International law: - unity or fragmentation, - constitutionalization or legal pluralism

1
International law - unity or fragmentation, -
constitutionalization or legal pluralism

• International constitutional law
• Inger-Johanne Sand nov.13 2008

2

• Activities are becoming increasingly inter- and
  transnational or cross-boundary
• - 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,

3

• 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)

4

• 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.

5
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,

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• 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

7

• 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
  

8

• 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,

9

• 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,

10

• 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,

11
New treaties and organizations, economic

• GATT, 1947, (the Washington Consensus)
• IMF,
• the World Bank,
• WTO/GATT
• the Dispute Settlement Understanding (DSU), 1992,
  
• WTO - TBT, SPS, TRIPS, 1992,

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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,

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• 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 EU-parliament,
• An increasing number of functioning and efficient
  courts
• International treaties on environmental law,
• WTO-law regulating international markets, with
  a court-like 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,

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The UN

• From the great powers to all member states,
• Goals
• - peacekeeping, security, - deal with
  international disputes, - economic/social
  cooperation, - human rights,
• 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,

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• 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,
• - 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.

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• 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,

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• 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,
• - 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,

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• Economic and social cooperation
• ECOSOC Economic and Social Council,
• - 1974 The New international economic order,
• - several UN sub-organizations
• - UNICEF
• - FAO, WHO,
• - UNCTAD,
• - UNDP,
• - Emergency and Relief work,

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• EU constitutionalization of international law?
• - comprehensive powers,
• - enumerated powers,
• - vertical integration,
• - functioning courts,
• - judicial review,
• - judicial, but not legislative
  comptence-competence,

20
WTO

• GATT 1947 ,
• - general elimination of quantitative
  restrictions,
• WTO 1992
• Dispute settlement understanding
• - Panel and Appellate Body,
• From diplomatic to judicial problemsolving,
• Cases - meat hormones (97), GMO (2006)
• SPS, TBT,
• TRIPS,

21
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,

22
ICC International Criminal Court

• - individual responsibility for state leaders,
• - autonomus international court,
• - crimes against humanity, mass murders etc.
• Ruwanda and Yugoslavia tribunals,

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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,
• - 125 tribunals or courts,
• - more effective and competing courts,

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• 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,
• Transnational communities, lex Mercatoria,
• - professional, technical, expertise bodies,
• - developing international standards,
• - examples ISO, Helsinki declaration,

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Patent Protection for medicines / WTO

• 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,

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• 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,
• 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 ICANNs lack of legal sanctions,