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JournalISSN: 0163-7479

Texas International Law Journal 

Routledge
About: Texas International Law Journal is an academic journal. The journal publishes majorly in the area(s): International law & Human rights. It has an ISSN identifier of 0163-7479. Over the lifetime, 373 publications have been published receiving 2930 citations.


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Journal Article
TL;DR: Zareing as mentioned in this paper examined the role of international regulatory cooperation in the development of international law and found that regulatory cooperation not only matters because of its effect on international life, but also because it is a new and increasingly important way that international rules develop.
Abstract: DAVID ZARING^ I. INTRODUCTION This article seeks to shed light on a major question of international law by examining a narrowly defined group of participants in international life. The question is, How do relevant international rules develop? Given the insolvency of the United Nations, the agonies of European unification, and the controversies surrounding the expansion of regional entities such as NAFTA, ASEAN, and NATO, one might be excused for harboring some pessimism concerning the future of the best known fora for international cooperation. That pessimism is augmented by the intuition that international laws are easy to break, even if they are not broken all of the time.1 This article, however, is optimistic about the future of international cooperation because that cooperation is blossoming among the world's regulators. One multibilliondollar global regulatory scheme promulgated by banking regulators and examined in this article may serve as some evidence of that blossoming. But regulatory cooperation not only matters because of its effect on international life, but because it is a new and increasingly important way that international rules develop. The regulatory cooperation studied here-involving banking, securities, and insurance regulators-is not the product of state arrangement, but of international agreement among domestic regulatory agencies that claim to be working for themselves, rather than for their governments.2 I have selected international financial regulatory cooperation as an example of the broader phenomenon of regulatory cooperation in international society because the financial sphere is composed of organizations with diverse ages and memberships,3 has enjoyed tangible successes,4 and has recently attracted the attention of a number of observers of the international scene.5 Three international financial organizations and their activities exemplify this new phenomenon of international regulatory cooperation across borders. The Basle Committee on Banking Supervision (Basle Committee), founded in 1974, consists of representatives of twelve central banks that regulate the world's largest banking markets.6 The Basle Committee seeks to create common standards of banking oversight. The International Organization of Securities Commissions (IOSCO), a decade-old organization of securities commissions, consists of representatives of over 100 of the world's securities regulators and pursues a similar sort of harmonization for the world's security rules. The newest of the organizations, the International Association of Insurance Supervisors (IAIS), first met in 1994. It consists of representatives from almost 100 of the world's insurance regulators interested in the international coordination of their activities.7 The Basle Committee, IOSCO, and IAIS are leading an administrative response to the dramatic globalization of the economy. This globalization is exemplified by the growth of the banking industry. For example, the banking assets of foreign branches of U.S. banks grew from $3.5 billion in 1960 to $378.8 billion in 1990.8 Likewise, foreign banking activity accounted for 22.9% of total U.S. banking assets in 1990,9 up from 15.2% in 1982.10 International banking has thus developed from a relatively unimportant sideline activity of a few major institutions to an important financial activity that accounts for a significant portion of the assets of a number of large banks. Similar changes have occurred in the international securities and insurance markets. The value of transactions in stocks and bonds of all types involving parties residing in different countries increased fourfold during the mid-1980s,11 while American reinsurers doubled the premiums they earned from foreign clients during that decade.12 However, as financial transactions become easier to make transnationally, the specter of financial institutions migrating to countries with lax regulatory regimes and thereby damaging the safety and soundness of financial markets elsewhere becomes, at least to regulators, more real. …

106 citations

Journal Article
TL;DR: Goldstone as mentioned in this paper argued that the Bill of Rights was one of the essential tools without which the relatively peaceful transition from this history of racial oppression and apartheid to a nonracial democracy would not have been possible.
Abstract: JUSTICE RICHARD J. GOLDSTONE^ I. INTRODUCTION The question posed in Professor Wright's article1 is whether a Bill of Rights matters. His conclusion is that it does matter and that "anything that promotes moderation, liberty, and equal justice under law is highly desirable."2 A Bill of Rights certainly mattered in South Africa. In a unanimous opinion, the recently established Constitutional Court of South Africa, quoting from the preamble of the 1993 transitional Constitution,3 described South Africa's past as that of "a deeply divided society characterized by strife, conflict, untold suffering and injustice" which "generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge."4 A Bill of Rights was one of the essential tools without which the relatively peaceful transition from this history of racial oppression and apartheid to a nonracial democracy would not have been possible. Without some guarantee of protection for the rights of minorities, the previous ruling white minority government would not have relinquished power to an inevitably black-controlled majority government. It was in that context that an extraordinary constitution-making process was established. This process gave birth to the South African Bill of Rights. The decision to incorporate a "full" Bill of Rights in the Constitution was not a difficult one for the African National Congress who, as long ago as 1955, adopted the Freedom Charter, which embodied the principle elements of a Bill of Rights. It was a different matter for the ruling National Party, which as recently as 1983, dismissed proposals for a Bill of Rights to be incorporated in the new Constitution of that year. However, after the banning of the African National Congress and other liberation organizations dramatically ceased in February 1990 and after the release of Nelson Mandela and other political prisoners, all of the major political parties, who joined to fashion a new constitution, agreed that any new constitution should contain such a Bill of Rights.5 II. THE CONSTITUTION-MAKING PROCESS I will only deal briefly with the difficult and lengthy negotiations conducted between the major political parties between 1990 and 1994 that led to the 1993 transitional Constitution and eventually to the 1996 Constitution.6 At the beginning of the process, the then minority, white-controlled government had control over all three organs of government, the civil service, and the security forces. More importantly, it had control over the financial and other resources of the state. Its desire and intent was to control the transition and to retain at least a veto power over the constitution-making process and, further, to maintain control over legislative and executive power for a substantial time in the future. This was quite unacceptable to those parties who represented the disenfranchised majority.7 They insisted upon a democratically elected Constitutional Assembly to draft the Constitution. In short, those parties representing the majority were not prepared to have a democratically elected government hamstrung by minority interests, nor to have an unelected government rule by decree. They demanded that not only the form of apartheid, but also its substance, be dismantled. It took almost two years before sufficient consensus was reached to enable formal negotiations to begin. A forum known as the Convention for a Democratic South Africa (CODESA),8 consisting of most of the political parties and other interest groups, was constituted to carry out these negotiations. Any political party or grouping which could establish that it had substantial support was invited to join CODESA. CODESA established working groups to consider and advise on many issues that needed to be resolved.9 Each party to the negotiations was represented by two delegates and two advisors in each working group. …

66 citations

Journal Article
TL;DR: In this paper, the authors explore the concept of judicial independence and put forth some basic distinctions that capture what most scholars seem to be reaching for in their definitions of the judicial independence.
Abstract: I. INTRODUCTION Many well-known studies of judicial independence in Latin America make what might be called monolithic and millenarian arguments. Keith Rosenn, for example, argues that all of Latin America suffers from a fairly permanent lack of judicial independence: "The sad reality is that the citadel of judicial independence has been perennially besieged in Latin America."1 Moreover, the explanations he puts forth for this observation are-in keeping with the diagnosis-equally monolithic and millenarian. He attributes this perceived shortcoming in part to universal and longstanding regional features: Latin America, he says, "is heir to the civil law tradition" of "weak" judges, and has a "culture and political tradition [that] are heavily authoritarian."2 He does, however, carve out an exception for Costa Rica.3 Such a diagnosis makes any hope of changing the situation seem remote at best, as Rosenn himself acknowledges: "[bjecause [Costa Rica's] conditions are not readily replicable in most of Latin America, the path to judicial independence is likely to continue to be slow and tortuous."4 Clearly, judicial independence has long eluded many of the countries of the region, and we should not present an overly rosy picture of the state of judicial independence in the region or underestimate the challenges faced by Latin American judiciaries. At the same time, it is important to recognize that judicial performance across the region is neither monolithic nor millenarian. There is a great deal of variation that scholars ignore at their peril. Indeed, ignoring the variation leads to misdiagnoses of potential causes: all the countries of the region, including Costa Rica, are to one degree or another "heirs to the civil law tradition" and yet they display very different levels of independence.5 The three countries with the most independent judiciaries-Uruguay, Costa Rica, and Chile-share some features to be sure, but Uruguay is the most secular of all the countries of the region, Chile among the most traditionalist Catholic countries of the region, and Costa Rica falls somewhere between these two extremes. Surely this poses some problems for Rosenn's account that we can trace the roots of a lack of independence back to "the hierarchical structure of the Catholic church."6 In contrast to overly uniform empirical diagnoses, however, the more theoretical work on the topic shows altogether too much variation. Given the proliferation of definitions of independence used by the various scholars, if there is any surprise in the literature it is that everyone agrees that, whatever independence might be, Latin America does not have it. In this article, I seek to bring some clarity to the conceptual thicket by cutting through many of these disagreements, and some nuance to the empirical arena by exploring some recent political and institutional developments that could affect judicial independence in Argentina and Brazil. The first section will explore the concept of judicial independence and put forth some basic distinctions that capture what most scholars (and citizens) seem to be reaching for in their definitions of judicial independence. The second will offer a general theory of the causal mechanisms giving rise to levels of judicial independence. The third will describe the connection between institutional mechanisms and judicial autonomy as defined in the first two sections. Finally, the fourth section will explore recent changes in Brazil and Argentina, with a view to predicting their potential impact on judicial autonomy in these two countries in the new millennium. II. DEFINING JUDICIAL INDEPENDENCE There are nearly as many definitions and taxonomies of judicial independence as authors writing about the subject. Owen Fiss, for example, classifies "notion[s]" of independence according to the entity judges are (or are not) independent from parties to the dispute, other judges, or "other governmental institutions" that may or may not be parties. …

64 citations

Journal Article
TL;DR: In this paper, the authors argue that structural adjustment policies are reminiscent of the old capitulations and why this resemblance is important for contemporary international law, and they argue that SAPs are the capitulations of the era of globalization and that they have been a disaster for the workers, peasants and young people in Zimbabwe.
Abstract: I. INTRODUCTION Structural adjustment policies (SAPs) used by the World Bank and International Monetary Fund (IMF) have been controversial for a number of years. Critical scrutiny of SAPS has increased in recent years as they have proliferated in Latin America and Africa as a common World Bank and IMF strategy to propel developing countries into the globalization era. Opposition to the use of SAPS has grown, and global civil society groups have even launched their own global crusade to "stand up" to SAPs.' Some randomly selected criticisms of SAPs indicate that opposition to them is passionate and widespread. Non-governmental participants at the 1995 International Women's Conference in Beijing signed a declaration stating that "we declare war against all IMF-dictated Structural Adjustment Programmes (SAPs). These programmes have traumatised whole continents, torn apart the social fabric of entire societies and are wreaking havoc on the lives of billions of people worldwide, especially women."z From Zimbabwe in 1998 came the following attack on SAPS: "For the last 8 years Zimbabwe has been implementing the World Bank and IMF Structural Adjustment policies or what they call in `polite and good language' reforms. They have been a disaster for the workers, peasants and young people in Zimbabwe."' An Ecuadoran civil society group argued in March 1999 that in Ecuador, "[a]fter 18 years of `stabilization and adjustment' policies, the results continue to be catastrophic for the poor, and the failure of structural adjustment couldn't be more evident."4 While proponents and opponents of SAPS debate their importance for the future of the developing world, the literature on SAPS has drawn my attention as an international lawyer back in time rather than forward into the future. The discourse on SAPS reminded me of the controversies that existed in the nineteenth and early twentieth centuries about the system of capitulations maintained by powerful European countries and the United States in non-Western regions, such as the Ottoman Empire, Japan, and Chinas At first, I brushed these comparisons aside, arguing that international society and international law have come too far for echoes of the capitulatory system to be heard in the dissonance caused by SAPS. But the essence of capitulations-powerful, capital-exporting countries imposing policies, rules, and institutions on weaker, non-European regions-continued to reappear as I thought more about SAPS and international law. Upon closer examination, I saw so many parallels that I began to see SAPS as the resurrection or reincarnation of political, economic, and legal thinking that created and maintained the system of capitulations in that earlier era. Such a reincarnation offers insights into the current condition and future direction of international law. In Parts II and III of this article, I describe the parallel features of the old capitulatory system and the system of SAPs now being used by the World Bank and IMF. Underneath these parallel features flow deeper political, economic, legal, and moral currents that appear in both the context of capitulations and SAPs. In Part IV, I argue that SAPs are the capitulations of the era of globalization. In making this argument, I am not condemning either the system of capitulations or the use of SAPS; rather, I want to focus on the underlying forces that make SAPS reminiscent of capitulations and why this resemblance is important for contemporary international law. Capitulations and SAPS are kindred in their fundamental message: to engage fully in international relations, your behavior has to conform to expectations, policies, and rules established by the prevailing powers. While the fundamental message appears to underscore the basic themes of realism as a theory of international relations, it also has consequences for international law. A very important consequence is that perceived changes in international law during the era of decolonization, such as the rejection of the "standard of civilization" as a driving force of international law, have been more apparent than real. …

54 citations

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YearPapers
20201
20192
20185
20176
201613
20153