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The law of expropriation stands at the crossroad of three fundamental rights: the right of States to expropriate, their right to regulate and the right of foreign investors to property. Underlying these rights and their interplay, one finds the protection of public and private interests and the conflict between them. In establishing a balance between these, international investment agreements (IIAs) have traditionally subjected the legality of expropriation to certain conditions and failed to address explicitly the issue of the right of States to regulate. A great number of IIAs concluded in the 2010s tackle this issue, typically by distinguishing expropriatory measures from regulatory measures. Likewise, those agreements also contain articles or annexes that specify the scope and modalities of application of the expropriation provision with regards to specific matters pertaining in particular to intellectual property rights, land, subsidies and grants. Those specifications are analysed in Chapter 7. Analysing in detail treaty practice and arbitration practice as well as their evolution, Chapter 6 examines the two main issues raised by the protection of foreign investors against illegal expropriation: (1) the types of expropriation covered; and (2) the conditions of legality of expropriation. As a preliminary matter, it first focuses on the types of property protected, in particular contractual rights.
In Chapter Nine I attempt to answer the following question: Can Law Be Emancipatory? The answer takes into account the previous analyses, and aims to give political-juridical content to the oppositional postmodern conception of law. Drawing on examples of concrete political-juridical practices occurring in various parts of the world, I formulate the conditions for an emancipatory use of law. The set of these conditions and the practices into which they translate themselves, I designate as subaltern legal cosmopolitanism. This chapter was written under the logic of the sociology of emergences. My aim was to unfold the signs of the reconstruction of the tension between social regulation and social emancipation, as well as the role of law in such a reconstruction. The credibility of the signs was built on excavation work upon the foundations of the paradigm of modernity - a work that confirmed the exhaustion of the paradigm, while revealing as well the wealth and vastness of the social experience it rendered possible at the beginning, and later went on to discredit, marginalize or simply suppress.
In Chapter Eight I continue my theoretical endeavors, this time drawing on a conception of law as a map and offering an analysis of law from the point of view of cartography and its procedures (scale, projection, and symbolization). I concentrate on forms of law, using them as revolving doors through which different forms of power and knowledge circulate. The type of close-up view I am calling for can only be obtained in the context of concrete struggles as they unfold, mobilizing, inventing, confronting, appropriating or rejecting different forms of legality and illegality. The purpose of my analysis is to show that, since the struggles on regulation/emancipation are never fought in general but rather in specific social sites, involving specific issues and social groups, and drawing on specific instrumental and expressive resources, it is of crucial importance and strategic value to understand the limits and the possibilities of the different contexts of struggle, in this particular case, social struggle centered around law, legality and illegality.
In western Germany, a major controversy developed over the British and French policy of requiring German courts to prosecute Nazi crimes against humanity. German critics argued that this violated the violation on ex post facto law making. This, they said, made such trials unjust and similar to the courts of the Third Reich, which had also used ex post facto laws. The British and their German supporters argued that Nazi crimes could only adequately be punished as crimes against humanity, since many Nazi misdeeds had not been criminal under the laws of the Third Reich (e.g. the denunciation of individuals to the Gestapo). The American decision not to grant German courts jurisdiction over crimes against humanity came in large part out of a desire to avoid a similar controversy in their own occupation zone. Many of those critical of prosecuting Nazi atrocities as crimes against humanity wanted to help Nazi criminals and make it harder to prosecute Nazi crimes. Yet, because they made their arguments in the language of liberal legalism and the principles of legality, these critics helped to deradicalize the German legal profession, which had previously been deeply anti-liberal and anti-democratic.
Although many contemporary democracies face popular pressures to profoundly transform or replace their constitutions, there is little systematic academic discussion on the legal and political challenges that these events pose to democratic principles and practices. This book is a collaborative effort by legal scholars and political scientists to analyze these challenges from an interdisciplinary and comparative perspective. This introductory chapter discusses the phenomenon of constitutional redrafting in democratic regimes around the world and the contributions each chapter in the book makes to an understanding of the factors leading to the adoption of new constitutions in the context of free and fair elections, the procedural and political features of these episodes, and the relationship between constitutional replacements in democratic regimes, democratic theory, and democratization.
The chapter argues that the Treaty on the Prohibition of Nuclear Weapons (TPNW) is best understood, not as a third instance of post–Cold War humanitarian disarmament treaty but rather as the culmination of over 70 years campaigning against nuclear weapons. The chapter explores selected campaigns over those decades to explain the way in which they can fit within the rubric ‘humanitarian disarmament’. Two aspects of those campaigns stand out as instances of humanitarian disarmament: the first is the way in which the anti-nuclear campaigns were based on human health and environmental concerns from the beginning and the second is the pivotal role that civil society played in the campaigns from the very beginning. The immediate lead up to the TPNW is discussed in detail and two aspects of the treaty are discussed: first, the victim assistance provisions and how they differ from those in the preceding Convention on Cluster Munitions and second, the way in which the General Assembly (the negotiating forum) asserted its role in nuclear disarmament.
Especially after World War II, the British visibly improved, in Hong Kong, on what was already a successful authoritarian–legality-based governance structure dating back to 1842. As one looks more closely at this extended, political–legal experience, it becomes clear these prominent governance achievements were built on particular British constitutional foundations forged over many centuries. Due to the largely unwritten nature of the British Constitution, the way was left open for a scholar possessed of remarkable understanding to analyze and describe – indeed, reveal – the essence of this historically tempered set of resilient governance principles. That scholar was Professor A. V. Dicey. Our analysis draws pointedly on the work of John Rawls as we analyze how “Diceyan constitutionalism” fundamentally shaped the development of governance institutions within the new British colony – working in conjunction with what has come to be known as “Chinese familialism.” Our aim in this chapter is to examine: how Hong Kong’s authoritarian–legality governance system has come to pass; the essence of that system; how thoroughly it has been stress-tested; and how well it may be placed to cope with tests yet to come.
The transition of Taiwan’s authoritarian legality transformed not only the authoritarian rulers’ strategic commitment to law, but also the authoritarian regime itself. The experience of this transition resonates with those in other parts of the world in that civic activism is necessary for the transformation of authoritarian legality. This chapter suggests that student activism is one crucial dimension for understanding the dynamics of the authoritarian legality transition in Taiwan. Student activism in Taiwan is higher law-centric, institutionalized, and dialectic, with collaborative efforts across generations within and outside the legal system and the state apparatus. It blurs the boundary between the state and society as well as the one between social and student movements. However, common to many young democracies, this transition mechanism appears to be a slippery slope to populism, and thereby paradoxically weakens the function of positive law and the legislative body, especially amid heavily polarized politics. The post-transition struggles in this young democracy are similar to the democratic crises nowadays in the USA and Europe, where populism, divided society, and a growing tide of discontent toward liberalism and democracy have significantly diminished the functions of liberal and democratic legal institutions.
Since Xi Jinping came to power in late 2012, the party-state has moved to increase its control over virtually every important element of Chinese public life, including the media, the Internet, academia, civil society organizations, rights activists and lawyers, the legal profession, and arts and culture. The crackdown on civil society has been particularly damaging. Many of the top rights advocacy organizations in China have been targeted: some have been forced to scale back their work, while others have been shut down. In other words, whereas in the past, the party was willing to tolerate some degree of activity outside of party-sanctioned zones, it now wants a less crowded playing field, one in which it plays a larger role. At the same time, the CCP has also sought to tightly constrict foreign influences. Whereas law was once seen as a tool to facilitate foreign engagement in China, it is increasingly being used to control – or even block – international engagement that the Party sees as problematic. The passage of the Foreign NGO Law, which heavily regulates the activities of international NGOs and foundations, represents a new chapter of China’s engagement, both with domestic civil society, and with the international community.
The Meiji era (1868-1912) dramatically transformed Japan from a feudal nation into a great power in little more than three decades. This chapter analyzes the Meiji Constitution as an instance of authoritarian legality. It begins by describing the intellectual and historical origins of the Meiji Constitution, originating as a reaction to the threat of Western colonialism. It then goes on to explain the institutional choices that established the bureaucratic-authoritarianism that has come to dominate modern Japan. The formal rules of the Meiji Constitution, complemented by a set of informal rules that channeled the actual exercise of power, were critical underpinnings for modern Japanese political and economic development.
In this chapter we explore Vietnamese socialist legality by asking to what extent law is used instrumentally or has been transformed to produce a normative conception of justice reflecting Western liberal rule-of-law principles. Drawing on He and Warren, we characterize Vietnam as a deliberative authoritarian state. At the outset we note the adoption of socialist legality, and other relevant socialist principles and practices, and set out how these have been changed in the last thirty years. Subsequently, we explore whether party instrumentalism has ceded its authority to law and legal institutions through an examination of constitutional debate and lawyer advocacy targeting the criminal justice system, particularly wrongful conviction. While socialist legality and its successor, the socialist law-based state, have and continue to be reshaped and challenged, legal instrumentalism remains the potent force constraining rights-based liberal notions of legality in Vietnam.
Authoritarian legality is widespread, diverse, and enduring in East Asia. This chapter first addresses definitions of authoritarian legality in East Asia. Authoritarian legality falls between liberal rule of law and lawless autocracy. Cases include Hong Kong, Singapore, and more indisputably authoritarian polities in the region. Although exhibiting considerable variation, East Asian authoritarian regimes generally score relatively high in rule-of-law metrics and share several regionally distinctive legal–political characteristics.This chapter then turns to the paradox of why authoritarian rulers and regimes in East Asia would incur the risks and costs associated with increases in, or relatively high levels of, legality. It considers several functions that legality can perform for authoritarian rulers, and discusses examples from historical and contemporary East Asian cases: managing threats to order and security; fostering economic development; strengthening state capacity; legitimating authoritarian rule; and responding to demand for greater legality (from society and from elites, including within the regime).Finally, the chapter considers possible future trajectories for authoritarian legality in East Asia, again drawing on past and current examples: resilience and adaptation; transformation to democratic legality; regime political and legal decay; authoritarianism without legality; and lingering elements of authoritarian legality in a democratized polity.
The moral agent’s response to radical evil is a moral conversion or change of heart, inverting the order of incentives in the maxim of evil and giving priority to the moral incentive. Kant regards the moral incentive as distinctive, different from all others. Kant often refers to it as “duty,” but in the reception of Kant, this is often misunderstood as unemotional coldness of heart. Giving priority to the moral incentive for Kant is rather “goodness of heart,” involving caring for others and a proper balance between love and respect for them. Goodness of heart is also linked to virtuous nonmoral incentives. Also frequently misunderstood is how Kant understands acting from an incentive. Acting from an incentive, whether the moral one or a nonmoral one, is not a property of individual acts. Rather, it is a property of an agent’s disposition or character. Virtus noumenon is the character of a person who has undergone the change of heart. This manifests itself only as virtus phaenomenon, involving empirical incentives and habitual behavior, which may be a mere appearance of virtue but is also the only possible manifestation of true virtue. “Acting from duty” means something different in the Groundwork from what it means in later works, where it is related to the morality (not the mere legality) of actions and to the duty to act from duty. The change of heart is not a datable event in a person’s life but depends on the striving for moral progress, which can be known only by God who sees the entire course of a person’s life.
Some judges and scholars hold that within legal limits and across legal frameworks, there is just a legal void, a domain in which law is absent. I challenge the legal void thesis, arguing that law operates within the spaces law creates. Law governs the interstitial spaces that exist within legal limits and across frameworks through its possession and assertion of legitimate authority. Importantly, its spatially seamless assertion of legitimate authority relies on a relationship of mutual trust between law-giver and legal subject. The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes persistently uses the language of trust to characterize the position of the sovereign and other public officials. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials
This chapter examines private transnational law, which is argued to be a prominent form of transnational authority in the global political economy today. It approaches private transnational governance from the vantage points of international relations theory and international legal theory, arguing that neither captures the ontological significance of transnational corporations and elites as agents of transnational governance. The chapter draws upon critical political economy to advance a praxis conception of transnational law that better articulates the importance of these private sources of power and authority in the contemporary global political economy and opens up space for more progressive governance.
Borrowing Gerry Simpson’s taxonomy, it was and remains common to think of the Soviet Union as both a ‘great power’ and an ‘outlaw state’. Some historical accounts portray Soviet law as elaborate, specific and complex; but simultaneously, others portray ‘Soviet law’ as a sham. This essay argues that the Soviet approach to Cold War international law hews closer to the former image than the latter. It appears that Soviet faith in international law grew over the course of the Cold War, rather than diminished. This essay is a tentative sketch of the transformation of Soviet faith in law over the course of the Cold War.
This chapter considers the idea of constitutional identity as it pertains to the UK, viewed from the perspective of EU-UK relations. The analysis begins by consideration of the conceptual frame within which the relationship between UK and EU law evolved, and more especially the way in which supremacy was conceived in EU law and UK law, respectively. The discussion thereafter shifts to a more general consideration of the idea of constitutional identity in the UK. While the language of constitutional identity is not commonly used in judicial discourse, there are nonetheless a number of precepts that are central to the identity of the UK constitutional order. These include parliamentary sovereignty, constitutional statutes and the principle of legality, the rule of law, and devolution. The analysis then shifts to the consequences of a clash between EU law and UK law that impacts on one of the preceding UK constitutional precepts. These consequences may be interpretive or substantive in nature, and they are examined in turn. Brexit, however, means that it is unlikely that the issues raised in the last section of the chapter will be tested.