Jaye Ellis

International Regimes and the Legitimacy of Rules: A Discourse-Ethical Approach

How, given the absence of a universally shared set of values at the international level, may international rules possessing legitimacy be articulated? That is the question addressed by this article. Those who argue that international normativity enjoys relative independence from power relations or self-interest are confronted with the absence of a value consensus capable of undergirding a true sense of community at the international level and from which valid and legitimate rules may be derived. Claims that a community encompassing all of humanity is emerging have been made throughout history, and have been subjected, on the one hand, to charges of utopianism and idealism, and, on the other, to the criticism that such a community would simply mask the existence of fundamental disagreements regarding values and interests. (1) Many IR theorists interested in the problem of normativity have turned to social constructivism in an effort to place their project on more solid foundations. (2) The insights derived from these explorations are many and varied, and the uses to which they are put and the theoretical conclusions to which they contribute cover a wide spectrum. It may be useful to place the projects of these various authors into three categories in order better to identify some of the common themes uniting them and to understand the contributions that they make to international-relations theory. (3) According to one conception, which is inspired by democratic-peace theory, the fact of cooperative relations among certain states, particularly liberal democracies, leads to strong identification and a sense of mutual trust among those states. Based on these observations, attempts are made to identify the conditions for further community building at the international level. According to another conception, which draws on critical international theory and on a cosmopolitan approach to international relations, there is cause to be wary of arguments that the transmission of liberal-democratic values is a precondition to community building at the international level. Instead, a means for consensus building is sought that is not predicated on the universalizability of a set of values held by one group of states, (4) particularly if the group of states in question--namely, liberal democracies--wields disproportionate power in international society. The goal of critical cosmopolitanism is not to disseminate one worl dview but rather to build a consensus that leaves room for difference and diversity while being sufficiently substantial to provide the basis for the validity of norms. (5) A third conception holds that norms derive their validity not from commonly held values and a sense of community, but rather from intersubjective understandings that are constructed by agents in the course of interaction, and from which practices, rules, and institutions are constituted. While these intersubjective understandings normally constitute the background against which interactions take place, they can be critically examined by the agents who employ them and subjected to processes of argumentation through which they can be confirmed, modified, or reconstituted on the basis of reasons that participants in these processes accept. This article begins with a brief discussion of the theoretical approaches taken within each of these three conceptions. I then briefly explore social constructivism in international relations, and more particularly a social-constructivist conception of the regime as a site of international governance. I then discuss Jurgen Habermass discourse ethics and seek to identify points of convergence between Habermass project and international-relations theory. Finally, I argue that the regime, as described in social-constructivist terms, may operate as a forum for discourse and deliberation and as such may permit the articulation of international rules and norms grounded in consensus and therefore enjoying legitimacy. …

Shades of Grey: Soft Law and the Validity of Public International Law

Soft law is often seen as a way to overcome certain problems of legitimacy in international law, notably the weaknesses of a voluntaristic conception of international law’s validity. Other perceived benefits of soft law include flexibility, speed of adoption and modification, and even effectiveness. Yet soft law is seen by others as a threat to law, because it effaces the border between law and politics. This paper explores different approaches to the boundary between law and not-law which seek both to maintain this boundary and to reconceptualise it in a way that better anchors the validity of international legal rules.

Extraterritorial Exercise of Jurisdiction for Environmental Protection: Addressing Fairness Concerns

Teck v. Pakootas revisits the infamous Trail smelter, which made history in public international law. This more recent case should be set to make history as well, due to the manner in which the issue of extraterritorial exercise of jurisdiction was handled. The substantive result reached in the courts seems fair, reasonable, and appropriate: a notorious polluter, Teck Cominco Metals Inc., is called to account by the United States Environmental Protection Agency and required to study the feasibility of cleaning up a site it contaminated by dumping effluents in a transboundary river over the course of several decades. Yet, both courts that examined this case on the merits failed to understand the ramifications of this extension of the Environmental Protection Agencys jurisdiction across the Canada–United States border. This article begins with a doctrinal analysis of jurisdictional rules in private and public international law, and then proceeds to evaluate those rules with the help of insights from scholarship on global administrative law and international public authority.

The Precautionary Principle: From Paradigm to Rule of Law

In the context of my doctoral dissertation, which is to be submitted to the Faculty of Law at McGill University, Montreal, Canada, I explore the role and function of the precautionary principle in the development and application of international environmental law. This question is one aspect of the larger dissertation project, which focuses on a series of soft law norms, including the common concern of humankind, common but differentiated obligations, and permanent sovereignty over natural resources. In the dissertation, I seek to trace the normative influence of these principles on the development of environmental law in the contexts of Antarctic environmental protection, protection of the ozone layer, the control of trade in endangered species, and high seas fisheries conservation. The recent elevation of the precautionary principle to the level of a binding obligation in a series of international environmental conventions has been widely heralded as a major achievement. However, it raises questions concerning the effectiveness that the principle, as a binding rule of international law, is likely to have. In pursuing this inquiry, the principle may be considered in three different guises: as an influential paradigm; as an aspirational norm; and finally as a rule of law. On one level, the precautionary principle signifies a new approach to environmental decision-making. It represents a recognition that the environmental effects

The Role of Translation in Transnational Governance

One of the greatest challenges facing environmental governance is the interaction between science and governance. Translation is proposed as a means to analyze these interactions. To achieve some consensus on the quality of translations, norms and criteria must be developed in order to guide translation, namely through linkage institutions that promote productive misreadings of scientific information by governance authorities and permit judgments regarding the quality and utility of these misreadings. Given the multiplicity of sites – state and non-state – that have access to scientific and other environmentally relevant information, the structures and processes through which translation of scientific knowledge takes place will be subject to ongoing contestation. Nevertheless, the acknowledgment that scientific knowledge must be interpreted and its meaning reconstituted within governance systems may foster a healthier division of labor between science and governance, one in which political and legal authorities assume their responsibility to make judgments and decisions.

The King Is Dead, Long Live the King? A Reply to Matthias Goldmann

Matthias and I clearly agree on a great deal: a voluntarist approach to defining public international law is unsatisfactory; any rule of recognition in international law must provide a basis for a link between legality and legitimacy; one of the central contributions that law can make to international society is procedural in nature. However, our respective positions on the utility of a binary distinction between law and not-law have significant impacts on our approaches. We are both concerned, I think, with preserving the autonomy of politics – with ensuring that politics (or, more specifically, international public authority) do not come to be invaded by law. My own concern with preserving the autonomy of law leads me to two conclusions with which Matthias would take issue: that international public authority must be constituted by law; and that the rules which those authorities administer must be treated differently, depending on whether or not they meet a set of formal criteria that legal rules must satisfy. I will also address Matthiass discussion of Lon L. Fullers internal morality of law and Benedict Kingsburys concept of publicness in international law. I believe that both sets of concepts may be useful to Matthiass argument and deserve further attention. First, however, I would like to explore what it means, or could mean, to cut off the head of the king.

Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes

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