Las cláusulas de elementos esenciales de los acuerdos comerciales de la UE: ¿Contribuye la política comercial de la UE a la protección de los Derechos Humanos?

Este artículo examina de una manera crítica la política europea de incluir cláusulas de ‘elementos esenciales’ en acuerdos comerciales, como principal medio para la realización del nexo comercio-derechos humano exigido por la obligación de la UE de articular sus relaciones externas para la promoción de sus valores fundamentales. Después de estudiar la anatomía de dichas cláusulas, el artículo se propone analizar las críticas que estas cláusulas han generado en relación con (i) el hecho de que no todos los acuerdos comerciales de la UE contienen estas cláusulas, (ii) su redacción y alcance, y (iii) su evaluación e implementación. El artículo concluirá con una valoración de la efectividad y legitimidad de esta política y de la manera en la que influye sobre la credibilidad del programa normativo de las relaciones exteriores de UE. Recibido: 17 abril 2015 Aceptado: 11 junio 2015 Publicación en línea: 15 abril 201

负责任商业行为与企业赔付的国家联络点：20年的成就和挑战

National Contact Points for Responsible Business Conduct, the remedy mechanism built into the OECD Guidelines for Multinational Enterprises, have just celebrated 20 years. This Perspective reviews their main assets and achievements since their creation and offers suggestions on how to enhance their contribution to remedying corporate impacts worldwide

Dispute Settlement for Labour Provisions in EU Free Trade Agreements: Rethinking Current Approaches

While labour provisions have been inserted in a number of EU free trade agreements (FTAs), extant clauses are widely perceived as ineffective. This article argues that there is a need to rethink the dispute settlement mechanisms related to labour provisions if their effectiveness is to be increased. It proceeds in three steps. First, we look at the current state of the art of labour provisions in EU FTAs in terms of legal design and practice and argue that the current arrangements are ill-equipped to foster compliance with labour standards. Second, we explore avenues to enhance the design of FTA labour provisions by reconsidering basic elements of the dispute settlement structure. Examining US FTA labour provisions, we highlight the importance of a formal complaint mechanism, on the one hand, and the availability of economic sanctions, on the other. Based on a review of existing practice, we contend, however, that these elements alone are not sufficient to effectively enforce FTA labour provisions. We argue that for FTA labour provisions to be effective, the current state-to-state model of dispute settlement needs to be complemented by a third-party-state dimension and that, additionally, there are good reasons to consider a third party–third party dispute settlement component. We ground these reflections in experiences with already existing instruments in other areas, namely investor-state dispute settlement and voluntary sustainability standards. Thirdly, we discuss options to better connect the dispute settlement mechanisms of FTA labour provisions to other international instruments for labour standards protection with a view to creating synergies and avoiding fragmentation between the different regimes. The focus here is on the International Labour Organization’s supervisory mechanism and the framework of the OECD Guidelines for Multinational Enterprises

What elements of the rule of law can be put to use at international level?

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Perspectives for the emergence of an international rule of law in a global governance context - normative benchmarks for a global rule of law.

The rule of law has historically been considered as an ideal of social ordering, and is increasingly invoked in relation to the international context. Doubts remain as to the meaning of the concept and as to its applicability to the international realm, the regulation of which is increasingly described in terms of a pluralistic and heterogeneous global governance . This PhD thesis shall first attempt to clarify the notion of rule of law in the global governance context. This clarified notion shall then be tested against real-life instances of global governance, namely in food safety standard-setting. The thesis shall conclude by delineating a normative framework for reflecting upon global governance from a rule of law perspective, and offer prospects as to the possible emergence of a global rule of law . Finally, it shall address practical recommendations to global governance actors as to how to promote a global rule of law.CONTENTS IV ILLUSTRATIONS VI ACKNOWLEDGMENTS VII ABBREVIATIONS IX I. INTRODUCTION 1 I.1 CAN ANOTHER THESIS ON THE RULE OF LAW SAY ANYTHING NEW? 1 I.1.1 A contingent ideal: The rule of law between chaos and capture 1 I.1.2 Globalization: The new oppression? 8 I.2 AIM AND METHOD 11 II. THE RULE OF LAW AS AN IDEAL 16 II.1 THE TERMS OF THE DEBATE 17 II.1.1 Historical underpinnings 18 II.1.2 The functions of the rule of law: Individual freedom v. social project 21 II.1.3 The various plies of the rule of law 26 II.1.3.1 Thin and formal conceptions 29 II.1.3.1.1 Legality 29 II.1.3.1.2 Legal certainty 31 II.1.3.1.3 Institutional and procedural elements 32 II.1.3.1.4 Critique: The formal rule of law falls short of the ideal 37 II.1.3.2 Thick and substantive conceptions 43 II.1.3.2.1 Substantive limitations to government power 44 II.1.3.2.2 Critique: Legal substance is a matter of philosophy and politics 49 II.1.4 Conclusion: The art of legal systems 51 II.2 THE RULE OF ‘VALID’ LAW 54 II.2.1 Rule by law and rule of the law 55 II.2.2 Authority as the decisive factor 59 II.2.3 Validity as determinative of the law’s authority 65 II.2.3.1 Definition of legal validity and the shaping of legal systems 66 II.2.3.2 Validity as justification: The translation of validity into authority 69 II.2.3.3 Different conceptions of validity and whether they justify authority 79 II.2.3.3.1 Jusnaturalism 80 II.2.3.3.2 Realism 86 II.2.3.3.3 Positivism 90 II.2.3.3.3.1 The rule of recognition and the basic norm 92 II.2.3.3.3.1.1 Hart’s rule of recognition: Collapse into realism? 92 II.2.3.3.3.1.2 Kelsen’s basic norm: Collapse into jusnaturalism? 96 II.2.3.3.3.1.3 Conclusion: Faith as the foundation of the rule of law? 101 II.2.3.3.3.2 Raz’ service conception of authority 102 II.2.3.3.3.3 Inclusive legal positivism 107 II.2.3.3.4 Conclusion 111 II.3 A TRIPLE JUSTIFICATION: LEGALITY, EFFECTIVENESS, LEGITIMACY 113 II.3.1 Legalistic and social dimensions of validity: A tridimensional theory 116 II.3.2 Tridimensional validity and its consequences for the rule of law 127 II.3.2.1 Blurring perceptions of legal validity and authority 128 II.3.2.2 A cumbersome validation and justification process 135 II.3.2.3 Tridimensional validity: Beneficial on balance 138 II.3.3 The three components of validity and their justificatory potential 141 II.3.3.1 Legality: Cognitive justification 141 II.3.3.2 Effectiveness: Instrumental justification 148 II.3.3.2.1 The existence of effects 149 II.3.3.2.2 Effectiveness as performance 150 II.3.3.2.3 Effectiveness as acceptance 153 II.3.3.3 Legitimacy: Axiological justification 154 II.3.3.3.1 Legitimacy as process 159 II.3.3.3.2 Legitimacy as content 166 II.3.4 On the conditions for legality to act as a proxy for the rule of law 175 II.3.5 Conclusion on the rule of law as a function of tridimensional legal validity 183 II.4 FROM THEORY TO PRACTICE: THE RULE OF LAW AS A DIALECTICAL IDEAL 190 II.4.1 Dialectics, jurisgenerative politics, and connectedness 191 II.4.2 Can the rule of law be ‘promoted’? The case of the European Union 205 II.4.2.1 Promoting the rule of law in the EU 208 II.4.2.2 Promoting the rule of law in candidate countries 211 II.4.2.3 Promoting the rule of law in EU Member States 214 II.4.2.4 Promoting the rule of law abroad 224 II.4.2.5 Conclusion 233 III. PROMOTING THE RULE OF LAW IN GLOBAL GOVERNANCE: A BENCHMARKS APPROACH 234 III.1 THE INCREASING RELEVANCE OF GLOBAL GOVERNANCE 235 III.2 CURRENT APPROACHES TO INTERNATIONALIZING THE RULE OF LAW IDEAL 238 III.3 IS PRIVATE GLOBAL GOVERNANCE IN ANY WAY A LEGAL PHENOMENON, AND DOES IT WARRANT A RULE OF LAW CRITIQUE? 246 III.3.1 The private side of global governance 246 III.3.2 Law and private global governance 253 III.4 TOWARDS A BENCHMARKS APPROACH TO THE PROMOTION OF THE RULE OF LAW AT GLOBAL LEVEL 262 III.4.1 Global governance and legality: A plea for transparency 265 III.4.1.1 The question of knowledge 267 III.4.1.2 The question of mandate 270 III.4.1.3 The question of rationality 279 III.4.1.4 Conclusion: Legality, fragmentation and pluralism 281 III.4.2 Measuring effectiveness in global governance 283 III.4.2.1 Changing behavior 284 III.4.2.2 Solving problems 289 III.4.2.3 Setting general norms 294 III.4.2.4 Conclusion: Making global governance instrumental for society at large 296 III.4.3 Legitimacy: Is democracy possible at global level? 298 III.4.3.1 The meaning of legitimacy in global private governance 298 III.4.3.1.1 Democratic v. output legitimacy 300 III.4.3.1.2 Global democracy as public accountability 304 III.4.3.1.2.1 The question of the political community: demos v. public 305 III.4.3.1.2.2 Prospective and retrospective accountability 307 III.4.3.2 A glimpse at the practice 313 III.4.3.3 Concluding remarks 318 III.5 CONCLUSION: THE BENCHMARKS APPROACH IS NOT ANOTHER CHECKLIST 318 IV. THE VALUE AND HUMILITY OF LAW 323 BIBLIOGRAPHY 333 LEGISLATION AND TREATIES 333 CASE-LAW 333 SECONDARY SOURCES 334nrpages: 381status: publishe

National Contact Points for responsible business conduct and access to remedy: Achievements and challenges after 20 years

National Contact Points for Responsible Business Conduct, the remedy mechanism built into the OECD Guidelines for Multinational Enterprises, have just celebrated 20 years. This Perspective reviews their main assets and achievements since their creation and offers suggestions on how to enhance their contribution to remedying corporate impacts worldwide

In Search of a Balanced Relationship: Public and Private Food Safety Standards and International Law

The purpose of this paper is thus to analyze how the interconnection between international food safety standards and the rules of free trade is playing out and what the end-result of such interplay is for the potentially conflicting objectives of free trade and food safety. In performing this analysis, the paper opposes the merits of two types of food safety standards, public and private standards, in order to determine which of them is more likely to constitute an appropriate regulatory model for transnational food safety in the context of the WTO-led liberalization of the international trade in food products. The paper opposes two concrete examples of such standards, namely the public Codex Alimentarius standards, which have been assigned a formal role by the WTO; and the private GLOBALG.A.P. Standard for agricultural products, which is developed in isolation from international trade rules.status: publishe