Veronica L. Taylor
This chapter addresses international law in Afghanistan. States where the ‘post-conflict’ period is, in fact, a series of continuing sub-national conflicts, are often coded as ‘failed’ or ‘fragile’ and are also criticized as failing in their embrace of international law. In the case of Afghanistan, such ‘discourses of deficiency’ also erase some important legal history. For most of its history, Afghanistan has been contingent as a Westphalian state. This means that it has also had a fluid relationship with the institutions and norms of international law, including the normative discourse and practice of the international rule of law. Although Afghanistan has been a member of the United Nations since 1946, and thus a contributor to international law in the twentieth century, it is seen more as a subject of international law. After considering these issues, the chapter then highlights the complexity of Afghan’s location within, as well as its relationship with, international law, international legal institutions, and international legal norms.
“Africa Needs Many Lawyers Trained for the Need of Their Peoples”: Struggles over Legal Education in Kwame Nkrumah’s Ghana
John Harrington and Ambreena Manji
In the late 1950s and early 1960s, the setting up of university law schools in many African nations led to often bitter battles over the purpose of legal education. The stakes in these struggles were high. Deliberately neglected under colonial rule, legal education was an important focus for the leaders of new states, including Kwame Nkrumah, the first president of Ghana. It was also a significant focus for expatriate British scholars and American foundations seeking to shape the development of new universities in Africa. Disputes centered on whether training would have a wholly academic basis and be taught exclusively in the University of Ghana or be provided in addition through a dedicated law school with a more practical ethos. This debate became entangled in a wider confrontation over academic freedom between Nkrumah’s increasing authoritarian government and the university, and indeed in wider political and class struggles in Ghana as a whole. Tensions came to a head in the period between 1962 and 1964 when the American Dean of Law was deported along with other staff over allegations of their seditious intent. This chapter documents these complex struggles, identifying the broader political stakes within them, picking out the main, rival philosophies of legal education which animated them, and relating all of these to the broader historical conjuncture of decolonization. Drawing on a review of archival materials from the time, the chapter shows that debates over legal education had a significance going beyond the confines of the law faculty. They engaged questions of African nationalism, development and social progress, the ambivalent legacy of British rule and the growing influence of the United States in these territories.
International labor law was a paradigmatic field for public international law. This chapter chronicles the ambivalent move to embrace a less hierarchical and traditional understanding of legal ordering in transnational labor law. Evoking research on normative thickening through metaphorical recourse to the architect, landscaper, and gardener, this chapter challenges the starting assumption of order, calls for a long historical view that unbundles labor law from a narrow industrialization-centered narrative, and turns attention to the ways in which the labor law landscape can be held in motion. Underscoring the ways that labor sharpens understandings of transnational law, this chapter reads transnational solidarity and emancipation into a methodological account of transnational law.
This chapter studies international law in Australia. As a former British colony, Australia received a Western and specifically British tradition of international law, which was initially tied to imperial interests and even the possession of its own colonies in the Pacific. While its international legal personality matured in the 1920s and 1930s, it was only after the Second World War that Australia came to exercise a genuinely independent approach to international law. A hallmark of Australian policy and practice has been a broadly bipartisan political commitment to international law and institutions and to multilateralism, albeit affected by its close alliance with the United States. As a self-described ‘middle power’, Australia views the international legal order as giving it a voice on the international plane, securing its territorial and economic interests, and reflecting the values of the Australian community. Accordingly, Australia participates actively in the various specialized branches of international law and their associated governance mechanisms and dispute resolution procedures, although it occasionally strays from full compliance with its obligations.
Kamal Hossain and Sharif Bhuiyan
This chapter focuses on international law in Bangladesh. Neither the Constitution of Bangladesh nor any statute contains any specific provision on domestic application of international law rules. However, it is well settled by various judicial decisions that in respect of domestic application of international treaties, Bangladesh is a dualist country. In order to be applied by national courts, it is necessary for the treaty to be incorporated into Bangladesh’s legal system by an act of incorporation. In respect of customary international law, there is no clear judicial decision on whether customary law automatically forms part of Bangladesh law or whether, like treaties, such law is required to be made a part of Bangladesh law by a legislative, judicial, or other measure. It is likely that Bangladesh courts will adhere to the English and common law tradition of treating customary international law as automatically forming part of Bangladesh law as long as there is no inconsistent domestic legal provision.
Manuel A. Gómez
Latin American lawyers have been usually acknowledged for their influence and involvement in the formation, organization, and functioning of the state. Since the political movements that led to the independence from the European colonial powers more than two centuries ago until today, lawyers have always been front and center in the life of every Latin American country. From their most obvious occupations as judges, advocates, and legislators, to several other less visible roles, legal professionals are both ubiquitous and important. The intensification of globalization in recent decades has inevitably affected the role of Latin American lawyers, thus compelling us to look beyond national borders. This chapter does precisely that. It examines the transnational dimension of Latin American lawyers by looking at the contributing factors that led to its development. The chapter describes some of the common traits of transnational lawyers in the region. This chapter also explores the rise of mass torts and consumer protection in Latin America, two of the most visible areas that showcase the transnationalization of legal practice. The time frame of this chapter is the last three decades, a period of important political, economic, and social developments across the region, and also for the legal professions globally. In a more general way, this chapter engages with the broader discussion about the transnationalization of law in contemporary society, and the transformation of the legal profession.
This chapter studies international law in Cambodia. Cambodia’s evolving relationship with public international law must be understood in the context of the nation’s unique history and circumstances, which are marked by colonization, conflict, Vietnamese occupation, territorial administration, civil war, transitional justice, and state-building. Cambodia’s legal system has undergone significant changes from the early days of unwritten customary laws, to the imposition of French civil law, and thereafter the ‘legal vacuum’ created by the ultra-Marxist Khmer Rouge regime that left Cambodia in a state of war and international isolation until the 1980s. The chapter then outlines key aspects of international law in and apropos Cambodia that illustrate Cambodia’s reception of public international law, and its position as an active participant in the international legal system. Cambodia has certainly taken strides in its participation in dispute resolution on the international plane. However, its tryst with international law is a fractious one.
This chapter describes the experiences of five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—with international law over the past three decades, identifying some of the distinctive features of Central Asian states’ approaches towards international law. The commonalities in the stance of Central Asian states on matters of international law are determined by the context of their emergence as sovereign states at the end of the Cold War, their common history as former Soviet republics, their belonging to the Eurasian group of continental legal systems, and their common status as landlocked developing states. At the same time, each Central Asian state has its own specifics, with differences in their foreign policy priorities, levels of economic development, and resource endowment. The chapter then reviews the participation of Central Asian states in the Commonwealth of Independent States (CIS), particularly their experiences with the CIS Economic Court.
This chapter discusses international law in China. Although the teaching, research, and dissemination of international law have become part of China’s steady efforts to achieve its aspirations for national rejuvenation, early Chinese experience with international law still remains a key to understanding China’s present attitude towards international law. Indeed, the perennial concern with its status, security, and territorial integrity, as shaped by its historical legacies, still overshadows China’s legal behaviour in the conduct of its foreign relations. Today, with its rise to world great-power status, China is depicted as a stakeholder in the present international system. China has been playing a constructive role in international and regional issues and has made significant contributions to world peace and development. In the inquiry into China’s attitude towards international law, one area which China attempts to draw attention to is the importance of the Five Principles of Peaceful Co-existence.
This chapter applies a transnational law perspective to climate change governance. Climate change is increasing the interdependence of different states and economic activities, as the consequences of greenhouse gas emissions from somewhere are felt everywhere. This has prompted an international climate politics in which diverse actors grapple with growing interdependencies. The transnational nature of the climate crisis is however but partially reflected in international climate law. The chapter argues that the Paris Agreement has the potential, as a central node in a still-heterarchical climate governance, to interlink instruments and mechanisms from different levels of law and from the public and private sectors. The chapter also draws attention to interactions with often-overlooked sites of climate governance, including transnational commercial law, private international law, and contractual dispute resolution. It concludes with suggestions for further work in the domains of scholarship and practice.
Transitional justice and peacebuilding are expanding fields of global governance that have attracted increasing interest from transnational legal practice and scholarship. Focusing on women’s rights promotion in postconflict states, the chapter examines the UN “Women, Peace and Security” agenda and its challenging implementation in Afghanistan. By identifying the hegemony of Western liberal thought within peace and conflict studies and international human rights law as an obstacle to this implementation, the chapter explains how transnational legal practice could benefit from a greater engagement with feminist methodology and the significance it places on understanding “contexts.” As such, the chapter sets out “contextualization” as a method that could lead to more relevant and inclusive transnational legal practice in such disciplines.
This chapter describes the emergence of the Inter-American transnational law of human rights, its doctrinal characteristics, and some its main challenges. It focuses on the practice of the Inter-American Court of Human Rights, and proposes the notion of an Inter-American legal space as a different (and more useful) prism than a hierarchical view of constitutionalism to think about the challenges of legitimacy and democracy in Inter-American human rights adjudication. Instead of thinking solely about national democracies, this chapter argues, it is useful to think of democracy in the context of an Inter-American legal space. While the balance between the appropriate Inter-American standard of review and the democratic pedigree of the primary decision is fundamental for the democratic legitimacy of the regional court, the notion of Inter-American legal space allows us to see that, in a context of human rights indeterminacy, such democratic balancing needs to be performed in reference to a regional (and not solely national) process of democratization, in which an Inter-American community of human rights practice will continue to play a central role.
The most important phenomena attributable to the project of “global administrative law” (GAL) consists of rules, principles, practices, or procedures that have a more informal character and are generated from networks of public and private actors. The main characteristics of those rules is that they tend to be generated below the level of formal international treaties and that norm production occurs—at least in part—outside traditional formal modes of decision-making. However, some GAL norms including standards on products and services in particular, can have far reaching consequences as their factual weight is much more influential than domestic norms. GAL also develops new forms of procedure (e.g., voting) that are different from traditional international forms.
Horatia Muir Watt
The ways in which the background rules of private law determine the balance of power within the global economy are difficult to identify to the extent that the reach of any given legal system and its combination with other potentially contradictory sets of national regulation are uncertain. The specific contention here is that private international law, which allocates the various sets of applicable rules on all these points when they involve private, usually corporate, actors, has served above all to dispense them from the regulatory constraints to which they might be subject in a domestic setting. It has thereby provided the building blocks that have allowed capital to expand beyond borders and the pursuit of profit to develop to the detriment of competing values, beyond control.
Mathias Siems and David Nelken
Skeptical views tend to dominate the debate about the role of global social indicators in transnational law. However, the reason global social indicators have emerged is often that local and national legislation would not be sufficient and that agreement on international legal norms is not feasible. Indeed, it can be observed that global social indicators have proliferated in recent years as they reach across many societal fields. Moreover, this chapter shows that at all levels of legitimacy (“input,” “output,” and “throughput”), it is at least possible to make indicators more legitimate. This also acknowledges that some indicators fall short of these standards of legitimacy. Problems of the legitimacy of global social indicators will therefore remain relevant in the foreseeable future.
This chapter examines international law in India, offering an overview of India’s engagement with international law in the colonial and postcolonial periods. Whether it is the fact of the East India Company becoming an empire, or British India becoming an original member of both the League of Nations and the United Nations, India’s relationship with international law has been somewhat unusual. The review in this chapter encompasses the following sub-themes: the development of international law in the colonial era, 1600–1947; the place of international law in the Constitution of India 1949; the approach of Indian courts to international law, 1950–2017; and India’s multilevel engagement and contribution to international law, 1947–2017.
This chapter looks at international law in Indonesia. From the beginning of its establishment as a state, alongside the formation of the Indonesian government, Indonesia has committed itself to participating on the international stage. Paragraph 4 of the Preamble of the Constitution of the Republic of Indonesia 1945 shows such commitment. Indonesia’s role in the Bandung Conference of 1955 is another pivotal point to consider since Indonesia was one of the initiators of the Conference. Nevertheless, the development of international law in Indonesia is not merely about the 1945 Constitution and the Bandung Conference. It is also about Indonesia advancing its interests at the international level and making its voice count. In doing so, however, Indonesia has not been free from politics. Indonesia uses international law as a political instrument to pursue its interests; and other countries likewise use international law to advance their interests towards Indonesia.
Nicolás M. Perrone
This chapter examines the international investment regime through the lens of transnational law. It argues that this regime would not exist—or at least not in its current form—if it was not for the transnational ambition of some bankers, lawyers, and academics who dreamed of moving foreign investment relations beyond the traditional categories of public and private law and international and domestic law. The current normal in international investment law started with audacious treaty models, writings and awards. This chapter contrasts this approach with the important academic debates about this field, which have paradoxically focused on whether international investment law is public or private law or if international or domestic law should control foreign investment relations. To conclude, the chapter looks at the situation of local nonstate actors in foreign investor relations, examining whether they could also rely on audacious transnational legal thinking to protect their interests.
This chapter examines international law in Japan. It begins by looking at Japan’s embroilment with international law in the course of its efforts to revise the unequal treaties which had been concluded with about a dozen Occidental states while Japan was categorized as one of the ‘barbarian’ states in the world. After gradually overcoming this unequal status, it became a late-coming big power around the end of World War I. This big power then plunged into World War II, with the result that it was then branded an aggressor state and was penalized in an international tribunal. After that defeat, it turned into both a serious complier of new—that is, post-World War II—international law and a state deeply obedient to the United States. These factors have brought about complex international law behaviour as well as serious constraints in Japan’s choice of international law action.
This chapter introduces the Oxford Handbook of Transnational Law. Transnational law is at the center of lively discussions ranging from pronouncing the death of law to announcing the renewal of law. With stakes that high, the expectations for this field are potentially overwhelming. It is still unsettled what transnational law is. It was introduced to a wide audience of international lawyers in the 1950s, but is it a “new” legal field, or a particular kind of jurisprudence of “law and globalization,” or a sociolegal approach to law’s transformation in and beyond the state in the twenty-first century, or merely a synonym for legal pluralism, that is, an acknowledgment of the co-existence of law and (social, cultural, economic, religious, and other) norms? Finally, what is transnational law’s relation to the nation-state? While some suggest it marks the “end” of the nation-state, the better arguments suggest it remains closely intertwined with the state’s trials and tribulations. The chapter reviews contributions to these discussions but cannot account for the entire wealth and depth which is transnational law today. Instead, the chapter highlights some of the debates around the facets of transnational law and sketches a number of methodological reflections about the field. The contributing authors to this Handbook offer formidable insights into the complex details of law’s transnationalization in a wide range of key areas of the law and contextualize these developments against the background of the important normative discussions around the future of law in a globalized world.