Author Archives: oneditor

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 →

Many multinational companies and financial institutions have adopted corporate social responsibility programs, often relying on the implementation of international voluntary initiatives. This article describes two such mechanisms. The first, the Equator Principles, provides guidance to financial institutions involved in project finance. The second, the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises, helps governments to encourage businesses to be socially and environmentally responsible. This article suggests means by which voluntary initiatives can be implemented to benefit both the wider community and companies themselves. It also suggests ways of overcoming shortcomings resulting from the lack of access to formal legal sanctions when implementing voluntary initiatives. Continue reading →

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These procedural and substantive norms were, in turn, an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other hand, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If they do, then what are their characteristics?

This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic-influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, if it is possible within this system to distinguish between legitimate and illegitimate constitutions, and if there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. Part I critically reviews the main currents of twenty-first century notions of constitutionalism and focuses on theocracy as a principle of governance. Part II suggests the possibility of fusing the legitimating structures of modern constitutionalism with the substantive framework of theocracy to produce a possible set of characteristics that would mark a legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Part III then applies this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism. Continue reading →

The world is full of boundaries. Whatever their nature, boundaries provide the conditions for communal or individual identity and agency, and they make collective action possible. That very capacity to define and contain, however, allows boundaries to “close off possibilities of being that might otherwise flourish.” Paradoxically, boundaries “both foster and inhibit freedom.” This article explores how one particular boundary—ethnicity—has served both as an important source of identity and a cause of deep fracture in societies that this article calls “severely fractured.” The purpose of the article is to explore what institutional structures and processes might be appropriate to respond to the challenges that severely fractured societies face. After examining the two well-known approaches—consociation and integration—that have dominated studies of, and prescriptions for, severely fractured societies, the article concludes that each unwisely underemphasizes one or another of the two necessary conditions for long-term stability in these societies: institutions that are both highly inclusive and have the capacity to foster interethnic dialogue. The article then outlines and defends a version of deliberative democracy that it argues responds to the needs of inclusion (pluralism) and the cultivation of interethnic dialogue. A well-structured deliberative process in the context of a highly inclusive institutional environment has the best prospect of transforming the hard parameters of ethnic identity into the soft parameters of diversity that this article argues will lead to a more sustainable form of pluralistic solidarity. Continue reading →