Case Note: Rights And Accountability In Development (Raid) V Das Air (21 July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258-307 (2009).
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Abstract: The enforcement framework for the MNE Guidelines has long been the subject of criticism, especially by representatives of private and public actors. But two recent cases have suggested the ways in which enforcement actions arising from civil society efforts to utilize the national contacts points complaint system may be slowly influencing the emerging discourse of corporate behaviour in ways that will have substantial effect. Beyond evidence of a more muscular institutional transnational enforcement structure for soft law codes, the cases serve to outline a framework for the interaction of transnational and national systems of corporate regulation. The multilateral system for governing multinational corporate behaviour will affect not only that behaviour but also the rules through which corporations may be governed as to their internal affairs and with respect to the character of their legal personality. This essay first briefly describes the institutional and regulatory framework within which the cases arose. It then reviews the cases themselves, drawing out the more relevant arguments. Lastly, it contextualizes those arguments and positions within national and transnational corporate and international legal regimes. The cases illustrate the way in which advances in governance issues are being crafted, step-by-step, from out of a system that, while formally non- binding, is increasingly developing the characteristics of a binding governance system. The cases suggest the parameters within which the MNE Guidelines are beginning to serve as the focal point for the construction of an autonomous transnational governance system that, in turn, is meant to serve as the touchstone for corporate behaviour in multinational economic relationships.
From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671-732 (2009).
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Abstract: Academic and policy engagements with constitutions and constitutionalism have largely been built around unstated frameworks within which legitimated activity can take place. The essay suggests both the disorientation of much of the discussion and proposes a n ideological framework that captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at one time could be said to involve the study of the peculiarities of the unique domestic constitutional framework through which government was constituted and power institutionalized. No longer. This essay examines the current discourse of constitutionalism. That discourse reveals the current dynamic character of the concept. The old consensus of conventional constitutionalism, that constitutions are legitimately grounded either in domestic law and the unique will of a territorially defined demos, is now challenged by a view that constitutional legitimacy requires conformity with a system of universal norms grounded in an elaboration of the mores of the community of nations. Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for measuring others. Transnational constitutionalism looks to the common constitutional traditions of the community of states buttressed by international norms and organizations. The prize for both constitutional traditionalists and transnationalists is control of the mechanics for classifying constitutions, judging them legitimate and creating systems to enforce common conceptions of valid constitution making through international law. Yet, both rising constitutionalist discourse, and the development of values rich governance systems suggests that an animating ideology also underlies constitutionalism as a whole, a broader and more basic ideology than those that underpin the particular values variants of nationalist, transnational, theocratic and rationalist constitutionalism. The object of this essay is to draw from out of current practice and discourse a working description of the meta ideology that is constitutionalism in general. That definition suggests the characteristics of constitutionalism as originating as a system of taxonomy and legitimation that is grounded in a set of normative assumptions about the meaning and purpose of government. These basic presumptions produce an ideology of substantive and process limitations on state power the content of which is the usual focus of constitutionalist debate. The constitutionalist presumptions are rarely contested but serve to divide groups of states on the basis of the sort of normative presumptions on which the state is organized-nationalist, transnational, natural law, theocratic or Marxist Leninist presumptions. Constitutions without legitimacy are no constitution at all, and legitimacy is a function of values, which in turn serve as the foundation of constitutionalism. It is through the construction of those values frameworks that international law has come to play an increasingly important role.
Theocratic Constitutionalism: An Introduction to a New Legal Global Ordering, 16(1) Indiana Journal of Global Legal Studies 85-172 (2009).
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Abstract: The 20th century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of that 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 process 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, 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 it does, then what are its 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, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. The article starts with a critical examination of the main currents of constitutionalism. Section II focuses on an extraction of an understanding of the concept of constitutionalism as system and its synthesis into a working definition of constitutionalism in general and transnational constitutionalism in particular. Section III extracts from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Section IV 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.
Cuba and the Development of Odious Debt Doctrine in an Age of Financial Crisis, 6 Transnational Dispute Management Journal 1 (Jan. 2009) (http://www.transnational-dispute-management.com/article.asp?key=1311).
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Abstract: This paper examines the way that the traditional notion of odious debt as a method of repudiating sovereign debt may undergo a conceptual revolution, as it changes focus from the illegitimacy of governments obtaining loans, to the illegitimacy of the systems through which such loans are made and enforced generally. The paper starts with a consideration of the odious debt doctrine as traditionally applied. It then considers the ways in which the traditional expression of the doctrine has been expanded over the last century. This doctrine has served the developed world, and its globalized lending institutions, well since the beginning of the 20th century: from proving the generosity of the developed world through discretionary debt forgiveness programs loosely based on odious debt principles, to the use of odious debt style principles to launch global anti-corruption campaigns. However, developing states have come to see another basis for application of odious debt, one that turns the traditional analysis on its head. One of its principal architects has been Fidel Castro. Focusing primarily on the writing of Fidel Castro, as an important figure in shaping and lending legitimacy to these transformations, it suggests the way the doctrine of odious debt could be refocused on the institutionalized public and private international systems of capital markets. For that purpose, the paper examines Castro’s notion of what this paper identifies as “systemic odiousness” as a basis for the repudiation of sovereign debt. The paper suggests how, for Cuba, this produces a curious result. It is possible that a successor regime to that currently installed in Cuba would argue that it has the right to avoid all of the debts of the prior Marxist-Leninist state on traditional odious debt grounds, while, at the same time, adhering to the odious debt principles of that discredited regime, it attacks the legitimacy of the current system of state lending on odious debt grounds.
Remarks: The Norwegian Sovereign Wealth Fund: Between Private and Public, 40 Georgetown Journal of International Law 1271-1280 (2009).
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Abstract:The Norwegian Sovereign Wealth Fund has been offered as a global model for the organization and operation of such enterprises. The Norwegian SWF appears to incorporate the global consensus views of best practices for such entities grounded in transparency and a clear separation between the political activities of states and their investment activities. These remarks critically assess those understandings. Focusing on Norway’s SWF, it suggests that these sovereign investment vehicles cannot avoid advancing the political policies of its sovereign owners in pursuing ostensibly economic investment objectives. The Norwegian funds provide a particularly useful case study of the issues that are now at the center of reconceptualizations of the relationships between state and corporation, between economic and political regulation, between national and transnational legal frameworks, and between public and private legal regimes