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Armin Von Bogdandy - One of the best experts on this subject based on the ideXlab platform.
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from Public international to international Public law translating world Public opinion into international Public Authority
European Journal of International Law, 2017Co-Authors: Armin Von Bogdandy, Matthias Goldmann, Ingo VenzkeAbstract:Calls emerging from world Public opinion for legitimate and effective international institutions require a paradigm shift in Public international law. There is a part of Public international law that should better be understood as "international Public law", because it enables and disciplines the exercise of international Public Authority, i.e. the pursuit of Public interests by international institutions. The paper unfolds our understanding of international Public law by way of a thorough discussion of other approaches to governance phenomena in international legal scholarship, including private law approaches, critical approaches, International Institutional Law, Global Administrative Law, and Constitutionalism. It then carves out the notion of international Public Authority. This notion includes various types of soft and informal governance instruments with innovative compliance mechanisms, as well as the activities of informal and hybrid institutions or network-like structures.
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common principles for a plurality of orders a study on Public Authority in the european legal area
International Journal of Constitutional Law, 2014Co-Authors: Armin Von BogdandyAbstract:Public law was once exclusive to the type of social organization called state. This exclusivity is no more, particularly in the European legal area: supranational and international organ- izations wield competences that transform them into institutions of Public Authority. Due to Europeanization and internationalization, the Public law applicable on an EU member’s territory can no longer be understood through the domestic constitution alone, but flows from a multiplicity of sources fed by a multitude of actors: A new Public law tout court is under construction. The present article contributes to this by a study of founding principles. It offers its understanding of this new field of research (Section 1), sketches the relevant principles (Section 2), and discusses their interrelationship (Section 3).
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on the functions of international courts an appraisal in light of their burgeoning Public Authority
Leiden Journal of International Law, 2013Co-Authors: Armin Von Bogdandy, Ingo VenzkeAbstract:This contribution presents international judicial institutions as multifunctional actors against the background of a traditional understanding, which sees just one function: settling disputes. The traditional, one-dimensional understanding eclipses other important functions that many international courts do actually perform in contexts of global governance and it underrates problems in their legitimation. In order to appreciate international adjudications’ manifold contributions to social interaction, the paper first identifies three more functions beyond dispute settlement: the stabilization of normative expectations, law-making, and the control as well as legitimation of Authority exercised by others. It then places these functions within broader basic understandings of international courts, which respectively picture them as instruments of the parties in a state-centred world order, as organs of a value-based international community, and as institutions of specific legal regimes. The distinct problems that each of these basic understanding faces lead to the contours of a new paradigm for the study of international courts as actors exercising Public Authority. The present functional analysis ultimately helps to refine both the phenomenon and normative questions.
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sovereign debt restructurings as exercises of international Public Authority towards a decentralized sovereign insolvency law
Sovereign financing and international law: the UNCTAD principles on responsible sovereign lending and borrowing 2013 ISBN 9780199674374 págs. 39-72, 2013Co-Authors: Armin Von Bogdandy, Matthias GoldmannAbstract:This paper argues that sovereign debt restructurings as agreed between defaulting states and their multilateral, bilateral, or private creditors constitute exercises of international Public Authority. Their authoritative character results from their effects on the citizens of the defaulting state, especially through adjustment programs. They also affect taxpayers in lending states as well as shareholders of commercial creditors. Their Public and international character derives from their legal basis in hard or soft Public international law.As a consequence of their qualification as exercises of international Public Authority, sovereign debt restructurings need to be framed by Public law in order to ensure their legitimacy. This paper is based on a discursive approach to legitimacy and shows how legal scholarship might promote the development of such a Public law framework.The paper then proposes a set of legal principles for sovereign debt restructurings. Some of them might already exist de lege lata, while others should be understood as proposals de lege ferenda. Legal scholarship is especially useful for developing procedural requirements, while substantive issues require a political decision, with the exception of the need to respect fundamental human rights. Most importantly, however, the qualification of sovereign debt restructurings as exercises of Public Authority requires domestic and international courts and tribunals to defer to them and to stay proceedings as long as such restructurings are being negotiated or implemented. Domestic and international courts and tribunals might thereby control the legitimacy of these exercises of Public Authority.
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in whose name an investigation of international courts Public Authority and its democratic justification
European Journal of International Law, 2012Co-Authors: Armin Von Bogdandy, Ingo VenzkeAbstract:In many grand theoretical sketches court judgments are epitomes of sovereign rule. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the Authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not expose in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? In other words, how can the rule of international courts be justified in accordance with basic premises of democratic theory?This contribution’s first step recalls the progressive demand for international compulsory jurisdiction that has pervaded the currently prevalent understanding and that forms the target of our critique (II). The second step unfolds international judicial decisions’ most significant problems of justification in light of the principle of democracy. We place particular emphasis on the lawmaking dimension of international judgments (III A) and conceive them as an exercise of Public Authority (III B). The increasingly powerful judiciary withdraws the law from the grasp of political-legislative bodies – the most important source of democratic legitimation (III C 1). A constitutionalist reading of international law and adjudication is unconvincing and cannot justify the decoupling of law and parliamentary politics. (III C 2). We then show that processes of fragmentation are fuelled by the agency of multiple courts and argue that this constitutes a further problem in the democratic justification of international courts’ Public Authority (III C 3).In a third step we turn to strategies in response to the problems. Doubts about the justification of a decision are usually met with procedural adjustments (IV A), elections traditionally respond to the exercise of Public Authority (IV B), and systemic interpretation as well as a dialogue between courts may bear the potential of easing concerns that spring from processes of fragmentation. Even if all strategies were spelled out in more detail and were met to full satisfaction, we retain the impression that international courts may not always be in a position to carry the whole burden of justifying their Authority. Domestic constitutional organs then step in. They unburden the international level from shouldering the whole weight of justification by deciding about the effect of international decisions in the municipal legal order (V). Our critique ultimately shows that the normative vanishing point for the future development of the international judiciary should be the idea of the cosmopolitan citizen (VI).
Peer Zumbansen - One of the best experts on this subject based on the ideXlab platform.
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transnational private regulatory governance ambiguities of Public Authority and private power
Law and contemporary problems, 2013Co-Authors: Peer ZumbansenAbstract:The continuing proliferation of transnational private regulatory governance challenges conceptions of legal Authority, legitimacy and Public regulation of economic activity. The transnational law merchant or, lex mercatoria, is a case in point in this context, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of Public or private Authority has itself become contentious. The ambiguity surrounding many forms of today’s contractual governance in the transnational arena echoes that of the far-reaching transformation of Public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “Public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. The paper suggests the need to short-circuit and to read in parallel the justifications offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.
Matthias Goldmann - One of the best experts on this subject based on the ideXlab platform.
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from Public international to international Public law translating world Public opinion into international Public Authority
European Journal of International Law, 2017Co-Authors: Armin Von Bogdandy, Matthias Goldmann, Ingo VenzkeAbstract:Calls emerging from world Public opinion for legitimate and effective international institutions require a paradigm shift in Public international law. There is a part of Public international law that should better be understood as "international Public law", because it enables and disciplines the exercise of international Public Authority, i.e. the pursuit of Public interests by international institutions. The paper unfolds our understanding of international Public law by way of a thorough discussion of other approaches to governance phenomena in international legal scholarship, including private law approaches, critical approaches, International Institutional Law, Global Administrative Law, and Constitutionalism. It then carves out the notion of international Public Authority. This notion includes various types of soft and informal governance instruments with innovative compliance mechanisms, as well as the activities of informal and hybrid institutions or network-like structures.
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sovereign debt restructurings as exercises of international Public Authority towards a decentralized sovereign insolvency law
Sovereign financing and international law: the UNCTAD principles on responsible sovereign lending and borrowing 2013 ISBN 9780199674374 págs. 39-72, 2013Co-Authors: Armin Von Bogdandy, Matthias GoldmannAbstract:This paper argues that sovereign debt restructurings as agreed between defaulting states and their multilateral, bilateral, or private creditors constitute exercises of international Public Authority. Their authoritative character results from their effects on the citizens of the defaulting state, especially through adjustment programs. They also affect taxpayers in lending states as well as shareholders of commercial creditors. Their Public and international character derives from their legal basis in hard or soft Public international law.As a consequence of their qualification as exercises of international Public Authority, sovereign debt restructurings need to be framed by Public law in order to ensure their legitimacy. This paper is based on a discursive approach to legitimacy and shows how legal scholarship might promote the development of such a Public law framework.The paper then proposes a set of legal principles for sovereign debt restructurings. Some of them might already exist de lege lata, while others should be understood as proposals de lege ferenda. Legal scholarship is especially useful for developing procedural requirements, while substantive issues require a political decision, with the exception of the need to respect fundamental human rights. Most importantly, however, the qualification of sovereign debt restructurings as exercises of Public Authority requires domestic and international courts and tribunals to defer to them and to stay proceedings as long as such restructurings are being negotiated or implemented. Domestic and international courts and tribunals might thereby control the legitimacy of these exercises of Public Authority.
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the exercise of Public Authority by international institutions advancing international institutional law
2010Co-Authors: Armin Von Bogdandy, Rudiger Wolfrum, Jochen Von Bernstorff, Philipp Dann, Matthias GoldmannAbstract:Concept.- Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities.- From Public International Law to International Public Law: A Comment on the #x201C Public Authority#x201D of International Institutions and the #x201C Publicness#x201D of their Law.- To Tame and to Frame.- International Bureaucracies from a Political Science Perspective #x2013 Agency, Authority and International Institutional Law.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Decisions.- The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?.- WIPO#x2019 s International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties.- International Institutions and Individualized Decision-Making: An Example of UNHCR#x2019 s Refugee Status Determination.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Recommendations.- Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Information.- The Administration of Information in International Administrative Law #x2013 The Example of Interpol.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Decisions.- Flexibility and Legitimacy #x2014 The Emissions Trading System under the Kyoto Protocol.- The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy-Gaining International Institution.- The UNESCO Regime for the Protection of World Heritage.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Recommendations.- Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Information.- Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work.- The WTO Committee on Trade in Financial Services: The Exercise of Public Authority within an Informational Forum.- The Exercise of Public Authority through General Instruments: Secondary Law.- The Administration of the Vocabulary of International Trade: The Adaptation of WTO Schedules to Changes in the Harmonized System.- Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) #x2013 Conservation Efforts Undermine the Legality Principle.- The Exercise of Public Authority through General Instruments: International Public Standards.- Legal Challenges of Non-binding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries.- Why Would International Administrative Activity Be Any Less Legitimate? #x2014 A Study of the Codex Alimentarius Commission.- The Exercise of Public Authority through General Instruments: Public Authority through Private Law Instruments.- ICANN #x2013 Governance by Technical Necessity.- International Administration of Holocaust Compensation: The International Commission on Holocaust Era Insurance Claims (ICHEIC).- Cross-Cutting Analyses.- Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority.- Goldmann Variations.- General Principles of International Public Authority: Sketching a Research Field.- Is There a Global Administrative Law?.- Procedures of Decision-Making and the Role of Law in International Organizations.- The Contributions by Jochen von Bernstorff and by Maja Smrkolj.- The Enforcement Authority of International Institutions.- The Enforcement Authority of International Institutions #x2013 Some Remarks and Suggestions for Further Analysis.- Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review.- International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority.- International Composite Administration.- Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed Authority, the International Maritime Organization (IMO) and International Fisheries Organizations.- Context.- The Internationalization of Administrative Relations as a Challenge for Administrative Law Scholarship.- Procedural Due Process of Law Beyond the State.
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inside relative normativity from sources to standard instruments for the exercise of international Public Authority
German Law Journal, 2008Co-Authors: Matthias GoldmannAbstract:This article suggests a tentative model for the legal conceptualization of the great variety of instruments by which international institutions exercise Public Authority, brought to light by the thematic studies of this project. If one were to display this variety of instruments on a scale that ranges from binding international law to non-legal instruments, hardly any thinkable step on this scale would remain empty. Situated at the top end of the scale one would find binding instruments such as international treaties, periodic treaty amendments, decisions on individual cases with binding effect or decisions having the potential to become binding by way of domestic recognition. While these instruments clearly have external legal effects, other instruments seem to be purely internal rules of procedure, although they have in fact considerable repercussions for national administrations. Next come various types of soft, i.e. non-binding legal instruments. Some of these instruments operate in the shadow of binding instruments. Others are kept in purely soft form, like product standards or codes of conduct, but also decisions concerning individuals. In the lower part of the scale one would find instruments containing non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments. At the bottom end one would discover non-legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact on the affected policy area. Examples of this class of instruments include factual assessment reports, indicators, reports on implementation and compliance, and databases.
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the exercise of international Public Authority through national policy assessment the oecd s pisa policy as a paradigm for a new international standard instrument
International Organizations Law Review, 2008Co-Authors: Armin Von Bogdandy, Matthias GoldmannAbstract:The OECD Programme for International Student Assessment (PISA) is probably the most prominent signpost for the internationalization of educational policy. The PISA reports on the performance of secondary school students have become an important factor for educational policy-making in the developed world. In some states PISA has spurred more educational reforms than anything before it during the last decades. What is more, PISA succeeded in shifting approach and focus in a most sensitive area of domestic policy touching on social justice and the self-understanding of the citizenry: Because of PISA, policy-making in the field of school education changed from normative, input-oriented reasoning to comparative, empirical, output-oriented analysis. The international plane succeeded in establishing itself as indispensable in a field thus far essentially conceived as domestic.PISA owes its impact on educational policy to a mode of governance which we call "governance by information". It describes mechanisms which impact on a given policy field by shaping the cognitive framework of policy-making through the collection, processing and dissemination of information. International and supranational institutions more and more often take recourse to governance by information. This article explores the repercussions of governance by information for international law in an approach that stresses the Publicness of Public international law and the role of international institutional law in legally framing global governance. Thus far, these questions have been hardly explored, in spite of the enormous impact of PISA on national policy. We hypothesize that this is because the knowledge and experience of international lawyers relate mostly to international treaties and other binding legal instruments. Governance by information, by contrast, determines society indirectly through instruments which establish or contribute to the cognitive setting within which policy-makers operate. But since no legal obligations are imposed upon states or individuals, it escapes the established perspective of international lawyers, just as many other instruments, actors and processes of global governance do.In the article, we first provide an overview of PISA and its legal framework (II). Thereafter, we explain why PISA should be considered an exercise of Public Authority and why it therefore needs a solid Public law framework. This part develops a concept of international Public Authority that focuses on the social relevance of official acts and their impact on individual freedom (III). Third, we explore on a theoretical level how a legal framework could be established for new forms of Public Authority. In the tradition of German and Italian Public law scholarship we suggest the doctrinal construction of "standard instruments" (Handlungsformen). This doctrinal construction does not rest on the belief that legal concepts automatically evoke legitimacy. Rather, it stresses the communicative function of legal doctrine, which provides a stable basis for the exercise of Authority while at the same time serving as a forum for contestation (IV). In the following part, we construct and propose a standard instrument called "National Policy Assessment" (Politikbewertung) which is designed to grasp the thrust of PISA and similar policies in a legally significant manner (V). Subsequently, the legal regime of National Policy Assessment is developed by identifying basic legal elements within the legal framework of PISA which we deem instrumental for the legitimacy and effective functioning of this standard instrument. Those elements relate to the mandate on which National Policy Assessment needs to be based, the respect for scientific standards and the representativeness of expertise, access to the assessment data, and national ownership of the assessment results. After a critical appraisal of these elements, we consider the repercussions of the legal regime of National Policy Assessment thus established for other international institutions venturing in the area of education. The example of PISA demonstrates that governance by information is based on a quite elaborate legal framework. Standard instruments are a useful doctrinal category for abstracting basic legal elements and principles from this legal framework, which adds to the legitimacy and effectiveness of the Authority thus exercised. This abstraction also enables criticism from various theoretical vantage points. Moreover, the establishment of standard instruments gives policy-makers in international institutions a resource for transposing this type of governance to other issue areas. Once such a legal regime is sufficiently complex to ensure legitimacy and efficiency, it might be applied to other areas. In this respect, doctrinal conceptualization has a rationalizing and clarifying effect.Lastly, we see National Policy Assessment as a valuable tool for holding national governments accountable for their performance. As performance has an impact on the legitimacy of Public Authority, it would be worthwhile to consider to what extent national governments might be obliged de lege ferenda to expose themselves to such accountability mechanisms. As states are less and less able to meet the needs of a globalized world, and as their citizens and economies must compete on worldwide markets, the legitimacy of the state-based structure of the international legal order might fade if states do not continue to perform on a high level.
James A Caporaso - One of the best experts on this subject based on the ideXlab platform.
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changes in the westphalian order territory Public Authority and sovereignty
International Studies Review, 2000Co-Authors: James A CaporasoAbstract:nature of the concepts. All concepts are abstract. Indeed, the root of the word means to draw out or away from what Harry Eckstein called "the relentless particularity of experience." Concepts attempt to draw together elements of concrete experience that can be grouped in a fruitful way, so as to improve our understanding. Thus, the point is not to avoid abstraction, but to build fruitful concepts. Again, no one will disagree with so anodyne a statement. The challenge is to pitch concepts at the right level so as to connect both upward (towards general theory) and downward (towards the empirical data). The mix of concepts associated with the Westphalian order (sovereignty, Authority, autonomy, control, territoriality) have fallen down on the latter criterion, that is, on the connection between abstract concepts and empirical observations. Dichotomous nature of concepts. Concepts such as sovereignty and territoriality have been treated as if they could take on two possible values-present or absent, sovereign or not sovereign, territorial or nonterritorial organization. While some concepts are inherently dichotomous, many so treated are at bottom continuous. Even types of political systems, such as presidential and parliamentary, can be conceptualized as having more or less of these properties measured on some underlying continuum (Shugart and Carey 1992:2-3). Defining our concepts in either/or terms has caused us to labor needlessly about whether certain states are sovereign or not, whether emerging international unions such as the European Union (EU) possess sovereignty or not, and if they do, whether such sovereignty is shared with the constituent nation states. Dichotomous conceptions of sovereignty have also prevented us from conceptualizing "sovereignty bargains" (Litfin 1997). Disputes over sovereignty and who possesses it are bound up with the notion that sovereignty is the ultimate right to decide. Sovereignty in this sense implies a hierarchy of both 4 Changes in the Westphalian Order 5 norms and power. Many institutions within (and outside) society may possess both competencies and normative support, but when they are in conflict with one another-when "the chips are down" as the saying goes-the important question is who has final Authority? Since the ideas of normative conflict and hierarchy of norms are central to much legal reasoning, lawyers tend to adopt this view of sovereignty as located in final Authority. Since the law is about adjudication among competing norms, lawyers are supremely well placed to shed light on sovereignty so defined. Yet the idea of sovereignty as the ultimate right to decide has seriously retarded progress. Dichotomous conceptions of sovereignty do not allow much observable variation, cannot be untangled from other important concepts, and are not easily assimilated into the language of political exchange (compromising sovereignty, sovereignty bargains) and sovereignty practices. Almost all of the concepts related to the Westphalian model-territory, control over borders, Authority, autonomy, legitimacy, and sovereignty-can be thought of in continuous terms. While phrases such as "more or less sovereign" may sound odd, I suggest they do so because of the ingrained notion that sovereignty is the ultimate right to decide. While this point is straightforward, it is not uncontroversial, and finding areas of agreement with respect to definitions is an important first step. The aggregation of concepts. Concepts such as territoriality, sovereignty, and Authority obviously exist at a very high level of aggregation. To some extent, this is unavoidable. We are dealing with macroconcepts that often cannot be factored down into more specific, microlevel representations. Anarchy is a structural characteristic of the international system, not a characteristic of states. States are not anarchic, yet placed in relation to one another they form an anarchy. And individual states are not bipolar or multipolar but the system as a whole may be. Information about components is used to construct systemic properties (how could it be otherwise?), but once assembled in relation to one another, the system takes on meanings of its own. Composition counts. The placement of elements makes a difference. Waltz (1979) has gone to great pains to establish the independence of thirdimage (systemic) theory. If Waltz is correct-and I think he is on this pointsystemic theory cannot be reduced to its components. A theory of the market is different from, and not reducible to, a theory of firms, just as a theory of international relations is separate from a theory of foreign policy.4 Lest I sound as if I am defending what I want to criticize, I note that the aggregation issue takes two forms. The first, discussed briefly above, concerns 4This is a separate question from whether systemic theory by itself is underdetermined and therefore requires a theory of foreign policy as a complement.
Julian Kuttig - One of the best experts on this subject based on the ideXlab platform.
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posters politics and power mediated materialisation of Public Authority in bangladesh party politics
South Asia-journal of South Asian Studies, 2020Co-Authors: Julian KuttigAbstract:Party political posters, banners and hoardings mark the everyday urban landscape of Bangladesh. They have become pervasive visual and material expressions of everyday politics in an environment where ‘visibility means everything’. This article seeks to understand local politics and power dynamics in Bangladesh through party political posters while suggesting that the symbolism and material permanence of these posters may be considered efficacious elements in a wider network of party politics. Political posters in Bangladesh are more than mere conveyors of political messages towards electoral victories. Instead, they are essential ‘to the composition, maintenance, and assemblage’ of inter- and intra-party politics in Bangladesh. Political posters emerged as an important device in the socio-material conceptualisation of power, political performance, and space in local politics in Bangladesh. It is through these posters that inter-party rivalries over space and Authority are mediated and how intra-party power relations become structured.
