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Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia

Published on December 31, 2009        Author: 

Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa

Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia” and de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

What is the role of self-determination in regulating territorial conflicts in the post-Cold War world? According to the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: there is no such role. The Report takes a conservative view on the principle of self-determination claiming that it can justify the emergence of new states only in the contexts of decolonization. While noting that there is a body of scholarship that understands self-determination in a remedial way—as a right of seriously persecuted groups to secede from an oppressive state, the Report claims that documents that purport to give backing to this interpretation, such as the Friendly Relations Declaration, are merely “ a deviation from general state practice” (138).

The Report is not without ambiguities, and quite possibly inconsistencies. In Chapter 3 of Volume 2, the Report discusses the criteria for statehood consisting of objective and ‘additional’ criteria. The objective criteria are a defined territory, a permanent population, and an effective government. Interestingly, the Report mentions self-determination as an additional “standard for the qualification of an entity as a state”, which together with prohibition of the use of force and the degree of recognition of the entity ought to inform the judgment of states about whether or not to recognize the nascent entity as an independent state. From this list, one might infer that the officials of foreign states ought to make a judgment about whether the emergent entity has been created in accordance with the principle of self-determination. Given the Report’s opinion on the geographical and historical scope of self-determination, such a judgment couldn’t apply to the states that arose outside of a decolonization context. A more charitable (if questionable), reading of the ‘additional standard’ would be to understand self-determination in its internal capacity. Understood this way, the “qualification” of whether a state exists would turn on whether the new entity provides mechanisms for participation, representation and political equality. The Report does maintain the possibility that the additional criterion of self-determination is not necessarily a legal norm, but a political standard. Such an interpretation would show the way out of inconsistency, but would immediately open up a more difficult question: How can we access the putative normative promise of self-determination now that self-determination had become a defunct legal principle unable to tell us when to trigger the creation of a new polity, how to draw its boundaries, and what degree of recognition to accord to such an entity?  Read the rest of this entry…

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Belgium sues Swizterland in the ICJ in a dispute concerning recognition and enforcement of a civil judgment

Published on December 30, 2009        Author: 

Last week, Belgium initiated proceedings in the ICJ against Swizterland in a dispute raising issues of private international law and of the relationship between public international law and private international law. The dispute concerns:

“the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters . . ., and the application of the rules of general international law that govern the exercise of State authority, in particular in the judicial domain, [and relating to] the decision by Swiss courts not to recognize a decision by Belgian courts and not to stay proceedings later initiated in Switzerland on the subject of the same dispute”. [See Press Release here]

The dispute arises out of the parallel proceedings pursued in Belgium and Switzerland by the main shareholders of the former Belgian airline – Sabena (which is now in bankruptcy). Those shareholders included the Belgian State (as well as companies owned by Belgium) and the Swiss airline formerly known as Swissair. After proceedings were brought in the Belgian courts by the Belgian shareholders against the Swiss shareholders, the latter in turn brought proceedings in the Swiss Courts. Belgium asserts that

“the Swiss courts, including in particular the Federal Supreme Court, have however refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention and ‘the rules of general international law that govern the exercise of State authority, in particular in the judicial domain’.” [See Press Release here]

It is rare for the court to have to deal with a case that raises issues of private international law but this has happened before – in the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (1958). What appears to be particularly interesting about the present case is that it raises issues about the impact of public international law on private international law. This is because Belgium argues that Swiss Courts are under an obligation to stay proceedings brought in that country not only as a result of the Lugano Convention but also because this result is dictated by the rules of general international law relating to jurisdiction. According to Belgium, the failure by Switzerland to stay the proceedings is a breach of “the rule of general international law that all State authority, especially in the judicial domain, must be exercised reasonably.”

Belgium has requested that the case be heard by a Chamber of the Court rather than by the full Court. This case is the third to be initated in the ICJ in 2009. Interestingly, the first was also brought by Belgium (against Senegal) [see EJIL:Talk! commentary on that case here, here and here]. The second case brought by Honduras against Brazil has not been entered on the Court’s general list of cases (see EJIL:Talk! commentary here)

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Grand Chamber Judgment in Sejdic and Finci v. Bosnia

Published on December 22, 2009        Author: 

Update 6 September 2010 – see also this post.

Appropriately enough in light of our recent discussions of international constitutionalism, today the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (our previous coverage here; judgment here, but the HUDOC link might not be permanent). The case is by any definition a landmark for Strasbourg, not to mention Sarajevo.

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Reflections on the International Legal System as a Constitution

Published on December 21, 2009        Author: 

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. This post is adapted from “The International Legal System as a Constitution” in: J.L. Dunoff/J.P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge UP 2009), pp. 69-112

International lawyers have often construed international constitutionalism as an offspring of the institutionalization of international law. An international constitutionalism would be able to draw the conclusion from the increasing institutionalization of the international realm by applying principles known from domestic constitutional law to the international system, resulting in a universal Kantian “state of law,” away from the “state of nature” or anarchy of international relations. In the same vein in which a constitution unifies the domestic polity in one legal superstructure, a developed, institutional reading of international law would unify the international community in one coherent constitutional structure.

 Today, this institutionalist reading of international law has fallen prey, in a certain regard, to its own success. While an increasing institutionalization and organization of international organization can hardly be doubted, the general impression is one of fragmentation rather than constitutionalization of the international legal system. In other words, the diverse and divergent institutions fail to come under a single scheme; rather, the systemic character of international law seems threatened by a multiplicity of international régimes without obvious coherence. The constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole. Calls for a true constitutionalism that would put the different subsystem into order confirm this intuition.

The absence of a single world constitutional order, however, should not blind us to the ever-increasing relevance of international cooperation and concomitant legal regulation for individual human beings. International constitutionalism needs to be decoupled from the building of new international structures. Rather, what is called for is a constitutional mind-set (Martti Koskenniemi) or a constitutional reading of the international legal foundations on which today’s fragmentation of international legal rules rests. Rather than asking whether the constitutional structure of the Charter organs are sufficiently similar to those of the state, my piece reflects on whether and how the international legal order fulfils the background principles for a constitutional order in the constitutional tradition. If not, the resistance to international regulation will likely – and justifiably – grow, and the accommodation needed for international order will not be forthcoming. Read the rest of this entry…

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The Normativity of International Constitutionalism?

Published on December 18, 2009        Author: 

Professor Gráinne de Búrca is Professor of Law at  Fordham Law School, and during 2009-10 is a Straus Inaugural Fellow at NYU Law School.  She was previously Professor of Law at the European University Institute and Lecturer in Law at Oxford University

One of the aims of Ruling the World?, the interesting collection of essays which Jeff Dunoff and Joel Trachtman have assembled, is to try to understand the increasingly common practice of referring to instances of international or transnational governance in constitutional terms.   What does the vocabulary of international constitutionalism signify, and what is it intended to mean?   They argue for clarity on this basic analytical issue, and propose an understanding of ‘international constitutionalism’ in functional terms.   International constitutionalism should, they argue, be understood to refer to norms which enable or constrain the production of international law.   Their account is entirely neutral (international constitutionalism as a process with no particular teleology) and resolutely functional, such that even their description of the normativity of international constitutionalism has an instrumental rationality. Thus they argue that international constitutional norms should be assessed according to “their ability to enable individuals and states to advance the international public policy goals that they aim to achieve”.

Neil Walker’s concern with international constitutionalism, on the other hand, is with the normative implications of drawing on the language of constitutionalism in the first place to describe the growth and mutation of forms of legal authority across the transnational domain.  The implicit suggestion here, contra Dunoff and Trachtman, is that the development of international constitutionalism is not a natural or a neutral process.  In other words, the decision to frame a development in the language of ‘international constitutionalism’ is a conscious and consequential one, given the symbolic capital of the discourse of constitutionalism and its deep domestic origins. A similar point has recently been made by Stepan Wood and Stephen Clarkson in their rather more sharply critical analysis of ‘supraconstitutional’ regimes such as the NAFTA (“NAFTA Chapter 11 as SupraConstitution“). Like Dunoff and Trachtman, they define international constitutionalism in functional terms but, unlike Dunoff and Trachtman, they do so by reference to what they describe as the function of supraconstitutional regimes in constraining and transforming domestic law and constitutionalism.  Like Neil Walker, they also emphasize the symbolic capital of constitutionalism in noting that almost all of those who use the language of constitutionalism draw on liberal political theory with implicit or explicit reference to concepts such as the rule of law, constraint of power, protection of rights and democratic deliberation.

Already here, amongst three recent sets of commentators sharing a similar analytical approach to the phenomenon of international constitutionalism, we see three different normative evaluations.   Read the rest of this entry…

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Reframing EU Constitutionalism

Published on December 17, 2009        Author: 

Professor Neil Walker is Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh

The intense if highly variable focus on constitutionalism in the Ruling the World collection is a reflection of significant changes in global legal relations with which we are only beginning to come to terms. Once upon a time constitutional law was part of a hegemonic pair of dominant legal frames for the Westphalian world. Constitutional law framed the legal authority of states – understood as mutually exclusive sites of sovereign power – while international law was engaged in the relentless and relentlessly precarious business of framing legal authority between states (who were in many respect in unequal or even imperial relations inter se).

 The world has changed. States are very far from being marginal players, but they do not exert the comprehensive legal and political authority they once did. This poses a challenge to international law and constitutional law alike. For each, the post-Westphalian moment both poses a threat and provides an opportunity. International law is in some respects disorientated and decentred by the erosion of state authority. It has to deal with the rise of private power and of forms of supranational authority. It also has to cope with the related matter of the advent of new forms of functional specialisation – of more or less self-contained regimes in such as environmental, trade and criminal law to which states increasingly defer and where general principles of international law are of fading authority. But privatization, transnationalism and fragmentation also afford new opportunities.  A flexible international law can seek to embrace these. If international law has always been about the heterarchical dimension in legal relations – about law between powerful entities – then the new global archipelago offers new possibilities for the adaptation of international law.

For constitutional law the erosion of state authority poses an even more direct challenge. If constitutional law was embedded in the modern state, what happens when the state itself becomes disembedded from its dominant position in the global order? Does constitutional law just become less relevant, ceding ground to the new forms of private and supranational authority? Or, as in the case of the EU or the WTO or the UN, can it become the new framing discourse for each of these entities considered discretely?  Can we think of such supranational organisations in constitutional terms, and can we even begin to think of private or hybrid bodies (such as the internet’s ICANN) in such terms? Can we learn and borrow from state constitutional discourse sufficiently to bridge the legitimacy gap opened up by the erosion of state constitutional authority?  In other words, can the rise of a new constitutionalism be an answer to the decline of the old constitutionalism?

In my own essay in the collected volume, I ask this question of the EU. My answer is a mixed one. Modern state constitutionalism, I argue, involves a fusion of number of framing registers. Read the rest of this entry…

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Cosmopolitan Constitutionalism: A Response to Nico Krisch

Published on December 16, 2009        Author: 

In his post Nico Krisch raises some important points that allow for the clarification of some core ideas. I have little to add to the part of his comments that describe the  “right starting points” and “important insights” but would like to address and hopefully clarify some points that concern the “more problematic turn”. That clarification might not lead to an agreement, but it might help provide a deeper understanding of cosmopolitan constitutionalism and its connection to constitutionalism more generally. My comments will address first the connection between constitutionalism and “the dream of reason” (1)  and second the relationship between constitutionalism and the law and politics divide (2) and, very briefly (3) the claim that international law is different.  Read the rest of this entry…

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The Dream of Reason: A Response to Mattias Kumm

Published on December 16, 2009        Author: 

Nico Krisch is Professor of International Law at the Hertie School of Governance, Berlin  

We tend to fill voids with what we know. When we are thrown into unfamiliar spaces, we try to chart them with the maps we possess, construct them with the tools we already have. Working with analogies, extending and adapting existing concepts, seems usually much preferable to the creation of ideas and structures from scratch, not only because of the risks involved in the latter, but also because of our limits of imagination.

When we try to imagine the postnational space, it is not surprising then that we turn for guidance first to the well-known, the space of the national. The postnational, no doubt, is unfamiliar territory; the shape of its institutions, of allegiances and loyalties, of influence and power, submission and resistance is – sometimes radically – different from what we are familiar with. In Ruling the World?, David Kennedy nicely points out how little we actually know about this space, and how much anxiety this can provoke.

The global constitutionalist project seems to rescue us from this anxiety, it appears as a promise to structure the global level in a similar way to what we know from home. It returns to us a feeling of agency in the face of external circumstances, of reason when confronted with an institutional morass created through power, path dependence or mere accident. And it bears the promise that key political values, such as rights or democracy, will not be neglected simply because we are talking about issues beyond the nation state.

When it comes to spelling out what this means, however, the constitutionalist promise often gets watered down. It turns into constitutionalism with a small ‘c’ , into a quest merely for some stronger rights protection and a few more judicial review mechanisms, all part of a process of ‘constitutionalisation’ without a clear end goal. Samantha Besson’s paper in Ruling the World? highlights the gap between such approaches and what she rightly sees as a much more demanding domestic tradition of constitutionalism, but she too is the victim of adaptive preferences. Because the strong unitary, hierarchical element in constitutionalism clashes with the fragmented, chaotic structure of global governance, she quickly reinterprets ‘constitutionalism’ so as to make it fit – as a softer, more accommodating, broadly pluralist notion. Normatively, this may point into the right direction (I have defended a pluralist position elsewhere too, see here), but the link with ‘constitutionalism’ as we know it becomes very weak indeed.

Glossing over the extent of the challenge would not be Mattias Kumm’s style. In his paper in this volume (see Mattias’ EJIL:Talk! post here) – the focus of my short piece – it certainly is not, for it sets him on a ‘revolutionary’ path and promises us nothing less than a ‘Copernican turn’ in thinking about constitutionalism. Read the rest of this entry…

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The cosmopolitan turn in constitutionalism: on the relationship between national constitutional law and constitutionalism beyond the state

Published on December 15, 2009        Author: 

Mattias Kumm is Professor of Law, NYU School of Law. He is currently Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Harvard Law School.

The greatest impediment to the understanding of the legitimacy, efficacy and coherence of  global public law is the tradition of democratic constitutionalism, at least if that tradition is imagined within a statist paradigm. It is simply not the case that global public law – the legal practices emerging under the UN Charter, the practices of the ICC, the ECHR, the WTO, or the contemporary conception of customary international law, which no longer mirrors the idea of quasi-universal state consent– are troubled by structural problems of coherence, efficacy or legitimacy of a kind that national law does not suffer from. Statist constitutional thinking distorts the description and assessments of legal practices in three ways. First, it drastically exaggerates the coherence, legitimacy and efficacy of domestic constitutional practices (call this “idealist distortions”). Second, it unilluminatingly casts a general cloud of suspicion over legal practices beyond the state that are imagined as fragmentized, deficient legitimacy-wise and burdened by problems of compliance (call this “faux realism”). Third, it tends to neglect the connection between domestic legitimacy and efficacy and the wider regional or global legal context in which these practices take place (call this “misguided separation”). The legitimacy and efficacy of national and transnational legal and political practices are much more closely connected then conventionally acknowledged.

The legitimacy of the practice of democratic constitutionalism depends in part on the how it relates to the wider legal and political world.  To illustrate the point: National democratically enacted “beggar thy neighbor” policies relating to, say, carbon-dioxide emissions are not legitimate, simply because they were enacted in a democratic process, ultimately authorized by a constitution authorized by “We the People” . If some Pacific Islands were to disappear as a result of global warming and its populations are uprooted at least in part because of domestic environmental decisions made by, say, the US, the US “beggar thy neighbor” decisions are not legitimate merely because they were supported by democratically accountable institutions under the US constitution: Externalities matter. Conversely, imagine a multilateral global climate change Treaty negotiated in Copenhagen enjoying widespread support from rich, poor, southern and northern states, but  suffering from the lack of support of one or two economically important hold-out states.  Now assume that a reformed more participatory UN Security Council Resolution enacted the substantive content of the Treaty as universal obligations, thereby imposing obligations on holdout-states that refused to give their consent to the Treaty: There are circumstances under which the claim that such an imposition of obligations on non-consenting states would be illegitimate because of lack a lack of democratic accountability would be implausible. The comparative advantage in terms of legitimacy might, under some circumstances, be on the side of global law.

 Similiarly, the efficacy of domestic constitutionalism is generally exaggerated. Think of the quotidian “underenforcement” of constitutional provisions (or adminsitartive or criminal provisions) on the one hand and the breakdown of civil order and civil war on the other. Law is a fragile thing, both inside and outside the state. Read the rest of this entry…

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Ordinary and Constitutional International Law: A Response to David Schneiderman

Published on December 14, 2009        Author: 

We value very much David Schneiderman’s excellent comments on the introductory chapter of our edited volume, Ruling the World.

Our goal was neither to be normative in the sense of saying what should be, nor to be comprehensive in the sense of including all important international law in the category of “international constitutional law.”  We tried to devise a distinct definition of “constitutional” law at the international level.  It seemed to us that a strong analytical framework might be undermined if we tried to include in “constitutional law” all international law that is important, or morally compelling.  In other words, we wanted to develop an approach that could distinguish between a highly legalized international order and a constitutionalized international order.

In our view, then, it became necessary to narrow what we term “constitutional” at the international level, in order to produce an analytically distinct category.  Read the rest of this entry…

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