bluuebunny/crossref_metadata_2025 huggingface dataset:
International Norms and Cycles of Change
Authors: Sandholtz Wayne , Stiles Kendall
Published: January 2009

International lawyers and international relations scholars recognize that international norms change over time. Practices that were once permissible and even “normal” — like slavery, conquest, and wartime plundering — are now prohibited by international rules. Yet though we acknowledge norm change, we are just beginning to understand how and why international rules develop in the ways that they do. This book sketches the primary theoretical perspectives on international norm change, the “legalization” and “transnational activist” approaches, and argues that both are limited by their focus on international rules as outcomes. It then presents the “cycle theory”, in which norm change is continual, a product of the constant interplay among rules, behavior, and disputes. International Norms and Cycles of Change is the natural follow-on to Prohibiting Plunder, testing the cycle theory against ten empirical cases. The cases range from piracy and conquest, to terrorism, slavery, genocide, humanitarian intervention, and the right to democracy. The key finding is that, across long stretches of time and diverse substantive areas, norm change occurs via the cycle dynamic. This book further advances the authors' theoretical approach by arguing that international norms have been shaped by two main currents: sovereignty rules and liberal rules. It includes five cases of sovereignty rules and five of liberal rules in order to reveal the broad cyclic pattern of international change in these two categories of rules.
The End of Conquest: Consolidating Sovereign Equality
Authors: Gotberg Brook
Published: January 2009

This chapter presents a set of case studies to examine the cycle theory of international norm change with respect to rules on conquest. Each case represents a key cycle of norm change. The cases include Germany's 1870 annexation of Alsace-Lorraine; World War I; Japan's transformation of Manchuria into puppet state “Manchukuo” during the early years of the League of Nations; the Nazi invasions of Czechoslovakia and Poland leading up to World War II; North Korea's 1950 invasion of South Korea at the beginning of the Cold War; and the 1990 Iraqi invasion of Kuwait at the Cold War's end.
Protecting Cultural Treasures in Wartime
Authors: Sandholtz Wayne
Published: January 2009

This chapter assesses the evolution of international norms against cultural plundering, focusing on two crucial turns through the cycle of normative change: the Napoleonic Wars and World War II. The empirical account, based on both secondary and archival sources, clearly depicts cycles of normative change as posited in Chapter 1. International rules prohibiting plunder are part of the stream of sovereignty norms; antiplunder rules protect the right of states to their cultural patrimony, a right that states retain even in defeat or under occupation.
Terrorism: Reinforcing States’ Monopoly on Force
Authors: Stiles Kendall W.
Published: January 2009

The international regulation of terrorism has invariably confronted two major challenges. First, as nonstate actors, most terrorists have no clear standing under international law. Second, because terrorism is inherently political, it invariably provokes varied responses from states. This chapter shows how states have coped with these two challenges and how they have reframed the struggle to suppress terrorism using diverse legal structures and principles. In particular, it shows that the scope of what could be termed “justifiable” terrorism has narrowed dramatically, especially over the last decade, and the scope of justifiable responses has broadened proportionally. At the same time, the status of terrorist groups has changed in fits and starts over the years as states seek greater control over what may well be uncontrollable.
Extraterritoriality: Expanding Exclusive Internal Jurisdiction
Authors: Chen Titus Chih-Chieh
Published: January 2009

Norm change frequently occurs (1) when norms are in tension with each other and (2) when the “fit” between norms and concrete experience is disputed. This chapter provides historical case studies in support of that proposition. It begins with a concise discussion of the formation of the two temporally coexisting yet inherently contending norms—exclusive territorial jurisdiction and extraterritorial justice—as the dual normative structures guiding state policies and generating interstate disputes. The second section summarizes the justifications for, and the establishment of, extraterritorial justice through imperial expansion and colonization. Section three analyzes the cases of Japan, Turkey, and China to reveal the contentious processes in which concrete practices of various forms of extraterritorial justice triggered disputes not only between the West and non-Western states but even within and among Western capitals. The chapter concludes by suggesting that the abolition of extraterritoriality modified international normative structures by promoting the principle of self-determination and paving the way for post-WWII decolonization.
The Emerging Right to Democracy
Authors: Sickle Alix van , Sandholtz with Wayne
Published: January 2009

This chapter examines how the “right to democracy” gained normative force in the 1990s. It begins by discussing the normative context that prevailed in the international system prior to the Third Wave of Democracy. It then discusses the key events and disputes that drove the idea a “right to democracy” to the forefront of international normative debates. It focuses on three cycles of norm change, arising out of the 1991 coup in Haiti, the 1992 “self-coup” in Peru, and the 1997 West African intervention in Sierra Leone. The chapter explores the arguments offered in these disputes and examines the extent to which the outcomes of these disputes have shaped how the international community responds to situations in which a democratic government is overthrown or threatened.
Cycles of International Norm Change
Authors: Stiles Kendall , Sandholtz Wayne
Published: January 2009

This chapter presents a synthesis of discussions in the preceding chapters. It discusses the triggering cycles of norm change, tensions among norms, the nature of normative arguments, role of power in norm change, and the architecture of international norms.
Fugue and fantasy I
Authors: Jones Richard D. P.
Published: January 2009

This chapter focuses on the association of Bach's music with fugue. His earliest works show a preoccupation with fugal writing, and the skill they already exhibit supports his son's observation that ‘he became even in his youth a pure and strong fugue writer’. Many of Bach's early fugues are free-standing, lacking an introductory prelude. They are sometimes regarded as deviations from the norm of the prelude-and-fugue, and presumed to have been written for study purposes only. However, this is to view Bach's early music from the vantage point of his later development.
Conclusion
Authors: Jones Richard D. P.
Published: January 2009

This chapter presents a synthesis of discussions in Part II of this book. It argues that Bach arrived at full maturity by about the middle of the Weimar period (around 1713), which is attested by the stylistic and technical assurance, and the consistently high standard of his writing at that time, both for keyboard and for vocal and instrumental ensemble. During the mid-to-late Weimar years (1713-17), he produced some of his greatest masterpieces, never to be eclipsed by anything he composed in later years at Cöthen or Leipzig.
Legal Relations and Things: Property
Authors: MacCormick Neil
Published: January 2009

This chapter focuses on a different type of complex right, that involved in the ownership of property, and in other related forms of proprietary right, or ‘real right’. It addresses the following questions: What kinds of legal relationships are involved in owning something? What kinds of things are susceptible to being owned? What are property rights as distinct from other kinds of rights? What are real rights as distinct from purely personal rights? It argues that property in all its forms is norm-dependent, and legal property depends on and is defined by the norms (rules, principles, etc) of particular legal systems. What kinds of property to recognize, and how extensively to recognize different kinds, is a question of politics, guided by economics and perhaps moral philosophy.
Using Corporate Law to Compete for Investments
Authors: Kamar Ehud
Published: January 2009

This chapter documents and analyzes a powerful form of regulatory competition — competition for investments — that has transformed national corporate laws in the European Union (EU) in recent years. Unlike competition for incorporations, competition for investments shapes corporate law when firms cannot easily incorporate outside the jurisdiction in which they operate. These dynamics also characterized state lawmaking in the United States in the early 19th century, and may well characterize lawmaking outside the EU today. The high political payoffs that await successful participants in the competition for investments enable them to overcome opposition that could stifle competition for incorporations. Together with the fact that no single jurisdiction can monopolize the market for investments, these payoffs drive multiple jurisdictions, including large ones, to compete. Allowing firms to incorporate abroad, as recent European Court of Justice rulings require, may or may not breed competition for incorporations. Judging from the reforms that the competition for investments has produced so far, it will be positive.
The MiFID: Competition in a New European Equity Market Regulatory Structure
Authors: Davies Ryan , Dufour Alfonso , Scott-Quinn Brian
Published: January 2009

In 2004, the European Council and Parliament adopted a new Directive on Markets in Financial Instruments (MiFID). The implementation of the Directive in EU Member States is still ongoing. This chapter provides a framework for understanding some of the main features of this new regulatory structure. It summarizes the economics of fragmentation and internalisation — issues that have been at the forefront of discussion throughout the MiFID consultation, approval and implementation process. It also provides lessons from the US regulatory experience, with a special focus on US trade reporting rules. The chapter highlights relevant features of the largest European equity markets, describes the main features of the MiFID, and provides recommendations on its implementation.
The MiFID and Internalisation
Authors: Ferrarini Guido , Recine Fabio
Published: January 2009

This chapter examines the new rules concerning the internalisation of trading orders by investment intermediaries included in the Directive on Markets in Financial Instruments (MiFID). It begins by analyzing the interplay amongst different interest groups in the legislative process that led to the MiFID. It also assesses the Lamfalussy regulatory architecture in the light of the MiFID and its formation. It argues that the Directive went too far in formulating its core principles in the area of internalisation. On the whole, the MiFID resulted in substantial re-regulation of securities trading systems, despite the abolition of concentration requirements as to exchange transactions in some countries. The chapter concludes that the rules examined show that the Lamfalussy structure's main goal, represented by a flexible regulation for European securities markets, has not been reached.
Conflicts of Interest in Investment Services: The Price and Uncertain Impact of MiFID's Regulatory Framework
Authors: Enriques Luca
Published: January 2009

The Markets in Financial Instruments Directive (MiFID) lays down organizational and conduct-of-business rules on conflicts of interest of investment firms and banks providing investment services. It is easy to predict that, as a consequence of the home country control principle, the MiFID will lead to de facto complete harmonization of the rules on conflicts of interest: Member States will refrain from enacting further rules on conflicts of interest so as to avoid putting domestic firms at a competitive disadvantage vis-à-vis EC firms. This chapter inquires into this prospective uniformity, making two points. Firstly, the uniformity will be more apparent than real. Secondly, that the uniform rules on conflicts of interests will lower the degree of investor protection in at least some Member States (namely, Italy) where regulation would be most needed in light of the lower degree of competition in the financial services industry, the lower level of investor education, and the unimpressive record of the financial services authority.
The ‘Public Offering of Securities’ Concept in the New Prospectus Directive
Authors: Pietrancosta Alain
Published: January 2009

An important method of financing corporations — the ‘public offering of securities’ — has for some time also been a key concept in capital markets law. However, the European capital markets regulation did not dignify the concept with a substantive definition. The gap has been closed by Prospectus Directive 2003/71/EC of 4 November 2003, with important practical and theoretical implications in terms of financial markets harmonization, investors' protection and corporate law. Unfortunately, a number of questions remain with respect to the precise contours of the definition of ‘public offering of securities’.
Effective Policy Design for the Retail Investment Services Market: Challenges and Choices Post FSAP
Authors: Moloney Niamh
Published: January 2009

This chapter considers the choices and risks faced by the EU in designing policy for the retail investment services market in the wake of the large-scale regulatory reforms introduced by the FSAP. It argues that a multi-stranded, evidence-based strategy, which incorporates nuanced, non-regulatory policy design initiatives, is essential for the achievement of the EU's objective of promoting an effective retail investment services market through the support of rational and informed investor choice.
Financial Market Integration in the Post FSAP Era. In Search of Overall Conceptual Consistency in the Regulatory Framework
Authors: Tison Michel
Published: January 2009

This chapter looks into the concepts underpinning the current generation of capital market integration directives, that follow the ‘Lamfalussy-approach’. In particular, it examines whether the level 1-directives are based on minimum or maximum harmonization. It argues that the European lawmakers have failed to clarify this issue, thereby reducing legal certainty for the various stakeholders (suppliers, investors, and supervisors alike). In addition, the adoption of yet a new harmonization technique runs the risk of creating inconsistencies with the previous generation of financial market integration directives, adopted under the 1992 Internal market program. Finally, the chapter looks at how the Prospectus Directive and MiFID divide regulatory and supervisory powers between home and host state.
Securities Clearing and Settlement: Regulatory Developments in Europe
Authors: Wymeersch Eddy
Published: January 2009

The subject of clearing and settlement has recently become one of the most controversial issues in the creation of a European securities market. The cost and rigidities flowing from the present state of integration in these post trading services have been identified as significant restrictions, especially in the cross-border trading. In the absence of a European harmonization directive, restrictions remain numerous. This chapter gives an overview of the different activities that are undertaken in Europe and outside and aimed at removing the barriers on intra-European trading or regulating this activity with a view of protecting the interest of investors. Most important in this field are the removal of the Giovannini barriers, the standards of the ESCB-CESR, and finally the expected directive proposals of the European Commission. In the meantime, the market structure may be changing in the near future, due to consolidation at the level of securities trading.
The Choice of Rationales and the Social Meaning of Derivative Actions
Authors: Reisberg Arad
Published: January 2009

This chapter aims to analyse the theoretical rationales behind derivative actions, and to ask how they relate to our understanding of the social value and roles of the derivative action as a corporate governance tool. An initial analysis of the merits and demerits of the derivative action is presented in Section 2.2. Section 2.3 analyses the roles derivative actions may assume in enforcing corporate accountability. The question addressed is whether their purpose is primarily to deter misconduct or simply to compensate the company for the wrongdoing. As part of this, the possible benefits and limitations of these rationales will be explored. Finally, Section 2.4 examines the public image, or expressive value, of the derivative action. The purpose is to determine if some of the features inherent in the derivative action procedure enhance or detract from the understanding of derivative action as a positive social force.
Pursuing the Resolution of the Funding Problem
Authors: Reisberg Arad
Published: January 2009

This chapter examines four possible avenues to rectify the economic impediments to derivative actions. The first two focus on short-term solutions and involve the company and the claimant shareholder. Section 7.2.1 considers making a mandatory requirement for the company to pay the costs of the action. Section 7.2.2 then looks at the merits and demerits of rewarding the shareholder with part of the proceeds of a successful action. The last two sections concentrate on solutions in which the risk of loss is shifted on to the claimant's attorney. Section 7.3 explores new possibilities in the guise of conditional fee agreements; Section 7.4 assesses the possibility of adopting a US-style contingency fees in the limited context of derivative actions. Section 7.5 concludes.
The Emergence of a Common Law of International Adjudication against a Background of Proliferation
Authors: Brown Chester
Published: January 2009

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.
Power of International Courts to Interpret and Revise Judgments and Awards
Authors: Brown Chester
Published: January 2009

This chapter examines in detail two post-adjudication powers of international courts and tribunals: the power of interpretation and the power of revision. It first explains the post-adjudication role of international courts, which is limited due to the principle of the finality of adjudication. A variety of procedures have been developed, but this chapter focuses on the powers of interpretation and revision. The chapter then analyses the source of these powers, and it is argued that even if these powers are not expressly conferred in an international court's constitutive instruments, they can be exercised as inherent powers. It then turns to a number of issues which are considered by international courts in exercising the powers of interpretation and revision: the jurisdiction of the international court hearing the request; the composition of the international court; the scope of the powers of interpretation and revision; and other conditions. The chapter concludes that these powers are generally exercised in a consistent manner by different international courts.
Implications of a Common Law of International Adjudication
Authors: Brown Chester
Published: January 2009

This chapter argues that the emergence of a common law of international adjudication has significant practical and theoretical implications. It then considers whether the common law of international adjudication can inform the response of international courts to issues which arise as a result of proliferation. In this regard, the chapter examines whether international courts have a power to dismiss proceedings summarily, either for manifest lack of jurisdiction, or abuse of process; the power to suspend proceedings; and the power to enjoin parties from pursuing parallel proceedings. The chapter then turns to the theoretical implications of the common law of international adjudication, and suggests that international courts do not regard themselves as ‘self-contained systems’, but rather as forming part of a community whose procedures and remedies have much in common. This evidences the existence of systemic features in international adjudication.
Conclusion
Authors: Brown Chester
Published: January 2009

This concluding chapter notes that the book has asked whether international courts, in interpreting and applying their powers over procedure and remedies, have considered and sought to adopt the practices of other international courts. The book examined the sources of procedural and remedial competences of the principal international courts, and analysed the tools available to international courts to engage in cross-fertilization on issues relating to procedure and remedies. It then examined the degree of common practice with respect to several aspects of international adjudication: rules of evidence, the power to grant provisional measures, the power to interpret and revise judgments, and the remedies available in international adjudication. It then proposed various factors which explain the emergence of common practices, and noted limitations to its further development. Finally, it reviewed the practical and theoretical implications of the common law of international adjudication, concluding that it serves as a solid foundation for the further development of a harmonious system of international dispute settlement.
The Fundamental Forces Shaping International Competition Law
Authors: Noonan Chris
Published: January 2009

This chapter argues that the international competition law system is fundamentally shaped by the nature of international relations and the self-interested behaviour of states. It identifies a number of constraints on the development of international competition law, including the concept and implications of subsidiarity, the principle of sovereignty, autonomy and opportunism, and legitimacy of decision-making processes. The forms and facilitators of international cooperation are discussed.
International Competition Law in a Trade Policy Framework
Authors: Noonan Chris
Published: January 2009

The international effects of anticompetitive conduct and competition law enforcement actions are the source of many international conflicts. This chapter examines these conflicts within a trade policy framework. Section 5.1 outlines the relationship between trade law and competition law. Section 5.2 seeks to identify suitable rules to reduce international conflict that arises from the application of competition law in cases with an international element. Section 5.3 explores some of the international issues raised by predatory and exclusionary conduct. Section 5.4 examines whether transaction and compliance costs arising from the overlapping application of competition laws and multiple pre-merger reviews might justify the harmonization of competition laws.
Private Market Access Barriers
Authors: Noonan Chris
Published: January 2009

This chapter analyses the case for an international obligation for countries to enact and enforce a competition law to prevent anticompetitive conduct that creates market access barriers. It examines Japanese business practices that allegedly created market access barriers in several major industries, including soda ash, steel, stevedoring, semiconductors, and supercomputers. It is argued that anticompetitive conduct may restrict market access and that an international remedy should be available in limited circumstances. While there may be mutual gains from states agreeing to prohibit private anticompetitive conduct that restricts market access, the case for a common set of rules is weak.
Competition Law Jurisdiction under International Law
Authors: Noonan Chris
Published: January 2009

This chapter discusses the broad limits that customary public international law imposes on states that wish to regulate international or foreign anticompetitive conduct. It argues that customary international law rules on state jurisdiction are unable to resolve conflicts over the extraterritorial application of competition law, but provide broad constraints on the scope of the application of competition laws. While customary international law on jurisdiction may not be the same for all legal fields, both civil and criminal competition law actions appear to be subject to the same jurisdictional limits. The territorial principle is the key basis for competition law jurisdiction. The assertion of jurisdiction on the basis of economic effects caused by foreign conduct is consistent with international law and state practice.
International Competition Law Defences
Authors: Noonan Chris
Published: January 2009

This chapter examines the so-called international competition law defences: the application of sovereign immunity, the act of state doctrine, foreign sovereign compulsion, and petitioning immunity in international competition law cases. Sovereign or state immunity relates to the adjudicative or enforcement jurisdiction of municipal courts. It prevents a foreign state being subject to proceedings relating to the exercise of its governmental power in the courts of another country. In the US, the act of state doctrine treats as valid and effective foreign governmental acts, not contrary to public policy, that affect private rights. In other countries, the doctrine of non-justiciability and the rules of private international law may protect similar types of foreign governmental actions from challenge. The foreign sovereign compulsion defence prevents persons from being sued for actions done in another country that were compelled by the government of that country. Finally, petitioning immunity provides firms with immunity from competition law for actions taken to encourage a government to adopt anticompetitive measures.
Categorizing Vertical and Horizontal Jurisdictional Interactions
Authors: Shany Yuval
Published: January 2009

This chapter reviews the relations between national and international courts under a number of institutional and jurisdictional settings created by a number of treaty regimes (e.g., ICC, ECHR, NAFTA, EC, and the New York Convention on Recognition and Enforcement of Foreign Awards) and illustrated in respect of specific disputes: the Consular notification cases involving the ICJ and U.S. court, the Separation Barrier cases involving the ICJ and Israeli courts, review of national trade-related determinations before national and international courts, prompt release of vessel cases brought before ITLOS and national courts, and investment disputes (including early cases relating to application of the Calvo Clause and more recent ICSID cases). The survey suggests inconsistency in the manner in which relations between national and international courts are being regulated across legal regimes and, at times, within the same legal regime.
Conceptualizing the Relations between National and International Courts
Authors: Shany Yuval
Published: January 2009

This chapter examines the two main conceptual structures which underlie the opposition to regulating the jurisdictional relations between national and international courts: dualism and hierarchy. According to dualism, national and international courts employ norms deriving from different legal systems and their jurisdictions can never overlap. Moreover, national and international courts often view their respective legal system as normatively superior to the competing legal system, rendering irrelevant any existing overlap. The chapter explains the tension between these traditional explanations of the relations between national and international courts and the growing intertwining of their functions, and introduces a number of theories that offer a more integrative or, at least, nuanced vision of the relationship: monism, dédoublement fonctionnel, the American school of informal socialization, and pluralism. Given the irreconcilably different institutional visions offered by these different theories, the author offers normative systemization as a possible conceptual framework for discussion.
5 The Church—A School of Wisdom?1
Authors: Lash Nicholas
Published: January 2009

This chapter begins by attempting to indicate something of what is and is not entailed in pleading for that fundamental transformation of understanding and imagination which would enable us to recover and to sustain a sense of Catholic Christianity as a lifelong educational project. It then considers some of the obstacles which work against the achievement of such a programme. These obstacles are partly external and partly internal; or partly cultural and partly ecclesial. It is argued that it is the quality of our liturgy that will decide whether such a project succeeds or fails.
7 Text and Contexts—Hermeneutical Reflections on Receptive Ecumenism
Authors: Larini Riccardo
Published: January 2009

This chapter focuses on the hermeneutical implications of Receptive Ecumenism, through the study of what leads to the rise of theological differences and of what happens when different theological traditions meet. It provides some hints about how to understand and live true reception, from both theoretical and practical points of view, and indicates why academic theology tout court has a lot to benefit from the development of ecumenical hermeneutics.
9 Receptive Catholic Learning Through Methodist—Catholic Dialogue
Authors: Putney Michael E.
Published: January 2009

This chapter looks at the Methodist–Catholic dialogue over the past forty years to show the relationship between divided Christians and the potential for a new way of reconciling them. The most recent phase of the dialogue sought to harvest the work of previous phases and, in the light of what has been achieved, to deepen and extend the recognition that each communion is able to offer the other. A deliberate attempt has been made to describe the elements of each communion which represent to the others' eyes, genuine elements of the church of Christ. This recognition is of an extraordinary depth and breadth which none would have imagined even a few decades ago.
15 What Might Catholicism Learn from Orthodoxy in Relation to Collegiality?
Authors: Famerée, SCJ Joseph
Published: January 2009

Understanding the Orthodox notion of collegiality or, more exactly, synodality, requires an understanding the vision of ecclesial communion that flows from Orthodoxy's apophatic and Trinitarian anthropology. This chapter interprets the diverse institutional forms of conciliarity in the East from this perspective. It then asks what Catholicism, especially at the universal level, might learn from Orthodox ecclesiology and institutional functioning in these regards.
21 Managing Change in the Irish Civil Service and the Implications for Transformative Ecclesial Learning
Authors: Tuohy Brendan , Conway Eamonn
Published: January 2009

This chapter contributes to the diagnosis of factors militating against receptive learning by pursuing a case study of how factors relating to change in the Department of Communications, Marine, and Natural Resources of the Irish Civil Service were diagnosed, and how a change process was embedded through a strategic management initiative that commenced in 1992 and which is still ongoing. It argues that there is much for the church to learn from observation of the processes of strategic management within the Irish Civil Service.
24 Organizational Factors Inhibiting Receptive Catholic Learning
Authors: Reese, SJ Thomas J.
Published: January 2009

This chapter identifies and reflects upon the organizational factors militating against receptive ecumenical learning within Roman Catholicism. It argues that Roman Catholicism has reached a plateau on which it will be stuck for some time into the future. This may have been all right in the days when the world changed at a glacial rate, but today political, cultural, and social changes occur at light speed. The church can no longer take decades or centuries to respond to change. The future of the church and any programme of Receptive Ecumenism and Catholic Learning must be based on faith, hope, and love.
Self, Agency, and Mental Causation
Authors: Lowe E. J.
Published: January 2009

This chapter shows how, consistently with accepting a fairly strong principle of physical causal closure, a dualistic theory of mental causation can be made plausible by emphasizing the explanatory role that can be accorded to mental states in accounting for what would, in their absence, appear to be mysterious coincidences in the ways in which apparently unconnected physiological events give rise to coordinated bodily movements. It is argued that it is crucial to their occupying this kind of explanatory role that mental states are intentional states and that mental causation is distinctively intentional causation — the bringing about of intended effects.
Causal Closure Principles and Emergentism
Authors: Lowe E. J.
Published: January 2009

Looking at a wide range of causal closure principles of differing strengths, this chapter argues that the stronger principles are less plausible than the weaker while the weaker are less capable of playing an adequate role in any causal closure argument for physicalism. The upshot is that there is plenty of scope for a psychophysical dualist to accept a moderately strong principle of physical causal closure while also advocating a genuine and autonomous causal role for mental states in the genesis of intended physical behaviour. Such a dualist may consistently espouse a form of emergentism in the philosophy of mind, according to which non-physical mental states are causally autonomous and yet are themselves ultimately the products of prior physical evolution.
Physical Causal Closure and the Invisibility of Mental Causation
Authors: Lowe E. J.
Published: January 2009

This chapter develops more detailed models of mental causation of the kinds adumbrated, and explains why, if such models are correct, it should nonetheless appear to be the case, from the perspective of physical scientists, that all of the causation involved in human behaviour is purely physical in character. In other words, it is explained why mental causation, thus conceived, should be invisible from such a perspective — the implication being, of course, that its invisibility should not be regarded as compelling evidence of its non-existence. In this manner, it is hoped to take some of the wind out the sails of those physicalists who presume uncritically that ‘science is on their side’.
Could Volitions Be Epiphenomenal?
Authors: Lowe E. J.
Published: January 2009

This chapter looks at the claims of some philosophers and philosophically-minded psychologists that volitions or acts of will are merely epiphenomenal, in the sense that they do not actually play the causal role customarily assigned to them in the genesis of our intentional physical behaviour. These claims are allegedly supported by empirical studies supposedly showing that volitions are at best side-effects of the neurological processes which, according to these theorists, really initiate and sustain that behaviour. It is argued, however, that the empirical evidence in question not only does not, but could not, support the interpretation favoured by these theorists, because our very ability to conceive and investigate causal hypotheses in the sciences is predicated upon the fact that we are beings capable of actively intervening, at will, in the course of nature.
Personal Agency
Authors: Lowe E. J.
Published: January 2009

This chapter builds upon the account of agent causation developed in the preceding chapter in order to draw an initial sketch of the view of rational human action favoured in the book — a view which falls midway between volitionism and classical agent causalism, while simultaneously endorsing libertarianism with regard to the question of free will and externalism concerning the nature of reasons for action.
Needs, Facts, Goodness, and Truth
Authors: Lowe E. J.
Published: January 2009

This chapter examines the important distinction between practical and theoretical reason and rationality. As a consequence, a modification is made to the version of externalism regarding reasons for action advocated elsewhere in the book. It is contended that the sorts of items that properly qualify as reasons for actions, externalistically conceived, must differ fundamentally from those that properly qualify as reasons for belief, and that these items are needs rather than facts. It is also argued that this ontological difference between reasons for action and reasons for belief goes hand-in-hand with equally fundamental differences between the logic of action and the logic of belief.
The Violence of Dispossession: Extra-Territoriality and Economic, Social, and Cultural Rights
Authors: Craven Matthew
Published: January 2009

This chapter explores the issue of extra-territoriality and its relations to economic, social, and cultural rights (ESC rights). The discussion of extra-territoriality and ESC rights is placed in the context of the Arendt's critique of the ‘Rights of Man’ as developed in the work of Agamben and Balibar. It argues that Arendt's warning that the advancement of human rights might justify processes of exclusion and dispossession at precisely the same moment at which it opposes them, retains considerable force for the contemporary ESC rights project, particularly when the latter is framed in territorial terms.
Non-State Actors and Economic, Social, and Cultural Rights
Authors: Ssenyonjo Manisuli
Published: January 2009

This chapter attempts to examine the role of non-state actors (NSAs) in the realization of economic, social, and cultural rights (ESC rights). It addresses the following questions: Who are NSAs? Can the state be held accountable for human rights violations caused by NSAs? Can NSAs ignore ESC rights as long as states don't hold them accountable? Do international human rights treaties relevant to ESC rights impose responsibilities on NSAs? Can NSAs be accountable directly under human rights law? Finally, is there a need for the human rights regime to adapt to take account of the role of NSAs if it is to maintain its relevance? It argues that NSAs should support the emerging global framework for human rights responsibilities of NSAs as a means to achieve good governance, encourage participation, strengthen their own anticorruption controls, and provide assistance in ways that strengthen states human rights obligations.
Violations of Economic, Social, and Cultural Rights: The Current Use and Future Potential of the Collective Complaints Mechanism of the European Social Charter
Authors: Churchill Robin R. , Khaliq Urfan
Published: January 2009

This chapter reviews the operation of the collective complaints system and assesses its future potential. It describes the genesis of the system and then goes on to explain how complaints are made and dealt with, before offering some thoughts about the utility and effectiveness of the system and its future prospects. In order to place the system in a general human rights context, the chapter begins by discussing the question of the justiciability of economic and social rights. It then gives an overview of mechanisms for seeking to ensure compliance by states with their obligations under other treaties concerned with such rights.
The Rights to Social Security and Social Assistance: Towards an Analytical Framework
Authors: Tooze Jennifer
Published: January 2009

This chapter argues that the rights to social security and to social assistance in international law can be translated into state obligations that can be effectively monitored and enforced. It begins by discussing the International Covenant on Economic, Social and Cultural Rights and ways of monitoring and enforcing the progressive obligations in it. It introduces the concepts of social security and social assistance. State obligations are then identified by applying the tests of availability, adequacy, and accessibility. Issues relating to expenditure are considered.
The Functioning of the Court of Justice in an Enlarged Union and the Future of the Court
Authors: Schiemann Konrad
Published: January 2009

This chapter discusses the challenges faced by the European Union with regards to the functioning of the Court. These include the language challenge, the members of the Court, the rules of procedure, and the timing and delivery of the opinion. It is argued that the present system on the whole works reasonably well at trying to fulfil conflicting demands.
The Court of First Instance, its Development, and Future Role in the Legal Architecture of the European Union
Authors: Forwood Nicholas
Published: January 2009

This chapter examines the development of the Court of First Instance (CFI) over the last 18 years, and offers some thoughts as to the possible evolution of its role. It argues that the role of the CFI will in practice be determined by the willingness of the European Court of Justice (ECJ) to take the necessary steps to enable the Court of Justice, as an institution, to evolve in order better to deal with present and future challenges. Only bold initiatives and farsightedness will give the ECJ, and all the other courts within the new judicial architecture, a real chance to significantly reduce delays and improve their service for the users of the courts — both national judges and litigants alike — while maintaining the high standards that are rightly expected by Europe, its institutions and its citizens.
Litigating in Luxembourg and the Role of the Advocate at the Court of Justice
Authors: Vaughan David , Gray Margaret
Published: January 2009

This chapter considers some of the ways in which litigating before the Court of Justice differs from litigating before United Kingdom courts, and how those differences affect the manner in which the advocate appearing in Luxembourg performs his task. The first part of the chapter considers the question of who goes to court in Luxembourg and why. It addresses two specific questions: (a) what issues are litigated in Luxembourg; and (b) who may appear before the Court as parties and as legal representatives. The second part considers the way in which the Court's unique methods of working affect the written and oral stages of proceedings and the judgment, as well as the specific role played by advocates in those proceedings. The third part considers the impression that an advocate can make upon the Court, in particular, where its judgments have recorded a discernible win on the part of a claimant, or the reception into the case law of a legal principle enshrined in a national legal system. Finally, the role of the advocate beyond Luxembourg is considered.
The Role of the ECJ in the Protection of Fundamental Rights
Authors: Tizzano Antonio
Published: January 2009

This chapter examines the role of the European Court of Justice in protecting fundamental rights. It shows that the Court's approach in this area developed progressively over several decades and different phases, through a number of judgments which were as bold as they were far-sighted. It has undertaken a dynamic interpretation of Community law, developing to their full extent principles inherent in the legal order originally created by the Treaties. The Court has carried out its mission and fulfilled its role in a consistent manner.
The Financial Services Single Market and the Interface between Community Law and Domestic Law
Authors: Lomnicka Eva
Published: January 2009

This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.
The Evolution of Economic and Monetary Union – Some Legal Issues
Authors: Usher Ja
Published: January 2009

This chapter discusses legal aspects of the Economic and Monetary Union (EMU). Topics covered include EMU and capital movements, EMU and differentiated integration, monetary policy, and economic union. The EMU shows that there can be exclusive Community competence in relation to a group of Member States rather than the Community as a whole, and it also shows that rules relating to the group have been extended to the Community as a whole through the use of Article 308. It has created a new institutional structure, with an apparently enormous degree of independence, which has been tempered by a judgment of the ECJ. In the context of economic policy, it has created new enforcement machinery, based on what some would regard as a rather arbitrary choice of figures for government debt and deficits.
A Panorama of Two Decades of EU External Relations Law
Authors: Eeckhout Piet
Published: January 2009

This chapter discusses two decades of external relations law, focusing on continuity and change. It considers the evolving external powers of the EU, where the focus will be on the interaction between trade and foreign policy; it then looks at the effects which international agreements and international law produce in EU law. The contributions by Advocate General Jacobs are highlighted.
Multilevel Constitutionalism and Judicial Protection of Freedom and Justice in the International Economic Law of the EC
Authors: Petersmann Ernst-Ulrich
Published: January 2009

This chapter discusses some of the ‘constitutional problems’ in the national and international judicial protection of individual freedom and justice in the international relations law of the EC. Topics covered include bottom-up structures of multilevel human rights constitutionalism, top-down structures of multilevel economic constitutionalism, different conceptions of constitutional democracy, international market governance, the role of the European judge as an agent of justice and of multilevel economic constitutionalism inside the EC, and the limits of European constitutionalism.
Direct Effect of Treaties in the US and the EU, the Case of the WTO: Some Perceptions and Proposals
Authors: Jackson John H
Published: January 2009

The subject of how international treaties are treated in the ‘municipal’ or domestic jurisprudence of a treaty member has a long, complex and somewhat meandering history. It is also a subject of surprising complexity and articulate controversy. This chapter discusses policy landscape for domestic treatment of international treaties and treaty application in the case of GATT and WTO as applied in the US and EU.