The Law Behind Rule of Law Transfers: On Rule Based Interactions of Legal Orders in a Globalized World

Till Patrik Holterhus

doi:10.5771/9783845298481

Summary

Transfers of rule of law between legal systems have been discussed extensively in academia. Yet, so far, scholarship has predominantly centered around the issue’s socio-political dimensions.

The volume departs from these common scholarly paths and assesses rule of law transfers as a legal phenomenon. Its analytical perspective assumes that the process of transferring the rule of law does not only concern a legal concept but also holds a legal dimension itself.

Against this backdrop, the volume features eight distinct contributions, introducing and applying the said perspective. They approach the topic from diverse angles, covering a wide range of legal fields, including EU law, public international law, international human rights law, international criminal law, international humanitarian law and international economic law – with each contribution succeeding in highlighting the relevance of “the law behind rule of law transfers”.

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Bibliographic data

Edition: 1/2019
Copyright year: 2019
ISBN-Print: 978-3-8487-5716-9
ISBN-Online: 978-3-8452-9848-1
Publisher: Nomos, Baden-Baden
Language: English
Pages: 296
Product type: Edited Book

Titelei/Inhaltsverzeichnis No access Pages 1 - 8
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    1. 1. Multiple National Legal Orders No access
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    2. 2. Further Pluralization Through Globalization No access
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  2. II. Intensification of Legal Order Interactions Through Globalization No access
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  1. I. Defining Legal Transfer No access
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  2. II. The (Im)Possibility of Legal Transfers and the Starting Point of Scholarly Interest No access
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  1. I. The Rule of Law as a General Concept No access
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    1. 1. The Diverse Substance and Form of Rule of Law Transfers No access
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      1. a. Nation States as Recipient Orders No access
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      2. b. Recipient Orders Above and Beyond the Nation State No access
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    1. 1. Actors No access
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    2. 2. Motivations No access
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    3. 3. Means and Instruments No access
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    4. 4. Success Rates and Their Conditions No access
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    5. 5. Legitimacy No access
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    1. 1. Departing From Common Scholarly Paths No access
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    2. 2. Analytical Relevance of a Legal Perspective No access
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  1. I. Constitutionalism and the Mechanics of Global Law Transfers No access
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  2. II. The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy No access
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  3. III. Article 18 ECHR as a Legal Safeguard Against Rule of Law Backsliding No access
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  4. IV. Promoting the Rule of Law Through the Law of Occupation No access
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  5. V. The Law Behind Rule of Law Promotion in Fragile States No access
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  6. VI. The ICTY and its Rule of Law Promotion Efforts Through Rule 11bis No access
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  7. VII. The Dynamics Between International Investment Law and the Rule of Law No access
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1. Abstract No access
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2. A. Introduction No access
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  1. I. The German Project: Rule of Law Transfers and International Constitutionalism No access
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  2. II. Fragmentation and Challenges to Law Transfers No access
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  1. I. Hinge Provisions as Doorways between Legal Orders No access
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  2. II. Effects of Hierarchies Within International Law No access
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    1. 1. Solange No access
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    2. 2. Ultra vires No access
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    3. 3. Constitutional Identity No access
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  4. IV. The Sources of International Law as a Common Normative Framework No access
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  5. V. Harmonious Interpretation and Conflict Avoidance No access
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  6. VI. Informal Judicial Dialog No access
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5. D. Conclusion No access
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1. Abstract No access
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2. A. Introduction – A Legal Perspective No access
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    1. 1. The Particularity of Foreign Policy No access
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    2. 2. Legal Permeation of EU Foreign (Trade and Development) Policy No access
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    1. 1. Rule of Law Promotion in Article 21 TEU No access
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      1. a. ECJ Judgement H v. Council and Commission No access
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      2. b. Opinion of Advocate General Wathelet in Western Sahara Campaign UK No access
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      3. c. (Procedural) Consequences and Relativity No access
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    1. 1. Absence of an Explicit External EU Rule of Law Concept No access
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    2. 2. The (Internal) EU Rule of Law No access
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      1. a. In the Context of the Cotonou Agreement No access
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      2. b. In the Action Plan on Human Rights and Democracy 2015-2019 No access
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      3. c. In the 2017 European Consensus on Development No access
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      4. d. In the UN 2030 Agenda for Sustainable Development No access
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    1. 1. Unilateral Rule of Law Conditionality in the GSP+ No access
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    2. 2. Case Study – Sri Lanka (2009) No access
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      1. a. Essential Elements Clause (Article 9 Cotonou Agreement) No access
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      2. b. Suspension Procedure (Article 96 Cotonou Agreement) No access
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    2. 2. Case Study – Guinea-Bissau (2011) No access
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5. D. Conclusion No access
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1. Abstract No access
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2. A. Introduction No access
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  1. I. The Notion of the Rule of Law No access
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  2. II. The Specter of Totalitarianism and Rule of Law Protection in the ECHR No access
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  3. III. Article 18 and the Rule of Law No access
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  1. I. Introduction No access
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  2. II. An Extremely Narrow Scope of Application No access
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    1. 1. The Burden of Proof No access
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    2. 2. The Standard and Means of Proof No access
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    3. 3. What Must Be Proven No access
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  4. IV. Résumé No access
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  1. I. Two Steps Forward… No access
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  2. II. …And One Step Back? No access
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  3. III. Résumé No access
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6. E. Conclusion No access
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1. Abstract No access
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2. A. Introduction No access
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  1. I. Negative Approach No access
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  2. II. Relative Focus on the Security Interests of the Occupying Power No access
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  3. III. Conservationist Character No access
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4. C. The Impact of International Human Rights Law No access
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5. D. The Impact of the Involvement of the Security Council No access
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6. E. Concluding Remarks No access
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1. Abstract No access
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2. A. Introduction No access
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  1. I. Terminology No access
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  2. II. Rule of Law Actors No access
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  3. III. Rule of Law Promotion Activities No access
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  4. IV. Challenges and Shortcomings in Rule of Law Promotion No access
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    1. 1. Light Footprint and Lead Nations (2001–2006) No access
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    2. 2. Towards Local Ownership (2005–2009) No access
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    3. 3. Mutual Accountability and Afghan Leadership (Since 2012) No access
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    4. 4. A Paradigm Change? No access
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  2. II. Bilateral Agreements No access
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5. D. Legal Basis and Mandate for the Rule of Law Promotion by Non-State Actors No access
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    1. 1. Accordance with the UN Charter Principles No access
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    2. 2. Human Rights Law No access
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      1. a. Aid Effectiveness No access
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      2. b. Conditionality No access
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    4. 4. Local Ownership No access
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    5. 5. The International Rule of Law No access
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    1. 1. Afghan Laws No access
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    2. 2. Domestic Law of the Donor Country No access
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7. F. Conclusion No access
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2. A. The ICTY as a Rule of Law Promoter No access
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  1. I. The Beginning: Standing its Ground as International Law Enforcer No access
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  2. II. The Completion Strategy: Preparing the Ground for Rule of Law Promotion No access
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  3. III. The End: Preparing for the ICTY’s Legacy No access
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    1. 1. Applicable Substantive Law No access
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    2. 2. Human Rights No access
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  2. II. Institutional Dimension No access
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  3. III. Cultural Dimension No access
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  1. I. Triggering Prosecutions: Building Institutions and Transferring Cases and Material No access
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  2. II. Enhancing Competence: Capacity Building No access
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  3. III. Raising Awareness in order to Build a Culture of Law: Outreach Program No access
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6. E. Conclusion No access
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2. A. The Emergence of International Investment Law No access
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3. B. International Investment Law: Challenge, Contestation and Reform No access
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    1. 1. Legalization and Judicialization for International Peace and Security No access
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    2. 2. Strengthening the Role of Law by Empowering the Individual No access
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    3. 3. Strengthening the Rule of Law at Domestic Level? No access
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    4. 4. Development Dimensions of International Investment Law No access
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    1. 1. Legal Certainty No access
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    2. 2. Consistency of the Law No access
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    3. 3. Legitimacy No access
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    1. 1. International Investor-State Dispute Settlement and Domestic Adjudication – Local Remedies No access
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    2. 2. Is Arbitration a Legitimate Way to Adjudicate Issues Relating to the Exercise of Public Authority? No access
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    3. 3. Discrimination No access
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    4. 4. An Utopian Proposal: Establishing a Global Human Right to Property No access
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  1. I. The Rule of Law as an Empirical Indicator No access
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  2. II. The Rule of Law as Lege Lata No access
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  3. III. The Rule of Law as an Analytical Concept No access
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6. E. Conclusion No access
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