Jean Monnet Seminar > Spring Semester 2003


The Jean Monnet Seminar, Spring 2003

International Law and Democracy


Professor Joseph Weiler
Professor Dr. Iulia Motoc


MISSION STATEMENT


The seminar aims to systematically explore the complex relationships between international law and democracy. Readings cover both democratic theory and a revisiting of the various doctrines and institutions of the international legal system examined in the light of such theory. It will explore the extent to which traditional theories of international law are suitable to deal with issues of international governance and will in addition examine alternative methods of legitimation.

The schedule will include both class presentations and discussion as well as guest speakers and speakers from the Jean Monnet Center Emile Noel Fellows.

The requirements of the Seminar are demanding - it necessitates serious preparation for each session in addition to the writing of a seminar paper of publishable quality.

Below is further information on each session as held in the spring semester 2003.

SEMINAR SCHEDULE

       
       

Wednesday 15th January

 

Professor Joseph Weiler
Organizational of the seminar

       

Wednesday 22nd January

 

Professor Joseph Weiler
Student presentations of the following reading texts:

       
       
 

Principal Reading:

James G. March, Johan P. Olsen Democratic Governance (The Free Press, 1995)

Chapter 1 An Introduction

Chapter 2 Perspectives on Governance

Supplementary Reading:

Selected sections of the following:

Leo Strauss What is Political Philosophy? And Other Studies (The University of Chicago Press 1959)

Montesquieu Spirit of Laws (T. Ruddiman, 1793)

John Locke Two Treaties of Government (Cambridge At the University Press 1970)

John Stuart Mill On Liberty and Other Essays (University Press, Oxford 1991)



       

Wednesday 29th January

 

Professor Dr. Iulia Motoc, Professor University of Bucharest and Senior Emile Noel Fellow. Student presentations of the following texts:

       
       
 

Principal Reading:

James G. March, Johan P. Olsen Democratic Governance (The Free Press, 1995)

Chapter 3 Developing Political Identities


Supplementary Reading:

Selected sections of the following four documents are included.

John Rawls Political Liberalism
(Columbia University Press, New York)
Lecture IV The Idea of Overlapping Consensus

Nathan J. Brown Islamic Constitutionalism in Theory and Practice
Chapter 26 Democracy, the Rule of Law and Islam, edited by in Eugene Cotran and Adel Omar Sherif (Kluwer Law International)

Susan Mendus Losing the Faith, Feminism and Democracy
Chapter 11 in Democracy the Unfinished Journey, 508BC to AD 1993, Edited by John Dunn. (Oxford University Press 1992)

Jurgen Habermas Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy
Chapter 7, Deliberative Politics: A Procedural Concept of Democracy Translated by William Rehg (The MIT Press, Cambridge)



       

Wednesday 5th February

 

Professor Joseph Weiler - suite

       
       
 

Thomas M. Franck
The Emerging Right to Democratic Governance
American Journal of International Law, Volume 86, Issue 1 (Jan., 1992) p46-91.

Susan Marks
International law, Democracy and the End of History, in G. Fox & B.Roth(eds), Democratic Governance and International Law, p.532



       

Wednesday 12th February

 

Professor Joseph Weiler - suite

       
       
 

Anne Marie Slaughter International Law in a World of Liberal States European Journal of International Law 6 (1995), p.503

Jose E. Alvarez Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory
European Journal of International Law 12 (2001), No. 2



       

Wednesday 19th February

 

Professor Joseph Weiler - suite

       
       
 

No new reading materials, see those of Wednesday February 12th above.



       

Wednesday 5th March

 

Professor David Golove, Professor of Law, NYU School of Law

       
       
 

The following reading material was provided by Professor David Golove, NYU School of Law.

Curtis A. Bradley and Jack L. Goldsmith

Customary International Law as Federal Common Law: A Critique of the Modern Position Harvard Law Review, Volume 110, February 1997, Number 4, p.815


Harold Hongju Koh

Commentary: Is International Law Really State Law? Harvard Law Review, Volume 111, p.1824 (1997-1998)


Curtis A. Bradley and Jack L. Goldsmith

Commentaries: Federal Courts and the Incorporation of International Law Harvard Law Review, Volume 111, p2260 (1997-1998)



       

Wednesday 12th March

 

Dr. Anne Orford, Lecturer University of Melbourne and Senior Emile Noel Fellow.

       
       
 

Dr. Orford presented her work and in preparation circulated a chapter taken from her forthcoming book entitled Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (chapter 4). Also circulated was the following framing information for the seminar:

This class is concerned with norms of self-determination and democracy, and their relationship to the forms of governance undertaken by the international community in the aftermath of humanitarian intervention. In particular, we will explore the role of territorial administrator that the international community has adopted in Bosnia-Herzegovina and East Timor. This role appears to be at odds with the realization of self-determination as one of the stated aims of humanitarian intervention. We will explore this tension between self-determination and international administration, and the ways it is managed, explained and legitimized by international lawyers and administrators. In doing so, we will consider whether the right of self-determination can serve as a basis for responding to the issues raised about the lack of participation by the people of Bosnia-Herzegovina and East Timor in their own governance.

The reading for this class is a chapter taken from my forthcoming book entitled Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. That book emerges out of a particular historical period, extending roughly from 1989 and the break-up of the Soviet Union, to 2001 and the events of September 11 in the US. For many international lawyers and human rights activists, including a number of those we have studied throughout this seminar, it was thought that the changed conditions of the post-Soviet era would usher in a new age of human rights. In this new age, we would finally witness the triumph of a liberal alliance of democratic states committed to global free markets and the protection of individual liberty. A new enthusiasm for humanitarian intervention, evidenced by military actions in Somalia, Haiti, Bosnia-Herzegovina, Kosovo and East Timor, was seen as central to this triumph of a liberal internationalism. This doctrine, which achieved a new degree of respectability amongst many liberal international lawyers during the 1990s, seemed to some to promise a world in which the international community would privilege democracy, self-determination and human rights over national interests or imperial ambitions. Yet I argue, through a close reading of legal texts and institutional practice, that a far more circumscribed, exploitative and conservative interpretation of the ends of intervention was adopted during this period. The book ends by asking what possibilities for justice, if any, have been lost in the move from an era of humanitarian intervention to an international relations dominated by wars on terror.

The focus of the chapter chosen for this seminar is on the aftermath of humanitarian intervention in the two cases of Bosnia-Herzegovina and East Timor. This chapter draws on and develops key debates and themes we have explored in readings and class discussion. These include:

What is the content of the norm of self-determination?

What is the content of the right of self-determination? Is there an internal element to the right of self-determination? What key values are indicated by that norm? Are these values vindicated by treating the right as guaranteeing a one-off choice, or do they imply ongoing substantive rights? To what extent are economic and political conceptions of governance linked here? What, if anything, does the right of self-determination say about privileging democracy as the ideal internal arrangement of the self subject to determination?

What is the relationship of this norm to international governance/administration?

To what extent and in what manner are norms of self-determination or democracy relevant to international legal governance? These questions are raised in this chapter in a very direct fashion, as in the cases of Bosnia-Herzegovina and East Timor the international community is directly engaged in administration in the name of advancing self-determination and/or democracy.

How important is the creation of the market, or the private realm of economic relations, to discussions of the legitimacy of international governance?

This goes to the debate about whether there is a minimalist political model of governance/democracy/self-determination. The chapter argues that attention to the economic aspects of the internationalization of Bosnia-Herzegovina and East Timor reveals that only one 'choice' is being made available to these new subjects of international law. That choice is to be governed by economically rational governments under the tutelage of the international economic institutions who follow the military as representatives of the international community (pp 110-112). To focus only on the role of international institutions and international law in intervening for human rights and democracy would thus obscure the role played by international institutions and laws in contributing to economic liberalization. But does this matter? What would be lost if we focused only on norms of international law that relate to public issues? Should international lawyers be concerned with making visible the norms and institutions that facilitate the making of a global market? Or is global economic restructuring a given, so that our role as humane international lawyers is only to consider norms relating to intervention, or issues such as the limits of self-determination?

To what extent do norms of self-determination or democratic governance provide means of responding to the problems of international administration as suggested in this chapter? To what extent do they offer means of responding more broadly to recent critiques of globalization as threatening sovereignty or democracy?

This aspect of the question involves considering the proper relationship between the state and the international community. Does it matter whether a formalistic, 'one-off' view of self-determination is adopted, or whether a more substantive and economically based view of self-determination is named as the law (pp 112-114)? Should the sovereign state be completely separate, independent, autonomous and connected to other states only through contractual relations? Do all foreign influences, including international intervention, threaten this sovereign autonomy, this perfect independence? Or are there reasons to be uneasy about the vision of the state and its relationship to the international community that even some of the broader readings of self-determination assume (pp 114-123)?



       

Wednesday 26th March

 

Daniele Archibugi, Technical Director at the Italian National Research Council

       
       
 

The reading material has been provided by Mr. Daniele Archibugi, Technical Director at the Italian National Research Council. Mr. Archibugi presented his work on Cosmopolitan Guidelines for Humanitarian Intervention and Cosmopolitan Democracy and its Critics, to be published in Bruce Morrison (ed.), Transnational Democracy: A Critical Consideration of Sites and Sources, Aldershot, Ashgate, 2003, chapter XIII.

Daniele Archibugi with Professor Weiler, Professor Motoc and two participants of the Jean Monnet Seminar, NYU Spring 2003

Daniele Archibugi with Professor Weiler, Professor Motoc and two participants of the Jean Monnet Seminar, NYU Spring 2003


Daniele Archibugi


       

Wednesday 2nd April

 

Professor Ayelet Shachar Faculty of Law, University of Toronto, and Emile Noel Senior Fellow, NYU School of Law

     
     
 

The following material was selected by Professor Ayelet Shachar, who presented at the seminar.

Rogers Brubaker, Citizenship and Nationalism in France and Germany (Cambridge: MA, Harvard University Press, 1992) (excerpt)

T. Alexander Aleinikoff, The Tightening Circle of Membership, 22 Hastings Constitutional Law Quarterly 915 (1994-1995) (excerpt)

Ayelet Shachar, Children of A Lesser State: Sustaining Global Inequality through Citizenship Laws, Jean Monnet Working Paper 2/03 (New York: New York University School of Law, 2003).

Professor Shachar circulated the following covering guidelines:

The reading materials deal with the definition and meaning of citizenship in a world of increased global interdependence. A clear understanding of how citizenship is assigned in the current world system is of crucial importance in the context of the themes developed in the Jean Monnet Seminar given that our present understanding of democracy is premised on the existence of a demos - a stable political community with members by whom and for whom democratic discourse takes place. At present, the acquisition of full membership status still serves, in most polities, as a prerequisite for the right to vote and participate fully in collective decision-making processes. This connection between demos and democracy explains why citizenship is often referred to as "the basic right to have rights." Citizenship is also treated as the basic unit of political membership in the modern state, which connotes a deep sense of belonging and identity.

The excerpt from Rogers Brubaker's book focuses on the question of how states demarcate who is "inside" and who is "outside" their membership boundaries. Alex Aleinikoff develops a notion of concentric circles of membership. He offers a cautionary note about the potentially detrimental impact of a renewed valorization of citizenship in the United States upon a growing number of individuals who are increasingly treated as "outsiders" of the collective. In my article, I critically assess the connection between birth and political membership. I argue that the time is ripe for reconsidering the justifications for allotting citizenship according to birthright principles. Such attribution has too long served as a veil - shielding questions about the distribution of power, wealth, and opportunity from the realm of demos definition. The class discussion will focus on Parts I, III, IV (excluding Benner, Miller, and Nguyen) and V of the article. I will first elucidate the main legal principles that define entitlement to political membership (jus soli and jus sanguinis). We will then clarify what the benefits of citizenship may be, and what rights and privileges it may entail. Finally, we will turn to evaluate the normative justifications for upholding the legal principles of birthright citizenship. We will also briefly discuss the promises and pitfalls of regional (and potentially "global") understandings of political membership.



       

Wednesday 9th April

 

Professor Joseph Weiler, suite

       
       
 

Reading Materials:

Daniel C. Esty The World Trade Organization's legitimacy crisis
World Trade Review (2002), 1: 1, 7-22

David Henderson WTO 2002: imaginary crisis, real problems
World Trade Review (2002), 1: 3, 277-296

Daniel C. Esty Rejoinder
World Trade Review (2002), 1: 3, 297-299

Robert Howse and Kalypso Nicolaidis Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?'

In Marco Verweij and Tim Josling (eds), Deliberately Democratizing Multilateral Organization, special issue of Governance (2003)



       

Monday 14th April

 

Seminar held in combination with Globalization and its Discontents Colloquium

     
     
 

Please read more about the Globalization Colloquium at:

http://www.law.nyu.edu/kingsburyb/spring03/globalization/index.html

The subject matter of the Colloquium was the below presented paper

Is There Really a "Democratic Deficit" Problem in Global Governance?
Andrew Moravcsik, Government Department, Harvard University



       

Monday 21st April

 

Closing Seminar, Professor Joseph Weiler, suite

       
       
 
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Last updated on September 9th, 2004

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