Monthly Archives: April 2011

The combination of Asia’s growing material power and its longstanding commitment to principles of sovereignty and noninterference raises questions about the future of post-Cold War concepts of international law and global governance, especially the concept of “human security.” This article analyzes what the emergence of an Eastphalian order might mean for efforts to improve human security. First, it briefly analyzes the concept of human security and its relevance to international law and global governance in the early twenty-first century. Second, I explore why the Asian region might constitute an interesting laboratory for the human security project despite the longstanding commitment of Asian countries to the principles of sovereignty and noninterference. Third, I examine the relevance of Confucian thinking in order to see whether this powerful philosophical heritage of many Asian societies contains insight that will help shape the evolution of Asian perspectives on human security. Fourth, the article briefly considers Japan’s efforts to embrace the human security concept in its foreign policy, especially its development assistance. Finally, it considers whether the emergence of a more Asian-centric international system can develop a distinctive Asian contribution to the problems the concept of human security was developed to address. While some scholars have expressed worry that the rise of Asian countries in world politics may threaten the future of human security as a concept and policy objective, whether such a threat actually emerges depends on how Asian countries perceive human security in light of their philosophical heritage, political principles, and material interests. Predicting the trajectory of human security in an Eastphalian order proves a very complicated task. Continue reading →

The security, political, and economic maps of East Asia have been transformed, and an institutionalized framework for regional cooperation, represented by the “ten-plus-three” process and the East Asia Summit, is emerging. East Asia is surging economically, and this development helps explain why experts perceive that power and influence in international relations are shifting toward Asia. What happens to order in East Asia will significantly affect the role Asia plays in the emergence of any Asia-centric international system. Thus, I begin by providing an overview of order in the East Asian region, emphasizing the importance of economic integration and the pivotal role of Sino-Japanese relations in the formation of a new type of order in East Asia. Then, I examine some new aspects of order formation in the early twenty-first century, which I call power shift, problem shift, and paradigm shift. These developments affect the logic of regional order formation generally and in East Asia specifically. Third, I explore the dynamics of the evolving East Asian order. Fourth, I consider the future of the East Asian order and argue that the key to its further development revolves around the relationship between China and Japan. Finally, I outline a strategic framework for future Sino-Japanese relations based on the convergence and institutionalization of their common interests bilaterally, regionally, and globally. Continue reading →

For at least three decades, it has been quite common in the United States to talk of the coming of the Asian century. Americans have been fascinated with the rise of Japan and then China, and the corresponding reports of the decline of the United States. This psychology may have intensified with the 2008-09 financial crisis and the understanding that China is now playing a central role in assuring global financial, and thereby political, stability. Notwithstanding some Orientalist hyperbole, there is no doubt that Asia has been, and will continue to be, a region of rising power, responsible for an increasing share of world output, innovation, and power, even as the United States declines in relative terms. What will the rise of Asia mean for global governance? Oddly, I believe that any “Eastphalian” world order will mean a return to Westphalia, at least as modern international lawyers understand the term. Drawing its name from the 1648 treaties ending the Thirty Years’ War and the Eighty Years’ War, Westphalia stands for principles of mutual noninterference, an emphasis on sovereignty, and formal equality of states. Eastphalia, should it materialize, will emphasize similar structures, putting an end to the brief interlude of European universalism and global constitutionalism that intensified after the Second World War. Continue reading →

The rise of China and India has transformed the former collective dominance of the United States, Europe, and Japan into a multipolar world. Within this multipolar world, relations between the United States and China will constitute an important bilateral contour for the twenty-first century, as illustrated by the United States-China Strategic and Economic Dialogue that convened in July 2009. In this context, the ideas promoted and practiced by China will have greater weight in influencing and shaping international relations. It is important for other parts of the world to see and understand what differences Chinese power and ideas could make in the evolving, multipolar world and what values China could bring to the new international society. The essay thus focuses on the potential impact of emerging China and discusses ideas practiced and proposed by China concerning international relations. Ideas supported by China are compared with the concepts present in the Westphalian system of international politics. Then, it is questioned whether it is appropriate to see in the rise of China the emergence of an Asian-centric international system. In addition, the essay tries to identify the merits and inadequacies of ideas favored by China. The ultimate purpose is to show that China must integrate other values into its existing ideas if it desires to make a long-lasting impact on world affairs. Continue reading →

In the late eighteenth century, as part of his effort to stop British imperial despoliation of India, Edmund Burke argued that the people and civilization of India were moral equals of Europe, deserving of British respect rather than rapacious exploitation. “I assert,” Burke argued, “that their morality is equal to ours as regards the morality of Governors, fathers, superiors; and I challenge the world to shew, in any modern European book, more true morality and wisdom than is to be found in the writings of Asiatic men in high trusts, and who have been Counsellors to Princes.” 1 Burke further argued that “in Asia as well as in Europe the same Law of Nations applies, the same principles continually resorted to, and the same maxims sacredly held and strenuously maintained” and that “Asia is enlightened in that respect as well as Europe.” 2 Burke’s words fell on deaf ears; British imperialism in India proceeded apace. In the nineteenth century, other Asian cultures and states of ancient origin, especially China and Japan, found their traditional cultural and political practices determined by Western imperial powers to be “uncivilized” 3 and subject to dramatic changes at the hands of European nations and commercial interests. The twentieth century witnessed Asian countries emerge from colonialism into independent, sovereign states, but they often faced political and economic challenges in international affairs from a position of weakness. Not long ago, Asia’s subjugation, exploitation, and vulnerability through its incorporation into the modern international system made the idea that Asian countries would one day reshape international politics from a position of strength a very distant dream. Continue reading →

Fragmentation of public international law (PIL) is perceived as a growing problem and answers to it are proliferating. International courts and tribunals are adjudicating ever more on issues that would be considered—were they not transnational or international in nature—constitutional problems. In national law, countervailing values, or intra-constitutional conflicts, are reconciled through a balancing of those values that is usually embedded in the application of the proportionality principle. A similar mechanism in PIL remains underdeveloped from a methodological point of view. This article aims to develop a methodological proposal for defragmentation through interpretation, drawing on legal theory, to be more precise on a theory of balancing. Continue reading →

In today’s world, nation-states do not operate in isolation. Rather, the myriad global organizations and cross-border treaties evidence that the post-World War II political climate is one of interconnectedness and cooperation between states. Against this backdrop, this Note surveys the tension between the current global world order and a strict adherence to traditional source-based application of Islamic law, Shari’a. The tension begins with the concept of statehood, seemingly absent in traditional Islam, and continues with the Islamic unification of religion and state and its limited role for a political leader. Using Iran as an example, this Note argues that political reality has interfered with the strict application of Shari’a thus enabling the Islamic state to engage in the global society. It is this inherent tension that, despite claims to the contrary, limits an Islamic state’s ability in today’s global society to truly return to “traditional Islam.” Continue reading →

The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part I, I argue that most accepted understandings of “constitution” would readily apply to at least some international regimes. In Part II, I discuss different notions of “constitutional pluralism,” and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of Justice, the European Court of Human Rights, and the Appellate Body of the World Trade Organization are constitutional jurisdictions. In the Conclusion, I respond what I take to be the most important objections to these claims. Continue reading →

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-à-vis their own governments. This article discusses the development of aspects of international law relating to civil rights and argues that if this body of law is meaningful, we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because doing so is not generally in the interest of potential “enforcers”), I argue that international civil rights treaties will have their greatest effect where stakeholders—local citizens—have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized. Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries—those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country- and year-fixed effects, and other obvious influences on civil rights practices. I conclude that the “International Bill of Rights” has the power to influence the direction of rights practices in fluid political situations, but it cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important and are the most we can expect from scraps of paper that the international community has been reluctant to enforce. Continue reading →

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and other principles of justice calling for judicial balancing of all private and public interests affected by the dispute. The constitutional task of judges to apply the law and settle disputes in conformity with principles of justice may require reviewing whether judicial reasoning remains compatible with redistributive principles of case-specific equity, social justice and corrective justice. Continue reading →

The law of international responsibility fulfills essentially two functions: reparation for injury and protection of the rule of law and global order. Notwithstanding the fundamental difference between these objectives, the law of international responsibility traditionally has been conceived in unitary norms consisting of a single set of principles that applies to all breaches of rules of international law. With the further development of international law that unity becomes difficult to maintain. On the one hand, there is an increasing need for a further refinement of liability principles for the determination of compensation for injury. On the other hand, the process of constitutionalization of international law poses entirely different accountability requirements to which the law of international responsibility should contribute. Maintaining unity may lead to inconsistencies and hinder the refinement of the law of international responsibility that is necessary to deal with the various types of responsibility and accountability issues of modern international law, thereby marginalizing the law of responsibility. Continue reading →

Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of “global constitutionalization” is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization. Continue reading →

As powerful actors in the transnational sphere, GPPNs must address three challenges relating to the future of constitutionalism. First, is it possible to put non-state political actors under a constitutional regime? Second, if it is possible, how does one do so? Third, in what ways can the project of constitutionalism be expanded beyond the frame of the nation-state, if at all? The answers to these questions must address the central problem of global constitutionalism: how the traditional bond between the nation-state and its constitution can be dissolved without abandoning the accomplishments that the project of the modern state constitution stands for—founding, legitimizing, and confining democratic governance. Continue reading →

The quest for multilayered governance faces the problem of endemic tensions and disagreements in international relations and doubts as to whether nations truly share common values upon which an international society can be solidly built. Values, however, are equally controversial within the nation-state. We find similar tensions within domestic and regional layers of governance. In any system of governance, diverging and competing values are inevitable. There are differences in degree, but not in principle, when comparing traits of domestic and international governance. Legal experience in the fields of human rights and international trade regulation indicates that under such conditions, procedures are of prime importance. On all levels alike, procedural instruments and guarantees play a key role in arbitrating between competing values, interests, and rights. These guarantees today are unevenly developed, not only in comparing different layers of government, but also foremost in comparing different countries forming part of the international system. They are far from perfect, but offer the way forward for further work toward a coherent legal theory of multilayered governance. Continue reading →

The surge of interest among international lawyers in “constitutionalism” represents one of several efforts to reconceptualize international governance; others include the research projects on global administrative law and legalization. The article applies the constitutionalist lens to international environmental law—one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality of the terms “constitution” and “constitutionalism,” the article begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have more determinate, unambiguous meanings, we can answer the question, “Is there an international environmental constitution?”, in a more nuanced way—not in an all or nothing fashion, but by considering the extent to which international environmental law has constitutional dimensions. The article concludes that, although individual treaty regimes have constitutional features, international environmental law as a whole lacks the hallmarks of a constitutional order. Continue reading →

The United States Treasury conservatively estimates that tax havens cost the United States over $100 billion annually in lost tax revenue. In response to this epidemic, the United States and the Organization for Economic Cooperation and Development entered into Tax Information Exchange Agreements with states considered to be tax havens. These agreements received widespread recognition as a means of remedying this growing problem. These agreements, however, are largely symbolic and provide very few additional weapons to combat tax evasion enabled by tax havens. As evidence of this, the estimated annual loss of tax revenue due to tax havens has increased since the enactment of these agreements.

This Note argues that information exchange agreements are a reactionary policy and will neither truly eliminate nor curb tax evasion through tax haven states. To effectively combat the tax haven problem, policies must be adopted that should focus on domestic solutions and should strengthen existing laws that are far too weak and underutilized. Continue reading →