Home 2010 July

UK to Restrict Universal Jurisdiction Laws (but only slightly)

Published on July 31, 2010        Author: 

The UK government has announced recently that it plans to introduce legislation which would somewhat restrict the application of universal jurisdiction in the UK. The proposed rules do not restrict the scope of universal jurisdiction in the UK but will affect the possibility of private persons obtaining an arrest warrant in relation to universal jurisdiction crimes. The statement released by the government is as follows:

“Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.

It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.

The Government has concluded, after careful consideration, that it would be appropriate to require the consent of the Director of Public Prosecutions before an arrest warrant can be issued to a private prosecutor in respect of an offence of universal jurisdiction.”

Is this part of the demise of universal jurisdiction? I think not. The change is only a very slight restriction on how universal jurisdiction legislation will be applied given that the consent of the UK Attorney General was always required for prosecutions under such legislation. Also, it is worth pointing out that just last year the UK extended UK jurisdiction with respect to crimes under the UK’s International Criminal Court Act. Read the rest of this entry…


The Constitutionalization of International Law: Conclusions

Published on July 28, 2010        Author: 

Chapter 7  of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.

1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.

2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. Read the rest of this entry…

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Democracy beyond the state and the problem of too much democracy – Observations on Chapter 6: ‘Dual Democracy’

Published on July 27, 2010        Author: 

 In Chapter 6 of The Constitutionalization of International Law which deals with ‘Dual Democracy’, Anne Peters engages (see post here) with the challenges presented by regulation by non-state actors and the reduction in the importance of sovereign consent in international law to the practice of domestic democracy. The two-track solution depends on the democratization of domestic political systems (democracy within the state) and the democratization of international organizations and other non-state actors, principally through the introduction of parliamentary assemblies and consultation mechanisms (democracy beyond the state).

 International parliamentary assemblies might provide a useful addition to the global institutional architecture, but they would not ensure the democratization of global governance. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community constructed by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure the representation of the plurality of dominant political opinions within states and to compensate for the democratic deficit that results from the application of the principle of sovereign equality in international law-making (one-state; one vote, irrespective of population size). The most significant contribution would be in establishing an institutional mechanism to monitor the governance activities of global regulators and providing a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms. Read the rest of this entry…

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Preliminary Thoughts on the Kosovo Opinion

Published on July 26, 2010        Author: 

Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.

As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.

In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.

The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244. Read the rest of this entry…

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ICJ finds that Kosovo’s Declaration of Independence not in Violation of International Law

Published on July 23, 2010        Author: 

The International Court of Justice has held that the declaration of independence by Kosovo is not in violation of international law.  Despite what is likely to be said in the media, this opinion is rather narrow. The Court has not ruled that Kosovo is (or is not a State) nor has it ruled that it is lawful (or unlawful) for States to recognise the independence of Kosovo. All that the Court has said is that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence. I suppose this is of some relevance to other people aspiring for independence as it indicates that international law does not prevent a minority from trying to achieve independence – by means of a verbal declaration. I doubt that this is in any way controversial but just to have the ICJ say this gives a political boost to those aspiring for independence. So in this sense, the opinion is a victory for Kosovo.  As Marko stated in his excellent preview (which is still worth reading as it captures really well the issues before the Court and the options that it had before it), one of the key issues before the Court was the “question question”: what was the scope of the question before the Court? According to the Court:

“The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly.” (para. 51)

Furthermore in answering the narrow question as to whether or not the declaration was in accordance with internationa law, the Court took the view that all it had to do was decide whether or not the declaration was prohibited by international law. In its view, it was not called upon to decide whether Kosovo had a right or entitlement to declare independence. This mean that issues to do with self-determination and whether there was a right of minorities to “remedial seccession” were not addressed by the Court . Read the rest of this entry…


Thinking Politically about Global Constitutionalism

Published on July 22, 2010        Author: 

Jean L. Cohen is Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization at Columbia University.

I was asked to respond to the chapters of Anne Peters in the new volume, The Constitutionalisation of International Law. Peters’ work is comprehensive, diligent and impressive in its erudition and scope.  It gives a good overview of the arguments on all sides yet does not convince me.  I’ll summarize the general thesis and make some remarks along the way and in conclusion.

Peters’ chapter on Dual Democracy must be situated in the cosmopolitan camp.  Her thesis is that global constitutionalism requires democracy and that democracy must be dual: i.e. it must operate on two tracks: one statist, the other individualist, the former relating to governance within states, the latter to governance ‘above’ states. While it is not clear to me why global constitutionalism requires democracy (Much could depend on the concepts of constitution and constitutionalism which are not examined in these chapters. But whatever conception one works with, surely it is not convincing to equate constitutionalism and democracy: rather their interrelation requires serious theoretical and perhaps historical reflection).  Obviously the real thrust of the chapter is about imagining a feasible utopia of democratic global governance.  There’s no need to repeat the arguments as to the non-democratic character of international law-making or of global governance institutions.  Clearly the issue of legitimacy arises due to the expanded scope and reach of international/global law and governance.  For Peters, legitimacy means democratic legitimacy.  She usefully canvasses all the usual suspects in the democratic camp and comes up with her own distinctive position.  The strength of her position is that it avoids the substitution-alism of many models – cosmopolitan democracy does not replace democracy within states, global civil society does not replace domestic or global government, mechanisms of direct democracy do not replace mechanisms of representation or accountability.  Nor does her approach simply rest on the domestic analogy: she trys not to simply ratchet up democratic arrangements and mechanisms developed in democratic states to the globe or to international organizations (IOs) or in today’s parlance, global governance institutions (GGIs).  To be sure, she works with a strong conception of democratic principles—political equality, participation, inclusion of all governed, responsiveness and accountability of the governing actors and the sanction power of citizens to throw out politicians normally through elections.  But the dualistic conception is contrived to mesh with the dualism of the world order—i.e. as one that is and will remain composed of both states and individuals.  Thus against substitutes like theories of deliberation, participatory democracy or competitive democracy (ascribed to Dryzek, Pateman, and Pettit respectively) that allegedly should replace formal electoral democracy, she rightly argues that these do not on their own merit the label, democratic unless they hook up with formal i.e. electoral democratic mechanisms.

 How then to resolve the democratic deficit of international law?  So what is dual democracy?  Again, the constitutionalisation of international law in this chapter entails democratization which must occur on two distinct tracks. Read the rest of this entry…

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Constructing the Global Constitutional Community – A Response to Anne Peters

Published on July 21, 2010        Author: 

Steven Wheatley is Professor of International Law at the University of Leeds, and author of The Democratic Legitimacy of International Law (Oxford, Hart, 2010).

 It is a pleasure to comment on this publication and especially the arguments developed and summarized on EJIL Talk! by Professor Anne Peters (see here), whose writings are constantly illuminating and provocative in their analysis of the emergent patters of international law and concern for the establishment of political legitimacy for global regulation.

The focus of Chapter 5 – ‘Membership in the Global Constitutional Community’ – is the increasingly significant distinction in the theory and practice of international law between the concepts of an international community of states and international community of state and non-state actors. The analysis highlights the shift in international law from a system of inter-state contract to one of global governance in which regulatory norms are no longer exclusively established by an expression of sovereign will (the ‘Westphalian’ paradigm). States retain a pre-eminent role in the regulation of world society, which is justified by their roles as representatives of citizens and guarantors (through the coercive instruments of government power) of the rights of the individual. States are, though, not the only actors in global regulatory settings: individuals, international organizations, international non-governmental organizations and business organizations are increasingly recognized as possessing a legitimate ‘voice’ in the development of international law norms and in the design of regulatory mechanisms and measures.

The inclusion of non-state perspectives might not present a revolutionary or constitutional ‘moment’ in the regulation of world society; it is, after all, an example of the better, more inclusive, forms of law-making familiar to advanced democracies. The argument here, though, extends beyond conceptions of ‘best practice’. The Global Constitutional Community includes both ‘sovereign’ states and a plurality of non-state actors, all of which are instrumentally valuable to the extent that they represent the interests of individuals and allow for the avoidance of domination over and injustice against persons. The shift from an ‘international community of states’ to a Global Constitutional Community suggests that the legitimacy and validity of global law norms must depend (at least in part) on the establishment of law-making processes that allow for the representation of the plurality of interests and perspectives of individuals in global political debates and discourses – as global citizens; as citizens of democratic states; and as political actors with ‘self-interested’ and ‘other-regarding’ positions. Two questions arise: the extent to which it is meaningful (in theory or practice) to speak of a (global) political community defined by the concept of international law; and whether the constitutionalist concern to establish political legitimacy for global norms is undermined by an analysis that constructs the world of law in the image of hegemonic power. Read the rest of this entry…

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Dual Democracy

Published on July 21, 2010        Author: 

This post summarises the ideas in Chapter 6of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.

1. Overview of the Argument

Global governance is undemocratic even under a modest standard. The deficits lie in the institutional design of the international organizations and bodies themselves, they result from the way states are integrated into the system of global governance, and finally they concern the relationship between citizens and the international institutions.

On the premises that all rule over persons should be democratic, and that the globalization-induced hollowing out of domestic democracy should be compensated as far as possible, the democratization of global governance is inescapable. Because a stand-still or roll-back of global governance is unfeasible, and therefore no way to re-invigorate democracy, a new design to enhance global democracy is needed.

Global constitutionalism requires dual democratic mechanisms. These should relate both to government within nation states and to governance ‘above’ states, thus to multiple levels of governance. The result should be a multi-unit democracy, built with domestic and international building blocks.

A fully democratized world order first of all rests on democratic nation states, thus on democracy within states. The spread and support of national democracies constitutes a kind of indirect global democratization. It already is and should be further encouraged by international law. Because of its fundamental and systemic importance, the requirement of democracy within states should be acknowledged as a global constitutional principle.

 ‘Above’ states, both the production of primary international law and the international institutions and their secondary law-making can and should be democratized on two tracks. On the one hand, citizens should continue to be mediated by their states which act for them in the international relations (statist track). On the statist track, states as principals of international institutions should be reasserted and their influence improved. But because the ultimate reference point of democracy are natural persons, such a state-mediated democracy is present only to the extent that states really are the representatives of their citizens. It follows that we can meaningfully speak of an indirect democratization of the global order on the statist track only when all states have realized domestic democratic government. As long as not all states are democratic, a large number of people are not represented in a democratic sense by their states in the international institutions. Read the rest of this entry…

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Membership in the Global Constitutional Community

Published on July 20, 2010        Author: 

Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. She is a member of the Scientific Advisory Board of the European Journal of International Law. This post summarises the ideas in Chapter 5 of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.

There is a global constitutional community which is made up by individuals, states, international organizations, NGOs, and business actors. From a constitutional perspective informed by normative individualism, individual human beings are the ultimate unit of that community. But because states are officially held to be the legal representatives of citizens on the international plane (however fictitious this might be for some states), are still – as a group – the most powerful global actors, and are (in most areas of the world) important repositories of political, social, and cultural identity, international law and global governance must remain, in order to preserve a sufficient level of legitimacy, linked to states. The ultimate responsibility for governance should not be transferred to non-state actors and certainly not on business actors. However, the involvement of non-state actors in law-making and -enforcement can be an important additional source for the legitimacy of global governance. It should consequently be broadened, structured, and formalized.

1. In a constitutionalized world order, natural persons are the primary international legal persons and the primary members of the global constitutional community. Individuals are so far quite firmly entrenched as international bourgeois, i.e. as passive beneficiaries of largely unenforceable rights. They have been granted more and more international rights and obligations beyond human rights, such as the right to environmental information, procedural rights in various international forums, or secondary rights to reparation. Individuals may also incur criminal liability flowing directly from international law. This trend contributes to the creation of different layers of rights (those of constitutional significance and others), and thereby manifests constitutionalization in the sense of an emergence of a specific layer of constitutional law besides (possibly ‘above’) ordinary international law.

There is a very weak trend towards the inclusion of individuals in the international legal process through hearings, giving opportunities to comment, and other types of participation. Individuals are thereby in political terms empowered. The doctrinal consequence of the citizens’ right to political participation in global governance – which is in constitutional terms desirable – is that individuals are upgraded from mere passive international legal subjects (as holders of human rights and bearers of criminal responsibility) to active international legal subjects, to co-law makers. The legally relevant difference is that passive subjects are only capable of having rights, whereas active legal subjects are capable to create law. This empowerment could be described as a trend towards transnational citoyenneté.

2. States – as international legal subjects – are constituted by international law. As a prerequisite of statehood, the legal principle of effectiveness has in state practice been complemented by standards of legality properly speaking. Read the rest of this entry…


ICC Prosecutor’s Inaccurate Statements about the Bashir Arrest Warrant Decision

Published on July 19, 2010        Author: 

In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. Read the rest of this entry…

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