any international court âat the center,â there are benefits of having multiple interacting courts, borrowing from one another, competing with each other, never placing the responsibility for the coherence of the legal order in the hands of one judicial body. Farewell examines the process of convergence in a serious and systematic way, grounding its conceptual arguments in the empirical work of international and regional courts. The book provides what is clearly missing in the fragmentation debate, that is, empirical evidence from the practice of courts and tribunals demonstrating the processes through which fragmentation and convergence occur. Farewell also succeeds in doing something that few multi-contributor volumes in law are able to achieve, that is, to construct a clear argument that runs throughout the entire book. The editors advanced a hypothesis and structured the chapters in such a way so as to allow for this argument to be developed through the course of the volume. Each chapter can be read as a standalone contribution, yet the book should be read as a monograph in order to view the development of the argument. The volume strikes the balance between presenting a logical and well-structured thesis while also retaining the individual voices. There are clear benefits to this book being written in this way, rather than a single-authored monograph. The book is strengthened by the fact that it brings together established scholars and practitioners with new voices who come with specialized expertise. These different voices do not always sing to the same tune, however. Sometimes they overlap, sometimes they contradict one another, and sometimes they seem to go off on a tangent. Yet Farewell benefits from this diversity of themes, methods, approaches, and styles.
"The article analyzes the potential uses of cryptocurrency as collateral in Article 9 secured transactions. At present, there is no clear guidance as to what status, if any, cryptocurrency has as collateral under Article 9. This paper briefly defines cryptocurrency, explains how it functions in its various forms, and shows why it would behoove lenders to utilize cryptocurrency as collateral. The current regulatory efforts over cryptocurrency are discussed to provide some context, through which the proposed actions and revisions of Article 9 are viewed. Finally, this paper recommends how cryptocurrency can be used as collateral under Article 9 under the current system, suggests possible revisions or explanatory notes which can be added to Article 9 to provide clearer guidance for policymakers and lenders alike."
I INTRODUCTION The principle of subsidiarity has a logic of legitimacy that strives to allocate responsibility at the national level in order to bring decisionmaking closer to those affected by it. Legitimacy is not the only reason for allocating competence to the national level. In some cases, such as the United Nations Security Council's (UNSC) schemes to prevent terrorist financing and the proliferation of chemical, biological, and nuclear (CBN) weapons, decisions about where to allocate responsibility are made for reasons of effectiveness. Treating these security threats as weakest-link goods, (1) the UNSC has aimed to decenter the administration of collective security away from itself by harnessing individual nation-states so as to create a completely regulated international sphere in which terrorists and proliferators are starved of means and opportunities to perpetrate attacks. In pursuit of this goal, the UNSC has sought to create shared frameworks for action by carving out a new quasi-legislative power. In an attempt to quell criticism of this move, the UNSC reassured states that they will retain national control over the implementation of their obligations, thereby satisfying the principle of subsidiarity. In effect, however, subsidiarity has been sidelined by the UNSC's strategy of implementation. The UNSC's strategy employs disciplinary power to generate an infra-law at the level of technical detail and to normalize states according to it. (2) Discipline shares the UNSC's logic of effectiveness and subsidiarity's preference for national responsibility, but it operates below the surface of the formal law and out of the reach of subsidiarity. It offers a notion of national responsibility shorn of national control. The argument proceeds as follows. Subsidiarity's logic of legitimacy is briefly considered in part II, which concentrates on the logic of effectiveness underlying the UNSC's schemes. The disparity between the open-textured norms on the face of the UNSC's quasi-legislative resolutions and the disciplinary work of its subsidiary bodies is the focus of part III. The Financial Action Task Force's (FATF) recommendations on money laundering and terrorist financing are shown to constitute disciplinary infra-law of the legislative resolutions in part IV, which also offers an illustration of discipline's negative effect on national control. A. Logics of Effectiveness and Legitimacy Whereas the principle of subsidiarity has a logic of legitimacy, the UNSC's approach to the prevention of terrorist financing and CBN proliferation has a logic of effectiveness. These logics are incompatible. The UNSC's reasoning is totalizing; it treats the international realm as a bounded space that transnational threats cannot escape as they can the boundaries of nation-states. If this bounded space can be controlled, then, the logic continues, it may be possible to deprive terrorists and proliferators of the conditions they need to succeed, such as financial support, manpower, open borders, lax import-export controls, and corrupt or incompetent criminal-justice systems. The Council has framed the problem of preventing these threats as a weakest link good that makes every gap, deficiency, and malpractice a potential, however remote, impediment to achieving a totally regulated space and thereby preventing international terrorism and CBN proliferation. (3) Achieving this in practice is no easy task. The UNSC cannot regulate the international realm on its own, as it is dependent on UN member states to carry out its decisions. (4) Given this setup and the UNSC's unrepresentative post-World War II composition, it has adopted a strategy of using UN member states as nodes in a decentralized scheme of administering the entire international-- not global--space. Total regulation of aspects of this space is needed to deprive terrorists and proliferators of means of operation and opportunities to operate. âŚ
International legal positivism in some of its radical forms in the 21st century operates as theological voluntarism. It is the ambition to translate an overwhelmingly practical art into a general theory of law that has squeezed these theories into a theological structure of thought. If such a thing could ever exist, a general theory of law ought to reveal the role played by morality in the normative pronouncements about law. However, a general theory can only emerge at the expense of taking the existential decision about identifying law with morality or severing law from morality.2 Hans Kelsen writes that âlaw is an order of human behavioursâ.3 But is this order founded upon morality or not? This very question articulates a fragmented view of reality falling between fact (morality) and value (law) that we have learned to take for granted.4 Practitioners know that the correct professional approach is to be interested in the legal aspects of a case and not in its moral aspects. Moreover, both in theory and practice, one can often limit oneself to act as a morally responsible person.5 There are, however, several sensitive areas in which even minimal theoretical work calls for the adoption of a moral-normative standpoint.6 However, the âgeneral theoryâ type of thinking urges the theological question7 â will the law punish my immorality or not?8 The theoretician devising a general theory will lay out the question of morality and law in absolute terms. Independently of the answer, articulating this question involves the assumption that the lawyer should take a theological approach, which is also reflected in the non-neutral outcome of the following two absolutist approaches.9 If law is to prescribe what is moral, every legal judgment is a moral judgment about good and evil. Law is endowed with power in order to apply a moral code, and secular law becomes superfluous. The second approach, based on the separability of law and morality, denies that the normativity of law makes claims connected with morality. What is at stake is not whether law ignores or refrains from expressing whether a particular behaviour is moral or not but, rather, the assertion of the idea that no violation of the law is a moral evil and no legal judgment is a moral condemnation. Morality is irrelevant to this approach. Both types of general theory work in the realm of the ideal with an a priori type of human being. The sinner belongs to the first category; the god to the second.10 In both cases, the theologian-theoretician devising a general theory employs law that works in history in order to model behaviour in practice. In the first case, the human being becomes absolutely dependent on the ideal type to which she has to conform, the supreme legislator (presumably representing God) being in charge of its implementation. As if in parallel, in the second choice, the morality of human beings is considered to be autonomous from that of the supreme legislator (embodied by the people, the consent of the state and so on). A theory of law that demarcates strictly legal norms declares that moral normativity in its varied forms, including reason, nature, justice, politics, the real world or humanity, never comes into contact with legal judgments.11 A human beingâs behaviour ought to be examined through law without this type of considerations. Law as ideality is, as it were, enclosed â it is disconnected from any claim to substantive moral content, but, more importantly, it is also disconnected from the sphere of practical action in which the legal actor takes a moral decision when necessary. The troubled history of natural law theories proves that the first option described above has never been attempted, let alone implemented.12 Moreover, there is no moral code that can produce a complete system of (international) law â not even Sharia does that.13 Equally, the few alleged attempts made in the realm of theory to produce any form of neutral normativity, independent from morality, have failed with similar regularity. The (healthy) inconsistency of the formulations attempted to this end has been laid bare by the fact that their authors have introduced rational considerations of morality and justice when this was felt to be necessary or unavoidable.14 The condition of voluntarism concerns a classical position of Western theology that differentiates between the absolute power of God to adopt any possible course of action without contradiction and the divine ordained power by which God is committed to act in a certain manner. While we are moving within the realm of strict theology, the voluntarist element appears when emphasis is placed on all of the logical possibilities open to God to create different worlds. Everything from the beginning is considered to be contingent (âit could have been otherwiseâ) and therefore no rationality can bind the will of God.15 Instead of observing the reality around him, the 14th-century voluntarist theologian felt compelled to focus his epistemological view on the normative character of Godâs command. He accordingly focused on the idea that Godâs command was binding even though he considered it to be, logically speaking, deprived of inherent rationality, morality and so on â or in modern formalistic terms, empty and neutral.16 In his book, Pure Theory of Law, Kelsen sketches a similar type of theological voluntarism with some wit: From the point of view of a theory of positive law, there is no fact that by itself â that is, regardless of a consequence stipulated by the legal order â is a delict. There are no mala in se, but only mala prohibita. This is only the consequence of the principle, generally recognized in criminal law: nullum crimen sine lege, nulla poena singe lege; and this principle which is valid not only for criminal law, not only for criminal but for all delicts, not only for punishments but for all sanctions, is merely a consequence of legal positivism.17 Kelsen continues by explaining that it was self-evident that certain behaviour was criminalized when the legal authority regarded it as âharmful to societyâ. However, âfrom the point of view of an analysis of the immanent meaning of the legal order, this circumstance is irrelevant for the concept of delictâ.18 The invocation of the positivist principle nullum crimen sine lege makes Kelsenâs thought look voluntarist it a of the nullum crimen sine lege and nulla poena sine lege that in to limit the power of the and the of the crimen sine lege a from all that is morally The idea was to the of a as a criminal only on the of what has been as law. Kelsen made his claim to that there was no that this principle to that there are no that are not or only have been by law. it does not as that when one human behaviour from a positive law one a the principle of nullum crimen sine lege the lawyer to to positive law, if there is In the principle to law in criminal law of any but it is not its to morality from a legal point of in his to Kelsen articulates his theory with all the in law of a voluntarist in law is not by any particular rationality or Law could have The two in International A and and the of International A Theory of the of in the epistemological of theological voluntarism. The legal theoretical ambition of the two appears to be to one should of an law that state consent at the that morality be placed law. In a similar to century legal the existential by these is by not by Moreover, the two authors to apply the radical of a positivist general theory of law to this theory but, rather, it â Kelsenâs this both the by their legal theoretician the of in Kelsenâs normativity of law. In the and theoretical first by of normativity by to without about its However, it is no that several of to legal In the of and this theory appears to a of power to the law to which have an of in which legal are being the of of law, one with and of the between the of law and and of the of law to some of the in this law is connected to such a theory the of in of from the of law. However, the theory type of normativity of in International Law and and the of International Law an ideal for law, it to its The of its politics, not to its morality, makes the â the theological type of thinking as Kelsen law is and ought not to be with of morality. as was the case with this type of theory to with to the What are the of the of law the can legal to that and all of the of the to an ideal of law and morality has never of the theoretical of law, and of such as or one to whether be the to take such a However, this is not to that the not and and that in some the modern The International in a a of around the general of positivism and legal theory by and is by a different theoretical In the of the of the two which is that the authors are the of this the a positivist and a and with the of and â and the also in their of the the power of the for law or attempts to the between natural and positivist law. In this the of the of both expressing the in law â which is, in their positivist â and the of positivism in The forms a of with the which this for its to through the the in upon this Moreover, not only is the an independent but of the also form of their that that one can with is that are about law. the theological of positivism are in the the of the in the the adoption of a moral point of view in law, with the of substantive by which the of law can be In morality is with what the of the century has to their in radical positivism in their and have in or even Kelsenâs and â does as with a minimal of natural of the adopt the with to the of However, one the in the on this particular the that the to the several of the in to theological voluntarism are In the one does not that is about the to be a in to the theories of that made claims The of legal is but are with the of with a world in which is to be in of legal In this the legal of the century works in with what is in reality and is not on of of legal theory or â the as on the through This about is with to Pure Theory is to legal theory in in International A In the is often with the legal theory of to a decision of the authority is as as a legal In the have Kelsenâs Pure Theory as both of more to of Kelsenâs work and articulating the of and the law to Kelsen with the create Kelsen this idea Moreover, the of to Kelsenâs legal thinking is not to the emphasis on the of in law. In Kelsenâs was the very question that ought to in the of law. on the of was to whether the to and Kelsen that it was that the itself its to be that the of could be when the felt to be open the question of â the state or the itself was also and Kelsen The question of be by no decision necessary. But such a does not in law. There are no in only by the The is the can never be only two of Kelsenâs one his in to and his in the of the law to be by the are in order to that is not a particular from the of the of the legal the of is and is in the 21st a when several of legal Kelsen have legal and have to and in of It is only natural that the is to be no a in the of law. While there is in law, the century have law itself as the to the state of in In the of law as a to the fact that it was considered to be the when thinking in of book, however, with type of This is one to and to epistemological as Kelsenâs theory within the of theological as of the theory of the is founded on the from no from an of the Pure Theory does not that law is an legal order or that is not by It is in this that in International Law with the of that and of the in of to the that has to and as as the of in International Law is about to itself as both an and a about the of valid law without the of morality and state the of at thought that in he on in the as we as being that which is of have both and aspects take the in the be by the described the of an act of as being on the He that is to the to with so that the act of is from all the of the which are about the or the This in which is about thinking with and about thinking with is in of the idea of voluntarism as an epistemological in in International A as to the Pure Theory will that and are in in International The to a Pure Theory to law calls for to a priori the between and to the The to this in the in which he his work on legal theory to in the very in the to the made the book, in which the Pure Theory is as both and does in theoretical or a of what in the 21st in to law. Moreover, very in the the that is and a in the classical â a to one will not be he to and of when the adoption of the Pure Theory is as an act of one a as to the thought it a on that particular this at the end of the is an of existential to and is Kelsenâs also be as through an act of in the Pure However, he never attempted a of the Pure Theory to of law. This is from of International Law, which is a of the law of his It be the case that he not to to the law of his â which from the â or he felt the was not for that through he his in of law, as to the of the between and law the that in the of the Pure Theory is a in a as as refrains from any of Kelsenâs to of the of a theory of law that was to be to above in of of from the and the regarded that as the only to However, in his theory of law, Kelsen the There is to that his that as a of principle it was a to moral and judgment in law. In the of the of the committed by the Kelsen made no about the and and to the morality of the However, we can only with on the the of his What is is that Kelsenâs theory of law in of Pure from The of to through Law and of International Law the real of of International A is that it what Kelsen never In this its is at the very of The a very to the thought of and the few to work on his and moral However, the and analysis of Kelsenâs â the of The of taking Kelsenâs work and as a that Kelsen in these and of Kelsenâs legal theory on the of the two the only The the Pure Theory to law in International Law is a and from which any interested in legal theory will Moreover, in of the substantive it with â law and and of â the a of thinking that through the of legal the of the Pure as a for the of in its to the of the law, its in the of law, and its to the of and in the case of to the approach of radical This approach, to to with the Pure and that is a valid and through to the of is the of is as the between and to legal makes possible the of norms as is in the as the to every theoretical and even are to for to that In one a with This is in the which are more with legal of the normative to be the of the to apply and law as it is in the of the However, the in no that this to the to what the to the Pure should not act with in of This is for from the of the law of of the in The with a on the different of within the and law legal the for to have to such as or that positive law. on that are open to to in the of the of of the of law to in the of in It is not so an inherent of that the but an of to the for the of both theoretical and practical on the on the of or of laid in of the which in to by in this case to the in the the from which an in of the general of the The idea is to to what the law and the of But law on the of be but as and the of for or for have their and that the of can be also This look However, what is of is that he the â to and through law. on the of normativity was an in the of the century by legal In so the of the of to that a has law. The in legal theory is in the in which this is is the between Kelsen law as and the in at a when law was and could not have been to the and to He was thinking of the when the of law which was the of the and the by the of It is for to know or this to be so in the history of legal However, was in a that the of of law that â that of with the of the about law being law and a in which the an in the normativity of law. and the of International Law belongs to this of the to the of is, one of the one from the appears more to a epistemological for (international) law. This works in with the that the to a in his all the to but, to the between a and a of the of that law is what the makes the of However, it is on the He to in â that is, the idea that have of their â as principle of of The by and the that it â by as and â is what the to on the of in that law be he on the of and the the to this type of theory of of which was a makes more the that the at the As the the of natural law and of the will of the state the to the of law. The on a of natural law and state will the the as being As an natural law can be and â from of natural to the of the or the of law, the of law and the the or will of the state â that â also when as a of of is the of a normativity in of the in the book, Kelsenâs theory is all in the very of and the of International Law in of the by and that their meaning through a in the that in the of the of a theory of law, as the of legal is the makes the question of of the legal order as a and his theory to the and Kelsen the of through the of law is the of the theory in the However, even though the claims that he is not in devising a general theory of law this does not that the does not one â to a of the particular theory introduced in this is Kelsenâs even â it is The of and the of International Law does not merely to a theoretical of but also to produce a theory of in the of the of of Moreover, one can on the of one the of theories that could the work that has the fact that the several and a legal the of theory and is by the of the of theory in the This that the of can be by of such a formalistic However, this is the general of radical and the of International Law is at and to The is to know more about the of this theory in practice, and the at the end of the about only on the of the that in calls for the and of his never at the of to idea idea in such a that we at but legal Moreover, their work about legal and this in their of the works of and and What is in this is the fact that the authors generally adopt to the with to The are and for a and point of In are with the in which law the real world and The the that the the of positivism is to a by the fact of and by the that can into the power to apply law. In this the the classical of law between and are more to the are with the The of the between positivism and in the of the system of law is reflected in the of the to a this is with legal The that for the radical positivist position a good of its more in a Kelsenâs as the assumption of the and the of the he that is at a â this is what when a as a on his a more role in his in the and on the of legal and the of the of the lawyer the of In an the of a at the that be as act of in the of a morality, could the lawyer whether she or he has a responsible In a different that the of law should of professional that the in its form of This and such as on legal analysis of legal on a for positivist legal thinking and on the of positivism and through its as the general of the is the of such legal thinking is by about the of a of authors in legal thinking for their of the power of the has to it is to that he appears to be to an of the the This was by the but is in the several authors and on and to this it have been a good idea to have it in the In the a of natural law. As as this is to of his an question open at the end of the What be the in as which is the of the natural law he law with a theology in the at the beginning of this or is it an of the human necessary to in the more the of the positivist of and for his the classical legal in in his state consent several legal The that more with the with the as to the to which morality is with law. the of of a fragmented view of human beings based on different of ideal normativity with no â morality As it is a that the theological of a theory of law is in its to the between morality and law. This is not to that the authors a the the involves an of the of But of the both at the that work in the legal sphere is with a of morality. is at to the of the positivist principle nullum crimen sine However, his that what is at stake in the of this principle in the case of criminal law is that the by which the or of an is is and does not in a about human but, rather, human are in by positive law. He that human are the of divine a but a of some for which the consent of is therefore the beginning and the the of law when norms to normative considerations and any to be in violation of the the she the of law to forms of law in a general manner. However, analysis also moral-normative considerations as a of course in the of law. The by and is on the law to the of and is the on the of when and moral are at In one could the with in several of the in this without of The following is a good of what have in is by no that positivist to legal should be an when the to a different In this case as by is to upon a or a or a or a such as this the at the beginning about the of the of a general theory of law in to a practical art such as law. the general of the in this on positivism in a world a for responsible by and in different to that the of of If there be to be it be and not very to the to claim that was the There is no that this is However, this position does not to be the in this The from some of only two of the are an fact that one for thought. one can about with some the of in a on an analysis of the of a with law is this of what is a of the in this has to what is are and and one should the for a not only of law but also of some of the from which it with legal or for that with law will from the with to the of and and in law and will from to it from to have in this that theological about morality and law to the that ought to be autonomous or that ought to history and and from the from legal history at two about the between morality and law. both in the in the legal the in with one at the normative of the first of what makes a good or of the of what makes good law and the of we are thinking in of practical it is in that practical law has its in a and The of International in International Law of International Hans Kelsen in International in International Kelsen and on International and Law International and International and International and to International Law International Law International law in and from a International Law International Law and of
Nico Krischâs new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I¡CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an âon the one hand [x], but on the other [y]â style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krischâs conclusions are heavily dependent upon a theoretical constructionâa supposed dichotomy between âconstitutionalâ and âpluralistââthat is, in fact, a false one. Second, âconstitutional pluralismâ is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two typesâthe constitutional and the pluralistâwhich Krisch characterizes as âcompeting modelsâ (p. 226) and âtrue alternative[s]â (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the âfoundationalâ and âcomprehensiveâ constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polityâs legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single âoverarching legal frameworkâ (p. 23) and âcomprehensively determin[es] the structure, processes, and valuesâ of the system (p. 53). In contrast to pluralism, constitutionalism entails âclear cut hierarchiesâ (p. 103), stable Grundnormen, settled ârules of recognitionâ (pp. 11, 72, 74), and âultimate conflict normsâ and ârulesâ (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to âdepoliticization,â and the desire âto tame politicsâ through legal rules (p. 69), pluralism is about âpoliticsâ and âpolitical deliberationâ but not the ârule of lawâ or ârule-based processes,â (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. âA constitutionalist setting needs to define hierarchies between the polities,â Krisch claims, in order âto integrate them into a common whole,â a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the ârules for the amendment of the overall constitutionâ (p. 275). I reject Krischâs constitutionalismâpluralism dichotomy on both theoretical and empirical grounds. To get to the notion of âconstitutional pluralismâ one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system âconstitutionalâ is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereigntyâthe authority to enforce fundamental rightsâis âdecentralized,â8 not least, in that no âultimate conflict ruleâ or âfinal authorityâ to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krischâs concept of pluralism: by definition, under conditions of pluralism, there is no âsingle decision-makerâ applying âoverarching conflict rules,â who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes âconstitutional pluralismâ an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krischâs lawâpolitics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved âbeyond constitutionalism,â rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal âarchitectureâ of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, âconstitutionalismâ implies a focal point of âultimate authorityâ (p. 103), whereas âpluralismâ accepts âconflicting claims to ultimate authorityâ (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14â17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue âcontainment,â by working to âlimit the impactâ of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to âtransferâ the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can âbreakâ with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to âconstitutionalizeâ adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Unionâs (CJEU) move to âconstitutionalizeâ the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant âcontainmentâ operations,12 and their âtransferâ efforts often succeed. In Italy, the Italian Courtâs bid for supremacy failed: a âwar of judgesâ ended in a settlement that, in effect, codified pluralism. Under the so-called âdoctrine of the living law,â the Supreme Court (Cassazione) has de facto the âlast wordâ on statutory interpretation and application, accepting only the âpersuasive authorityâ of the ICCâs jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important âbreakâ with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian âliving lawâ solution; and in the Czech Republic, the Supreme Court provoked a âwar of judgesâ when it âopenly revoltedâ against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: âconstitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.â Indeed, for constitutional judges, a strategy of âdialogue and persuasionâ has been more effective than have efforts to prevail in an âopen conflictâ about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rightsâthe national constitution, the EU treaties, and the ECHRâoverlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEUâs ruling in LandtovĂĄ to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the LandtovĂĄ reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Courtâs decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a âconstitutionalâ or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalismâpluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the âconstitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of âtransferâ and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear âbreakâ with establishes a strong that all German judges are to apply the Courtâs jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Courtâs case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Courtâs case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEUâs which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on âconstitutionalâ features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krischâs judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and normsâ (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of âconstitutional pluralismâ the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main
For a while now, one has been wondering if in a world of more and more fragmented communities the idea of constitution as intrinsically tied to the notion of the state is still adequate, or if it must be readjusted to entities of a non-state nature. Globalization, the Great Deconstructor, revealed (once again) that it has become rather illusory to believe in a single, all-embracing social rationality.1 Traditional statist doctrines that still see states as the ultimate site for the creation and the legitimacy of law have come under increasing reflexive pressure. A new constitutionalism, however, offensively describes law-making processes within functional, transnational systems of society as a pluralistic-fragmented morphogenesis of âconstitutions without stateâ. The constitution is deadâlong live the constitution! The trend towards recognition of stateless sovereignty has, of course, difficulties in conceptualizing processes of autonomous constitutionalization as detached from common representations of hierarchy and in converting the two most important constitutional issuesâconditions for validity and justified violenceâinto the grammar of fragmented social realities. It is not surprising that uncertainty arises in particular with regard to individual rights:2 because they sharply reveal the recursive relation between self-validating autonomy and constituted subjectivity, which tends to give legal statements on the relation between autonomy and sovereignty the form of a âchicken-or-eggâ riddle. Gunther Teubner observes that, in the course of societyâs functional differentiation, transnational âregimesâ emerge and emancipate themselves from state order. The regimes are thereby confronted with theâaccording to Teubner genuinely constitutionalâissue how to define themselves in distinction from and in relation to their environments. Such a redescription of constitutionalization is supported by much empirical evidence. Various sectors of global and local civil society (trade associations, multinational enterprises, sport associations, social networks) tend to equip themselves with their own programs of law that not only regulate organizational matters but also reflect relations with other functional systems. Statist conceptions of constitution claim to comprise and to control the functional entities of societyâbut, according to Teubner, they lack the means to fulfill these expectations. They not only encounter territorial limits but are also often unable to provide adequate solutions to conflicts between transnational functional rationalities. There is no global constitution that might overcome these deficiencies in sight. And traditional mechanisms of public international law that could extend national principles by agreement, suffer from paralyzing consensus requirements or from ineffective enforcementâor from both. Hence, it seems plausible to follow the traces of constitutionalization from a transnational perspective. It is then necessary to shift the focus from âstateâ as a hierarchically structured unit of societal conflict management to autonomous, heterarchical regimes developing on their own and responding to each otherâif at allâon a horizontal or diagonal level.3 Common patterns of justification, according to the new theory, have to be fundamentally adapted in light of the increasing impossibility to derive rules of conflict âfrom above.â Given such a fundamental turnover it does not surprise that dogmatic resistance is imminent.4 If one looks at transnational societal functional systems as potential creators of their own constitutions one has to radically modify the nineteenth-century conception of âcitizensâ liberty,â on the one hand, and the twentieth-century conception of competition-based âprivate legal society,â on the other: It is necessary to detach processes of self-regulation from the âstateâ or from culturally defined entities and to reimagine them in the context of complex processes and couplings within and between functional systems. The constitutional question is shifted to the inside and implanted into the âcapillaryâ arteries of every autonomous systemâs âself-consciousness.â Presumably such systems, only through their full emancipation, become aware of their universal competence for specific functions5 and at the same time a specific competence for the universal. An avant-gardist approach of transnational constitutionalism has to develop a new concept of constitution, although Teubner himself merely acknowledges (after all: considerable) modifications of traditional constitutional concepts. âSelf-constitutionâ is only the starting point for the auto-productive genesis of âregimesâ; what matters is the moment of constitutionalization (which for Teubner is decoupled from power6). It then becomes possible to specify the functions of such regime constitutions in order to establish political institutions and to institutionalize politics. If, on the one hand, one wants to relyâlike Teubnerâon an evolutionary understanding of constitution and, on the other, to go beyond it and normatively reconstruct the concept of constitution for a global context, things become a little complicated. The theoretical starting point is the observation that a constitution links theâseparatedâsystems of politics and of law as a âstructural coupling.â This âsuper-conceptâ enabled Niklas Luhmannâs systems theory to describe all kinds of interrelations between functional systems such as politics, law, economy, science, art etc. Indeed, this proved to be helpful in describing the conception of constitution functionally: as a coupling law and politics, the concept of constitution makes possible a legal solution to the problem of self-reference within the political system and at the same time a political solution to the problem of self-reference of the legal system.7 The concept of constitution makes it possible to handle the undeniable paradox that self-bound sovereignty remains unbound. Within the legal system, one can externalize the paradox of foundation to a political consensus; in the political system it can be externalized to a constitutional core8âwith the consequence that neither system has to struggle with the (missing) last grounds any longer.9 As it were, this makes any ontotheological metaphysics unnecessaryâand makes it possible to carry on. According to the engineers of systems theory, recursivity and self-referentiality are in principle no obstacles but, quite the contrary, the starting point for further opera tions. The same holds true for autonomy and sovereignty which presuppose each other without logically being able to do so. Teubner deals with the paradox of (non-)foundation with the âartificeâ of pasting the traditional concept of sovereignty into autonomous regimes. The necessity of unfolding or disguising the paradoxâthrough hierarchies, self-exemption from the binary legal code, solemn declarations, and so onâthen poses itself as a problem which each functional system/regime must and can cope with on its own, through building its own creation myths and narratives. At the crucial point where mere juridification turns into substantive constitutionalization, it is precisely law that provides the necessary help: as a structural coupling between âsocietal lawâ und âsocietal politics,â constitution itself is characterized by a âdouble reflexivity.â Within societal systems, function-related operations produce further operations through which a contingent form of reflexivity procedurally builds itself; and these processes of autonomization via reflexive social processes need stabil ization that only law can provide.10 The circularity of self-constitutionalization can then be reformulatedâand here is the essential âjumpââwith respect to each functional system: âThe Self must first be defined heteronomously through legal norms in order to be able to define itself.â11 There are two hearts beating in Teubnerâs transnational regime constitution: one that is supplying the structure of the specific societal order and another supplying secondary rules on rules. The âhybrid meta-encryptionâ prevails over the difference lawful vs. unlawful as well as over the idiosyncratic systemic logic (x vs. non-x) in a self-reflexive form. The encryption serves as a mode of the different intra-systemic (intra-law, intra-politics, intra-economy, etc.) operations of sense that keep haunting each other in their respective languages, into the arteries of functional differentiation.12 Constitution as a âbinding institutionâ mutates into a form of legal, political, social, and economic communication, thus passing from the unity of law to a multitude of discursive fragments. The description of society, according to the systems theoretical approach, can be reformulated as a conglomerate of socially and legally constitutionalized multiple identities. To put it a little more simply: every constitution is a vital process of social and legal self-ascertainment within a functional system.13 The conditions of intra-systemic programming,14 however, remain in the âshadows of politicsâ which must be separated from the social system. The separation of politics from the respective social system is, however, not possible, which is why politics, for Teubner, takes an ambivalent form that can be expressedâor âinvisibilizedââby the distinction between la politique and le politique.15 The political system (la politique) does not determine the fundamental principles of subsystems which, because of their societal significance, are highly political and thus subject to their internal politicization. The charm of such a procedural generalogy that abstains from the âbig momentâ of a RĂźtli oath is that the global functional systems, via an autological but invisible accolade, are able to impose on themselves responsibilities that could not be established with similar consequences within the hierarchical order of a traditional state constitution. Only autonomous constitutions enable functional regimes to create normative conditions for their internal politicization. In course of the re-entry of politics into theâat the outset non-politicalâfunctional systems, their constitutions work as catalyzers, as conditions for a reflexive internal and external reference. Now, where is the link to the modern challenges of global society, scandals, human rights violations, scarcity of resources, financial crises, etc.? Luhmann has described as the âfallâ of functional differentiation the question how to deal with self-referential systemic autonomy.16 Systems theory, however, primarily looks at reproduction, not so much at self-destruction or autopoietic âapproaches to impossibility.â17 The latter is somewhat of a blind spot if one focuses on reproduction of reproduction, a blind spot that threatens second-order observers with unemployment.18 Worried about the abysmal problems that we are undeniably facing, Teubner holds catastrophe to be contingent, which means: not compelling but selectable. Adequate societal conditions of self-constitutionalization can only be formulated through reflexive self-limitationâand hence not only as a determination of ârulesâ but as a genuinely constitutional question. To put it in more technical terms: the issue is how it is possible to limit the destructive effects of fragmented energies in a fragmented world, and how each functional system can handle self-expansion and self-restraint at the same time.19 The proposed solution is called exogenous self-binding. One cannot violently impose on social universes an institutional policy of morals as a consequence of whichâlike in Macchiavelliâs Ideal Republicâthe commitment to the common good coincides with the actorsâ interests. It is instead necessary for functional systems to become sensitive to their environments, to develop an âecologyâ in a broader sense, so that self-restraintâand potentially the sustainment of the systemâs environmentâbecomes part of the intra-systemic functional rationality.20 Constitutions are to limit expansive rationalities by the means of law.21 Thus, fundamental rights as elements of different subsystems do not primarily solve conflicts between individuals but avert dangers arising from non-individual âanonymous matricesâ and âinstitutions, discourses, systems.â22 To address the problem of justiciability one has to shift from individual conflicts to conflicts between systems and environments.23 The program is demanding: Teubner asks us to recognize that the autological, autonomous, self-destructive, and damaging unfolding of functional strength can be transformed into a new constitutional, functional, decentralized doctrine. The self-reflection of functional rationality is sparked by pressure from outside24âbut not in the sense of direct, heterogenous causality, but rather as a provocation to self-reflexivity within the system through irritation. Since all systems are only environments to one another, they are unable to communicate with one another; they can only communicate about one another, adapting to one another through selective and by this into a part of their own and respective the internal sovereignty to of its own which the necessity to question the idiosyncratic The the of or is a without which systems suffer One must The question rules of self-restraint how are legal how can conflicts be without In of systems theory, legal institutions of are only within the procedural of functional of legal and processes within the constitutional these processes are by from their own and this only becomes in processes they the According to Teubner, the does the is to go into is the momentâ with Only catastrophe is it become essential within the system to limit to by for could be as Teubnerâs of principles of and As an of how self-constitutionalization could Teubner to of the here could that the economic system limits the creation of by the the to create Given the and of such processes it does not surprise that Teubner are we with a problem has no of The seems to be of systems through the respective of the what if self-restraint to be with the idiosyncratic systemic if self-reflexivity expansive or if external pressure and are not to self-reflexive to the point of the paradox of As we have Teubner converting the paradox structure of into its own logic of it is necessary to the with to for limits within to with The societal of is to the destructive effects of autonomy with to provide for external through rather through the of state becomes the discursive which or internal It remains how Teubner to be by the regimes themselves and state as a mere One describe of of principles and of rationalities as of law with but the crucial question that remains to be is self-reflexive observation provides control over the it possible to subject of to idiosyncratic systemic Teubner does not to the on then the discursive within autonomous systems remain in a and the constitutional full to only a The of self-reflexivity to the question how conflicts between systemic rationalities can be with at a technical legal a is in Teubnerâs world of systems, it seems to the potential of the concept of of lawâ rules from international law into the between functional idea which, in and the has it remains highly from the of systems theory, the is well systems, according to this theory, do not do their rationalities state rules do in specific more one The of in conflict of does not to be helpful in the complex of and between systems. If the conflict of of is with it becomes to define any rules of one an public transnational that could as a common the difficulties to define an public are well from traditional international to of international public In legal the of be as and respective in the enable or is and, more in the for as as are no rules for the rules as well as their and as as transnational âregimesâ have no of their own, they have constitutions of or are not constitutionalized at One must not functional systems with or are but this it is to describe the as a a of social that in the but remains as a of the it matters the within a respective social system are of what Teubner they systems themselves through decentralized of must in the of transnational themselves all kinds of other normative being it remains at that of self-reflexive constitutionalization develop under of and If the functional systems at from legal transnational it quite to a constitutional reflexivity from the contrary, such the of towards a In other idiosyncratic seems to reflexivity beyond functional rationality in the a is to the can be beyond processes and beyond it that Teubner one might have to of international and as on self-reflexive it be necessary to for their In of the of the concept of that Teubner the seems a little as it paradox constitution of a Teubner full and thus âconstitutions of rather constitutional of a nature. becomes in where the of constitutions are To a of reflexivity for a constitution as a âbinding seems to be in conflict with the individual in functional systems that is often and This does not the systemâs not the of a through systems one has to that a form of as a for part in processes more which the concept of itself In other is no that self-reflexive This the to the theoretical its of for a a the social and legal of constitution is described as a at the same time legal and one that is to specific this one could the question if a of constitutionalism from the of systems theory the point of a primarily concept of rules. 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A of constitutional hearts from the state to the regime the the that tend to limit themselves to functional This is more with regard to institutional (which at have to be under and to the which be necessary to process by the and to develop complex legal and technical There be to that âregimesâ in the of the of global and are unable to develop mechanisms of in order to Teubnerâs description of non-state constitutions from all not only because the crucial problem of the relation between constitution and is civil constitutional law with civil As the relation between constitutional law and law has been by recursive claim to patterns of to The from the and from different of while constitutional law validity on the of hierarchies, law such a by that the of has no for to the claim for of see themselves to each The and respective for which to solve with concept of these it is true that conflicts between societal systems in cannot be as theory and still in a by on autonomy or on that is, by the difference between autonomy and It more to these conflicts on a âprivate constitutional external and them This of by the systems precisely because of the necessity to establish rules of this recognition a more of fundamental rights the traditional constitutional however, as as for with regard to the of or the passing of to through are question the of an autological self-constitutionalization from the of the of state For can the to legally be to the logic of a it according to a common legal and management and been a or state the regime an under law, have And the often as the of a no rules on legal To the question of legal means to in principle any conflict with defined of state law or that are in with respect to all legal on the of not only to the but also to If and to through the financial world under and any of the that have to first of as the of an autological legal the of law and systems theory, it might to be to for limits to the self-expansion of as they are established in Such rules at self-restraint in order to social The theory of constitution has primarily it as the to to and transnational conditions of be in the form of and by and and It is true that such an order is in the process of through mechanisms in which cannot neither can One must also that not have in in the first the effects of on other systems, a that can be the question how to cope with societal social, challenges of autonomy has the the of decentralized of it to of the of and the potential of their rationality as a in which not only are but also the of as well as exogenous and of as legal its of a description of society, the has formulated the conditions of a civil society as a discursive for One of course, political this it has not fundamental As takes in every social system without them seems to from a point of to more to the processes of internal and external of the full sense of the The same to the constitutional question that Teubner does not The concept of has, so at been a rather of through and through their the of constitutional theory, the question of constitutionalization without has been here with It be to see the juridification of the fundamental and rights by the of as a of economic âfrom it can rather be described as a of transnational constitutionalization âfrom The of the in of global challenges more as a of sovereignty through is and in this is precisely why it seems that transnational regimes be able to cope with the of limits of The transnational through autonomy in with transnational regime as the which in of and resources, as separation and of and most of an of that could instead of not Teubnerâs âconstitutions without the and no more be on that still see the constitutional in in the Systems proposed by There be different about where reflexivity The of the processes that are necessary for constitutionalization the of the problem is to Teubnerâs the societal in a and The have to of this and to process its the become so that society without being
UN listing of al Qaeda and Taliban affiliates under the Security Council resolution 1267 system has been controversial, in large measure because of the absence of due process and the secrecy surrounding the decisions made by the sanctioning committee. There have been a number of successful domestic challenges to the implementation of this system at the national and supranational level. If domestic and supranational courts continue to invalidate domestic implementation of 1267 listings, there will be a disconnect between the global 1267 list and certain domestic lists. The 1267 process may be able to survive some domestic challenges and exemptions, but criticisms by domestic judges will erode support for the 1267 system. This may not in itself be a bad development, as 1267 listing, with its focus on al Qaeda and the Taliban, is only a partial response to international terrorism. Even apart from the human rights implications of listing, it is not clear that listing and related terrorism financing and travel ban interventions are particularly effective means to combat todayâs decentralized and often homegrown terrorism. Listing may be an example of fighting the last war against al Qaeda rather than deploying tools to forestall the next form of terrorism.This Article explores these issues in four parts. In Part I, we provide a brief overview of the 1267 system and its origins and operations. In Part II, we examine the substantive international law that may apply to the Security Council as well as the jurisdictional basis for (and possible constraints on) the 1267 system. The focus here is on the possibility of applying due process protections derived from various forms of international law to the 1267 listing process. In Part III, we examine some of the âdualistâ defenses of due process, examining domestic and supranational court decisions in the European Union, the United States, and Canada. In Part IV, we discuss some of the lessons that can be drawn from both international and domestic attempts to increase the fairness of terrorist listing processes. This includes the common and difficult challenge in both the international and domestic realms of providing for adversarial challenges to secret intelligence that is said to justify listing. Finally, we reflect on the implications of these challenges to the sustainability of listing processes, terrorism financing, and judicial review of counterterrorism actions in general.
At a time when the Obama administration, the rest of the G20, and other governments, are emphasizing multilateral action to address global problems, such as global warming, terrorism, financial regulation, monetary policy, failed states, and public health, much is at stake in theoretical and empirical arguments about the possibility for effective collective action among groups of states. In The Perils of Global Legalism, Eric Posner argues that these efforts are largely futile. Can it be true that international law offers little or no assistance in response to global collective action problems? Posner grimly asserts that âif a world government is not possible, then solving global collective action problems is also not possibleâ1 (at 8). If he is right, and given that the kind of world government he has in mind is indeed implausible, then the efforts of policy-makers and diplomats should immediately be diverted from efforts to craft international legal responses to global collective action problems, and reallocated to more productive pursuits. The implication of Posner's book: call home the diplomats and be content with the inefficiency implicit in unilateral action to address global collective action problems. From one perspective, this book might be viewed as a welcome dissenting voice amid general calls for more international law, and it rightly rejects what are by now caricatures of the American and European idealists who believe that the world could be perfected if only we wrote and complied with the right laws. Indeed, international law is not a nirvana solution to all our global problems, but merely part of the toolbox of practical political efforts to improve our situation. Posner has applied his considerable analytical talent to the question of when and how international law may be useful. He has no doubt provided a provocative and interesting book. The problem is that Posner is not content merely to show the flaws in the idealistic general argument for more international law. He goes on to make a general argument against more international law. I do not believe that it is possible to make a general argument either for or against more international law. More refined and context-specific analysis will be necessary to know whether more international law is or is not useful in particular contexts. But there is little doubt that international law has been, and will be, useful to solve some global collective action problems. This utility is just as clear as the utility of contracts to solve some inter-firm collective action problems and the utility of social institutions to solve some village-level collective action problems, as shown by the 2009 Nobel economics laureates, Oliver Williamson and Elinor Ostrom, respectively. Posner defines âlegalismâ as âthe view that law and legal institutions can keep order and solve policy disputesâ (at 21), while âglobal legalismâ is âan excessive faith in the efficacy of international lawâ (at xii). Posner describes American-style global legalists as overestimating the social value of international law, and therefore overestimating the reciprocal, retaliatory, or systemic costs of violation, with the effect that they overestimate the effectiveness of international law. How does Posner know that the legalists have generally overestimated the value of international law? Neither he nor they has the necessary context-specific data. Instead of presenting context-specific data, Posner makes a general theoretical argument that multilateral international law has little value to solve collective action problems (as contrasted with coordination problems, where there is by definition no reason to cheat), because it is generally ineffective to do so. For Posner, European-style global legalists simply make unwarranted natural law-based presumptions requiring unmitigated compliance with international law, even where, all things considered, compliance is not beneficial to the acting state. Posner ascribes a progressive vision to these global legalists, stating that the central tenet of global legalism is âfaith that if international law advances then eventually true international law-enforcing (and eventually law-making) institutions will follow in its wake, and then people will transfer their loyaltyâ (at 91, emphasis in original). More international law leads to more international institutions, which together lead to a transfer of loyalty and thus global government. Posner rightly rejects this millennial dialectic. But this is a straw man and in my experience very few, if any, European international lawyers or âliberalâ American international lawyers believe in this dialectic. And while we will not soon have global government of the kind Posner envisions, we need to know whether international law offers possible mechanisms to deal with practical, on the ground, global collective action problems. For Posner, a certain scale of institutional infrastructure, and a transfer of loyalty to a world government, would be necessary before international law can be effective. In this way, Posner's views are aligned with the most romantic, pie-in-the-sky, idealistsâthe only difference is in Posner's pessimism that this romantic vision can be achieved. He sees the transfer of loyalty as necessary to the establishment of a world state, and he sees a world state as essential to the effectiveness of international law. Posner fixates on the state as the exclusive repository of authority and loyalty, and thus argues that it is necessary that there be a world state in order for international law to have strength (at 128). Unlike most international lawyers, his evaluation of existing international law and institutions, and his view of the future, do not identify or anticipate possible centres of authority, and the possibility of law or government, outside even if not in place of, the state. For Posner, international law is generally epiphenomenal in connection with multi-state cooperation problems.2 As part of this fixation on the state, Posner argues that the biggest problem with global legalism is that it espouses law without government. For Posner, in order to have law, you need government in the form of the traditional institutions of the state, including fully empowered legislatures, judiciaries and executives, as well as a monopoly on the use of force. He posits that âif it is true that national governments are needed to solve national collective action problems, then it seems that it would follow that a world government would be needed to solve global collective action problemsâ (at 8). Consider this syllogism. The premise is debatable, and its extension to the international setting is dependent on a highly questionable, and unsupported, assimilation of the international setting to the domestic setting. That is, even if we accept that a certain type of institution is needed within the state to solve intra-state collective action problems, it cannot simply be assumed that precisely the same institutions are needed or appropriate to solve international collective action problems. A parallel, and equally faulty, syllogism would state that âif it is true that humans need oxygen tanks to remain under water, then it follows that oxygen tanks would be needed by fish to remain under waterâ. In order for this syllogism to be true, a fish would have to be the same as a human with respect to the relevant characteristic. But Posner offers no evidence that the international setting is the same as the state in the relevant characteristic that concerns him. Based on this faulty syllogism, Posner does not allow that collective action problems might be solved by a variety of institutional mechanisms short of a kind of global government modelled on a strong national government. He neglects the possibility of a Coasian choice between the firm and the market â between integration and contract â to solve collective action problems, but insists on integration as the only basis for resolution. He seems to entertain no possibility for nuance or for distinct institutions that may be appropriate for distinctly international collective action problems, or for the distinct international context. In fact, he seems to see no difference between the role of law in the international context as compared to the domestic context. But while for Posner the dynamics of the international and domestic contexts are the same, there is for him a critical difference. The difference is that the domestic setting contains institutions that solve cooperation problems, while the international setting simply does not and will never do so. Posner thus purports to draw âa crisp analytic distinction between intrastate cooperation, which is capable of solving major nation-level collective action problems, and interstate cooperation, which is itself subject to collective action problems and thus cannot solve them, except in a very rudimentary fashionâ (at 7). He argues that âglobal collective action problems cannot be solved â or not very wellâ (at 7â8). Note his evaluation: what exists or what can be is only ârudimentaryâ or ânot very goodâ. How can he know that what exists is not precisely what states wish to exist? A fundamental point in Posner's argument is that we âcannot solve global collective action problems by creating institutions that themselves depend on global collective actionâ (at 34). This glib assertion is patently false: consider as an example the formation of any constitution â constitutions themselves depend on collective action, and they are used to address collective action problems. In domestic society, and in all other social contexts, the creation of institutions always depends on collective action, and always is intended to solve collective action problems. Similarly, Posner later emphasizes that âit is the conceit of global legalism that people â ordinary people, government officials, bureaucrats â will obey law even though they would not obey or consent to the international versions of government institutions that we all agree are necessary to make law workable at the domestic levelâ (at 128). Here, Posner makes the additional error of extrapolating from the domestic context to the international context without recognizing contextual and teleological differences. The result is the breathtaking assertion that international law, to be effective, requires the same supporting institutions that domestic law has. Furthermore, when Posner specifies that the type of institutions for enforcement of law found in the state are the only adequate ones, he assumes a very idealized and narrow set of institutions available in the state for enforcement of law. A quick survey of comparative politics and comparative constitutionalism would confirm that state institutions are actually quite varied and malleable, and nuanced, even within the narrow category of advanced liberal states. And the literature of social norms, led by Robert Ellickson, shows how in domestic society rules can arise and be stable and effective without formal organizational support.3 Institutional economists distinguish between institutions, which may be formal or informal, and organizations, which are formal. Posner seems to consider that only organizations, of the type found in the state, are sufficient to support international law. An institutional economist surveying the existing field of international law would find a rich variety of institutions, including organizations. The rich literature of international regime theory, pioneered by Robert Keohane, recognizes the critical role of informal institutions in international society. So, while it is true that law requires institutions, or more accurately that certain types of law will be more efficiently made and enforced with certain types of institutions, we cannot move from there to the proposition that the government organizational features found in the state â indeed in Posner's idealized state â exhaust the category of institutions that may be effective to support international law. A social scientist examining international problems of cooperation would not take the top-down approach of asking whether there is a need for a global state that simply replicates the organizational features of the strong national state. Rather, a social scientist would take a bottom-up approach, examining each type of cooperation problem separately, in order to determine which institutional solutions would resolve strategic or transaction cost problems endemic to that problem. Only after examining the range of international problems, and their individual solutions, would a social scientist go on to examine the need for institutional or organizational responses and the potential synergies among the solutions. In this way, we might say that the state, with its wide range of internal subsidiarity, as well as its capacity to enter into international legal arrangements, is only a first approximation of the level at which collective action problems might be addressed. Posner says that the organizational features that are missing at the international level are legislatures, enforcers and adjudicators. And a cursory examination of the broad international legal system will confirm that there is little that looks like the organizational features of a strong state. At the multilateral level, there is no real parliament and no sheriff, and there are few courts of mandatory jurisdiction. And yet, the social scientific question is not whether there are institutions with these labels, or these formal functions, or that look like an idealized set of domestic institutions. State-type institutions are not the exclusive means to resolve collective action problems, even within the state. The social scientific question is whether there is a sufficient institutional structure to have the desired level of behavioural effect. And the appropriate reference is not the idealistsâ desired level of behavioural effect, but the level of behavioural effect sought and agreed upon by the states parties. While Posner is obviously right that there is no world government modelled on strong national governments, it is not necessarily so that there is no world government at all. Much depends on what we mean by âgovernmentâ. If we mean a formal set of institutions (including, but not limited to, organizations) that have some degree of legislative, adjudicative, and enforcement power â sufficient to affect behaviour â we already have that in international society. States follow agreed rules regarding legislation through treaty and custom, they adjudicate international law, and they enforce international law. As to mechanisms for legislation, while at the international level most of these require unanimity, all sorts of devices, including package deals, log-rolling, payoffs, and other mechanisms, are available to induce states to agree to rules that may not otherwise be in their narrower interests. While there is indeed generally no sheriff to engage in enforcement activities, there may be and other enforcement While there are few courts of mandatory there are and in some there are other of more or How does Posner know that this set of mechanisms, with existing international law, has no behavioural how does Posner know that this set of mechanisms is not precisely what states to to global collective action problems, given state one can say whether the existing international law institutions are responses to government but nor can that they are without the transaction costs or strategic problems that to remain or that they in to the of states. If Posner has a for a of a particular level of institutional or power to affect it is not in this book. If he has a to know that the level of that exists is to the that states to it is not in this book. So, it is simply to that the institutional structure for international law have the and power of a strong national state in order to be effective. that Posner's question is whether international law can address international cooperation the question is not whether this system looks like a domestic but whether it has the to address international cooperation by and to Posner's are distinct from cooperation How are they as Posner international cooperation compared with domestic cooperation will generally of individual of and and social This is implicit in the of we to do at the state level what is at the state level, and we to do at the international level what is at the international The of actually that cooperation at the international level be from cooperation at the domestic In international cooperation problems that can be by international law the behaviour of governments, and not the behaviour of so it would indeed be if domestic appropriate for use in the behaviour of the same needed to the behaviour of states. the structure of international cooperation and the structure of international society, that we would see institutions for cooperation at the international is no need for a world state to in order to have international law with real social effect. is no reason to that international formal institutions for legislation, and would look like domestic that international government would look like a world state. Posner has no reason to know that the types of institutions in in the international legal system are to address the collective action problems that states wish to He has no reason to know that if states their and to address collective action problems, they would be to do so. He has no reason to know that if states that it would be to additional institutions in order to have more effective law, they would be to do so. At the of this book is Posner's argument that international law is generally ineffective to address international collective action problems. He states (at that that cooperation to solve global collective action problems will be Neither this nor his does much to this theory, and analysis shows that no such For Posner, while world government is it as the of states in the world and the of states in the world seems to be Posner posits that there will be for cooperation as the of states because these states would necessarily be and therefore to public at the level when the level is their may also be social and more international law may for Posner the is that as the of states cooperation is does an of states mean that effective international law is this is central to Posner's it is not and in fact, while it is to be true in some particular it cannot be generally Posner (at that there is no basis for his stating that he that compliance with the of states, this is central to his Indeed, as and have shown in in response to by Posner and compliance with international law could either or with the of states on other For in the of public where the from the public with the of states that cooperation will more as the of states So, there will never be the Posner that compliance with international law generally with the of states. In fact, there may be reason to the effect. Posner posits that for cooperation will arise from a of states. This value of cooperation would make cooperation more not Furthermore, even if we accept Posner's assertion that cooperation generally more with more states, he has no of which effect is the value of cooperation or the of So, even if we to accept Posner's that cooperation generally more as the of states this effect makes it to draw the by that cooperation if Posner right in theory, cooperation with the of states, we have no of the of the or where we are on the might be that the effect he of is very at states, and only at states. this type of there simply is no of In fact, if we follow Posner's approach, is it that the for human cooperation not at the of Elinor the Nobel for 2009 for that they How we to the state with of How is it that the States and formal cooperation among its it Posner argues that there is a to the in the for cooperation to the of cooperation as the of states (at But he also that there is a to the right of the to the for cooperation by the same of states. He has no of the or of these So, even Posner's it is as that the level of cooperation would remain the same, or as it is that it would is no theoretical or empirical basis for Posner's pessimism regarding the social of international law. diplomats just Posner's is that international law has with collective action problems because it what he views as the needed institutions. He no evidence that the global has failed to solve the collective action problems it has desired to in he with a to his the of the European from to The European is an example of states to strong international institutions, and solving a wide variety of collective action problems. Indeed, the European has collective action problems to institutions in order to collective action problems. As the of not all at or to a but to time to for law and institutions. the of the Posner with a has in a strong legal but for him integration the effectiveness of international law in the international system (at is not this point European integration has the capacity for international would be given Posner's view that by the of the does where it of its cooperation in the international system more possible, not way, behaviour in the international system about the utility of the European experience as a to Posner's The critical to which Posner does not is that has precisely what he says cannot be in the international of has of states, and of and exists in the this is all a of and Posner offers no of these would distinguish the European the of these would be a useful to our of the potential of international law and institutions. But Posner simply an between the European experience and the multilateral setting. Furthermore, it may well be that or international law will be the more for cooperation global or multilateral international it depends on a of to each particular is only natural that a of more states, such as the European would see in cooperation, and so would But is it that a of states would not see some in cooperation, and is it that this possibility is to Posner offers no theoretical or empirical evidence that it is as he The general international law with its rules of treaty law, of state is the institutional setting for international law. But where cooperation can be with or with by organizational or other institutional states to do so. This is the of the European of the and indeed of all international to for that as in the European to legislation to address collective action problems, and in with the European it to be that would be useful in the global regime to make more or to against excessive and in with the of the it broad institutional features to on the as its approach to the establishment of institutions. The problem with Posner's is that it rejects on the basis of a and it that legal and institutional solutions to our multilateral cooperation problems are the of human society, with its of our for cooperation the broad of is or or has to determine to at of we have found to do so. it is true, as Posner that international cooperation is not necessarily or to and it is useful to have his response to any idealists who see international law as a for the problems. the argument in this to that international cooperation is or at (at because we simply do not and can never the appropriate institutions. as world there may well be in which states would from international The of The Perils of Global is that its pessimism about the possibility for cooperation, if it could our of and we cannot to the between and
This Note proposes such a consistent approach, arguing that courts in international extradition cases should focus on the accused's risk of flight rather than on the presence or absence of specific "special circumstances." Part I briefly discusses the international extradition process and outlines the important societal and individual interests at stake in the bail decision. Part II discusses the origin and evolution of the judicial approaches to bail in international extradition cases and demonstrates the inconsistency in the lower courts' treatment. Part III suggests an approach for making bail decisions in international extradition cases. It argues that the determinative factor in the bail decision should be the accused's risk of flight, not the presence of specific "special circumstances." Part III also shows that the burden of proof in the bail decision is properly on the accused, and it argues that the standard for bail should be more stringent after the accused has been determined extraditable.