Spring/Summer 2011

Spring/Summer 2011 - Volume 4 - Issue 1

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Expanding Law’s Empire: Interpretivism, Morality and the Value of Legality

By: Alexander Green   UK - Download PDF Version Download pdf (UK)

For interpretivist theories of law it is the value of legality that informs what counts as true legal propositions. The leading theory of legality in the interpretivist school is Ronald Dworkin’s ‘Law as Integrity’. This paper suggests that Dworkin’s view fails to account for several features of modern legal practices, particularly those that deal with international and comparative legal standards. It also highlights some inconsistencies in law as integrity as a conception of the value of legality and suggests an alternative conception to correct for them. The result of this conception of legality provides the major thesis of this paper. This is that under an interpretivist theory, true propositions of law never conflict with what morality demands.

Harmonizing Trends vs Domestic Regulatory Frameworks: Looking for the European Law on Cross-border Cooperation

By: Davide Strazzari   UK - Download PDF Version Download pdf (UK)

The European law of cross-border cooperation is the legal product of the interplay of different legal orders, namely the international public legal order (Madrid Outline Convention, following Protocols and international agreements enforcing it), the European Union and the national one. To this extent, the European law of CBC is a dynamic process where each of the three components plays a role but none is prevailing from a normative point of view. The paper examines the components of this European law of CBC by looking first at the way CBC is currently conceived by the supranational legal drivers (Council of Europe and EU). It emerges that CBC is not more a matter of dealing with the problems of proximity between communities and territories laying on either side of borders, but of putting together genuine projects for CBC area and implementing a real CBC policy. This implies some consequences. First, CBC as a policy tends to involve territorial units enjoying influential political capacity, such as: federal state, legislative regions or at least inter-municipal association. Even national state may have an interest in participating. The second feature is the institutionalization of CBC as a way to promote coordination of policies, even according to a multilevel governance concept, rather than as an instrument to solve specific cross-border problems. However, this conception of CBC and its consequences must be put into relation with the attitude national states have showed towards CBC. By taking into consideration some factors – namely, the type of decentralization, the intergovernmental relations, the ethnic minorities presence, the influence exerted by supranational actors in countries of democratic transition – we will investigate the potential degree of the national states’ acceptability of the common regulatory solution advanced at the supranational level. To this extent, some specific references will be made to the national enforcement process of the EGTC Regulation in order to enlighten and understand why the EGTC application across Europe is likely to vary.

Editorial


Editorial

By: Benedict Wray   UK - Download PDF Version Download pdf (UK)

Symposium on Climate Governance


Reshaping Climate Governance for Post-2012

By: Massimiliano Montini   UK - Download PDF Version Download pdf (UK)

In the last two decades climate change has been gaining more and more importance firstly in the scientific debate and subsequently in the political and public debate. Climate change is nowadays recognised as one the top priorities in the global agenda as well as in national countries.

Alternative Architecture for Climate Change - Major Economies

By: Rafael Leal Arcas   UK - Download PDF Version Download pdf (UK)

This article argues that the Kyoto Protocol to the 1992 Framework Convention on Climate Change was doomed to face difficulties ab initio. Moving the climate change agenda forward multilaterally among the 195 parties to the United Nations Framework Convention on Climate Change (UNFCCC) is proving to be a serious challenge. The lack of progress in UNFCCC negotiations in recent years has led many to question whether the UNFCCC is, in fact, the best and most effective forum for mobilizing a global response to climate change. The current approach to negotiating a comprehensive, universal, and legally binding global agreement on climate change is unlikely to succeed, as demonstrated by the near-disaster of the Conference of the Parties-15 in Copenhagen. Moreover, international climate policy, as it has been understood and practiced by many governments under the Kyoto Protocol approach, has failed to produce any discernible real world reductions in emissions of greenhouse gases since the mid 1990s. In order for a future global climate change agreement to be successful, the article argues that there are nine fundamental factors that must be borne in mind, and concludes that no breakthroughs will take place regarding a global climate change agreement until there is more political maturity on the side of the U.S., and until rapidly emerging economies such as China and India indicate that they are ready to play their part. Large emitters of GHG need to be involved for negotiations to come to a conclusion, and much progress is still needed until we reach an international agreement that is strong enough to tackle climate change effectively and is equitable enough to gain the sympathy of all countries.

Experimenting with International Collaborative Governance for Climate Change Mitigation by Private Actors: Scaling up Dutch Co-Regulation

By: Anastasia Telesetsky   UK - Download PDF Version Download pdf (UK)

For the past two decades, international climate policy has been handled as a matter for State to State deliberation. Non-state actors have played at best marginal roles in making and implementing international policy. This paper argues that climate change remains an intractable transnational problem because State to State deliberations failed to acknowledge that both climate mitigation and adaptation require ongoing collaborative governance with non-State actors to shift normative behavior. This paper proposes experimenting with scaling up Dutch environmental covenants as an international co-regulation strategy to improve both the legitimacy and accountability of international climate governance. This paper specifically proposes in the context of climate change mitigation implementing a co-regulatory approach through a combination of State-approved emission targets and binding individual firm environmental agreements.

ODA Grow on Trees? A Legal Analysis of REDD-ODA Finance

By: Sean Stephenson   UK - Download PDF Version Download pdf (UK)

What sources of funding are available to enable the REDD to meet its potential in mitigating the effects of climate change? This article examines the possibilities and limits of using Official Development Assistance (ODA) as a source of REDD finance. The argument is two-fold, firstly that securing a source of public start-up funding is essential to the effectiveness of REDD, and secondly that ODA is in a position to fulfil that role with a number of additional benefits to contributors. In adopting ODA, there are a number of possible approaches which could be used as a basis, and here it is argued that an essentially co-benefits approach is the most likely option for producing meaningful collaboration between the two regimes. Following on from this, a number of potential building blocks for a REDD-ODA legal framework are explored.

Biofuels - A Threat to the Environment and Human Rights? An Analysis of the impact of the production of feedstock for agrofuels on the rights to water, land and food

By: María León-Moreta   UK - Download PDF Version Download pdf (UK)

This article critically appraises the biofuels regimes from the perspective of their effects on the environment and human rights. It concentrates on agrofuels production in particular, and examines the risks associated with such production for local populations and regions. The article introduces biofuels and its associated problems to the reader and then proceeds to consider the specific cases of the human rights to water, to land and to food in the context of bioenergy. It argues that any biofuel or agrofuel production must take into account sustainability issues, including human rights, and that beyond the commercial risks inherent in failure to do so, greater international regulation of biofuels is necessary and desirable.

Book Reviews


Leviathans Welcome! (C. List & P. Pettit, Group Agency. The Possibility, Design and Status of Group Agents )

By: Vesselin Paskalev   UK - Download PDF Version Download pdf (UK)

Much Ado About Nothing? (M. T. Kamminga & M. Scheinin, The Impact of Human Rights Law on General International Law)

By: Axelle Reiter   UK - Download PDF Version Download pdf (UK)

D. Anagnostou & E. Psychogiopoulou (eds.), The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context

By: Alba Ruibal   UK - Download PDF Version Download pdf (UK)

In Search of Consensus? (G.-P. Calliess & P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law)

By: Marco Rizzi   UK - Download PDF Version Download pdf (UK)





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