“Nessuno qualificherebbe come estradizione la cooperazione tra un giudice del Land Baviera ed un altro della Bassa Sassonia in vista della consegna di un imputato, ovvero l’assistenza tra un giudice della Comunità autonoma di Catalogna ed un giudice dell’Andalusia, motivo per cui non si può parlare di estradizione neppure qualora l’assistenza venga prestata all’interno dell’Unione europea”.
L’état moderne se construit, mais ne se déconstruit pas. Il intègre de nouveaux modes d’organisation territoriale et de coopération entre états, créant des institutions dotées de compétences diverses, sans pour autant faire table rase des structures préexistantes. De tels systèmes génèrent inexorablement des empilements institutionnels et normatifs complexes. Paradoxalement, l’européanisation et les nombreuses décentralisations n’ont pas nécessairement engendré une diminution de l’intervention des autorités nationales. Leur rôle de coordinateur demeure primordial pour assurer non seulement une certaine cohésion entre les autorités régionales locales, mais également une application homogène du droit de l’Union. L’effectivité du droit de l’Union pâtit pourtant de la présence de certaines complexités. Le développement de son application directe poursuit un objectif de rationalisation juridique parfois antinomique avec les réalités politiques.
In neuerer Zeit wird das Internationale Privatrecht auf europäischer Ebene in bisher nicht gekanntem Umfang vereinheitlicht. Damit ist die Gelegenheit verbunden, das in Bezug auf auslandsbezogene Sachverhalte räumlich beste Recht mit Rücksicht auf die Natur der zu regelnden Rechtsverhältnisse neu festzulegen. Der Gedanke, dass nicht ein gewisser territorialer Bezug des zu beurteilenden Sachverhalts, sondern der Wille des oder der Betroffenen ausschlaggebend für die Bestimmung des anwendbaren Rechts sein soll (Parteiautonomie), scheint allgemein an Bedeutung zu gewinnen.
The present working paper offers a transcript from the symposium “Four Visions of Constitutional Pluralism” held at the European University Institute on 11 January 2008 under the Academy of European Law’s auspices. Four different perspectives on constitutional pluralism were put together and thoroughly discussed by those, who brought them into the scholarly discourse; Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro and Neil Walker. The symposium was organised by Matej Avbelj and Jan Komárek, who also moderated the discussion.
On its fifty-first session, the International Law Commission (henceforth, “ILC”) adopted the Draft Articles on State Responsibility (henceforth, “Draft Articles”) and submitted them to the General Assembly for approval in 2001. The work of the ILC on the Draft Articles took more than forty-four years before the Draft Articles reached their final shape. During the process of their drafting, several of its special rapporteurs came up with different solutions to the various problems at hand. One characteristic of the Draft Articles that is especially emblematic of these several (and sometimes turbulent) changes during their preparatory period was the issue of obligations and responsibilities arising out of a breach of a ius cogens norm or -as it was put in the earlier proposals of the Draft Articles- obligations arising out of crimes of states.
In the wake of increasingly global economic, social and environmental interdependencies, new challenges for traditional forms of governance arise. They prompt the emergence of new forms of governance at the international level beyond traditional international treaty law. International organisations, for example, while often limited in their formal authority to set binding norms, frequently respond to the pressing functional necessities by developing various forms of voluntary instruments. These instruments set standards and prescribe rules of behaviour for public and private actors within the domestic normative space.
The adoption of universal norms has revolutionised the conception of normativity at the international level. The traditional focus on a centralised regulatory authority is replaced by the idea of a spontaneous order, which progressively emerged from the decentralised actions of multiple agents. Indeed, the current international system is largely the result of a long process of codification or crystallisation of essentially customary rules, which have developed over time through the un-concerted acts posed at different levels by the various actors that compose the international community.
One of the most crucial dilemmas political actors have to face is how to give credibility to their promises without losing flexibility. To provide credibility to their promises, political actors may use a number of instruments. One of them is known as ‘commitment technologies’. A commitment is a way to tie political actors’ hands. More technically, a commitment is a way to eliminate one of the alternative courses of action -or strategies- available to political actors, or a way to make that alternative very costly for them.
“The senses are so strong and impetuous, O Arjuna, that they forcibly carry away the mind even of a man of discrimination who is endeavouring to control them”
In the harbour of Rotterdam, the Dutch government decided to install a special ship to detain illegal immigrants. My parents lived in a flat, overlooking that harbour; the boat was 500 meters from their window. We were often amazed about the silence on that boat. You hardly saw anybody there, although the newspapers had reported that the ship was overcrowded. Sometimes, when I stood on the balcony overlooking the harbour, a habit that I had formed since my childhood, I tried to picture how these people lived there. Did they see me? Could they see the pots of flowers on our balcony? Our balcony was so close, but so utterly beyond their reach. It is at these moments that one can literally feel the strength of a space, different from the physical one, and yet all the more real. When I think of the concept ‘normative space’, I cannot help thinking of the distance between my mother’s pots of geraniums and the boat in that harbour.
Gary Ulmen’s recent translation of Carl Schmitt’s The Nomos of the Earth has not only furthered scholarly interest in Schmitt’s legal theory, but has also granted the geographical concept of space its proper place in legal studies. Schmitt shows how a “poetics of space” has actually created, recreated, and continuously creates the world map. Myths and symbols create normative spaces and boundaries that make regulation possible. The poetics of space is inherent in boundary-marked social relationships and political identities, and manifests itself in the nomos. For Schmitt, “nomos is the measure by which the land in a particular order is divided and situated; it is also the form of political, social, and religious order determined by this process; here, measure, order and form constitute a spatially concrete unity”.
Cosmopolitanism, in its Kantian formulation, is linked to the idea of the removal of constraints to the public use of reason or, in other terms, to securing the possibility of free and unconstrained inter-subjectivity. All the contemporary conceptions of cosmopolitanism share with the classical Kantian ideal the necessity of subjecting relations and practices to an un-coerced interaction and an impartial reasoning. With El Cosmopolitismo Judicial en una Sociedad Global [Judicial Cosmopolitanism in a Global Society, in the English translation], Ordoñez Solís explains how the globalisation process creates a new type of ‘cosmopolitan’ rationale in which judges and courts are also involved.
The World Heritage Convention is a landmark for the protection of the cultural and natural heritage of mankind. Since its approval in 1972, it has become one of the most effective and important mechanisms for the protection of sites and monuments worldwide. And the book under review, the first commentary book to this instrument ever published, is a testament to thirty-five years of international practice under this instrument. Edited by Francesco Francioni (European University Institute), with Federico Lenzerini (University of Siena), this book offers valuable insights into the World Heritage Convention and its operation, bringing together contributors from several areas of the world, both academics and practitioners.