Download International law: - unity or fragmentation,

International law:
- unity or fragmentation,
- constitutionalization or legal
pluralism
International constitutional law
Inger-Johanne Sand nov.13 2008
• Activities are becoming increasingly
inter- and transnational – or crossboundary :
• - international trade,
• - financial markets,
• - economic interdependence,
• - international pollution and environmental and
climate change,
• - international trade means that we may place our
pollution in other parts of the world,
• - international migration,
• - international human rights,
• - international cultural exchanges,
• The distinction between internal and external
problems is becoming increasingly blurred
and dissolving - factual globalization – and
international problemsolving may be needed:
• - Environmental and climate problems. (factual)
• - International trade and international financial
markets. (constructed)
• - International human rights standards.
(normative)
• - International migration. (factual, constr.,
normative)
• Unity vs fragmentation of law,
• How do we deal with the international
fragmentation of law?
• Constitutionalism ? – trying to connect the
different regimes,
• Legal pluralism ? – accepting the different
regimes,
• A radical rethinking of the conflict of laws.
International law – over time :
• The Westphalian model, 1648 :
• - nation-state sovereignty vs. international law: cooperation among states on a minmum level,
• The UN model 1945 :
• - an increased ambition of cooperation : ,
• - international human rights : 1948 UN Declaration,
• The Cosmopolitan model :
• The realization that many political and economic
problems cross the boundaries of the nation-states,
• Trade, environmental and climate problems, human
rights are in fact international,
• International law
• – the law between nation-states, (UN)
• - in substance, - and in legal validity.
• Supranational law
• - law by international organizations which has been
delegated specific parts of the constitutional power of the
nation-states, (EU)
• - the legislation has direct effect on citizens,
• Transnational law
• - law or legal practice which has been developped
among non-state actors, - such as experts, NGOs,
standardization committes, (ISO)
• - lex mercatoria : private international law
• The constitutionality of the EU :
• - direct effect of regulations, directives and treaties,
• - not only the governments, but also the peoples,
• - supranationality,
• - comprehensive legislative competences,
• - comprehensive administrative apparatus/ powerful
Commission with comprehensive adm., execut powers,
• - admin and judicial decisions sanctionable in member st.
• - judicial review of directives in relation to treaties,
• vertically integrated politico-legal systems,
• judicial review
• no legislative/constitutional ”kompetenz-kompetenz”
• In nation-states:
• - the political and legal systems include all or
any social themes,
• - national constitutions and parliaments are the
institutional framework,
• Internationally :
• - there is a lack of unifying political and legal
procedures and institutions,
• - separate treaties for the different legal and
political themes,
• - but an increase in more effective international
organizations and courts,
• -this opens up for potential conflicts between the
different legal regimes,
• International law: unifying or fragmented?
• The presumed unifying qualities of law in early
modern societies,
• As long as the international level was less
politicized, there was not a perceived problem of
legal fragmentation,
• It is with the increasing number of treaties
dealing with overlapping themes and more
international organizations and courts, that we
get more urgent problems with the fragmentation
of law,
• New treaties and international
organizations, post 1945 – legal
globalization :
• the UN – 1945, - increasing ambitions for international
political and legal cooperation, - the UN Charter, the
Security Council, art.39,
• Sub-UN: - FAO, WHO, UNICEF, UNDP, UNCTAD,
• European Convention of Human Rights, 1950, - and its
Court, the Council of Europe,
• The Universal Declaration and the UN Conventions on
Human Rights,
New treaties and organizations, economic :
• GATT, 1947, (the Washington Consensus)
• IMF,
• the World Bank,
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• WTO/GATT
• the Dispute Settlement Understanding (DSU),
1992,
• WTO : - TBT, SPS, TRIPS, 1992,
New treaties and organizations, trade, evironment :
• The European Community, 1958, - the Rome treaty, creating a common market, and closer cooperation
among the peoples of Europe, - new and more ambitious
institutions: The Council, the Commission, the Court, 1986 : qualified majority voting, Single European Act, 1992 – Maastricht (the Euro), Schengen, Amsterdam,
Nice……
• Other regional (similar) treaties,
• The environment : Stockholm, 1971, and Rio
Declarations, 1992,
• The climate : - the UN Framework Convention on Climate
Change, - the Kyoto protocol,
• The International Criminal Court, ICC, 2004,
• The new legal regimes, combinations of :
• Include national, inter-, supra- and transnational law.
• Comprehensive transferals of supranational legal powers
to the EU, - legislation by the Council and the EUparliament,
• An increasing number of functioning and efficient courts
• International treaties on environmental law,
• WTO-law – regulating international markets, with a courtlike dispute resolution system, and effective economic
sanctions,
• ECHR, - functioning court with binding, but not
sanctionable decisions,
• UN human rights committees,
• International regulations on asylum and international
migration,
• Climate change regimes with strict regulations.
• International Criminal Court – individual responsibility,
The UN
• From ”the great powers” to all member states,
• Goals :
• - peacekeeping, security, - deal with international
disputes, - economic/social cooperation, - human rights,
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General Assembly, - all members,
- political forum for discussions,
Security Council, - 15 members,
- decisionmaking power,
- 5 permanent members with veto power,
Secretariat and the General Secretary
International Court of Justice,
• Peace and security :
• - the lack of an ”army” at the disposal of the UN,
• - UN Charter ch.VII, art.39
• - ”The Security Council shall determine the existence of
any threat to the peace, breach of peace or act of
aggression and shall recommendations or decide what
measures to be taken in accordance with art.41 and 42.”
• Art. 41 – measures not involving use of armed force,
• Art. 42 – measures involving armed forces, if necessary,
• Example : - The Iraq – Kuwait conflict 1990/91,
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- The Iraq war, 2003 - ,
• Resolutions may the SC decide ”when there are acts of
aggression” and where ”armed forces” may be used,
• Failures: - Middle East, Kashmir, Darfur, Somalia etc.
• Human Rights :
• - 1948 – The Universal Declaration of International
Human Rights,
• - 1966 – The two covenants of Economic, Social and
Cultural Rights, and Civil and Political Rights,
• - Later : Covenants on the elimination of discrimination
against women, - on the protection of the rights of
children, - on the elimination of discrimination,
• Monitoring :
• - reports submitted by the States,
• - Inter-state complaints,
• - monitoring committees,
• Human rights :
• - national sovereignty vs. human rights,
• - individual/integrity, - political/civil, - social and
economic, - cultural rights ?
• - law – politics – morals/ethics ?
• Consensus :
• - respect for human dignity,
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- rights of groups and peoples,
- no racial discrimination,
- states must not engage in grave h.r. violations,
- the international community may be justified in
intervening by peaceful means,
• Economic and social cooperation :
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ECOSOC – Economic and Social Council,
- 1974 – The New international economic order,
- several UN sub-organizations :
- UNICEF
- FAO, WHO,
- UNCTAD,
- UNDP,
- Emergency and Relief work,
• EU – constitutionalization of
international law?
• - comprehensive powers,
• - enumerated powers,
• - vertical integration,
• - functioning courts,
• - judicial review,
• - judicial, but not legislative comptencecompetence,
WTO
• GATT – 1947 ,
• - ”general elimination of quantitative restrictions”,
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WTO 1992
Dispute settlement understanding
- Panel and Appellate Body,
From ”diplomatic to judicial problemsolving”,
Cases : - meat hormones (97), GMO (2006)
SPS, TBT,
TRIPS,
United Nations Framework on Climate Change
and Control, Kyoto Protocol :
• - goal : to achieve stabilization or reduction of
greenhouse gas concentration in the
atmosphere,
• - present and future generations,
• - precaution, - sustainable development,
• - developed and developing countries,
• - market-based instruments,
ICC – International Criminal Court
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- individual responsibility for state leaders,
- autonomus international court,
- ”crimes against humanity, mass murders etc.”
Ruwanda and Yugoslavia tribunals,
New aspects of international law :
• The increasing internationalization and
globalization of law,
• - treaties and organizations,
• Functioning international courts,
• - WTO/DSB, - ICJ, - ICC, - ECJ, - ECHR,
• Multi-level governance,
• - several levels of government and governing working
together, but not always coordinated,
• The fragmentation of law,
• - not one constitution, but several parallel treaties,
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- 125 tribunals or courts,
- more effective and competing courts,
• Unity vs fragmentation of law,
• How do we deal with the international
fragmentation of law?
• Constitutionalism ? – trying to connect the
different regimes,
• Legal pluralism ? – accepting the different
regimes,
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Regime collisions :
- WTO / WHO,
- UN / WTO,
- ICJ / ICTY,
- EU / ECHR,
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Transnational communities, lex Mercatoria,
- professional, technical, expertise bodies,
- developing international standards,
- examples : ISO, Helsinki declaration,
Patent Protection for medicines / WTO :
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TRIPS – Trade-related intellectual property rights,
- national treatment, most-favoured-nation treatment,
Transnational medical corporations,
Patents on medicines, to pay for investment,
Problem : - economic differences rich/poor countries,
- HIV/Aids situation,
- South-Africa, Brazil etc.
Members may grant compulsory licences, - particularlly in
cases of national emergency – understood as public
health crisis,
• Exceptions were made : - Brazilian companies were
allowed to produce copy-medicine,
• Ownership to and regulation of the Internet :
• - US National Telecommunications and Administration recognized
(NTIA),1998, Internet Corporation of Assigned Names and Numbers,
ICANN, as a representative and self-regulatory organization, with
delegated authority to issue domain-names for the net, (.com, .org,
.dk), - www.icann.org,
• An adress-, name- and landcode organization,
• ICANN has membership-areas with different public and private
organizations, and individuals as members, - who are presumed to
contribute actively to the maintainance of the net,
• Root servers – the technical infrastructure,
• ICANN – as functioning network-organization,
• With a government-appointed Advisory Committee,
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• 2005 : World Summit of the Information Society :
• - USA vs. UN as responsible for the regulation of the internet,
• - EU active in changing the regulation of the net,
• - criticism of ICANN´s lack of legal sanctions,