The European Debt Crisis, continued . . .

February 9, 2012

On July 16, 2010, when the debt crisis that currently engulfs Europe was still beginning to take shape, I discussed the Implications of European De-Integration for International Law, in a short post on this blog.  In the post, I predicted that the fiscal crises would have major implications for the future of European integration and that—unlike the original euro project—efforts to deal with the crisis “will not be the result of a popular policy preference, but instead will be the product of an external constraint on the ability of European economies to remain integrated without spiraling into chaos.”

Since the Summer of 2010, events have not taken a positive turn, and hopes of finding an easy resolution to the problem of rapidly increasing public debt in several Eurozone countries have deteriorated.   It is now clear that the Eurozone as initially constituted is a failure, and will need to be revamped and remade in a new, and largely unrecognizable, form.  Whether the future of the euro and Eurozone lies in radical integration or in disintegration at this point remains uncertain.

Some of the basic ideas in the original blog post have been fleshed out in an article that I published in Volume 17 of the Columbia Journal of European Law, entitled Implications of European Disintegration for International Law.  The Article explains the structural problems with the euro system which make the current crisis so intractable, and also offers some lessons for international law more generally.  From the abstract:

The European debt crisis that started in 2009 has revealed underlying structural problems in the European Monetary Union, threatening the viability of the common currency in its current form. An unraveling of monetary coordination in Europe would mark a significant event of disintegration, in the face of a decades-long trend of integration that was commonly considered an inevitable and self-sustaining process.

This Article argues that even a reasonable possibility of disintegration of this magnitude upsets previous theorizing about European integration which over-emphasized the EU’s “supranational” character.

More generally, disintegration poses serious problems for international law scholarship across the ideological spectrum, much of which has organized itself around the historically contingent trend of integration as if it were an a-historical given. The debt crises reveals that use of Europe by both “Skeptical” and “Cosmopolitan” international law scholars is largely an opportunistic rhetorical strategy that conceals fundamental weaknesses of both viewpoints in their debate over the limits and promise of international legalization and cooperation.


Prisoners’ voting rights: a success story for the enforceability of the ECHR?

November 9, 2010

By Emily MacKenzie, NYU School of Law, (LL.M Candidate, 2011)

The last week has seen a tense discourse in political and legal circles in the UK centering on prisoners’ voting rights. This discussion in some sense represents the culmination of five years of debate about the enforceability of judgments made by the European Court of Human Rights (ECtHR). In March 2004 the ECtHR held unanimously in Hirst v UK that the UK’s blanket ban on prisoners voting violated Article 3 Protocol 1 of the European Convention on Human Rights (ECHR). Despite the rejection of the UK’s appeal to the Grand Chamber, and the obligation under Article 46 ECHR to enforce Strasbourg judgments, the government has to date failed to enact legal reform to implement this decision. Whilst there has been an ongoing consultation, it is not overly cynical to describe the process as merely ‘going through the motions.’ The unexplained delays, refusal to entertain the option of allowing all prisoners to vote, and the government’s consistent expression of its disagreement with the ruling all attest to this conclusion.

Repeated criticisms by the Council of Europe came to a head when the government failed to act on any of the proposals in time to allow prisoners to vote in the June 2010 election.  Last week, however, UK newspapers reported that the new coalition government is finally going to implement the judgment. (See coverage by The Guardian here.)  The exact program and timescale of reform remain unclear, but it seems to be generally accepted that a change is in the offing. The governmental attitude remains, however, that such reform is something imposed on the UK by Europe, that it is not something that the government wants, and that they will apply it as restrictively as possible. In light of this continued reticence, one may ask: why after five years of stalling is the government finally giving in? Read the rest of this entry »

Center for Human Rights Reports on Foreign Land Deals

November 3, 2010

JILP staff Lauren DeMartini and Sylwia Wewiora have contributed to a recent report by the Center for Human Rights and Global Justice on Foreign Land Deals and Human Rights.  The report was developed in support of the mandate of the UN Special Rapporteur on the Right to Food, Olivier De Schutter.  From the Executive Summary:

The observations offered in this Report contribute to an understanding of the essential minimum steps that can be taken to enhance the benefits of investments that are already underway, while mitigating the risks moving forward. These observations combine an analysis of obligatory human rights standards applicable to states involved in these investments with proposals for private actors to ensure that their activities respect the rights of affected communities. Ultimately, these recommendations cannot substitute for the need to fundamentally reevaluate an increasingly discredited philosophy: that large-scale industrialized agricultural production and biofuel investments, as currently conceived, can ensure the environmental and developmental needs of the planet in a sustainable and equitable way. The rights of communities affected by large-scale land investments must finally take center stage. Their agency over resources must be respected and the development of policies to address their needs must be made a priority.

Law, Justice, and Development Week: Nov. 8-9 in DC

October 25, 2010

NYU Law Professors Jose Alvarez, Kevin Davis, Benedict Kingsbury, and Richard Stewart will speak at the World Bank’s Law, Justice, and Development Week on Nov. 8 and 9 in Washington, D.C.  The full agenda is here.  Professor Stewart will speak about “Mainstreaming Climate Finance.”  Professor Davis will discuss “Norms and Standards in International Development — Avoiding the Trap of One-Size-Fits-All,”  on a panel that will be moderated by Professor Kingsbury.  That panel also features Bruce Jones of the NYU Center on International Cooperation.  Professors Kingsbury and Alvarez will co-moderate a discussion on “Governance and Reform at International Financial Institutions.”

The discussions will feature other practitioners and scholars, including Elizabeth Anderson and David Caron.  Other information may be found here.

Arato on European Federalism and the Lisbon Judgment of the German Constitutional Court

October 10, 2010

JILP’s own Julian Arato has published a comment on EJIL Talk titled “A Preemptive Strike Against European Federalism: The Decision of the Bundesverfassungsgericht Concerning the Treaty of Lisbon.”  Julian summarizes his argument as follows:

On first reading the 2009 Lisbon case of the German Constitutional Court appears to hew quite closely to the Court’s reasoning in 1993, reviewing Germany’s accession to the Maastricht Treaty.  Both cases declare that European integration must respect the inviolable and unamendable core of the German Constitution. (Specifically, in these cases, Article 20, entrenching democracy and the rule of law). In both cases the Court declares that under the Treaties it retains final say over whether European Law is compatible with the Grundgesetz and is thus applicable in Germany (judicial Kompetenz-Kompetenz). Finally Lisbon, like Maastricht, finds that the Treaty ultimately passes constitutional muster. Thus, at first blush, the Court of Lisbon seems to basically restate its 1993 reasoning.  I want to argue, however, that the Court has substantially sharpened its challenge since Maastricht, elevating much of the Court’s earlier state-centric interpretation of the status of integration under the Treaties to a statement of German constitutional principle.

This post focuses on three ways in which Lisbon represents an advance on Maastricht.  The Court announces: 1) that the Grundgesetz entrenches an absolute and unamendable limit on integration, that State sovereignty as such is inalienable, and thus forbids the delegation of excessive competences, especially Kompetenz-Kompetenz; 2) the Grundgesetz requires the German Constitutional Court to retain final review over the actions of German and European public authorities for possible alienation of, or encroachment on, German State sovereignty (judicial Kompetenz-Kompetenz); and 3) the Court goes about rigorously reviewing the Lisbon Treaty for infringements of German sovereignty in a far more searching manner than it had done in the past.  Leaving little to implication, the Court spells out the consequences of its decision: in the exceptional case where European institutions overstep their enumerated powers, even with the interpretive blessing of the ECJ, the German Court will exercise review and may instruct German authorities not to apply the European law, even if it means engaging Germany’s international state responsibility.

The entire post is richly detailed and worth a close read.  In addition to being a third-year NYU Law student, Julian is a Senior Articles Editor at JILP.

Alvarez on Opinio Juris

September 27, 2010

NYU Law Professor Jose Enrique Alvarez will be guest blogging this week over at Opinio Juris.  He uses his first post to outline the broad challenges facing the international investment regime.  From the post:

When two of the leading capital exporters of the world – the United States and China – are also two of the leading capital importers, those countries’ respective investment protection treaties can be expected to cut both ways. Countries like these, which also include capital exporters/importers like India and Russia, have to worry both about protecting their foreign investors abroad as well as being sued by foreign investors that they host. Therein lies the regime’s current dilemma: investor-state arbitrations have become so popular – and visible, including in countries with hyperactive civil societies – that they have displaced the WTO as the focal point of competing contentions over the merits of economic globalization.

A Belated Thought on Wikileaks

August 23, 2010

by Graham Dumas (J.D. Candidate 2011)

I am a bit late in writing about the Wikileaks issue, but I would like to propose here a slightly different way of viewing the question through the lens of systems engineering. For a number of reasons, Wikileaks has presented to members of the military a simplified and seemingly less painful way to report violations of IHL, leading to a breakdown in, or rather an excursion from, the process the U.S. Military has been using to report, identify, prosecute, and ultimately prevent violations of military law and the law of armed conflict. To remedy this problem, the military should investigate both the demand and supply sides of the information pipeline, simplify the reporting process, and initiate a campaign to educate servicemen of the internal reporting channels available to them, the need to prevent extraneous leaks to the public, and the penalties for releasing classified information.  More after the jump. Read the rest of this entry »