Public and Private International Law: German Views on Global Issues (original) (raw)
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Private International Law Beyond the Schism
Transnational Legal Theory, 2011
The aim of this project is to explore the ways in which, in the absence of traditional forms of government in a global setting, the law can discipline the transnational exercise of private power by a variety of market actors (from rating agencies, technical standardsetters and multinational agribusinesses to vulture funds). Traditionally, the cross-border economic activities of non-state actors fall within the remit of an area of the law known as private international law. However, despite the contemporary juridification of international politics, private international law has contributed very little to the global governance debate, remaining remarkably silent before the increasingly unequal distribution of wealth and authority in the world. By abandoning such matters to its public international counterpart, it leaves largely untended the private causes of crisis and injustice affecting such areas as financial markets, environmental protection, pollution, the status of sovereign debt, the bartering (or confiscation) of natural resources and land, the use (and misuse) of development aid, (unequal) access to food, the status of migrant populations, and many more. On the other hand, public international law itself, on the tide of managerialism and fragmentation, is now increasingly confronted with conflicts articulated as collisions of jurisdiction and applicable law, among which private or hybrid authorities and regimes now occupy a significant place. According to the genealogy of private international law depicted here, the discipline has developed, under the aegis of the liberal divides between law and politics and between the public and the private spheres, a form of epistemological tunnel-vision, actively providing immunity and impunity to abusers of private sovereignty. It is now more than time to de-closet private international law and excavate the means with which, in its own right, it may impact upon the balance of informal power in the global economy. This means both quarrying the new potential of human rights in the transnational sphere, and rediscovering the specific savoir-faire acquired over many centuries in the recognition of alterity and the responsible management of pluralism. In short, adopting a planetary perspective means reaching beyond the schism between the public and private spheres and connecting up with the politics of international law. Increasing juridification of international politics 1 has situated public international lawyers as self-styled prime-movers in the design of a new normative ordering beyond the state. 2 The breaking of geo-political frames accompanying globalisation heralds new de-territorialised forms of fragmented sovereignty , 3 points to alternative scenarios of global ordering, draws attention to the rise of functional regimes, points to hybrid actors and private rule-making, and breathes new life into the recurring debate on the real nature of international law as law. 4 Beyond international law s traditional subjects, 5 it
Polish Yearbook of International Law, 2016
Anybody studying the law of international organizations is now in a far better situation than several decades ago. The gap was first filled when Sir Derek Bowett published his seminal book The Law of International Institutions. Since then several editions of this masterpiece have been released (most recently the sixth, edited by Philippe Sands and Pierre Klein in 2009). In the meantime, numerous other examinations of the topic in english have been provided, with perhaps the most obvious work being the monumental treatise International Institutional Law by Henry g. Schermers (continued now by Niels M. Blokker), which has been found to be indispensable in any serious legal library. Several other authors (including most notably C.W. Jenks, F. Seyersted, N. White or J. Klabbers) have presented their own expositions of the problem, in many respects offering a fresh look at the issues under examination. The need for a comprehensive analysis was also recognized by The Hague Academy of International Law, which decided to prepare its own bilingual textbook under the auspices of UNeSCO: Manuel sur les organisations internationales = A handbook on international organizations, with r.-J. Dupuy as an editor. In this regard one might be tempted to also include a reference to the comprehensive volume on the subject published in French, edited by evelyne Lagrange and Jean-Marc Sorel, providing yet another vision for approaching the complex matter. The reasons for such a proliferation of textbooks are largely known. The growing importance of the law, the training of law students, and the increased need for interdisciplinary research also provide the impetus underlying the reviewed book, as the authors themselves acknowledge at the outset (p. 3). The book under review is a translation of a textbook originally published in german by two leading german international lawyers. As such, making this work available to an english readership is a most welcome step. It offers a perspective developed by constant reliance on the continental experience, which is evidenced by the systematic references mainly to the doctrinal views held by the german-speaking scientific community. In the view of its authors the book is designed to offer the basis for a scientifically sound work on the law of international organisations. The target audience is primarily students of international law and international relations, as well as practitioners and interested lawyers. By putting emphasis on the decisive link between substantive and institutional issues and their treatment in public international law (p. 5), the authors have attempted to avoid offering yet another catalogue of institutional developments. Instead, they offer a carefully structured, concise, and in most cases accurate reference book, which may be BOOK revIeW