Normative transformations in EU external relations: the phenomenon of ‘soft’ international agreements

Abstract

The European Union increasingly uses ‘soft’ international arrangements rather than formal international agreements in establishing relations with non-EU states. This contribution aims to raise the question of to what extent a move from hard to soft law in relations between the EU and its partners can be seen as allowing the Union to ‘step outside’ the legal framework (if that indeed is what is happening) and disregard the rules and principles that define the way in which EU external relations are to take shape. Possible consequences include the risk that these instruments are not subject to appropriate safeguards, that parliamentary influence (by the European Parliament as well as by national parliaments) is by-passed and that transparency is affected. There are various reasons for the EU not to use formal procedures, but a turn to informality does come at a price.     

Unequal access to human rights: the categories of noncitizenship

Abstract

International human rights law consists of a body of basic rights and principles that States are to enforce with respect to every person within their borders. The unfortunate reality, however, is that many States are incapable of ensuring the rights of everyone, and in some instances simply do not wish to do so. Accordingly, citizenship serves as an acknowledgment by a State that the status holder is entitled to a higher degree of protection. Conversely, noncitizens may enjoy less rights than citizens, and certain categories of noncitizens frequently find themselves outside of the State’s protection entirely. This article outlines many of the rights that international law directs should be enjoyed by every human being, the factors that contribute to unequal enjoyment of these rights, and the categories of noncitizen associated with the mediated allocation of basic human rights.     

The Inevitability of the Weaponization of Space: Technological Constructivism Versus Determinism

The concept of national security is based on the need to maintain the safety and security of the population. In 1957, the Soviet Union was the first state to threaten this safety in space with the launch of Sputnik. Although Sputnik did not pose a credible threat, it was perceived as such by the Western world. As the space race intensified in the 1960s, efforts were made to prevent the development and use of space weapons. With the 1967 Outer Space Treaty, space weapons were effectively made unlawful, with signatories agreeing to forgo these expensive technologies. However, at the beginning of the twenty-first century, factors and efforts are beginning to converge that indicate the inevitability of space weaponization. Based on a new concept of technological development, this article proposes that as technology advances, space weaponization not only is likely, but indeed is inevitable in the near future. Grounded in the competing theories of technological determinism and social constructivism, I offer a new theory that incorporates both and introduces new components to analyze a near-future technological timeline for space weapons. I argue that the development of these weapons is inevitable and should therefore be accelerated in the United States, given the country's position as the lone superpower, to command and control the space commons. If the United States leads this drive for development, then in the end, as with thermonuclear weapons, space weapons will make the world more, not less, secure, and will contribute to the spread of democratic peace and globalized capitalism.     

The international rule of law

ABSTRACT

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.     

How Plausible is Chinese Annexation of Territory on the Moon?

This article argues that a hypothetical decision by the People's Republic of China to assert territorial sovereignty over the area surrounding its planned manned Moon base is plausible. Enhanced international prestige in the near term and access to natural resources and strategic military positions in the long term may be sufficient temptations for China's leaders to challenge the United States to a twenty-first century space race. Strategic surprise could be successfully employed, given the opacity of Chinese decision-making; the conceptual blindness of external observers, including decision-makers, analysts, and academics; and China's repeatedly demonstrated capacity for executing military or diplomatic surprises of comparable magnitude. The ability of signatory states to withdraw from the 1967 Outer Space Treaty with one-year's notice means that international law only poses a temporary obstacle to such a decision. A manned Moon base would fulfill the condition of effective occupation necessary for territorial sovereignty under international law. An international relations constructivist approach discourages consideration of the advantages to states of territorial aggrandizement or the weakness of international law in restraining the behavior of states.     

Bringing Law to the Table: Legal Claims,Focal Points,and the Settlement of Territorial Disputes Since 1945

In this article, we argue that international law can help state leaders reach a settlement in territorial disputes by suggesting a focal point for negotiations. International law is more likely to serve as a focal point when the legal principles relevant to the dispute are clear and well established and when one of the states in the dispute has a stronger legal claim to disputed territory. When these two conditions are present, we expect the state with a legal advantage to push for and receive favorable terms of settlement. In our analysis of all negotiated settlements in territorial disputes from 1945 to 2000, we find strong support for the importance of international law in influencing the terms of settlements. States with a strong legal advantage are more likely to secure favorable terms, whereas states lacking a strong legal claim are more likely to receive unfavorable terms.     

Space Situational Awareness in Europe: The Fractures and the Federative Aspects of European Space Efforts

ABSTRACT

One part of the massive US intelligence effort to learn about Soviet missile and space programs during the Cold War was acquiring and analyzing Soviet space debris that had returned to Earth. Equally important was retrieving US fragments that had landed in foreign nations to prevent the Soviets from recovering and exploiting them. At times bitter jurisdictional battles among the interested government agencies plagued the undertaking. Additionally the Outer Space Treaty of 1967 limited the ability to obtain foreign debris in some circumstances. Despite these problems, however, the available record shows that in many cases the United States acquired and tested important Soviet fragments and also was able to retrieve its own.     

Funny peculiar: Lucille Ball and the vaudeville heritage of early American television comedy

ABSTRACT

In this essay I examine the traces of vaudeville performance in the first season of the early American television comedy series I Love Lucy (CBS, 1951–1957), proposing that while sitcom may be regarded as a narratively conservative format, it may also harbour eccentric figures; the funny peculiar. American vaudeville offered a space in which normative heterofemininity was both upheld and subverted. As one of the direct inheritors of that theatrical tradition, early sitcom could embody complex negotiations of gender and identity. The first season of I Love Lucy is inflected by the performance traditions of American vaudeville, while its development was enabled by a theatrical tour to promote and establish the show. Funding for the pilot came from a vaudeville agency and key actors, producers and writers for the series had a background in this comedic tradition. Vaudeville comedy allowed some female performers licence to explore and explode the feminine ideal and early television comedy offered a similar potential. Lucille Ball's performance as Lucy Ricardo is exemplary in this regard.     

Law of Space Resources and Operations on Celestial Bodies: Implications for Legislation in the United States

The U.S. assertion of a right to own resources harvested from space is consistent with the distinction in international law governing analogous res communis areas between resources harvested from a common area and the common area itself. Under the Outer Space Treaty regime, private entities do not have any more right to appropriate celestial bodies than governments do. However, U.S. law does not give private entities such a right. The U.S. Commercial Space Launch Competitiveness Act’s chapter on Space Resource Commercial Exploration and Utilization generally avoids taking a position on exactly how to deal with disputes in the event the activities of entities from the United States and other states interfere with each other. The U.S. law does not assert a right to declare safety zones or otherwise exercise jurisdiction outside space objects, but doing so can, under some circumstances, be consistent with international law. Many of the specifics of what rules will govern the gathering of space resources remain undetermined, yet the act’s basic premise is correct: international law and the treaty obligations of the United States allow for the U.S. government to authorize its citizens to own resources obtained from space.     

New York autopsy law and religious concerns

Changes in New York's autopsy law meet the requirements of Orthodox Jews yet do not violate constitutional principles.     

Former Nazi's extradition from Canada raises interesting legal issues

The Appeal Court of the Ontario Supreme Court adopted a far‐reaching interpretation of the customary rules governing the application of the laws of extradition in international law.     

Reparations for Historical Human Rights Violations: The International and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the Herero of Namibia

Between 1904 and 1908, German colonialists in German South West Africa (GSWA, known today as Namibia) committed genocide and other international crimes against two indigenous groups, the Herero and the Nama. From the late 1990s, the Herero have sought reparations from the German government and several German corporations for what occurred more than a hundred years ago. This article examines and contextualizes the issues concerning reparations for historical human rights claims. It describes and analyzes the events in GSWA at the time. It further explores whether international humanitarian law and international human rights law today permit reparatations to be obtained. The article therefore examines the origins of international criminal law, as well as international human rights and humanitarian law, to determine whether what occurred then were violations of the law already in force. Finally, the article examines and evaluates the Herero reparations cases, as well as the potential impact of the cases on the wider reparations movement that sees an increasing number of claims for events that occurred during colonial times.

Banning political parties in a democratic constitutional state: the second NPD ban proceedings in a comparative perspective

ABSTRACT

Backes’s article discusses the judgement of the Second Senate of the German Bundesverfassungsgericht (Federal Constitutional Court) of 17 January 2017—not to ban the right-wing extremist party Nationaldemokratische Partei Deutschlands (NPD)—in light of recent lively international debates on the protection of democracy. It considers the logic of an examination of proportionality as established by German constitutional law, considering aspects of the legitimacy, suitability, necessity and appropriateness of the party ban. The article shows that the newly introduced criterion of ‘potentiality’ requires an examination of proportionality even if the court itself denies this. Thus the threshold for intervention has been raised, moderately, since a concrete or even immediate threat as defined in police law is not required. The Court links the definition of a free democratic basic order more closely to the established minimum definitions of comparative research and provides clarification that further refutes the (exaggerated) accusation of ‘vagueness’. In doing so it has sharpened the contours of the concept of militant democracy that is widely regarded in international comparative studies.     

Highway to the Danger Zone: United States Legislative Framework Regulating the Commercial Space Sector

The last decade has been witness to a rapid rise of the commercial space sectors of many countries. This development offers myriad prospects for the development and exploration of outer space, but simultaneously poses threats to the international community if not regulated properly. The potential dangers of outer space activity were recognized by both the United States and the former Soviet Union in the midst of the Cold War, which led to the concretization of the international legal regime regulating outer space activities. However, without the enforcement of these legal standards at the municipal level of the state, this regime is ineffective. Therefore, it is an imperative that all states with a commercial space presence develop national space legislation that appropriately incorporates international standards. The U.S. space legislation is, at present, the most robust legal framework which addresses many of the necessary concerns. At the same time, in attempts to promote the growth of its space sector, the U.S. regime regulating commercial space ignores some of the standards developed in the international regime. The critical evaluation of the salient features of the U.S. legislation undertaken by this article serves as a guide for many states seeking to develop their own legislation regulating the commercial space industry. It serves as a guide to adopting comprehensive standards of protections provided for in the U.S. legislation and the International Law Association’s “Model Law on National Space Legislation,” but also cautions against the dangers of weaponization, poor environmental protection, and exposure to international liability. A thorough legislative framework that adequately balances economic, strategic, and political concerns with accepted legal principles of international law is essential to prevent commercial space activities from becoming a “highway to the danger zone.”     

The Responsibility to Protect and the End of the Western Century

Abstract

It is argued here that the ‘Responsibility to Protect’ (R2P) has to be placed in the context of the failure to develop new international norms around questions of intervention in the 1990s. Far from embodying global consensus, R2P represents the failure of the West to impose new global norms. This lack of consensus was revealed most dramatically by the disagreements among Western states themselves before the 2003 Iraq invasion. It is argued that many of the principles of the War on Terror (such as the commitment to pre-emptive action) are substantively similar to those of R2P. The essay concludes by considering R2P in light of the decline of the West.     

Who are the ‘international community’? Development professionals and liminal subjectivity

ABSTRACT

This article explores international development space at the micro-level through the career stories and discursive representations of three aid workers—two nationals, one expatriate—who worked together on the same project in Tajikistan in 2008–9. Findings bear witness to the ‘liminal subjectivity’ of development where professional aid workers are, vocationally and socially, culturally and politically, neither domestic nor foreign. Aid workers’ careers demonstrate the resilience of ‘the international’ in contemporary humanitarian practice. At the same time, their biographies are not easily sutured into emergent cosmopolitanism as they remain encumbered by the boundaries of the national and international. Moreover, the article demonstrates that, while the rhetoric of international development and its putative leaders are criticized within the community itself, the international community may be formed by subordinate individuals in their liminal subjectivities.     

Walking a tightrope: democracy versus sovereignty in ASEAN's illiberal peace

Abstract

Since 1967, ASEAN has established intramural relations that forsake war as a means for resolving conflict. While this is a remarkable achievement for the region, it must be balanced against a concomitant hindrance of democratic reform. I argue in this paper that ASEAN's nascent security community must be seen as an ‘illiberal peace’. Underlying ASEAN's peaceful community are the same principles that support illiberalism in the region, namely sovereignty and non-interference. While sovereignty has historically been a cherished norm for developing countries, ASEAN lags behind other regions, particularly Latin America, in attempting to reconcile tensions between democratic norms and the respect for sovereignty. This tension is most evident in ASEAN's relations with Myanmar. Recent events indicate that ASEAN's non-interference norm may no longer be sacrosanct, but the association is a long way from shunning illiberal politics for the sake of democratic values.     

The Viability of Space Mining in the Current Legal Regime

ABSTRACT

Several private players have expressed their desire to mine resources in space. This posits ethical and legal concerns. Several scholars argue that space mining activities flout the national non-appropriation principle enshrined in Article II of the Outer Space Treaty. However, it is the opinion of the author that space mining does not per se violate the provisions of Article II, though space mining brings forward other concerns of breach of cooperation and environmental damage. The current legal regime is not adequately equipped to address these problems. The national legislations of several countries which allow for space mining do not address these issues. Even though an international regime emulating deep seabed mining addresses some of these concerns, the current political structure is not in favor of such a development. Hence, the legal viability of any potential space mining industry is on tenuous terms.     

Japan's foreign aid: old and new contests

Abstract

Domestic and international contests explain the transformation of Japan's foreign aid programme begun in the early 1950s. Through contests between domestic players, Japan has streamlined its aid processes by introducing institutional innovations, accommodating new actors in aid policy and delivery, and responding more sensitively to public opinion and independent advice. At the international level, contests have come from the Development Assistance Committee/Organization of Economic Cooperation and Development (DAC/OECD), the USA, and China. Through these contests, Japan has emerged as a more rounded aid donor. Its new aid model blends Western principles with concepts of ‘self-help’, favouring large infrastructure projects that serve both Japan's and recipient countries’ interests.