CIAO DATE: 11/2008
Volume: 19, Issue: 2
April 2008
Editorial
The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity – Elements of a Beautiful Friendship
Armin von Bogdandy
Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.
The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System
Moshe Hirsch
International economic law (IEL) is influenced by diverse theoretical approaches. This article emphasizes that international economic activity is a social phenomenon and international trade should also be conceived as a specific type of social interaction. The scarcity of sociological analysis in contemporary IEL literature does not diminish the influence of social factors that are active in the under-explored layer of the international economic arena. Sociological analysis may recast well-known dilemmas in a different manner and generate insights regarding better legal mechanisms for coping with modern challenges faced by IEL. These properties of sociological analysis are illustrated in this article, which addresses one of the most challenging dilemmas in current IEL literature: the relationship between the World Trade Organization (WTO) and regional trade agreements (RTAs). The underlying argument of this article is that the economic dimension of RTAs is overlaid with a sociological dimension. Consequently, the global/regional debate is analysed with new conceptual tools: sociological theories, mainly the structural-functional perspective, the symbolic-interactionist approach, and the social conflict perspective. The core sociological theories lead to different conceptions of IEL and different interpretations of existing WTO legal provisions regarding RTAs. This article argues that while each of the above sociological approaches underscores certain significant aspects of the global/regional debate, the symbolic-interactionist perspective should generally serve as a point of departure for law- and policy-making in this sphere. This approach suggests that the relevant WTO legal rules should be interpreted in a liberal manner.
The Legal Reasoning of ICSID Tribunals – An Empirical Analysis
Ole Kristian Fauchald
This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a ‘fragmentation' of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.
Determining the Necessity of Domestic Regulations in Services: The Best is Yet to Come
Panagiotis Delimatsis
A necessity test is a tool that reflects the balance between each country's prerogative to regulate in its own jurisdiction and the multilateral interest in progressive liberalization of services trade. Experience gained in goods trade indicates that the principle of necessity can be a useful proxy allowing the judiciary of the World Trade Organization (WTO) to draw the dividing line between legitimate regulation and protectionist abuse. This article explores the possibility of creating a necessity test that would be applicable to all services sectors. Such a horizontal test may yet emerge from the current negotiations within the Working Party on Domestic Regulation (WPDR), which aim to fulfil the legal mandate contained in Article VI(4) of the General Agreement on Trade in Services (GATS or the ‘Agreement’). At the core of this mandate, as clarified by various negotiating documents, lies the requirement that Members ensure that domestic regulatory measures relating to licensing, qualifications, and technical standards do not constitute unnecessary barriers to trade in services.
Making Markets Work: A Review of CDM Performance and the Need for Reform
Charlotte Streck, Jolene Lin
The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
Beyond the Law: The Bush Administration's Unlawful Responses in the ‘War’ on Terror
Mark A. Drumbl
Interpretation and Revision of International Boundary Decisions
Enrico Milano
International Institutional Reform: 2005 Hague Joint Conference on Contemporary Issues of International Law
Dirk Hanschel, Dr
The World Trade Organization: Law, Practice, and Policy
Tomer Broude
Regional Trade Agreements and the WTO Legal System
Jürgen Kurtz
Geistiges Eigentum in konkurrierenden völkerrechtlichen Vertragsordnungen: Das Verhältnis zwischen WIPO und WTO/TRIPS
Thomas Dreier
National Parliaments and European Democracy: A Bottom-up Approach to European Constitutionalism
Francesco Duina
EU Administrative Governance
Paul W. Thurner
Families and the European Union: Law, Politics, and Pluralism
Eugenia Caracciolo di Torella
EU Competition Law: Procedures and Remedies
Hans Vedder, Dr