Author name: Branden Loizides

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The Future of International Law Is Domestic (or, The European Way of Law)

Introduction

International law has traditionally been just that—international. Consisting of a largely separate set of legal rules and institutions, international law has long governed relationships among states. Under the traditional rules of international law, the claims of individuals could reach the international plane only when a state exercised diplomatic protection and espoused the claims of its nationals in an international forum. More recently, international law has penetrated the once exclusive zone of domestic affairs to regulate the relationships between governments and their own citizens, particularly through the growing bodies of human rights law and international criminal law. But even in these examples, international law has recognized a clear demarcation between domestic and international politics.

The classic model of international law as separate from the domestic realm reflects the traditional problems the international legal system sought to address, namely the facilitation of state-to-state cooperation and the treatment of one state’s nationals by another state. Whether regulating the immunities of diplomats or the rights of ships on the high seas, the traditional purposes of international law have been interstate, not intrastate.

This foundation of international law reflects the principles of Westphalian sovereignty, often seemingly made up of equal parts myth and rhetoric. In this conception, the state is a defined physical territory “within which domestic political authorities are the sole arbiters of legitimate behavior.” States can be part of the international legal system to the degree they choose by consenting to particular rules. Likewise, they can choose to remain apart, asserting their own sovereignty and eschewing international involvement. Formally, Westphalian sovereignty is the right to be left alone, to exclude, to be free from any external meddling or interference. But it is also the right to be recognized as an autonomous agent in the international system, capable of interacting with other states and entering into international agreements. With these background understandings of sovereignty, an international legal system, consisting of states and limited by the principle of state consent, emerged.

Today, however, the challenges facing states and the international community alike demand very different responses from and thus new roles for the international legal system. The processes of globalization and the emergence of new transnational threats have fundamentally changed the nature of governance and the necessary purposes of international law in the past few years. From cross-border pollution to terrorist training camps, from refugee flows to weapons proliferation, international problems have domestic roots that an interstate legal system is often powerless to address. To offer an effective response to these new challenges, the international legal system must be able to influence the domestic policies of states and harness national institutions in pursuit of global objectives.

To create desirable conditions in the international system, from peace, to health to prosperity, international law must address the capacity and the will of domestic governments to respond to these issues at their sources. In turn, the primary terrain of international law must shift—and is already shifting in many instances—from independent regulation above the national state to direct engagement with domestic institutions. The three principal forms of such engagement are strengthening domestic institutions, backstopping them, and compelling them to act.

The most striking feature of this conception of international law is a direct emphasis on shaping or influencing political outcomes within sovereign states in accordance with international legal rules. Even in 1945, the drafters of the U.N. Charter still maintained the classical position that international law and institutions shall not “intervene in matters which are essentially within the domestic jurisdiction of any state.” Today, however, the objectives of international law and the very stability of the international system itself depend critically on domestic choices previously left to the determination of national political processes—whether to enforce particular rules, establish institutions, or even engage in effective governance. By ensuring that national governments actually function in pursuit of collective aims, international law is starting to play a far more active role in shaping these national political choices. Assuming that current political, economic, and technological trends continue, the future effectiveness of international law will turn on its ability to influence and alter domestic politics.

These functions of international law are already well known to the members of the European Union (“EU”). Indeed, in extending membership to ten new countries over the course of the past decade, the EU has relied on EU law as its primary tool of reform and socialization. Even among the original member states, EU institutions continue to perform the types of backstopping, strengthening, and mandating functions described here. Europeans themselves are coming to recognize these uses of law; a new generation of European policy thinkers has openly proclaimed the virtues of the European way of law.

Some may, of course, argue that these new functions of international law have no applicability outside the European context in which they were first embraced. Yet each of the three means through which international law is coming to influence domestic outcomes—strengthening domestic institutions, backstopping national governance, and compelling domestic action—is spreading beyond the Continent.

To the extent that what we describe as the “European way of law” is already evident both within the EU and now in a growing number of other contexts, this Article describes an important reorganization of the means and mechanisms through which international law operates. Our argument goes further, however, by suggesting that these new mechanisms of international law have the power to make the system as a whole far more effective. We therefore move beyond description and prediction to prescription, suggesting ways that the European way of law should become the future of international law writ large.

We also recognize, however, the potential dangers in current trends. As we emphasize in the conclusion, our vision of the principal future functions of international law assumes an intensive interaction between international law and domestic politics. But domestic politicians can manipulate international legal institutions and mandates to serve their own purposes, such as jailing political dissidents as part of complying with a Security Council resolution requiring domestic action against terrorism. More broadly, the basic positivist foundations of international law, requiring states to freely accept such interference in domestic politics, raise the possibility of manipulation and even imposition of such “acceptance” as a result of power disparities.

Part I of this Article identifies a new set of global threats and actual and potential responses, including the EU’s uses of law to transform new members “from the inside out.” Part II argues that the future relevance, power, and potential of international law lie in its ability to backstop, strengthen, and compel domestic law and institutions. Part III examines the potential pitfalls and dangers of these new functions of international law. Finally, Part IV contrasts our analysis with other recent efforts to blur the boundaries between the international and domestic spheres, noting that what is distinctive about our claim is not the intermingling of two kinds of law, but rather the impact of international law on domestic politics and vice versa…

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Deconstructing Moral Rights

Introduction*

One of the most noteworthy developments in transnational copyright law over the past twenty years has been the adoption of statutory moral rights regimes in a number of countries that had previously ardently rejected the civil law concept of moral rights as completely alien to their legal tradition, including the United States, the United Kingdom, Australia, Ireland, and New Zealand. The standard scholarly reaction to these developments is to ask what they mean for the two classic questions of comparative moral rights law, namely whether the common law countries fulfill the requirements for moral rights protection under international law and whether the common law countries provide a degree of protection comparable to that available in civil law countries. In this context, the enactment of statutory moral rights appears to be simply another factor to be considered when measuring the substantive level of moral rights protection in the United States, just as the Supreme Court’s recent Dastar decision, the copyright management information provisions of the Digital Millennium Copyright Act of 1998, or the Family Movie Act of 2005 are factors in this type of analysis. However, among these factors, the recognition of specific moral rights as part of copyright law is particularly significant, because it symbolizes a fundamental break with the traditional conception of moral rights in common law countries.

After all, it had been a canon of comparative copyright scholarship that the most significant difference between Anglo-American and Continental European copyright law was their respective attitudes toward moral rights. The inclusion of moral rights in statutory copyright law was generally understood to be the defining feature of the Continental copyright tradition, while the lack of statutory moral rights protection was considered to be a crucial component of the Anglo-American copyright tradition. This dichotomy had been celebrated and cultivated since World War II on both sides of the Atlantic to the point where the statutory protection of moral rights or the lack thereof had become an integral part of each legal system’s identity, essentially dividing the world of copyright into two fundamentally different ideal types, one that includes moral rights, and another that excludes moral rights. The common law courts were fully aware of this dichotomy, and while they recognized the existence of the concept of moral rights in civil law countries, they uniformly rejected its applicability in their own jurisdictions. Against this background, the adoption of civil-law-style moral rights legislation is a major shift in terms of copyright theory, because it eliminates the key feature that distinguished common law from civil law copyright systems. The fact that the law of moral rights is a field in which the United States is an importer rather than an exporter of legal concepts makes this shift all the more noteworthy in times in which it is typically the law of the United States that is received in other countries, especially in intellectual property law.

This Article is a study of the now dominant mode of conceptualizing moral rights as inalienable rights of authors in their works. My purpose is to use comparative law to enhance our understanding of this particular concept of moral rights and to assess the effects of the recent wave of moral rights legislation in the United States and other common law jurisdictions on the substantive level of protection available to authors. More specifically, my claim is that, if the goal was to increase the overall protection of authors, it was a step in the wrong direction for the common law countries to adopt the civil law concept of moral rights, because the statutory moral rights regimes that were enacted in the United States and the United Kingdom have likely reduced rather than increased the aggregate level of authorial protection.

My analysis will proceed in four steps. Part I presents and illustrates the orthodox theory of moral rights by drawing upon the statutory moral rights regimes of France, Germany, and Italy, the strongholds of the Continental moral rights tradition. Part II disaggregates the civil law concept of moral rights into the concrete decisional rules of which it consists in order to create a reliable basis for comparison across different moral rights systems. Part III compares the moral rights orthodoxy to the conceptual alternatives traditionally used in countries which did not subscribe to the standard concept of moral rights until recently. My analysis will focus on the United States and the United Kingdom as two major representatives of the common law tradition and on Switzerland as an example of a civil law country that resisted the adoption of the Continental moral rights doctrine for decades. Part IV evaluates the effects of the newly enacted statutory moral rights regimes on the overall protection of authors in the United States and the United Kingdom.

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Persecution Complex

Introduction*

The world’s asylum system is in crisis. Over the last fifteen years, unprecedented numbers of people have sought asylum in Western Europe and North America. As the number of asylum seekers has surged, a public backlash against them has intensified, especially in Europe. Increasingly, asylum seekers are seen as opportunists ready to exploit the relatively generous social welfare systems of industrialized states, and as cultural threats whose presence in large numbers may undermine the liberal and secular values of their host countries. The problem has been especially acute in Britain: more than 100,000 people sought asylum there in 2002, up twenty percent from the year before, leading to regular accusations in the tabloids that the government had lost control of its borders. Although the number of new applicants in Britain declined sharply in 2003 and continued to fall through 2005 due to a combination of changed international conditions and draconian measures taken by the British government, asylum seekers continue to be assailed as “economic migrants” who intend to leech off of Britain’s welfare state.

In the United States, and increasingly in Europe as well, the war on terror has also generated suspicion of asylum seekers. Some commentators have expressed concern that the asylum system is a back door through which al-Qaeda operatives may attempt to enter the West. Indeed, one of the 1993 World Trade Center bombers entered the United States as an asylum seeker. Law enforcement authorities also express concern that asylum seekers have become a lucrative source of income for transnational human smuggling and trafficking gangs, which themselves may have ties to terrorists.

Faced with historically high numbers of asylum seekers, as well as increasing domestic pressure to curb asylum, states are erecting barriers to entry; introducing onerous procedural requirements to reduce the number of people eligible for asylum; reducing public benefits available to asylum seekers pending the decision on their applications; detaining asylum seekers pending determination of their status, often in facilities housing common criminals; and expediting the determination process at the cost of giving asylum seekers less time to prepare for their hearings and gather evidence in support of their claims. Even the United Nations High Commissioner for Refugees (“UNHCR”), by emphasizing refugees’ “right to remain” in their countries of origin, has aided in diminishing asylum’s importance. Although these methods, together with regime change in Afghanistan and Iraq (two major source countries in the 1990s), have led to a decline in the total number of new applications filed in the West, asylum nonetheless remains a volatile political issue.

At the same time, however, courts have steadily adopted increasingly generous interpretations of the substantive eligibility requirements for asylum, which limit asylum to those who have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Courts have recognized for the first time claims made by people fleeing ethnic conflicts, battered women, and victims of female genital mutilation, among others. In part, this widening of the substantive grounds for asylum has been achieved by linking the eligibility requirements for asylum to international human rights law. As Deborah Anker argues, “[i]nternational refugee law is coming of age . . . . Over the past decade especially, refugee law has been claiming its international human rights roots and evolving across national borders. As refugee law matures, judicial bodies, including states’ highest courts, are reviewing more refugee cases.” Commonwealth courts in particular have interpreted “persecution” as “the sustained or systemic violation of human rights demonstrative of a failure of state protection.” This interpretation has significantly aided claimants who have been victimized by nonstate actors. Many advocates and academics have urged a further widening of eligibility requirements, to include not only victims of persecution, but other victims of violence as well. They have claimed that limiting asylum to the persecuted draws a morally arbitrary distinction among people who are similarly situated with respect to their need for protection from violence.

The result has been a tug-of-war between the courts and advocacy groups, who push for further substantive liberalization, and elected officials, who have responded to a disgruntled public by making it more difficult for applicants to have their claims judged on their merits. As a practical matter, asylum is a “scarce resource,” politically speaking. Western publics support asylum as a way to help people who truly need assistance, but only if they feel that control over the borders more generally is being maintained. An influx of asylum seekers invites a backlash because it raises doubts about the effectiveness of border control, unless there is evidence that the sudden spike in demand can be attributed to “a real outbreak of implacable persecution.” If the public perceives that the asylum system is being used as a loophole by “ordinary” immigrants, and that “resettlement rights are not being reserved only for those who show the kind of special threat that clearly justifies an exception from the usual rigours of the immigration law,” popular support for asylum will quickly erode. Professor David Martin has expressed concern that public backlash against asylum abusers can even undermine support for foreign aid programs more generally.

Given the current state of affairs, a reassessment and articulation of asylum’s theoretical underpinnings is especially important. What group of people is asylum meant to assist? What purpose does it serve, and what criteria should determine eligibility for it?

These questions of underlying theory are brought into stark relief by the prevailing framework governing asylum law. Almost every state has followed the 1951 U.N. Convention Relating to the Status of Refugees (“Convention”) in embracing what I shall call the “persecution criterion”—the requirement that a recipient of asylum have “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Those who fail to qualify for asylum, but who nonetheless can make a strong case that they ought not be returned to their respective state of origin, are sometimes eligible for a form of “temporary protection,” a status that typically grants fewer rights and benefits than asylum does, and, unlike asylum, often offers no opportunity for permanent settlement. In the United States, for example, the Attorney General is authorized to make temporary protection available for those aliens whose return to their home countries would “pose a serious threat to their personal safety” because of an “ongoing armed conflict within the state,” or who would experience a “substantial but temporary disruption of living conditions” by an “earthquake, flood, drought, epidemic, or other environmental disaster.” Recipients of temporary protection have no opportunity to adjust their status to permanent residence, regardless of how long they stay.

The result is a two-tiered system of refugee protection. Those who satisfy the persecution criterion receive a potentially permanent place of refuge and relatively generous benefits as a matter of de facto individual right. Others fleeing life-threatening situations are eligible for a temporary place of refuge and relatively less generous benefits as a matter of charity.

Scholars have engaged in little sustained reflection as to asylum’s normative underpinnings. Why might the persecution criterion have normative appeal? The absence of such a discussion is troubling; lives ride on the matter. Among those who have been excluded from asylum by the persecution criterion are people caught in the crossfire of civil war or generalized violence, starving people, people without the economic resources to subsist, people forced to flee their countries due to environmental catastrophe, people forcibly recruited by a rebel militia, and battered women unable to obtain protection from the police. States should be able to justify their reliance on the persecution criterion when they use it to deny asylum to such people. The persecution criterion has been subject to scathing criticism from scholars and activists. These critics argue that those forced to flee their homelands because they lack protection from generalized violence or severe economic hardship have as strong a moral claim to asylum as people targeted for violence by their state. That is, there is no moral justification for excluding the former and limiting asylum to the latter. I call this view the “humanitarian conception of asylum.” On this view, the Convention refugee definition should be widened to include not only persecuted people, but also those who need protection from serious harm more generally, regardless of the source of the harm. Part I of this Article begins by laying out the humanitarian conception and its critique of the current legal framework for asylum.

The goal of this Article is to articulate and defend a normative theory of asylum that can account for the persecution criterion. In Part II, I offer such a theory of asylum’s purpose and function, which I call the “political conception of asylum.” On this view, asylum’s purpose is to shelter those who are wrongfully harmed by agents acting under the color of state authority and to call the persecuting state to task by expressing condemnation. The political conception does not focus on the mere fact of an asylum seeker’s need for protection; instead, it focuses on the legitimacy of, and the state’s culpability in, the asylum seeker’s exposure to harm. This theory explains why asylum should be narrowly focused on assisting persecuted people, rather than broadly aimed at protecting people from insecurity generally.

Part III offers a normative defense of the political conception. I begin by calling attention to the variety of ways that states can assist refugees. These include not only asylum, but also in situ aid, temporary protection, overseas refugee resettlement programs, and military intervention. Asylum is thus just one tool of many in the refugee policy toolkit, distinguished from the others in that it provides its recipients with a political good: membership in the state of refuge, and not merely protection of recipients’ basic rights. A defensible conception of asylum should account for the distinction between a need for membership and a need for protection. I argue that this distinction is preserved by the political conception, but not by the humanitarian conception. However, my argument should not be read as an apologetic for the move toward restriction among many policymakers today. In many respects, I contend, current policy needs to be substantially liberalized.

Part IV examines the implications of the political conception for asylum law and policy. In particular, I consider the consequences for the interpretation of “persecution.” Over the last decade, refugee advocates have argued that “persecution” should be understood to consist in the “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.” Courts in Canada, the United Kingdom, New Zealand, and Australia have embraced this “human rights approach,” and it is beginning to gain traction in the United States as well. The political conception, however, calls into question the normative defensibility of this interpretation. Like the humanitarian conception, the human rights approach views a person’s need for protection as giving rise to a claim for asylum. It fails to recognize the distinction between a need for protection and a need for membership. The implications of this disagreement between the human rights approach and the political conception are brought into sharp focus when one considers how the law should treat persecution by nonstate actors. Finally, I consider the implications of the political conception for rights of integration. I then conclude in Part V.

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Who’s Got the Title? or, The Remnants of Debellatio in Post-Invasion Iraq

Introduction*

The invasion of Iraq by the British and U.S.-led Coalition forces in March 2003 silently effected debellatio, the ancient doctrine by which a military victor takes title to territory in which the defeated government has ceased to function. The Coalition governments’ failure to recognize it as such and to invoke the attendant legal consequences enabled destructive chaos on the ground and created a troubling precedent for the application of international law to any future exercise of one sovereign state’s authority within the geographical boundaries of another sovereign state. The Coalition forces ostensibly acted pursuant to the international law of occupation, but the legal framework ultimately agreed upon and actually utilized in post-invasion Iraq more closely resembles debellatio. Though this doctrine traditionally is associated with conquest and annexation, it need not be; as updated by modern ideas of self-determination and what I call “sovereign identity,” it is in fact the extant doctrine most consistent with the factual and legal situation caused by the invasion.

In what was perhaps an understandable bid to constrain U.S. and British power, the United Nations labeled the Coalition “occupying powers,” thereby invoking the body of international occupation law traditionally applicable only to foreign authorities assuming “temporary managerial powers” over another sovereign’s territory during which “limited period” the foreign force may not “bring about by itself a valid transfer of authority.” The application of this body of law to the Coalition presence in Iraq was a poor choice, however, given the Coalition’s nation-building aspirations and may have stemmed in part from a perceived unavailability of any other plausible body of international law, given scholarly assertions that debellatio, the international legal doctrine that best fits the factual and legal situations existing after the Coalition’s invasion, was defunct. This Note argues that occupation law is fundamentally inconsistent with the Coalition’s post-invasion exercise of power within Iraq and that, as contextualized within the modern regime of human rights law, a modern doctrine of debellatio much better comports with the Coalition’s authority in post-invasion Iraq.

In Part I of this Note, I explain why occupation law is poorly tailored to nation-building and highlight some of the consequences of its application in Iraq for the occupiers, the occupied, and the evolution of occupation doctrine. In Part II, I make a case for the legal viability of a modern doctrine of debellatio consistent with both the right of a people to self-determination and the idea that sovereignty may not be taken by force. In Part III, I argue that the legal framework under which the Coalition Provisional Authority (“CPA”) actually operated through the chaotic post-invasion phase that created further divisions among the Iraqi people is something more than traditional occupation law but something much less than the ancient tradition of annexation via debellatio; it is a legal framework best supported by a modern doctrine of debellatio that allows the occupier to take contingent, temporary title to the territory in which the vanquished government formerly operated. Finally, in Part IV, I outline the advantages of acknowledging a modern doctrine of debellatio.

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Theorizing the Diffusion of Law

Excerpt from the Keynote Address:*

Good morning. I am, on the whole, delighted to be here, and I thank the Harvard International Law Journal for inviting me. From their invitation, the editors want a quick overview of the way law changes in world history, incorporating the reams of scholarship produced by the host of legal notables here assembled. I am happy to oblige, although I must say that the task is a bit daunting.

The certainty of my failure, however, is not the only reason my delight in this invitation is not completely unalloyed. After all, I am used to my reach exceeding my grasp, frustrated ambitions, and the like, although I usually try to keep that familiar sinking feeling to myself. My problem is that giving the opening remarks to a symposium like this one forces me to admit publicly that I am — “mature” would be euphemistic, there’s no getting around it — downright middle-aged. A responsible member of the established order, rather than the fine young barbarian I still fancy myself. Frankly, it’s depressing.

Seriously, I am delighted to be here. Thank you.

I have three objectives for my talk this morning. First, I want to provide an idiosyncratic account of some of the ways the diffusion of law, or more generally, social authority in an age of globalization, may be rethought. While there is currently little consensus on such matters, we will, no doubt, iron everything out in the course of the day.

Second, since this is a keynote, I feel some obligation to be useful. I hope the theoretical account that I provide here will be sturdy enough to aid more focused discussions in the panels.

Third, I want to say a little bit about those highfalutin’ intellectual practices referred to as theories. That is, I want to close on a meta-meta note, and conclude by providing a theoretical comment on theorizing. This is, after all, a weekend, and we should enjoy ourselves.

The phrase “diffusion of law” sounds most naturally in comparative law. Understanding what diffusion means and how it happens, what changes and what stays the same, is perhaps the central problem in the field. My commentators, and many other participants in this symposium, are very eminent comparatists, franchise players in the painfully erudite and often surprisingly heated debates that mark comparative law. In such company, it would be redundant and downright foolhardy of me to treat the diffusion of law as a question of comparative law — I leave that to other knights.

Instead of plunging into the debates surrounding the diffusion of law as construed by eminent comparatists, let me begin by considering the title of this symposium; I think it is quite smart. Had the word globalization” been used instead, it would have prefigured and foreclosed too much of the discussion. Yet globalization cannot be avoided because, as this symposium’s opening statement makes clear, the diffusion of law cannot be separated from those social processes discussed under the rubric of globalization. In a globalizing world, we might expect to find quite a lot of diffusion, both of law and other things.

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On the Singularity of Law

Excerpt from the Speech:*

“We must attempt to hear only what is said there.”
– Heidegger

Thus, situating myself within a cosmopolitan polycentricity, I discern two salient interpretive strategies purporting to ascribe meaning to what is apprehended as “law”—neither of them ever appearing in pure guise, both of them always formulated as narrative predilections (or valorizations).

* * *

The first approach discounts the singularity of law. Underlying this management-driven, productivity-oriented response to law-texts is the decision to instrumentalize law—that is, to press law into service in support of an agenda diversely introduced as “harmonization,” “integration,” “uniformization,” “unification,” or “globalization.” This program of rationalization’s principal discursive configurations are law-as-meta-law and meta-law-as-law. The initial variation on the theme of trans-legality concerns the move from localism to transcendentalism. Assumptions informing the prescriptive case for law-as-meta-law include the idea that law’s facticity must be regarded as the largely obsolete remnant of an early-modern worldview mired in diverse brands of stultifying nationalism; the related idea that as long as law’s particularism continues to abide, not enough has been done to move beyond the post-feudal shackles of melancholic parochialism; and the further idea that meta-law is worthy of high estimation as a progressive political, economic, or social weapon. For the partisans of law-as-meta-law, the responsible thing to do in the face of obstinate traces of stupefied localism is to surpass them, that is, to foster an emancipatory project of liberation from prejudice that moves beyond/beneath any culturality/traditionality of law. Unsurprisingly, advocates of this position, possibly taking the view that law-texts are striving for self-realization through assimilation into a totality and for reconciliation inter se within the totality, find law inherently repeatable and indeed incessantly repeated. Almost inevitably envisaging law as consisting of basic units somehow unconnected in any meaningful way to any local network of intelligibility, which they proceed to make isomorphically homogeneous across borders, the partisans of law-as-meta-law readily refer to the transportability of law and, indeed, to the obviousness of the transportability of law.

The other main variation on the theme of transcendentalization involves meta-law-as-law—that is, supranational regulatory or conflict-resolution regimes operating, often outside the realm of governmental law-making or international treaties and within self-established procedural frameworks, as issuers and enforcers of sometimes highly specialized rules. Whether one has in mind the Apparel Industry Partnership, the WTO Appellate Panel, the International Federation of Consulting Engineers Model Contract, the lex mercatoria, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), or the World Heritage Convention, “global” rules of governance are understood as functioning in a standard manner showing no meaningful deviation from one locus to the next—that is, as being implemented “irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied.” Again, law is found to be inherently repeatable and indeed incessantly repeated. Even within the European Community, where the Treaty of Rome’s preoccupation is with the harmonization of laws (i.e., not with uniformity, equivalence, or convergence) and where all directives concede a national margin of appreciation to Member States, designations like “European Contract Law,” “European Tort Law,” “European Private Law,” “European Administrative Law,” “European Public Law” (dereferentialized labels all), to confine myself to the smallest number of illustrations culled from the plethoric references to “one law,” point to the view that “[u]niformity, in an ideal [European Community] would be both substantive and procedural. Not only would black-letter law be the same in all Member States, as if diligently copied or faithfully translated from a single private law code, but judicial remedies would reflect an identical sense of procedural justice as well.”

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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