International Legal Interpretation as Lawmaking

International law sometimes develops through great lawmaking moments, such as treaty adoption. It also develops through the quotidian interpretations that develop the meaning of those laws over time. The paper argues that interpretive interactions at the implementation stage and at later points in the life of a treaty or customary norm are an important form of “post hoc” international lawmaking, both as a doctrinal and practical matter. Descriptively, these interactions attract interest and lobbying by non-state actors, including business groups. Theoretically, this process-based account supports critical and constructivist views of interpretation, and extends the literature on pre-treaty norm entrepreneurship. Normatively, interpretive contests matter because they implicate rules of law values. Looking to the future, because the 21st century has not featured many big international lawmaking moments, the small ones may matter more: older regimes may attract more interpretive attention.

International Law and ‘The Natural’

‘The actual’ is often misrepresented in legal and economic reasoning as “natural, necessary, or just”. Some have explored how the actual is presented as necessary; others have explored how the actual is presented as just. Less often have scholars examined ‘the natural’, particularly in international law.

Kennedy explored how actual was presented as natural in economic thought; Funkenstein and Bourdieu observed the arbitrary assignment of ‘naturalness’ in the concept of reason. On their cue, this work examines two sets of assumptions, broadly categorizable as ‘states of nature’ and ‘forces of nature’. Classic ‘states of nature’ include Hobbes’ war of all against all, anthropocentrism, and Smith’s barter system; but there are more nuanced ‘states of nature’, such as concepts of ‘value’, Ricardian comparative advantage, or ‘dignity’. Classic ‘forces of nature’ include ‘supply and demand’, ‘development as progress’, ‘naturalness as inevitableness’, ‘natural’ sexuality, or ‘reason’.

Re-examining the Case for Non-Territorial Autonomy

Recent liberal political philosophy expanded the set of groups who can justifiably wield governmental authority in liberal-democratic states. Yet most views remain territorial. While scholars drew on early twentieth-century figures to consider non-territorial autonomy as a means of resolving conflicts earlier in this century, non-territorial autonomy is, with few exceptions, rarely considered as a serious possibility for a justified form of authority allocation in states. This work explores whether the principles used to justify other forms of sub-state authority (e.g., those related to self-determination, democracy, epistemology, or unique local interests) can justify non-territorial autonomy for at least diaspora nations who seek some control over particular subjects where we reject the assumption that government authority must be territorial. If so, this suggests that proposals for entrenching non-territorial powers in some multinational states are necessary and justify scrutiny.

Safeguarding the Uniformity of EU Law: A Bottom-Up Approach to Revision of Cilfit

Since 1982, the CJEU’s Cilfit judgment is leading in delineating the national courts’ obligation to refer preliminary questions to the CJEU, and thereby safeguarding the uniform interpretation of EU law. There are, however, clear indications that a long-due revision of Cilfit is underway. The surrounding debate has thus far focussed on one central issue: when is a question so unclear that it must be answered by the CJEU? On the basis of 85 qualitative interviews and systematic case law analyses on four diverging areas of law in three Member States, this paper shows that with this focus, multiple considerations of national courts to refer or not are neglected. Following from this bottom-up assessment of the national courts’ referral practice, a more comprehensive revision of Cilfit is suggested which is both feasible and effective in safeguarding the uniform interpretation of EU law.

Territory and sovereignty of the State in the face of global constitutionalism and the new global subjects

One of the main effects of globalization in the legal sphere has been to undermine a model of a self-referential State that is closed against any external interference in its internal relations, in some way breaking both the very close connection between law and sovereignty, which has long conditioned modern legal thought, and the relationship between public law and territory.
The aim of the contribution is to investigate the current significance of territory and sovereignty, as fundamental legal categories of modern public law, in particular in the light of the increased distance between politics (understood as the ability to make decisions) and power (understood as ability to implement them). This latter is located less and less in the States, but rather in the supranational global space and in the “new global sovereigns”, namely in all those subjects who manage to take part or to impose decisions of planetary political importance.