Globalisation sparks aspirations for a new era of politics in which the world order would be constitutionalised. Whether this marks the coming of an age of global constitutionalism requires further investigation. This article aims to cast light on the issues surrounding global constitutional ordering by way of an examination of the relationship among the constitution, constitutionalism, and political power in political modernity. It is argued that constitutionalism and political power are traditionally reconciled as constitutional ordering within the framework of a constitutional nomos. At the core of this constitutional nomos is a dual delimitation of boundaries, generational and jurisdictional. A close inspection, however, shows that the constitutional nomos collapses in the process of globalisation, unsettling the reconciliation of constitutionalism and political power in constitutional ordering. As a result, constitutional ordering in the global era fluctuates between selective constitutionalism and constitutional fragmentism, signaling the end of constitutionalism as we know it.
Saturday, August 7, 2010
Kuo: The End of Constitutionalism as We Know it? Boundaries and the State of Global Constitutional (Dis)Ordering
Friday, August 6, 2010
The Indian Yearbook of International Law and Policy is currently soliciting submissions for its second issue due to be published in April, 2011. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused. The submissions will go through a two-staged peer review process and if necessary, will also be edited by the Editorial Board. Please send in your submissions by January 2, 2011 under the categories mentioned below. For general queries relating to your submissions, see the ‘Note to Authors’ or kindly write to us at: firstname.lastname@example.org.
About the Yearbook
The Indian Yearbook of International Law and Policy is a peer-reviewed academic publication and aims to provide a forum for the publication of articles in the field of international law, written primarily by experts from the region and elsewhere. The Yearbook seeks to provide an intellectual platform for the discussion and dissemination of Indian views and practices on contemporary international legal issues. It also seeks to encourage interest in all matters relating to international law, exploring new avenues and approaches to its study and has been envisaged as a response to the longstanding demand for the documentation of national practice and policy related to international law.
Submissions may be made under the following categories:
- Articles: 8000-12000 words,
- Comments/Notes: 4000-7000 words,
- Case Comments: 3500-8000 words,
- Book Reviews: 2000-4000 words
 Longer Contributions under each of the categories shall be considered subject to the approval of the Peer Review Board.
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The prescribed word limits are inclusive of footnotes and submissions are expected to conform to length policy and the guidelines listed below. Kindly go through them carefully before mailing your submissions. We promptly acknowledge the receipt of submissions and a decision on publication takes a minimum of around 4-6 weeks.
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If the Editors are of the opinion that an article accepted for publication needs minor revisions – including minor shortening, correction of errors in punctuation, spelling and style – such proposed changes will be made by the Editors and will not be resubmitted to the author for approval prior to publication if they do not alter the meaning or sense of the original manuscript, such to the discretion of the Editors.
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- Math Noortmann & Cedric Ryngaert, Introduction: non-state actors: international law's problematic case
- Peter Muchlinski, Multinational enterprises as actors in international law: creating 'soft law' obligations and 'hard law' rights
- Leyla Davarnejad, The impact of non-state actors on the international law regime of corporate social responsibility: blessing or curse?
- Cedric Ryngaert, Imposing international duties on non-state actors and the legitimacy of international law
- Janne E. Nijman, Non-state actors and the international rule of law: revisiting the 'realist theory' of international legal personality
- Noemi Gal-Or, Observations on the desirability of an enhanced international legal status of the non-state actor
- Math Noortmann, Understanding non-state actors in the contemporary world society: transcending the international, mainstreaming the transnational, or bringing the participants back in?
- Jean d'Aspremont, International law-making by non-state actors: changing the model or putting the phenomenon into perspective?
- Math Noortmann & Cedric Ryngaert, Non-state actors: law-takers or law-makers? Is that the question?
Thursday, August 5, 2010
Trade, Law, and Development was founded in order to provide an avenue for the free exchange of ideas, critical thinking and constructive debate on issues of relevance to the international legal order and trading system – with the specific aim to throw focus on the unique problems and concerns facing the developing world. It is in the spirit of further embracing this goal that the Board of Editors is pleased to announce the theme for its next Special Issue (vol.3, no.1): Third World Approaches to International Law (TWAIL).
The collective and broad dialectic of opposition to the traditional Western-centric framework of international law thought is referred to as TWAIL. TWAIL is neither a recent phenomenon nor a limited one; it represents both a proactive and reactive response to the decades-long condition of decolonization in the developing world and encompasses a variety of fields – running the gambit from alternative jurisprudence on international governance to intellectual property, the environment and feminism. TWAIL as a cohesive academic movement, however, has risen to prominence in the last decade with the work of academicians such as Prof. B.S. Chimni, Prof. J. T. Gathii, and Prof. O. Okafor, among others.
As a holistic concept, TWAIL seeks to understand, deconstruct, and provide an alternative to the use of international law in the creation of a hierarchy of international norms and institutions that subordinate non-European values and priorities to European ones. More pertinently for this Call, TWAIL seeks, through academic scholarship and discussion, to raise awareness on issues of policy importance and to work towards eradicating the conditions and consequences of underdevelopment in the Third World.
Suggested topic areas include TWAIL perspectives on, inter alia, international legal theory, international economic and commercial laws (commercial transactions, investment, competition, dispute settlement, et cetera), alternative systems of governance, perpetuation of cultural and developmental norms, international environmental law, international intellectual property regulation, as well as critical analysis of TWAIL approaches. It is in this vein that the Board of Editors invites quality “Articles”, “Notes”, “Comments” and “Book Reviews” from authors in all spheres – including students, practitioners, academicians, jurists and policy makers – for its Special Issue on TWAIL.
Manuscripts received by 15th January, 2011 shall be considered for publication in the TWAIL Special Issue. Prof. B. S. Chimni has consented to be the Consulting Guest Editor for the Issue. Specific information and guidelines for prospective authors are available in the Submissions Section. Manuscripts may be submitted online through our website, via ExpressO, LexOpus, or by e-mail (See Authors Guidelines).
- Donald R. Rothwell, Australia v. Japan: JARPA II Whaling Case before the International Court of Justice
- Frans A. Nelissen & Steffen Van der Velde, Australia Attempts to Harpoon Japanese Whaling Program
- Dan Goodman, Whaling in the Southern Ocean: A Reply to Nelissen and van der Velde
- Arthur Eyffinger, ‘A Caravan Passes By…’ The Centenary of the Netherlands Society of International Law
- P. Vlas, On the Development of Private International Law in the Netherlands: From Asser's Days to the Codification of Dutch Private International Law (1910–2010)
- Th.M. de Boer, Living Apart Together: The Relationship Between Public and Private International Law
- Nico J. Schrijver, A Missionary Burden or Enlighthened Self-Interest?
- Joseph Fleuren, International Law in Dutch Foreign Policy: The Application of Public International Law by Dutch Courts
- Thomas Henquet, International Organisations in the Netherlands: Immunity from the Jurisdiction of the Dutch Courts
- Larissa van den Herik, The Dutch Engagement with the Project of International Criminal Justice
- Ellen Hey, The Netherlands and a Century of International Environmental Law
- Jane Herlihy, Kate Gleeson, & Stuart Turner, What Assumptions about Human Behaviour Underlie Asylum Judgments?
- Katia Bianchini, The Mandate Refugee Program: a Critical Discussion
- Andrea Bradley, Beyond Borders: Cosmopolitanism and Family Reunification for Refugees in Canada
- Kelley Loper, Human Rights, Non-refoulement and the Protection of Refugees in Hong Kong
- James Spigelman, The Forgotten Freedom: Freedom from Fear
- Anne Sanders, Private Autonomy and Marital Property Agreements
- László Blutman, In the Trap of a Legal Metaphor: International Soft Law
- Tania Voon, Eliminating Trade Remedies from the WTO: Lessons from Regional Trade Agreements
- Nicholas Aroney, The Influence of German State-Theory on the Design of the Australian Constitution
- Harry Mcvea, Credit Rating Agencies, the Subprime Mortgage Debacle and Global Governance: The EU Strikes Back
- Halvard Haukeland Fredriksen, The EFTA Court 15 Years On
- Adrian D. Saunders, A Commentary on the Early Decisions of the Caribbean Court of Justice in Its Original Jurisdiction
- Patrick Dumberry, Incoherent and Ineffective: The Concept of Persistent Objector Revisited
Wednesday, August 4, 2010
Giorgetti: The Yukos Interim Awards on Jurisdiction and Admissibility Confirms Provisional Application of Energy Charter Treaty
Føllesdal: The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights
The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case. This court monitors the European Convention on Human Rights (ECHR), and is among the most powerful treaty-based courts. Still, the ECtHR respects States’ discretion in the form of a "Margin of Appreciation." And it exercises what is sometimes referred to as "weak" review. That is: the ECtHR can find a law or its application to be incompatible with the ECHR, but this does not directly affect the validity of that law in the domestic legal system. Nor does the ECtHR replace such laws with one of its own making, as some forms of "strong" judicial review would.When we ask about the normative legitimacy of such laws, treaties, and bodies, different theories will approach the matter quite differently. The presentation of objections to such international review and responses to them show the implications of different ways to bring normative requirements to bear on institutions. To bring this out, the focus is on two main concerns. Such review seems to violate the commitment to political equality expressed by majority rule, and it is thought to rely on a problematic, predatory conception of human nature. Jeremy Waldron, Richard Bellamy, and others have argued these concerns, often from quite plausible normative premises concerning an individual’s sense of justice and the need to avoid domination. Section 1 presents these criticisms. Section 2 then sketches an alternative way to bring normative requirements to bear on institutional design - Liberal Contractualism - which stands in some contrast especially to that of Waldron. Three main features are laid out, to bring out weaknesses in how Waldron and Bellamy use their normative premises to assess a practice or an institution. Central to this liberal contractualism is a particular institutionalist approach, and a concern for trust-building institutions among individuals who are “contingent compliers” with a sense of justice. This account is somewhat more kindly disposed toward international judicial review of human rights, at least in principle. Section 3 then goes back to the criticisms presented in section 1, and considers the merits of each. Section 4 concludes by identifying some of the weak spots in the case for international human rights review as hitherto made.
- William E. Conklin, The Myth of Primordialism in Cicero's Theory of Jus Gentium
- Daniel Joyce, Human Rights and the Mediatization of International Law
- Christine E.J. Schwöbel, Organic Global Constitutionalism
- Hague International Tribunals: Permanent Court of Arbitration
- Markus Böckenförde, The Abyei Award: Fitting a Diplomatic Square Peg into a Legal Round Hole
- Hague International Tribunals: International Court of Justice
- Gentian Zyberi, Provisional Measures of the International Court of Justice in Armed Conflict Situations
- Hague International Tribunals: Special Court for Sierra Leone
- Wayne Jordash & Scott Martin, Due Process and Fair Trial Rights at the Special Court: How the Desire for Accountability Outweighed the Demands of Justice at the Special Court for Sierra Leone
- Hague International Tribunals: International Criminal Court
- Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases
- Jo-Anne Wemmers, Victims' Rights and the International Criminal Court: Perceptions Within the Court Regarding the Victims’ Right to Participate
- Current Legal Developments
- Yaël Ronen, Incitement to Terrorist Acts and International Law
- Review Essay
- Umut Özsu, The Question of Form: Methodological Notes on Dialectics and International Law
Tuesday, August 3, 2010
- Douglas M. Gibler, Outside-In: The Effects of External Threat on State Centralization
- Sally Anderson & Mark Souva, The Accountability Effects of Political Institutions and Capitalism on Interstate Conflict
- Tobias Böhmelt, The Impact of Trade on International Mediation
- Matthew Moore, Arming the Embargoed: A Supply-Side Understanding of Arms Embargo Violations
- Steven D. Roper & Lilian A. Barria, Burden Sharing in the Funding of the UNHCR: Refugee Protection as an Impure Public Good
- Ronen Bar-El, Kobi Kagan, & Asher Tishler, Forward-Looking versus Shortsighted Defense Budget Allocation
Monday, August 2, 2010
International organizations sometimes suffer from acute agency problems. Three exogenous methods of addressing those problems are considered: economic incentives, political accountability and legal accountability. For international organizations, the first is undesirable and the second inevitably weak. There is therefore an argument for heightened legal scrutiny of their actions. Yet international organizations have an unenviable track record of acting without regard to the most fundamental international standards of rule of law, and this article offers an unsightly catalogue of their legal aberrations. Moreover, the internal legal mechanisms international organizations have created ostensibly to hold themselves to account prove wanting at best. There may also be structural reasons why international courts and tribunals will never be able to conduct an adequate review of the important decisions international organizations routinely take. This makes those organizations’ assertions of blanket legal immunity from jurisdiction of domestic courts appear increasingly inexplicable, as it removes all possibility of legal accountability. The supposed rationales for legal immunities of international organizations are reviewed and proved wanting. The conclusion drawn is that international organizations should be subjected to radically improved regimes of international judicial oversight, or their immunities should be abrogated in certain areas so that they may be rendered subject to the jurisdiction of the domestic courts of the countries in which they operate, or both. Measures of this kind may dramatically improve the quality of decision-making and accountability of international organizations.