Monthly Archives: March 2011

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective. The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are “objectively” something else. Continue reading →

This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective. The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a constitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, independent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise. It is a legitimate form of interpretation, not a distortion of norms that are “objectively” something else. Continue reading →

Global constitutionalism is an agenda that identifies and advocates for the application of constitutionalist principles in the international legal sphere. Global constitutionalization is the gradual emergence of constitutionalist features in international law. Critics of global constitutionalism doubt the empirical reality of constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is normatively dangerous because it is anti-pluralist, artificially creates a false legitimacy, and promises an unrealistic end of politics. This article addresses these objections. I argue that global constitutionalization is likely to compensate for globalization-induced constitutionalist deficits on the national level, that a constitutionalist reading of international law can serve as a hermeneutic device, and that the constitutionalist vocabulary uncovers legitimacy deficits of international law and suggests remedies. Global constitutionalism, therefore, has a responsibilizing and much-needed critical potential. Continue reading →

Environmental thinking and activism are steadily gaining widespread, even global acceptance, but are often in conflict with economic interests and international politics. Environmental priorities are further challenged by scientific uncertainty involving effects that in some cases will only become manifest far into the future. Nonetheless, accompanying this global environmental awakening has been an extraordinary number of international agreements on a wide range of critical environmental issues. While many of these environmental regimes lack adequate financial support and sanctions for non-compliance, they involve a variety of non-state actors, suggesting meaningful movement towards an evolving, complex form of global environmental governance. Indeed, there are already examples of shared global governance where states have ceded some power to intergovernmental organizations to govern specific environmental issues, and this is almost certain to expand in the future. Continue reading →

Are there situations in which otherwise attractively complex, sub- and cross-national networks are unlikely to replace the hoary old Westphalian state? Perhaps, but whatever the answer, global governance as a discipline seems to have a hard time fully considering the question. One of the problems with operationalizing global governance may be the simultaneous profligacy and poverty of the idea itself: its definitional overemphasis on change and consequent inattention to the state’s capacity to reconstitute its core functions and thus to achieve a predictable continuity. As a result, for all the excellent work done under its name, global governance as a unifying concept may actually contribute very little, and be less than the sum of its parts. Thinking about limits is not necessarily skepticism about the processes that collectively constitute global governance, but a way to give more meaningful shape to ideas which, as yet, are as problematically defined as they are fashionable. Continue reading →

International non-governmental organizations (INGOs) promote good governance through global advocacy and through relief and development work. This article focuses on the latter role. While there are legitimate criticisms of INGOs’ lack of accountability, this article argues that a review of the different stakeholders in the relief and development sector and their relationships with one another reveals valuable information about what accountability means and to whom stakeholders should be accountable. The article posits that INGOs should be accountable, above all, to the communities where they are implementing projects. Finally, the article points to many efforts being undertaken by INGOs to improve their accountability to communities but asserts that INGOs’ efforts would be significantly enhanced if other stakeholders, including donor governments and intergovernmental, organizations addressed their own accountability to communities as well. Continue reading →

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This essay argues that the constitutional changes that occurred are a necessary but not sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and by long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court. Continue reading →

International rule of law practitioners are important sources of knowledge transmission in the promotion of global governance. Yet they face significant barriers in their role as bearers of a globalizing legal culture. This article analyzes three of these barriers in the context of rule of law promotion in Central Asia. First, practitioners tend to dismiss the political nature of their work, which local actors then appropriate for their own purposes. Second, this misconception is amplified by the lack of adequate training, experience and continuity among rule of law practitioners. Third, the language barrier and the challenge of translation remain underappreciated. Translation must go far beyond a mere exchange of words and become a transmittal of the historical and cultural experiences embedded in language that make the concept of global governance plausible. Only a persistent presence and a commitment to mutual cooperation can surmount these barriers. Continue reading →

This article uses an anthropological approach to critically examine the limitations and successes of the contemporary disability rights movement in post-Soviet Ukraine. Case studies of rights legislation and the work of disability advocacy NGOs are detailed to illustrate the paradoxes and problems that imbricate disability rights issues, and the strategies some activists have leveraged to successfully navigate these challenges. The article suggests specific tactics that rights groups in Ukraine might pursue to further enact change in their communities, including pursuing more international partnerships, fielding candidates for political office, and launching informational and image campaigns. Continue reading →

This article addresses representativity questions that arise from the formal insertion of private, functional groups within the European Union (EU) governance via the EU social dialogue. It depicts the representativity debate at the EU social dialogue and suggests that important lessons can be learned through the examination of another institutional context in which similar questions have been raised and addressed: the International Labor Organization (ILO) tripartite structure. In addition, it ascertains that the issue of representativity of the EU social partners would further benefit from viewing it in the broader context of the EU “democratic deficit.” The article concludes that such an analysis underscores the need to rethink the current understanding of representativity in the EU social dialogue. In particular, it considers the benefits and disadvantages of expanding the notion of representativity to encompass the internal structural mechanisms of the EU social partners. Continue reading →

With global personal information flows increasing, efforts have been made to develop principles to standardize data protection regulations. However, no set of principles has yet achieved universal adoption. This note proposes a principle mandating that personal data be securely destroyed when it is no longer necessary for the purpose for which it was collected. Including a data deletion principle in future data protection standards will increase respect for individual autonomy and decrease the risk of abuse of personal data. Though data deletion is already practiced by many data controllers, including it in legal data protection mandates will further the goal of establishing an effective global data protection regime. Continue reading →

The goal of this conference, the fourteenth annual symposium of the Journal, is to apply what we have learned about global governance to that project. How does governance really work on the ground as we seek to solve global problems? Conference participants sought to conceptualize global governance not as a theory but as a pat tern of practices in operation. Without losing sight of the specificity of particular issues, they attempted to identify common principles or practices emerging across areas of operation as actors involved in global issues sought to promote the common good.

The participants in the Symposium included scholars and practitioners from the United States and abroad. They were: Adeno Addis, Tulane University Law School; Sarah Altschuller, Foley Hoag LLP, Washington D.C.; Larry Catá Backer, Pennsylvania State University Dickinson School of Law; Tim Baines, Dewey & LeBoeuf LLP, London; Michael Ewing-Chow, Faculty of Law, National University of Singapore; Faina Milman-Sivan, Professor of Law, University of Haifa; Muna Ndulo, Cornell Law School; Sarah Phillips, Professor of Anthropology, Indiana University; Blake Puckett, Ph.D. candidate, Indiana University Maurer School of Law — Bloomington; Gustavo Ribeiro, S.J.D. candidate, Indiana University Maurer School of Law — Bloomington; Miguel Schor, Suffolk University Law School; Michael Szporluk, Mercy Corps; Robert Wai, Osgoode Hall Law School; and Timothy Waters, Indiana University Maurer School of Law — Bloomington. Continue reading →

The evolution of environmental law in the past century has been linked to the growing acceptance of the notion of collective global responsibility, which entails the notion of sustainable development. At the turn of this century, the focus in environmental law has shifted from the creation of a global framework to deal with environmental problems to that of compliance with these frameworks. As a result, the primary actor of environmental policy has shifted from the state to the corporation. How has environmental law developed so as to encourage compliance by this new primary actor? Conversely, how has the corporation been changed by these developments? This article will trace the historical shift in environmental actors from the early beginnings of environmental law to the challenges faced today. As the multinational corporation has become the primary actor, this article also considers ways in which incentives can be created for multinational corporations to behave in environmentally responsible ways. Continue reading →