Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms
Publication Year: 2010
Published by: State University of New York Press
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List of Tables
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Preface and Acknowledgments
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Globalization is a far-reaching, multifaceted phenomenon whose consequences on law are just beginning to be studied and understood more fully. The fourteen original studies collected here build on Mary Volcansek and John Stack’s edited volume Courts Crossing Borders: Blurring the Lines of Sovereignty (2005), one of the first works by social scientists on the transnational...
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The studies collected in this volume examine the effects of various aspects of globalization today on law and legal systems around the world. The term globalization has many meanings, but for present purposes it is being used to refer to the process of increasing interconnectivity and interdependence among nation-states and the development of what Anne-Marie Slaughter calls...
PART I. Transnational Influences on the U.S. Supreme Court
1. The U.S. Supreme Court’s Use of Comparative Law in the Construction of Constitutional Rights
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In recent years, national high courts’ use of comparative judicial opinions and law in the construction of individual rights has commanded greater attention. That is in no small part due to the increasing use of comparative legal analysis in rulings handed down by, for instance, the Supreme Court of Canada;1 constitutional courts in western, central, and eastern Europe,2 along...
2. Foreign Law in American Jurisprudence: An Empirical Study
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The use of legal references from outside the United States in judicial opinions interpreting the U.S. Constitution has become a controversial political issue and, remarkably, even a litmus test of suitability for membership on the Supreme Court in the estimation of some members of the U.S. Senate. The most recent nominees, John Roberts, Samuel Alito, and Sonia Sotomayor...
3. Foreign Law in Domestic Courts: Different Uses, Different Implications
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PART II. The Rise of Transnational Criminal Jurisdiction
4. Legitimacy and the Exercise of Universal Criminal Jurisdiction
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This chapter focuses on issues concerning the legitimacy of criminal prosecutions under international law (war crimes, crimes against humanity, genocide, and other offenses) and on the practical problems that so far have been encountered, especially in key prosecutions before the ad hoc tribunals for Yugoslavia and Rwanda...
5. International and Transnational Law, Sovereignty, and Hegemonic Power
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Law above the level of the nation-state is on the rise, though sometimes constrained by the political, economic, and military power of certain nations. Indeed, universal criminal jurisdiction may even be invoked by courts of nation-states—or by emergent international tribunals with criminal jurisdiction—to prosecute crimes committed in other nations that are recognized...
6. The Promotion of International Criminal Law: Evaluating the International Criminal Court and the Apprehension of Indictees
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Although much has been written about the formation of the International Criminal Court (ICC),1 the court’s relationship with the United States,2 and the Rome Statute,3 less attention has been focused on issues of state cooperation and the apprehension of indictees. In order to understand the legal basis and the actual power of the ICC to secure the arrest of indictees, this...
PART III. Transnational Influences on Rights,Citizenship, and Democratization
7. The Globalization of Human Rights Norms: Understanding the Opportunities and Limits of International Law and Transnational Activism
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By any measure, human rights have increased in importance in the last three decades to occupy a prominent place in global affairs.1 As a result, analyzing the effects of international human rights treaties and concomitant transnational efforts to diffuse these norms has become an accepted and desirable research topic in political science2 and neighboring disciplines. This development marks...
8. Rights and the Limits of Transnational Solidarity in Europe
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Courts contribute to the construction of citizenship by determining who enjoys rights to participate in a community. Carlos Ball credits the European Court of Justice (ECJ) with the creation of a transnational capitalist society in which rights to participate in the European Union’s regional market generated broader rights to equal treatment, including access to domestic social benefits...
9. International Imposition and Transmission of Democracy and the Rule of Law: Lessons from Central America
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Guatemala and Nicaragua both have struggled to achieve the rule of law within an internationalized context. Because of their acceptance of rule-of-law aid from international donor groups, they cannot readily escape from international directives from their benefactors. These international directives are informed by international norms of the rule of law. In order to understand the...
10. The Role of International Actors in Promoting Rule of Law in Uganda
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There is a perception that Uganda, like several African nations held to be beacons of hope in the late 1980s and 1990s, had made a break from bad governance and was headed toward democratization; however rule by men (i.e., the military) rather than by law persists. Yet the rule of law is critical to sustained political and economic development. The lack of respect for the rule...
PART IV. Transnational Law and the Boundaries of Sovereignty
11. Blurring Sovereignty: The Human Rights Act of 1998 and British Law
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Many nations voluntarily abdicated a measure of sovereignty in the late twentieth century as regionalism and globalization took hold, and the Council of Europe that promulgated the European Convention on Human Rights (ECHR) in 1950 represents one example of that trend. The United Kingdom ratified the convention in 1951, but it was not incorporated into U.K. law and therefore...
12. Fundamental Rights, the European Court of Justice, and European Integration
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Under the law of the United Kingdom, the retirement age for men and women is sixty-five and sixty years, respectively. In February 2002, Sarah Margaret Richards applied to the secretary of state for Work and Pensions for a retirement pension to be paid from February 28, 2002, the date when she turned sixty. In March 2002, the application was refused on the ground...
13. Spreading the Word: Australia’s National Human Rights and Equal Opportunity Commission as Transnational Legal Entrepreneur
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Human rights norms were internationalized during the second half of the twentieth century through a multitude of declarations, treaties, and conventions. Nearly all nation-states have accepted obligations pursuant to these instruments, but supranational enforcement of their terms has proven problematic. United Nations (UN) treaty bodies may only issue what amounts to...
14. Judicial Globalization: How the International Law of Human Rights Changed the Argentine Supreme Court
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This chapter seeks to explain how the international law of human rights changed the way Argentine judges (particularly, the Argentine Supreme Court justices) approach law in general, and how they introduced new human rights norms and canons of constitutional interpretation into Argentine law. International law and norms supplemented domestic law and, as a result, the...
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What have these fourteen chapters written by sixteen different hands added to our knowledge about the globalization of law? Though globalization as “the process of increasing interconnectivity and interdependence among nation-states” is treated as a relatively new and novel phenomenon,1 the process in legal circles, as David O’Brien reminds us in the first chapter, can be traced...
List of Contributors
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Page Count: 305
Illustrations: 6 tables
Publication Year: 2010
Series Title: SUNY series in the Foundations of the Democratic State
Series Editor Byline: William Crotty