New Articles Global Jurist

Global Jurist (Berkley Electronic Press) has notified these new articles in the peer reviewed GJ Frontiers and GJ Advances on Nationalist International Law, Genetic Engeneering and Indigenous Peoples and Fraud in German and Nordic Legal Systems. Here are the links and abstracts:

Alejandro Lorite Escorihuela (2005) "Cultural Relativism the American Way: The Nationalist School of International Law in the United States", Global Jurist Frontiers: Vol. 5: No. 1, Article 2. Link to full-text

This article examines a fairly recent, exponentially growing, and increasingly unavoidable body of international legal scholarship in the United States of America. This scholarly movement is here labeled "Nationalist International Law" (NIL). Considerable debate in American international law circles surrounds at present two lines of questions raised in the writing of individuals that are here associated with NIL. The first line deals with the status of international law in the United States' constitutional order and in particular the role of federal judges in enforcing international legal norms. The second broad area of debate concerns the nature of international law independently of domestic legal orders, and especially whether it should be considered law at all, as well as the proper method to be applied to its study. The type of writing, of arguments, and of methodology differ depending on the type of debate: in the first one the problems are framed as (mainly) ones of constitutional law, whereas in the second the problems are presented as mainly ones for political science to solve. The main argument of the article is that beyond this disciplinary divide, and beside the mere fact that the same people sometimes participate in both debates, the two broad types of interventions made by people associated here with NIL are united by a common methodological basis and project. In the combination of the two we can truly witness the contours of a scholarly movement of "Nationalist International Law" and explore the more important consequences of its enterprise for the discipline and the life of international law. The first part of the article presents a background image of academic activity as a form of politics, in order to underscore that what matters here is not the obvious political alignment of individual academics, but the dynamics of a scholarly dialogue that both highlights and obscures the politics of international law. The second part reconstructs NIL's scholarship as a collage of three domains of intervention, the "outer realm", the "inner realm", and the "sovereign border", corresponding to different modes of writing and intervention on the part of NIL. The third part presents the figure of "imperial sovereignty" as the intellectual and political outcome of NIL's unifying methodological nationalism, particularly as it results from NIL's debate with the liberal internationalists' self-positioned alternative. Finally, concluding thoughts are proposed on international legal nationalism, NIL's reactionary rhetoric and xenophobic epistemology, and the space left for a so-called European contribution to international legal dialogue.

Haoliang Wu and Bingbin Lu (2005) "Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights", Global Jurist Frontiers: Vol. 5: No. 1, Article 3. Link to full-text

Genetic engineering is one of the most advanced technologies in the world and can bring vast profits to developers by patenting resultant achievements. But genetic engineering must be based on original genetic materials. For obtaining such materials, developers travel around the world, especially to genetically rich areas in developing countries, to prospect for valuable genetic resources and bring back for research and patent derivate products. However a lot of disputes have arisen from such patents, such as the Enola patent dispute on Mexican traditional crop mayocoba bean and the patent dispute on sacred plant Ayahuasca between people and one U.S. Company. Indigenous people, who live in the origin areas of genetic resources for a long history, have established traditional and cultural genuine relation with some living species. These disputes revealed that some genetic engineering exploitation and patents based on certain species may be severely offensive against indigenous people's spiritual, religious, or cultural traditions. Although genetic engineering achievements' patentability has been argued for a long time, the TRIPs Agreement requirement and the world's legislation trend, either in developed countries such as the U.S., European Union or in developing countries such as China, have indicated that genetic engineering products and processes are legitimately patentable. But some loophole exists in the patent acquisition procedure of current legislation, which allows such offensive patents to be granted. To prevent such offensive patents, one prior consents solution is proposed in this article, which requires genetic engineering developers to obtain prior consents from origin countries of genetic resources before they exploit these resources and patent derivate achievements. This solution is based on the Convention on Biological Diversity, which affirmed country's sovereignty over their genetic resources and allowed countries to regulate and manage genetic resources in their territory. The Convention on Biological Diversity does not conflict with IPR legislation, in particular the TRIPs Agreement and the obligations under both treaties should be respected. The implementation of this proposed solution is based on the establishment of national genetic resources authority, which generally manages its country's genetic resources and works as indigenous people's representative with the authorization of state government. This solution should be implemented in three levels: domestically, transnationally and globally. Therefore, offensive genetic engineering patents could be prevented both by such authority's examination and granting prior consents before developers' access to genetic resources and by national patent administration's examination on prior consents proof from origin country's authority before granting patents.


Jaakko Husa and Jussi Tapani (2005) "Germanic and Nordic Fraud - A Comparative Look Under the Surface of Commonalities", Global Jurist Advances: Vol. 5: No. 2, Article 2. Link to full-text

This article studies the similarities and differences between criminal fraud, i.e. deception punishable under criminal law, in Germanic and Nordic legal systems. The authors compare how certain types of fraudulent behaviour are criminalised and, more profoundly, paradigmatically understood in the legal systems of Germany, Denmark, Finland, Norway and Sweden. Also, to a lesser extent, the law of Switzerland and Austria is taken into account. The first chapter is a concise introduction, followed by the main body of the work which presents the foundational background, ideas and the chosen approach. The next part offers a reconstruction of general legal landscapes in Germanic and Nordic law concentrating on the nature of judicial thinking and judicial mentality. Then criminal fraud is looked into through comparative matrix and specific attention is paid to the structure of law, the impression given by major textbooks, underlying theoretical conceptions concerning fraud, the significance of the mental state of the victim, and a tentative demonstration of the specific ways of thinking in each of the compared systems. The last part contains comparative discussion and a more general theoretical idea according to which detailed comparative study may reveal micro-level differences under the surface of commonalities.

Actio Negatoria, Coase (and Solomon) at the ECJ: Opinion in CEZ (C-343/04)

A reference by one of the courts most eager to refer under the Brussels-I Convention/Regulation (The Austrian Oberster Gerichtshof), has lead to a hugely interesting Opinion of Advocate General Poiares Maduro, that manages to combine insights from history of law, law and economics and the odd biblical reference. The case, Land Oberoestereich v. CEZ (C-343/04), shows once again that the academic debate on whether to develop a European civil code (and if so, how) would do well to take more notice of the fascinating and tangible work in delivering buildingblocks for a European private law, that is taking place in the perhaps less glamorous context of the civil procedure law of the Brussels Convention and Regulation.

The CEZ case concerns claims of alleged pollution by a Czech nuclear plant (CEZ), brought by an Austrian regional government in its capacity of landowner. This fact-pattern closely resembles the early Bier case (French mines / Dutch downstream agriculture), in which the Court of Justice had held that art. 5(3) of the Brussels Convention (jurisdiction in matters relating to a tort) gave jurisdiction both to the courts of the place where the tort occurred and of the place where the damage occurred. This course of action would, in fact, not have been open to the Austrian claimant as the defendant was not domiciled in a contracting state to the Convention; a requirement for the applicability of art. 5(3). The Austrian claimant, however, chose to argue for jurisdiction for the Austrian courts on the basis of art. 16(1) (a) of the Convention, which provides that the courts of the contracting state in which property is located have exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property. This jurisdictional argument was based to a large extent on Austrian substantive law, which treated the complaint as an actio negatoria or 'Eigentumsfreiheitsklage'; an action "designed to ensure that immovable property is left free from interference". The claimant's argument that this action, seeking an injunction ordering CEZ to stop excessive pollution, should indeed be qualified as a claim which has as its object 'rights in rem in immovable property', forms the subject of the reference decision and the Advocate General's Opinion of 11 January 2006.

The Opinion begins by asking why the Convention grants courts of the location of property exclusive jurisdiction under art. 16. The answer, it is suggested, has to be found in traditional arguments of state sovereignty implicated in property law, as alternative arguments (basically proximity-based justifications) can serve only to indicate the suitability of this forum, but not the need for exclusivity.

Part II of the Opinion establishes a general distinction between actions in rem and actions in personam. It is important to note that legal concepts used in the Convention, such as 'contract', 'tort', but also 'actions in rem', have generally been held to have an autonomous meaning; that is, their content is not based on similar notions in national legal systems. Other cases have illustrated the difficulties inherent in constructing such concepts in a purely 'autonomous' way (see the line of cases on the concept of 'civil and commercial matters', from Eurocontrol (C-29/76) to Blijdenstein (C-433/01)), and this case is no exception. Interestingly, this part of the Opinion begins with an affirmation that "The autonomous notion of 'proceedings which have as their object rights in rem' was not created in a legal vacuum" (par. 44). This statement is a prelude to an extensive discussion of the distinction in the various national legal systems ("long-standing divergent legal traditions") and in legal theory.

The basic question from a substantive law point of view (and as applied to the CEZ case) is whether interferences with neighbouring property (nuisance) should be classified as part of the law of obligations or part of the law of property. The distinction between liability rules and property rules, as known in Law & Economics, is relevant here. Some legal systems focus on the conduct of the person responsible for the interference and classify the action as part of the law of obligations. The typical claim here (although there are exceptions) is for damages. Other systems, such as the Austrian, locate the action within the law of property, and do so through adoption of the classic Roman law actio negatoria. As Peter van Es explains in a recent PhD-thesis ('De Actio Negatoria', 2005 in dutch), what is alleged in such a claim is the fact that someone (the polluter in this case) does not have a right to undertake the harmful activities (hence the negation in the name), for example because he has never been granted this right by the owner of the damaged property. This action would, if succesful, typically lead an injunction to cease the damaging activities.

The Opinion admits that this latter approach may seem counterintiuitive to lawyers unfamiliar with property law in legal systems throughout Europe and suggests that this might be due to increasing aversion to an "outmoded" traditional conception of ownership as "the legal relationship of domination between a person and a thing", in favour of "more interpersonal legal concepts" (par. 55). It is then stated:

"The reality, however, is that such 'archaic' legal notions from the law of property and the actions arising thereunder to put an end to interference in immovable property that is not justified by any prior right over it exist and are very well established in legal systems throughout Europe. One cannot ignore this substantive legal reality. (...) The Convention, in light of its purpose of allocating jurisdiction, has to respect the institutional choices, even if imperfect, made by legal systems, at the domestic level, on how to regulate in substance the protection of immovable property. Bringing all remedies arising from property law and actions for damages under the umbrella of matters relating to tort under art. 5(3) of the Convention would constitute an interference with such choices. (...) I do not think that the Court ought to interfere in such a way with well-established legal traditions." (paras. 56, 58 and 59)

This is a far cry from a purely autonomous construction of Convention concepts. It is true that the Opinion asserts that classification under domestic law is strictly speaking "irrelevant", but it's call for "an objective consideration of the [subtantive law action] against the background of the legal system to which it belongs" cannot be read otherwise than as granting a large measure of influence to national law constructs. While the present formulation of the approach may not yet be ideal, experience in other areas of the Convention shows that this semi-autonomous interpretation may be the most suitable road to the further development of European jurisdiction law.

Moving to the concrete qualification of the claim at issue, the Opinion considers that the crucial question is whether the action "directly seeks to establish limits on ownership arising from relations between neighbouring estates". It would seem that this is the case with the actio negatoria under Austrian law. As van Es has also noted in his PhD, however (at par. 18.2.2), such an action as much leads to a limitation of the rights of the owner of the damaged property as it leads to an increase in the property rights of the interfering owner. "This brings us, therefore, into the domain of concurrent exlcusive jurisdictions", as the Opinion acknowledges (par. 76).

With concurrent exclusive jurisdiction therefore potentially being granted to courts in two countries, the Opinion notes that there is a risk of "cost externalisation from one State to another" (par. 92). This would occur when either court hearing the claim would not grant sufficient weight to the costs and benefits arising out of the interfering activity in the other state. The Opinion therefore calls for these courts to "pay special attention to the transnational character of the situation", with reference to "the spirit of coordination and cooperation which imbues the Convention" (par. 93). This is, with respect, quite a novel interpretation of the oft-cited principle of mutual trust, which the Court has held to lie at the basis of the Convention, which goes much further than the mere need to take into account foreign countries' notions of 'public policy'. This new, far more 'substantive' dimension to the principle has obvious normative appeal and mirrors suggestions in recent conflict of laws literature with respect to choice of law (see for example: Guzman, Choice of Law: New Foundations, Georgetown Law Journal 2002). If accepted by the ECJ, wider implications for various areas of transnational litigation within Europe cannot be excluded.

USSC Gonzalez v. Oregon

The US Supreme Court on Tuesday upheld Oregon's famous law allowing physician-assisted suicide (the only such law in the country). As the Opinion of Justice Kennedy acknowledges, allthough the dispute in the case is in part a product of a wider political and moral debate, the Court's decision ultimately rests more on "an inquiry familiar to the courts: interpreting a federal statute to determine whether Executive action is authorized by, or otherwise consistent with, the enactment." In the end, therefore, the Judgment provides perhaps more insights to questions of federalism and separation of powers, than on the background fundamental ethical issues involved.

Nevertheless, here are a few links for further study of the issues from a comparative perspective. Professor Valerie J. Vollmar of Willamette School of Law has a Physician-Assisted Suicide Website, with information on legislation, litigation and literature from around the world. Samia Hurst and Alex Mauron have an online article in the British Medical Journal (2003) on "Assisted suicide and euthanasia in Switzerland: allowing a role for non-physicians", in which you will find many references to further materials. The Transatlantic Assembly weblog earlier referred to this collection of materials for the Oregon case (briefs etc.), compiled by the International Taskforce on Euthanasia and Assisted Suicide. Finally, for Europe, the seminal decision is obviously the judgment of the ECHR in the case of Pretty v. United Kingdom.

Comparative Law in Courts: New Issue Tulane Law Review (Vol. 80/1)

LegalTheoryBlog notifies publication of the latest issue of the Tulane Law Review (of Hurricane-struck Tulane Law School in New Orleans), devoted largely to the topic of the use of comparative law by judges in different jurisdictions and settings. Basis for discussion in this new issue is an article by Sir Basil Markesinis & Jörg Fedtke, called "The Judge As Comparatist". Repsonses are by Laurie W.H. Ackermann (on South-Africa), Aharon Barak (on Public Law), Brun-Otto Bryde (on International Constitutionalist Dialogue), Guy Canivet (on France and Europe), Sir Sydney Kentridge (on Constitutional Adjudication in South-Africa), Christos L. Rozakis (on Europe) and Konrad Schiemann. Well worth checking out!

Rosenfeld on 'Identity' in Constitution-Making

Professor Michel Rosenfeld of Cardozo Law School has posted "The Problem of 'Identity' in Constitution-Making and Constitutional Reform" on SSRN; highly topical because of recent events in Europe and Iraq. This is the abstract:

Constitution-making and constitutional reform as recent examples in the European Union and Iraq indicate cannot succeed unless there is an existing constitutional identity or one in the making. Constitutional identity differs from national identity, but must perforce incorporate aspects of pre-constitutional and extra-constitutional identity. The paper distinguishes between five constitutional models and four constitution-making models and argues that every viable constitutional identity is shaped by some of these or by combinations involving aspects of several of these. Consistent with this, the relevant differences between constitution-making, amending the constitution, revising the constitution, and constitutional reform are substantive and contextual rather than formal and involve greater or lesser changes to constitutional identity.

Balancing and the Conflict of Laws

Back, a little later than expected, for a new year of blogging; many thanks for your continued visits! Anyone with an interest in the topics of judicial balancing and conflict of laws may want to look up this book that appeared late 2005: "Balancing of Interests. Liber Amicorum Peter Hay zum 70. Geburtstag", edited by Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke and Wolfgang Weitnauer (Publishers: Verlag Recht und Wirtschaft). At least two contributions to the book are available online:

Harold J. Berman, 'Is Conflict of Laws becoming passé? An Historical Response'. Available as an Emory University School of Law Public Law & Legal Theory Research Paper on SSRN.

Professor Berman argues that "the Romanists of the twelfth and thirteenth centuries got their conflict-of-laws concepts and doctrines from the canonists." This matters because now, contrary to widespread understanding, "it was not primarily a positivist theory of law but a natural-law theory and a historical theory" that stood at the origins of the discipline, suggesting a much greater role for reason and justice in the solution of conflicts.

William J. Carney, 'Will Choice of Corporate Law Become Trivial?'. Available as an Emory University School of Law Research Paper on SSRN. This is the abstract:

American corporate law scholarship has witnessed the waxing and waning of a variety of grand theories about the globalization of corporate law in the past two decades. The first idea was that harmonization of European company law might lead to a productive form of uniformity. The second was that American law was out of step with that of other leading industrialized nations, and perhaps we should look to their models, generally involving controlling shareholders, for guidance. The third idea was that investors and corporations face common problems regardless of local law, and in a competitive environment one might expect a convergence of corporate laws through market forces that sought the most efficient solutions to these common problems. This kind of convergence has only occurred at a few margins, and seems unlikely to occur in such a way that choice of law rules in corporate law would become less relevant. Indeed, the fourth wave of scholarship in this field now seeks to explain why significant differences persist.