Pub Date : 2012-01-20DOI: 10.4337/9781849808576.00013
M. Milanović, Vidan Hadzi-Vidanovic
With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts. The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.
{"title":"A Taxonomy of Armed Conflict","authors":"M. Milanović, Vidan Hadzi-Vidanovic","doi":"10.4337/9781849808576.00013","DOIUrl":"https://doi.org/10.4337/9781849808576.00013","url":null,"abstract":"With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts. The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128614427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Hassan Benchekroun, Walid Marrouch, Amrita Ray Chaudhuri
While an international agreement over the reduction of greenhouse gases (GHGs) emissions proves to be elusive, there is a large and growing support for investment in developing more effective technologies to adapt to climate change. We show that an increase in effectiveness of adaptation will diminish the incentive of individual countries to free-ride on a global agreement over emissions. Moreover, we show that this positive effect of an increase in adaptation's effectiveness can also be accompanied by an increase in the gains from global cooperation over GHGs emissions.
{"title":"Adaptation Effectiveness and Free-Riding Incentives in International Environmental Agreements","authors":"Hassan Benchekroun, Walid Marrouch, Amrita Ray Chaudhuri","doi":"10.2139/ssrn.1957996","DOIUrl":"https://doi.org/10.2139/ssrn.1957996","url":null,"abstract":"While an international agreement over the reduction of greenhouse gases (GHGs) emissions proves to be elusive, there is a large and growing support for investment in developing more effective technologies to adapt to climate change. We show that an increase in effectiveness of adaptation will diminish the incentive of individual countries to free-ride on a global agreement over emissions. Moreover, we show that this positive effect of an increase in adaptation's effectiveness can also be accompanied by an increase in the gains from global cooperation over GHGs emissions.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128297932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the competences of the UN Security Council under the “constitution” of the United Nations, focusing in particular on its recent innovations in legislation. Certain critics decry Council legislation as unconstitutional, null and void. Apologists retort that the Charter delegates broad power to the Council, and the impugned legislative Resolutions fall well within the broad textual limitations on its competence. I propose an approach to constitutional analysis to help cut through this debate, based on distinguishing between two perspectives on the “constitution” of an international organization: the juridical perspective emphasizing the transmission of validity in the creation, interpretation, and application of legal norms (constitutionality/unconstitutionality); and the political perspective from which the ordering of power among the constituted bodies may be assessed in terms of legitimacy and justice (e.g. the political-theoretical language of constitutionalism). Distinguishing between the perspectives illuminates the merits of the arguments on both sides of the debate on the Council’s competences. Juridically speaking, it is difficult to argue that the Council’s innovations are unconstitutional and void. Yet the political perspective helps explain the critics’ discomfort with the Council’s expansive innovations; from the latter angle it appears that the Charter’s broad, unreviewable, and effectively unamendable delegation of power to the Council yields a deeply flawed constitutional arrangement, entailing systemic risks of hegemonic international law-making and the demise of constitutionalism.
{"title":"Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material Constitution of the United Nations","authors":"J. Arato","doi":"10.1093/ICON/MOR079","DOIUrl":"https://doi.org/10.1093/ICON/MOR079","url":null,"abstract":"This paper examines the competences of the UN Security Council under the “constitution” of the United Nations, focusing in particular on its recent innovations in legislation. Certain critics decry Council legislation as unconstitutional, null and void. Apologists retort that the Charter delegates broad power to the Council, and the impugned legislative Resolutions fall well within the broad textual limitations on its competence. I propose an approach to constitutional analysis to help cut through this debate, based on distinguishing between two perspectives on the “constitution” of an international organization: the juridical perspective emphasizing the transmission of validity in the creation, interpretation, and application of legal norms (constitutionality/unconstitutionality); and the political perspective from which the ordering of power among the constituted bodies may be assessed in terms of legitimacy and justice (e.g. the political-theoretical language of constitutionalism). Distinguishing between the perspectives illuminates the merits of the arguments on both sides of the debate on the Council’s competences. Juridically speaking, it is difficult to argue that the Council’s innovations are unconstitutional and void. Yet the political perspective helps explain the critics’ discomfort with the Council’s expansive innovations; from the latter angle it appears that the Charter’s broad, unreviewable, and effectively unamendable delegation of power to the Council yields a deeply flawed constitutional arrangement, entailing systemic risks of hegemonic international law-making and the demise of constitutionalism.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133637072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-09-30DOI: 10.1017/CBO9781139043809.031
Anastasia Telesetsky
This paper explores the potential international investment consequences of the recent boom in long-term land leases (25 years or more) offered by national governments in Asia and Africa to private, foreign agribusinesses. The paper explores the implications of umbrella clauses in bilateral investment treaties, stabilization clauses, and the lack of performance standards to regulate for potential environmental and labor impacts caused by the long-term land leases. The paper argues for the need for States offering leases to ensure protection of national public interests in healthy environmental and labor conditions while also honoring their investment law commitments.
{"title":"A New Investment Deal in Asia and Africa: Land Leases to Foreign Investors","authors":"Anastasia Telesetsky","doi":"10.1017/CBO9781139043809.031","DOIUrl":"https://doi.org/10.1017/CBO9781139043809.031","url":null,"abstract":"This paper explores the potential international investment consequences of the recent boom in long-term land leases (25 years or more) offered by national governments in Asia and Africa to private, foreign agribusinesses. The paper explores the implications of umbrella clauses in bilateral investment treaties, stabilization clauses, and the lack of performance standards to regulate for potential environmental and labor impacts caused by the long-term land leases. The paper argues for the need for States offering leases to ensure protection of national public interests in healthy environmental and labor conditions while also honoring their investment law commitments.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130036485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When and why do countries comply with international law? This question has been the focus of much research on international law in the United States. It is a question that is particularly pertinent to the area of human rights, where, at first blush at least, nations appear to have little incentive to live up to international norms. Not until recently, however, have scholars undertaken the task to consider in depth the way in which international human rights law affects actual state practice. The result has been a number of theories to explain the behavior of states in the face of human rights obligations and international norms more generally. However, few of these theories have been tested empirically. In this Article, I set out to test one hypothesis explaining conformance of nations with human rights norms derived from a number of these theories – that the more a country grants individuals access to its courts, the less likely that country is to violate international human rights norms. I do so with a systematic empirical analysis of an original dataset involving 90 countries over a period of ten years. The outcome is sobering: My results do support the hypothesis that access to court improves compliance with human rights norms. But the correlation is weaker and considerably less robust than expected, that is, the results change significantly depending on the statistical model used and the kinds of human rights involved. There is a silver lining, however. One component of access to court – the right to counsel – performs more impressively than the others. It is more robustly associated with better human rights practices, although this association, too, is weaker than expected.
{"title":"Does Access to Justice Improve Countries’ Compliance with Human Rights Norms? – An Empirical Study","authors":"Samuel P. Baumgartner","doi":"10.2139/ssrn.1621821","DOIUrl":"https://doi.org/10.2139/ssrn.1621821","url":null,"abstract":"When and why do countries comply with international law? This question has been the focus of much research on international law in the United States. It is a question that is particularly pertinent to the area of human rights, where, at first blush at least, nations appear to have little incentive to live up to international norms. Not until recently, however, have scholars undertaken the task to consider in depth the way in which international human rights law affects actual state practice. The result has been a number of theories to explain the behavior of states in the face of human rights obligations and international norms more generally. However, few of these theories have been tested empirically. In this Article, I set out to test one hypothesis explaining conformance of nations with human rights norms derived from a number of these theories – that the more a country grants individuals access to its courts, the less likely that country is to violate international human rights norms. I do so with a systematic empirical analysis of an original dataset involving 90 countries over a period of ten years. The outcome is sobering: My results do support the hypothesis that access to court improves compliance with human rights norms. But the correlation is weaker and considerably less robust than expected, that is, the results change significantly depending on the statistical model used and the kinds of human rights involved. There is a silver lining, however. One component of access to court – the right to counsel – performs more impressively than the others. It is more robustly associated with better human rights practices, although this association, too, is weaker than expected.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128836021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-08-08DOI: 10.1163/9789004225794_013
Tara J. Melish, E. Meidinger
This piece addresses the legacy of Harvard Professor John Gerard Ruggie’s work as the first UN Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations, a UN mandate he held from 2005-2011. In it, we interrogate the theoretical underpinnings of the conceptual and policy framework for addressing human rights abuse in the business context that Professor Ruggie has endorsed as SRSG and query whether a conceptually and operationally more effective framework might have been produced had Ruggie and his team approached the task from a new governance or new accountability perspective. After situating Ruggie’s work within a sociological institutionalist perspective to system transformation, we describe the key insights offered by new governance approaches for the construction of effective governance and accountability regimes – including those of expanded stakeholder participation, the addition of new kinds of non-traditional processes for holding social actors to account, and the role of orchestration in promoting learning and experimentation across sectors and individual governance entities. Taking these insights into account, we conclude that Ruggie’s “Protect, Respect, and Remedy” framework would have been significantly strengthened by the addition of a fourth “Participation” pillar. That pillar would have acknowledged the critical role that civil society actors play at all levels of global governance today and, importantly, provided a firm normative foundation for such actors to insist on direct participation in the monitoring, enforcement, and implementation of the diverse array of policies and practices that affect the enjoyment of human rights in the business context.
{"title":"Protect, Respect, Remedy and Participate: ‘New Governance’ Lessons for the Ruggie Framework","authors":"Tara J. Melish, E. Meidinger","doi":"10.1163/9789004225794_013","DOIUrl":"https://doi.org/10.1163/9789004225794_013","url":null,"abstract":"This piece addresses the legacy of Harvard Professor John Gerard Ruggie’s work as the first UN Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations, a UN mandate he held from 2005-2011. In it, we interrogate the theoretical underpinnings of the conceptual and policy framework for addressing human rights abuse in the business context that Professor Ruggie has endorsed as SRSG and query whether a conceptually and operationally more effective framework might have been produced had Ruggie and his team approached the task from a new governance or new accountability perspective. After situating Ruggie’s work within a sociological institutionalist perspective to system transformation, we describe the key insights offered by new governance approaches for the construction of effective governance and accountability regimes – including those of expanded stakeholder participation, the addition of new kinds of non-traditional processes for holding social actors to account, and the role of orchestration in promoting learning and experimentation across sectors and individual governance entities. Taking these insights into account, we conclude that Ruggie’s “Protect, Respect, and Remedy” framework would have been significantly strengthened by the addition of a fourth “Participation” pillar. That pillar would have acknowledged the critical role that civil society actors play at all levels of global governance today and, importantly, provided a firm normative foundation for such actors to insist on direct participation in the monitoring, enforcement, and implementation of the diverse array of policies and practices that affect the enjoyment of human rights in the business context.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115166273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Pashtun are an ethnic group that straddles the Afghanistan-Pakistan border, and are the largest group in Afghanistan. Historically, when Afghanistan has been united, it has been under Pashtun rule. Pashtun rulers of Afghanistan have come from the Durrani Pashtun, who are a western Pashtun group. The Durrani learned governance from serving under Turko-Mongolian dynasties. These dynasties tried to rule only the most populous, productive areas, leaving marginal areas ungoverned. Pashtun social structure is what anthropologists term a segmentary lineage system. In such a system, there is a hierarchy of social groupings starting at the local level, then proceeding upward through various levels to an entire ethnic group. These relationships are based on kinship and shared culture. At any given level (local, regional, ethnic group), social segments operate only in opposition to equivalent segments (local kinship group vs. local kinship group, regional group vs. regional group, etc.). Leadership is situational rather than institutionalized. Both leadership and segmentary organization end when conflict ends. The cultural ideal is egalitarianism. Pashtun society is atomized in the sense that it is based on the most basic element, the individual (especially the individual man). Each man considers himself independent and self-sufficient, and simultaneously in competition with all others Pashtun men. This belief in self-sufficiency, and the perpetual competition, make it difficult for Pashtun to unite for cooperative projects, or even to engage in economic exchange. The ideal economic exchange among the Pashtun is reciprocal and balanced. The Pashtun consider all non-Pashtun to be inferior. A Pashtun man may engage in economic relations with non-Pashtun without losing honor, but also considers it acceptable to cheat non-Pashtun. On the other hand, because of competition within Pashtun society, Pashtun men look to establish friendships with outsiders. The social structure determines how the Pashtun understand the actions of outsiders, and limits their capacity for responding to external intervention. Members of the International Security Assistance Force (ISAF) and non-governmental organizations (NGOs) should understand and consider this social structure when dealing with the Pashtun. Segmentary lineage organization presents outsiders with both opportunities and challenges. It is highly important to understand this in such areas as (a) economic development), (b) Taliban force composition, (c) negotiation, and (d) the establishment of friendships and alliances. The report discusses these topics in some detail. The Pashtun on the one hand, and Western interveners on the other, are likely to have fundamentally different understandings in these areas. Pshtun conceptions of time are not fully understood. This is an important element of economic development, so it is vital to understand how the Pashtun view it.
{"title":"Pashtun Social Structure: Cultural Perceptions and Segmentary Lineage Organization - Understanding and Working Within Pashtun Society","authors":"J. Tainter, D. MacGregor","doi":"10.2139/SSRN.1934940","DOIUrl":"https://doi.org/10.2139/SSRN.1934940","url":null,"abstract":"The Pashtun are an ethnic group that straddles the Afghanistan-Pakistan border, and are the largest group in Afghanistan. Historically, when Afghanistan has been united, it has been under Pashtun rule. Pashtun rulers of Afghanistan have come from the Durrani Pashtun, who are a western Pashtun group. The Durrani learned governance from serving under Turko-Mongolian dynasties. These dynasties tried to rule only the most populous, productive areas, leaving marginal areas ungoverned. Pashtun social structure is what anthropologists term a segmentary lineage system. In such a system, there is a hierarchy of social groupings starting at the local level, then proceeding upward through various levels to an entire ethnic group. These relationships are based on kinship and shared culture. At any given level (local, regional, ethnic group), social segments operate only in opposition to equivalent segments (local kinship group vs. local kinship group, regional group vs. regional group, etc.). Leadership is situational rather than institutionalized. Both leadership and segmentary organization end when conflict ends. The cultural ideal is egalitarianism. Pashtun society is atomized in the sense that it is based on the most basic element, the individual (especially the individual man). Each man considers himself independent and self-sufficient, and simultaneously in competition with all others Pashtun men. This belief in self-sufficiency, and the perpetual competition, make it difficult for Pashtun to unite for cooperative projects, or even to engage in economic exchange. The ideal economic exchange among the Pashtun is reciprocal and balanced. The Pashtun consider all non-Pashtun to be inferior. A Pashtun man may engage in economic relations with non-Pashtun without losing honor, but also considers it acceptable to cheat non-Pashtun. On the other hand, because of competition within Pashtun society, Pashtun men look to establish friendships with outsiders. The social structure determines how the Pashtun understand the actions of outsiders, and limits their capacity for responding to external intervention. Members of the International Security Assistance Force (ISAF) and non-governmental organizations (NGOs) should understand and consider this social structure when dealing with the Pashtun. Segmentary lineage organization presents outsiders with both opportunities and challenges. It is highly important to understand this in such areas as (a) economic development), (b) Taliban force composition, (c) negotiation, and (d) the establishment of friendships and alliances. The report discusses these topics in some detail. The Pashtun on the one hand, and Western interveners on the other, are likely to have fundamentally different understandings in these areas. Pshtun conceptions of time are not fully understood. This is an important element of economic development, so it is vital to understand how the Pashtun view it.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127478211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-07-21DOI: 10.4337/9781781003220.00007
Moshe Hirsch
This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.
{"title":"Sources of International Investment Law","authors":"Moshe Hirsch","doi":"10.4337/9781781003220.00007","DOIUrl":"https://doi.org/10.4337/9781781003220.00007","url":null,"abstract":"This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117323300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1995, James Wolfensohn became President of the World Bank. He inherited an institution at a time of crisis and drift. The crises were triggered by the sustained backlash against the so-called “Washington Consensus,�? a strong wave of anti-globalization sentiment and a shocking lack of evidence that Bank policies have had any real impact in generating growth or reducing poverty. His two-term presidency (1995-2005) oversaw the creation of an ambitious agenda for socio-economic development. The truth is, however, that this is not the first time the Bank has undergone radical policy shifts. In the past, the Bank has cycled through phases shifting from physical capital, to human capital, to macroeconomic structural adjustment policies. This article examines the paradoxes inherent in Wolfensohn’s socio-economic agenda and the general question of change and continuity at the World Bank. Part II provides a basic introduction to the Bank and to Wolfensohn era reforms. It is intended to provide the uninitiated reader with sufficient literacy to understand the fundamentals of the debate. Part III develops a framework for modeling World Bank behavior, focusing on political, organizational and epistemic constraints. A key insight from the model is the dominant role that neoclassical economics plays in limiting the Bank’s conception of what types of policies are or are not imaginable. Significant aspects of the socio-economic agenda directly challenge these traditional epistemic constraints. Part IV applies the framework to examine three episodes of reform, each framed to distill a different set of lessons. First, the Bank’s experiment with debt relief and the participatory Poverty Reduction Strategy Papers is examined to assess the Bank’s ability to learn, change and adapt. Second, the Bank’s experiences with social capital theories are examined to assess how the Bank deals with internal reform efforts, where the intellectual core of the idea comes from outside the epistemic domain of economics. Finally, the Bank’s experiences with institutional economics and governance are examined to assess how the Bank deals with reforms where the intellectual core of the idea reflects a challenge from inside the epistemic domain of economics. The analysis demonstrates that change can and has happened at the Bank, but that such changes are typically modest, incremental and intellectually path-dependent. Part V argues that lasting change, if possible, will likely start outside the World Bank, where such efforts are free from the Bank’s organizational and epistemic constraints. For real change to take place, new interdisciplinary approaches to development will have to be established and such policies will have to be implemented by a more professionally diverse staff than currently exists at the World Bank. Such approaches, if they are to be successful, must develop a more open, process-oriented framework for policy making, a framework capable of facilitating meaningful le
{"title":"Reforming Paradoxes of Socio-Economic Development: Modeling Change and Continuity at the World Bank","authors":"P. Hammer","doi":"10.2139/ssrn.1874671","DOIUrl":"https://doi.org/10.2139/ssrn.1874671","url":null,"abstract":"In 1995, James Wolfensohn became President of the World Bank. He inherited an institution at a time of crisis and drift. The crises were triggered by the sustained backlash against the so-called “Washington Consensus,�? a strong wave of anti-globalization sentiment and a shocking lack of evidence that Bank policies have had any real impact in generating growth or reducing poverty. His two-term presidency (1995-2005) oversaw the creation of an ambitious agenda for socio-economic development. The truth is, however, that this is not the first time the Bank has undergone radical policy shifts. In the past, the Bank has cycled through phases shifting from physical capital, to human capital, to macroeconomic structural adjustment policies. This article examines the paradoxes inherent in Wolfensohn’s socio-economic agenda and the general question of change and continuity at the World Bank. Part II provides a basic introduction to the Bank and to Wolfensohn era reforms. It is intended to provide the uninitiated reader with sufficient literacy to understand the fundamentals of the debate. Part III develops a framework for modeling World Bank behavior, focusing on political, organizational and epistemic constraints. A key insight from the model is the dominant role that neoclassical economics plays in limiting the Bank’s conception of what types of policies are or are not imaginable. Significant aspects of the socio-economic agenda directly challenge these traditional epistemic constraints. Part IV applies the framework to examine three episodes of reform, each framed to distill a different set of lessons. First, the Bank’s experiment with debt relief and the participatory Poverty Reduction Strategy Papers is examined to assess the Bank’s ability to learn, change and adapt. Second, the Bank’s experiences with social capital theories are examined to assess how the Bank deals with internal reform efforts, where the intellectual core of the idea comes from outside the epistemic domain of economics. Finally, the Bank’s experiences with institutional economics and governance are examined to assess how the Bank deals with reforms where the intellectual core of the idea reflects a challenge from inside the epistemic domain of economics. The analysis demonstrates that change can and has happened at the Bank, but that such changes are typically modest, incremental and intellectually path-dependent. Part V argues that lasting change, if possible, will likely start outside the World Bank, where such efforts are free from the Bank’s organizational and epistemic constraints. For real change to take place, new interdisciplinary approaches to development will have to be established and such policies will have to be implemented by a more professionally diverse staff than currently exists at the World Bank. Such approaches, if they are to be successful, must develop a more open, process-oriented framework for policy making, a framework capable of facilitating meaningful le","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131845838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The contribution illustrates the still influential view on the role of international courts that belittles their qualities as actors in the making of international law. It summarizes why the outward show of judicial argument itself eclipses this dimension of judicial practice and then speaks on the metaphor of sources and how it has (mis)shaped accounts of international lawmaking (II). The second section then takes a step back and picks up the proposition that it is impossible to find meaning anywhere else other than in the concrete use of legal provisions. It highlights how law comes to life in the practice of interpretation and argues that this practice itself has to bear the burden of distinguishing correct from incorrect applications (III.). The third step first elucidates international courts’ semantic authority by focussing on the mighty spell of judicial precedents in international legal discourse and then turns to sketching the principal normative implications (IV). The concluding prognosis recommends paying closer regard to the qualities of international courts as actors in the jurisgenerative practice of interpretation. It ends with the suggestion to develop a better understanding of the role of international courts in a normative pluriverse in which they interact with actors on other levels of governance and negotiate spheres of authority (V).
{"title":"The Role of International Courts as Interpreters and Developers of the Law: Working Out the Jurisgenerative Practice of Interpretation","authors":"I. Venzke","doi":"10.2139/SSRN.1868423","DOIUrl":"https://doi.org/10.2139/SSRN.1868423","url":null,"abstract":"The contribution illustrates the still influential view on the role of international courts that belittles their qualities as actors in the making of international law. It summarizes why the outward show of judicial argument itself eclipses this dimension of judicial practice and then speaks on the metaphor of sources and how it has (mis)shaped accounts of international lawmaking (II). The second section then takes a step back and picks up the proposition that it is impossible to find meaning anywhere else other than in the concrete use of legal provisions. It highlights how law comes to life in the practice of interpretation and argues that this practice itself has to bear the burden of distinguishing correct from incorrect applications (III.). The third step first elucidates international courts’ semantic authority by focussing on the mighty spell of judicial precedents in international legal discourse and then turns to sketching the principal normative implications (IV). The concluding prognosis recommends paying closer regard to the qualities of international courts as actors in the jurisgenerative practice of interpretation. It ends with the suggestion to develop a better understanding of the role of international courts in a normative pluriverse in which they interact with actors on other levels of governance and negotiate spheres of authority (V).","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123008807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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